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PETITIONER: S.S. MOGHE & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT08/05/1981

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) CHANDRACHUD, Y.V. ((CJ) SEN, A.P. (J)

CITATION:  1981 AIR 1495            1981 SCR  (3) 875  1981 SCC  (3) 271        1981 SCALE  (1)891  CITATOR INFO :  R          1982 SC 101  (28)

ACT:      Constitution of India 1950, Articles 14,16, 32 and 309.       Petitioners  in 1979  assailing validity  of promotion given  to   respondents  between   1968  and  1975-No  valid explanation for delay in filling petition-Denial of relief.      No regular cadre and hierarchy of posts-No rules laying down  modes  of  appointment/promotion  to  posts-Government whether competent  to fill  posts by  securing  services  of suitable persons.      Constitution of  a new service-Method of appointment to various posts-President  whether competent  to prescribe the methods by  which vacancies  in the different categories are to be filled.      Aviation Research  Centre  (Technical)  Service  Rules, 1976, Rules, 6. 7, 8 and 12-Validity of.      Civil Service  Regulations, Article  26(7)(iii)-Initial constitution of service-Absorption of deputationists-Whether appointment by transfer.

HEADNOTE:      The Aviation Research Centre was a temporary and ad hoc organisation set  up in  1962 for  carrying out  the work of collecting intelligence  by the  use of highly sophisticated techniques.  For  manning  this  Task  Force,  persons  with experience in  the specialised nature of the work were taken on deputation  basis from  different sources,  such  as  the Intelligence Bureau,  the Departments  of  Defence  Science, Wireless Planning ’and Coordination, the Directorate General of Civil  Aviation and the Police Cadres of different States and  they   were  grouped  together  to  form  the  ARC.  To supplement the  man power  some persons  were also  directly recruited to  the organisation on a purely ad hoc basis. The ARC organisation  was initially  treated as  an extension of the Intelligence  Bureau. In  February 1965,  it was brought under the  control of  the Director-General of Security. The administrative  control  over  the  organisation  which  was originally vested  in the  Ministry of  External Affairs and later with  the Prime Minister’s Secretariat was transferred to  the  Cabinet  Secretariat  in  1965.  The  sanction  for

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continuance of  the temporary  organisation was  accorded by the Government  from year  to year till the year 1971 when a decision was  taken by  the Government  to make  the  ARC  a permanent Department.  The finalisation of the principles to be adopted  for constitution of the new permanent Department took considerable  time and  it was  only on  April 26, 1976 that  the   President  of  India  promulgated  the  Aviation Research Centre (Technical) Service Rules ]976 providing for tho constitution  of a  new service  the  Aviation  Research Centre (Technical) Service. 876      Rule 6  of  the  said  Rules  dealt  with  the  initial constitution of  the new  ARC permanent Service and provided that all  persons holding, as on the appoint ed day, any one of the categories of posts specified in rule 4, whether in a permanent  or   temporary  or  officiating  capacity  or  on deputation basis,  shall be  eligible for appointment to the service at  the initial  constitution thereof.  Rule 7  laid down the principles to be applied for fixation, of seniority of those  appointed to  the various posts at the time of its initial constitution, while Rule 8 dealt with the filling up of  vacancies   in   various   grades   remaining   unfilled immediately after  the initial  constitution of  the service and  all  vacancies  that  may  subsequently  arise  in  the Department. Rule  12 provided  that in regard to matters not specifically covered  by the rules or by order issued by the Government, the  members of the service shall be governed by general rules,  regulations and orders applicable to persons belonging to the corresponding Central Civil Service.      The petitioners, who were persons recruited directly to the ARC organisation during the period between 1965 and 1971 challenged in  their writ  petition,  the  validity  of  the promotion given  to respondent  nos. 8  to 67  from the year 1968  onwards  officers  whose  services  were  borrowed  on deputation. They  contended  that  the  deputationists  were occupying the  posts in  the Department  only on  an ad  hoc basis and such ad hoc appointees who were having the benefit of  lien  in  their  parent  departments  and  were  getting promotions in  those departments  had no  claim whatever  to seniority or  promotions in  the borrowing  department  viz. A.R.C. They  also  assailed  the  Aviation  Research  Centre (Technical) Service  Rules as conferring arbitrary powers on the controlling  authority to  equate  the  ad  hoc  service rendered by  the deputationists  in the ARC with the regular service rendered  by persons  like the  petitioners who  had been directly recruited to the Department on a regular basis which  resulted  in  permanently  blocking  all  the  future chances of the petitioners in matters of promotion and other service  benefits.  The  Rules  were  highly  arbitrary  and infringed Articles  14 and  16 of  the Constitution since it was based  on illegal  treatment of  unequals as  equals  by equating persons  functioning on  a mere  ad hoc  basis with those holding  posts in the organisation on a regular basis. Rule 6(2)  conferred arbitrary  and unfettered powers on the Screening Committee  and suffered from the vice of excessive delegation. Rule  7 in so far as it empowered the Department to reckon the seniority of the deputationists by giving them the benefit  of the  ad hoc  service rendered by them in the ARC as  well as  the prior  service put  in by them in their parent departments  was arbitrary.  Rule  8(1)  enabled  the deputationists to  consolidate the  illegal advantage gained by   them   at   the   initial   constitution   by   further promotions/appointments to  still higher  posts in  the ARC, and by  specifying the  method of recruitment to the various posts in  the Service  and fixing  a quota  as  between  the

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vacancies to  be filled  up by  promotions and  those to  be filled up  by direct recruitment/deputation or re-employment in Schedule  II of  the rules,  the deputationists have been treated on  a par  with regular  departmental personnel  and this involved a clear violation of Articles 14 and 16 of the Constitution. It  was further contended that the position of the  deputationists   being  that   of  persons  permanently transferred from  the parent  departments to  the ARC, under Article 26  of the  Civil Service  Regulations, such persons appointed by  transfer shall  be ranked below all the direct recruits as well as the promotees already functioning in the Department and  the seniority  list dated  November 6,  1978 having been  drawn up  in  contravention  of  the  aforesaid principle laid  down in  Article 26, the said list should be declared to be illegal and void. 877      The case  of the petitioners was resisted by respondent No. 1,  who contended  that the  appointments made by direct recruitment were  merely temporary  and ad hoc in character. While the  deputationists were  persons with rich experience and  long   years  of  service,  the  direct  recruits  were inexperienced and  new to the job. The delay in promulgation of the rules was due to the fact that because of the special features of  the Department  and the sensitive nature of the functions to  be discharged by it, various circumstances and factors had  to be taken into account before the draft rules were finally  cleared by  the several  Ministries concerned. There is no principle of law prohibiting the absorption in a newly constituted  Department of persons who are functioning on deputation  in a  temporary organisation  which was later constituted into  a permanent  service.  The  Service  Rules extend equal  treatment to  all categories  of employees who were in position on the crucial date viz., April 26, 1976 in the  matter  of  absorption  as  well  as  determination  of seniority  at  the  initial  constitution,  irrespective  of whether they  were direct  recruits or  deputationists.  The Screening Committee  prepared  the  seniority  List  of  the persons found suitable for absorption in accordance with the provisions contained  in Rule  6(2) read  with Rule  7.  The Rules cannot  be said  to be  arbitrary or  violative of the principles of equality enshrined in Articles 14 and 16.      Dismissing the writ petition, ^      HELD: l(i)  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. [900 H-901 A]      (ii) The  challenge raised  by the  petitioners against the validity of the promotions given to respondent nos. 8 to 67 during  the period  between 1968 and 1975 is liable to be rejected on  the preliminary  ground that  it is most highly belated. There  is no valid explanation from the petitioners as to  why  they  did  not  approach  this  Court  within  a reasonable time  after those promotions were made. 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 before  this Court  the promotions that were effected during the years 1968 to ]975. [900 F-G]      (iii) There  is also  no satisfactory  explanation from the petitioners  as to  why no  action at  all was  taken to challenge  the   validity  of   the  promotions   given   to respondents nos.  8 to 67 for a period of nearly seven years

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subsequent to  the judgment  of the High Court in 1972. [901 F]      Rabindra Nath  Bose and  ors. v. Union of India and ors [1970] 2 S.C.R. 697 referred to.      2. So  long as there was no regular cadre and hierarchy of  posts   and  no   rules  laying   down   the   mode   of appointment/promotion to  those posts, it was perfectly open to the  Government to  fill up  the posts  by  securing  the services of  persons who  in its  opinion were  by virtu. Of their experience  and qualifications,  best suited for being on trusted  with the specialised kinds of functions attached to the various posts. [902 E] 878      In the  instant case the petitioners had been appointed as ACIOs-II  only on  a temporary  and ad  hoc  basis.  Such appointments did  not confer  on them any rights even to the posts of  DFOs. It had also been categorically made clear to them in  the letters  containing the  offers of  appointment that such  appointments will not confer on them any right to be permanently  absorbed in the post if and when it was made permanent. There  was also  not even  any executive order or administrative instruction  declaring the post of DFO as the feeder category  for appointment  to the  higher posts.  The petitioners, therefore,  had no  legal right  or  claim  for being appointed  by promotion  to the higher posts of ACIO-I (FO), ATO, etc. [902 F-G]      3(i) When  a new  service is proposed to be constituted by the  Government, it is fully within the competence of the Government to  decide as a matter of policy the sources from which the  personnel required for manning the service are to be drawn. [903 F]      (ii) It  is in  the exercise  of the  said power,  that provision has  been made by sub-rule (1) of Rule 6, that all the persons  who, as  on the  appointed  day,  were  already working in  the ARC  organisation on  a temporary and ad hoc basis and  had thereby  acquired valuable  experience in the specialised kinds  of work would be eligible for appointment to the new service at the stage of its initial constitution. Equal opportunity  was  given  to  all  to  get  permanently appointed in  the new  ARC (Technical)  Service  subject  to their being  found fit by the Screening Committee under sub- rule (2)  of Rule  6. The  provision cannot  be said  to  be violative of Articles 14 and 16. [903 G, 904 A]      4(i) The  provision for  Constitution  of  a  Screening Committee for  adjudging the  suitability of  the persons in the field  of eligibility  for permanent  appointment to the service is absolutely reasonable. [904 D]      (ii) The  power conferred  on the controlling authority to issue  general or  special instructions  to  a  Screening Committee is  really  in  the  nature  of  a  safeguard  for ensuring that the rules relating to the initial constitution of  the   service  were   applied  fairly  and  justly.  The controlling  authority   is  the  "Secretary  Department  of Cabinet Affairs".  When supervisory  powers are entrusted to such a  high and  responsible official,  it is reasonable to assume that  they will  be exercised  fairly and judiciously and not  arbitrarily. The  contention that the provisions of sub-rule (2) of Rule 6 suffer from the vice of arbitrariness or excessive delegation therefore, fails. [904 E]      5(i) When recruitment to the new Service was being made from two  different classes of sources, it was necessary for the Government to evolve a fair and reasonable principle for regulating the inter se seniority of the personnel appointed to a  new Department.  What has been done under Rule 6 is to give credit  to the full length of continuous service put in

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by all  the appointees  in the concerned grade, whether such service was rendered in the temporary ARC organisation or in other departments  of the Government. The criterion applied, namely the  quantum of  previous experience possessed by the appointees measured  in terms  of the  length of  continuous service put  in by them in the concerned or equivalent grade is perfectly  relevant to the purpose underlying the framing of tho  rule. The  principle laid  down  in  rule  6(2)  for determination of 879 inter se seniority was quite reasonable and fair and did not involve any  arbitrary or  unfair discrimination against the petitioners. [905 C-E]      In the  instant  case  while  the  petitioners  had  no substantive lien  in respect  of or title to any post in any department, the  deputationists were  having a  lien on  the posts  held   by  them  in  their  parent  departments.  The petitioners, therefore,  formed a different class consisting of persons  who were virtually being recruited for the first time into  regular  Government  service,  as  distinct  from respondents 8  to 67  who had  been holding  posts in  their parent departments  for several  years on  regular basis who formed a separate class. [905 B]      6.  The   provisions  contained  in  Rule  7  that  the seniority of  persons appointed  on permanent  basis in each grade at the initial constitution of the service shall be in the order  in which  they are  shown in  the  relevant  list prepared by  the Screening  Committee in accordance with the provisions of  Rule 6  was upheld  as  perfectly  valid  and constitutional. [905 F-G]      7. At the time of constituting a new service and laying down the  mode of  appointment to  the various  posts it  is fully within  the  powers  of  the  President  of  India  to prescribe the  methods by  which vacancies  arising  in  the different categories  of posts  in the  department should be filled up.  In the  instant case  this is precisely what has been done  by Rule 8 and the provisions of Schedule II. [906 B]      8. The  draft rules were prepared by the Directorate of ARC and  submitted to the Government in 1972 itself but on a detailed scrutiny  being made  it was  found that  the  said draft required substantial modification in several respects. Revised rules  were, therefore, drafted and submitted to the Government late  in 1974.  The time  taken in finalising the rules was  due to the fact that intensive examination of all the relevant aspects had to be done by the various concerned Ministries before  the draft rules could be finally approved and issued.  The  plea  of  malafides  put  forward  by  the petitioners is not established. [906 H-907 B]      9. Article 26(7)(iii) of the Civil Services Regulations applies to cases "where a person is appointed by transfer in accordance  with   a  provision  in  the  recruitment  rules providing for such transfer in the event of non-availability of candidates  by  direct  recruitment  or  promotion".  The absorption  of  the  erstwhile  deputationists  in  the  ARC (Technical) Service  at the time of its initial constitution was  not   by  such  transfer.  The  provisions  of  Article 26(7)(iii) are, therefore not attracted. [909 F-G]      10. The  provisions of  Rule 6(3)  and Rule  7 will  be strictly conformed,  to both in letter as well as in spirit, by respondents  nos.  1  to  7.  In  case  it  is  found  on examination  that   the  ranking  assigned  to  any  of  the petitioners in the impugned seniority list dated November 6, 1978 is  not consistent with the principles laid down in the aforementioned rule,  necessary action should be immediately

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taken to rectify the said defect. If the promotional chances of any  of the  petitioners have  been adversely affected by reason of  any defect in the seniority list, such promotions should  also  be  reviewed  after  following  the  requisite procedure. The  petitioners may  bring to  the notice of the first respondent  specific instances,  if any,  of deviation from the  principles enunciated  in Rule  6(3)  and  Rule  7 resulting in  incorrect assignment  of seniority and rank by sub- 880 mitting representations.  Such representations, if received, will be  duly examined and appropriate orders passed thereon as expeditiously as possible. [910 F-911 A]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 119 of 1979.       (Under Article 32 of the Constitution of India)      V.M. Tarkunde,  G.L. Sanghi,  Mrs. Jayashree Wad, G.D). Gupta and Miss Anita for the Petitioners.      K. Parasaran, Solicitor General and Miss. A. Subhashini for Respondents 1-2 and 4-7.      Dr. Y.S.  Chitale, A.T.M.  Sampath and  P.N. Ramalingam for the other appearing Respondents.      The Judgment of the Court was delivered by      BALAKRISHNA ERADI,  J. In  this  petition  filed  under Article  32  of  the  Constitution,  the  petitioners-31  in number-who are all officers serving in the Aviation Research Centre  (for   short,  the   ’ARC’)  have   challenged   the constitutionality of  Rules 6 to 8 of the "Aviation Research Centre  (Technical)  Service  Rules,  1976"  issued  by  the President of  India under  the proviso to Article 309 of the Constitution, as  also the  legality  and  validity  of  the "absorption" of  respondents  Nos.  8  to  67  in  the  said Department pursuant  to  the  impugned  Rules.  There  is  a further prayer in the writ petition to declare the Seniority List dated  November 6, 1978 (Annexure ’G’) published by the Department  as   illegal,  unconstitutional  and  void.  Yet another relief  claimed by  the petitioners  is that all the promotions granted  to respondents  Nos. 8  to 67 in the ARC service from 1968 till 1978 should be declared by this Court as illegal  and void,  and that  a writ  of mandamus  or any other appropriate  writ, order or direction should be issued to respondents  Nos. 1  to 7 the Union of India, the Cabinet Secretary, the  Director of  Department  of  Personnel,  the Director General  of Security,  the Director  of ARC and the Adviser (Technical),  A.R.C., respectively-to constitute the ARC afresh  in accordance  with law  and  to  rearrange  the seniority in the Service in conformity with law.      The  petitioners’   case  is  that  shortly  after  the formation of  the ARC  in 1963 the petitioners were directly recruited to  the said  department on a regular basis during the  period  between  1963  and  1966  in  the  category  of Assistant Central Intelligence officers Grade II, (which has since been redesignated as Deputy Field officers (Tech.) 881 (for short  DFO) under  the impugned Rules while respondents Nos. 8  to 67 are officers whose services have been borrowed on deputation  to the  ARC from  some departments of Central Government and  from the  Police Cadre of State Governments. The petitioners  contend that  by virtue  of  their  regular appointments in the ARC, they were, as of right, entitled to be  promoted  to  the  higher  posts  of  Assistant  Central Intelligence officer,  Grade-I-now called  the Field officer

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(Tech.)-Deputy      Central       Intelligence       officer (Tech.)/Assistant Technical  officer  subject  only  to  the right of  the Department to supersede those found unsuitable for such  promotions.  However,  instead  of  promoting  the petitioners to  the vacancies  that  arose  in  such  higher categories  of   posts,  the   Department  filled  up  those vacancies by  granting  promotions  to  the  deputationists. thereby   illegally   denying   to   the   petitioners   the opportunities legitimately  due to them for promotion in the Department. It  is contended  by the  petitioners  that  the deputationists were  occupying the  posts in  the Department only on  ad hoc  basis and  such ad  hoc appointees who were having the  benefit of  lien in their parent departments and were getting  promotions in  those departments  had no claim whatever  to   seniority  or  promotions  in  the  borrowing Department, namely,  the ARC.  On this basis the petitioners have raised a .. challenge in this writ petition against the legality of the various promotions given to respondents Nos. 8 to 67 in the year 1968 and thereafter.      A draft  combined seniority  list of  Assistant Central Intelligence officers  Grade-II (Tech.)  working in  the ARC was published  in March  1971 (Annexure  ’A’),  wherein  the officers on  deputation as  well as  those who  are directly recruited in the ARC had all been included and the seniority of the  deputationists had been fixed by taking into account the total  length of  service put  in by them in the rank of ACIO in  their parent  departments as  well as  in the  ARC. According  to  the  petitioners,  the  said  list  had  been prepared in  violation of the principle that the same period of  service  of  a  Government  servant  cannot  be  legally considered  twice   over  for   service  benefits   in   two Departments, namely, the parent department and the borrowing department. G      A Writ  Petition-Civil Writ  Petition No. 1020 of 1971- was filed  in the  Delhi High  Court by three of the present petitioners complaining  against the promotions given to the deputationists and  challenging the validity of the combined seniority list  published by  the Department in 1971. During the pendency  of that  writ petition  the impugned seniority list of 1971 was substituted by two separate 882 lists-one consisting  of the  direct recruits  and the other consisting of  deputationists. Thereupon.  the writ petition before  the   Delhi  High  Court  was  got  amended  by  the petitioners therein  by incorporating objections against the new seniority  lists published  by the  Department. When the case came up for hearing, counsel appearing on behalf of the Union  of   India  submitted  before  the  High  Court  that statutory  rules  governing  the  service  were  then  under preparation, that  the arrangements  till then made were all purely  on   ad  hoc  basis  and  the  whole  question  will eventually be  finalised after the rules were framed. In the light of  the said submission, the High Court dismissed that writ petition  observing that  since no  rules governing the Service had been framed and the appointments in question had all been  made on  purely ad  hoc basis, the petitioners did not have  at that point of time any legitimate grievance and the writ petition was, therefore, premature. It is submitted by the  petitioners that, contrary to the assurance given to the Delhi  High Court,  the Department  did not  take  early action for framing the rules but instead continued to confer on  the   deputationists  the  benefit  of  further  illegal promotions and  it was  only after all the higher posts were filled  by  promoting  deputationists  that  the  Department ultimately promulgated  the impugned statutory Service Rules

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on April  26, 1976.  Strong reliance  has been placed by the petitioners on  office Memorandum  dated December  22,  1959 issued by the Ministry of Home Affairs (Annexure ’C’) laying down certain general principles for determining seniority of various categories  of persons employed in Central Services. According to  the petitioners,  in the  absence of statutory rules governing  the conditions  of service  of personnel in the ARC,  the principles  laid down  in the aforesaid office Memorandum were  applicable to  the said  Department. It  is urged  that   under  clause   (viii)  of   the  said  office Memorandum, it  was incumbent  on the authorities to replace all the  deputationists who,  according to  the petitioners, were holding  the posts  in the  Department only  on ad  hoc basis, by persons approved for regular appointment by direct recruitment, and  until the  deputationists were so replaced the deputationists  had to  be placed  in bloc  below person directly recruited to the grade. The petitioners have sought to derive  support from Annexure ’D’ which is a letter dated October 15,  1971 addressed  by the Department of Personnel, Cabinet Secretariat  to the  Director General  of  Security, wherein it  is pointed out that persons appointed to a grade on deputation  basis are  appointed for  a specific  period, after the  expiry of  which they are required to revert back to   their   parent   departments   and   since   the   said deputationists do not have any locus standi in the borrowing departments, they are not entitled to 883 promotions/confirmations in  the borrowing  departments. The letter proceeds  to state  that the  question of fixation of their inter  se seniority  of such  deputationists vis-a-vis other categories  of  officers  of  a  particular  grade  by preparing a  combined seniority  list does  not,  therefore, arise. However, it was also added in the next para. graph of the letter  that though  deputationists are  not entitled to promotion to  a higher grade, yet they can be considered for appointment on  deputation to  the  higher  grades,  if  the Recruitment  Rules   of  the   higher  grade   provide   for appointment on  deputation basis,  and in the absence of the Recruitment Rules,  it is  for the  appointing authority  to decide whether  a person  already serving as a deputationist in the  lower grade  should be considered for appointment on deputation  to   the  higher   posts.   According   to   the petitioners, on  the basis  of the  principle enunciated  in this letter, persons serving on deputation in the ARC should all have  been repatriated  to their  parent departments  as soon as  direct  recruits  became  available  in  sufficient number and  the action taken by the Department in filling up the vacancies  in the higher categories, namely, ACIOs Grade I (Field  officers)  and  Assistant  Technical  officers  by granting promotions  to respondents Nos. 8 to 67 was totally illegal. The  petitioners have  alleged  that  some  of  the deputationists  were   holding   posts   in   their   parent departments which  were inferior  in rank in comparison with the posts  of DFOs.  It is contended by the petitioners that the grant  of such promotions to the deputationists amounted to conferment  of double  benefits on  them since  they were simultaneously   earning    promotions   in   their   parent departments. Some  of the petitioners who had joined the ARC in 1963  as DFOs  became eligible  for promotions in 1968 by completing the five years’ qualifying period, but instead of promoting them  to  the  category  of  Field  officers,  the Department filled up the vacancies which became available in 1968  and   subsequent  years   by  promoting  some  of  the respondents who  were only  deputationists. The  petitioners contend that the deputationists were serving in the ARC only

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on ad  hoc basis  and hence they were not eligible under the terms of  the Memorandum  dated December  27, 1959 (Annexure ’C’) for  the grant  of  any  promotions  in  the  borrowing department.  It   is  alleged   that  while  effecting  such irregular  promotions,   the  petitioners   were  not   even considered and they were illegally denied the opportunity of competing with  the respondents  for promotions to the posts of Field  officers. In  1975, a further injustice is said to have been  done  to  the  petitioners  when  twenty  of  the deputationists functioning  as Field  officers were promoted as Assistant  Technical officers  (for short,  ATOs).  Writ- petitioners Nos. 1 and 4 made representations 884 complaining   against    those   promotions,    but    those representations were  rejected by  the Director,  ARC by his Memorandum  dated  September  8,  1975  (Annexure  ‘E’).  On December 1, 1975, seven more deputationists were promoted as ATOs.  The   petitioners  have  raised  the  plea  that  the aforesaid promotions  of the deputationists were illegal and discriminatory since  the Department  had fixed an arbitrary date, namely,  December 1972  for computing  the  qualifying period of  three years  for eligibility to be considered for promotions. It  was only  after most  of the  posts  in  the higher categories of ATos and FOs had come to be occupied by the  deputationists  as  a  consequence  of  such  irregular promotions that  the impugned  Rules were promulgated by the President of India on April 26,1976. Through the said Rules, the   Department   has   purported   to   absorb   all   the deputationists/respondents Nos.  8 to  67 in the ARC Service as  TOs/ATOs/FOs  and  thereby  legalised  all  the  illegal promotions granted  to those deputationists. This, according to the  petitioners,  has  been  done  with  the  mala  fide intention of giving favoured treatment to a deputationist at the expense of the direct recruits like the petitioners. The petitioners  have   put  forward  the  contention  that  the impugned Rules  are arbitrary  and  discriminatory  and  are violative of  Articles 14  and 16 of the Constitution. It is their further  plea that  the wholesale  absorption  of  the deputationists is a colourable and unconstitutional exercise of power  and the  impugned Rules  in so far as they provide for such  absorption are  in the  nature of  a fraud  on the powers conferred  on the President by the proviso to Article 309 of the Constitution. The petitioners point out that even after the constitution of the Service by the impugned Rules, no seniority list was published for more than two years, but promotions to  the posts  of  FOs  were,  in  the  meantime, granted to several of the deputationists. It is contended by the petitioners  that Rule  6 of  the impugned Rules confers arbitrary powers  on the controlling authority to equate the ad hoc  service rendered  by the  deputationists in  the ARC with  the   ’regular’  service   rendered  by  persons  like petitioners  who   had  been   directly  recruited   to  the Department on  a regular  basis and  this  has  resulted  in permanently  blocking   all  the   future  chances   of  the petitioners  in  matters  of  promotion  and  other  service benefits.  According   to  the   petitioners  the   "initial constitution" of  the Service  purported to be brought about under the  Rules is itself highly arbitrary and it infringes Articles 14  and 16 of the Constitution since it is based on illegal treatment  of unequals as equals by equating persons functioning on  a mere ad hoc basis with those holding posts in he  organisation on  a regular  basis. Another  ground of attack put forward by 885 the petitioners  is that  Rule 6(2)  confers  arbitrary  and

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unfettered powers  on the  Screening Committee  and hence it suffers from  the vice  of excessive  delegation. It is also urged that  the said sub-rule is unconstitutional because it enables the  controlling authority  to retain  to itself  an arbitrary  power  to  control  the  decision-making  of  the Screening  Committee   by  means   of  "general  or  special instructions ’  thereby  rendering  it  impossible  for  the Screening  Committee  to  function  in  an  independent  and objective manner.  According to  the petitioners,  Rule 6(2) enables the  controlling authority  to impose  its will  and whims on  the Screening  Committee. The  petitioners  allege that the  controlling authority  had  imposed  its  favoured treatment to  deputationists and  displayed a discriminatory attitude against the regular departmental personnel like the petitioners  by   treating  the   ad  hoc   service  of  the deputationists in  the ARC  as regular service and absorbing them in  the posts or grades to which they have been granted illegal promotions.  The petitioners  have urged  that  Rule 6(2) in  so far  as it  vaguely uses  the words  "continuous appointment in  the grade"  has vested an arbitrary power in the Department to take into consideration the ad hoc service rendered by  the deputationists in grades to which they have no right  in law  and hence  the said  provision  is  highly arbitrary and  violative of  Article 14 of the Constitution. Alternatively, it  is submitted  by the petitioners that the aforesaid words "continuous appointment in the grade" should be reasonably  construed to  mean "continuous appointment on regular basis  in the  grade" in  which event alone the rule can be regarded as free from the vice of arbitrariness. Rule 6(6) has also been attacked by the petitioners as infringing Articles 14 and 16 of the Constitution on the ground that it enables the  Screening Committee to discriminate against the direct  recruits   by  treating  them  on  a  par  with  the deputationists. It  is contended by the petitioners that the said sub-  rule confers  power on the Screening Committee to absorb such  of the deputationists in a lower grade who were found to  be unsuitable for absorption in a higher grade and thereby completely  blocks the  chances of  persons like the petitioners to get promotions into such lower grades despite their being  found suitable  for  such  promotions.  Another point raised  by the petitioners is that it was incumbent on the Screening  Committee before  it took  its final decision regarding the  absorption of personnel in the various grades to give an opportunity to the petitioners to represent their case, and  inasmuch as  this procedure was not followed, the decisions taken  by the  Screening Committee  were in  clear violation  of   the  principles   of  natural  justice.  The petitioners have also voiced a grievance that 886 even though  the Screening  Committee had prepared a list of the officers  whom it  had decided  to absorb in the various grades, the  Department did not disclose the contents of the said list  to personnel  working in  the ARC  but  kept  the matter secret.      Reiterating their  contention that the promotions given to respondents  Nos. 8  to 67 during the period from 1968 to 1978 were  all illegal  on the  ground that these promotions had  been   made  without   considering  the  cases  of  the petitioners, the  petitioners have  put forward further plea that the  publication of  the impugned  Seniority  List  was deliberately delayed  by the  Department  till  November  6, 1978. with intent to favour the deputationists, some of whom were promoted as ATOs on November 5, 1978. On this basis, it is contended  that the  action taken  by the  Department  in publishing the  Seniority List  dated November  6, 1978  was

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mala fide.      Another argument  advanced by  the petitioners  is that Rule 7 in so far as it empowers the Department to reckon the seniority of  the deputationists  by giving them the benefit of the ad hoc service rendered by them in the ARC as well as the prior service put in by them in their parent departments is arbitrary.  The petitioners  con tend that this deviation from  the   principle  uniformly  followed  for  fixing  the seniority in  all other  departments of  the  Government  of India namely  those laid  down in the Home Ministry’s office Memorandum dated  December 22,  1959 was  wholly unjustified and as  a result  thereof the direct recruits in the ARC are subjected to  a differential  treatment resulting  in  gross prejudice to  them with  out there  being any rational basis for separate  classification. There  is also  an  allegation that in  fixing  the  seniority  of  personnel  as  per  the impugned gradation list dated November 6, 1978, even service rendered by  the deputationists  in non-comparable and lower ranks has  been wrongly  taken into  account. Rule  8(1) has been  attacked   by  the   petitioners  as   empowering  the controlling  authority   to  enable  the  deputationists  to consolidate the  illegal advantage  gained by  them  at  the initial constitution  by further  promotions/appointments to still higher  posts in  the ARC.  It is  pointed out  by the petitioners that  while specifying the method of recruitment to the  various posts  in the  Service and fixing a quota as between the  vacancies to  be filled  up by  promotions  and those to  be filled  up by  direct recruitment/deputation or re-employment in Schedule II of the rules the deputationists have  been  treated  on  a  par  with  regular  departmental personnel, and  this involves  a clear violation of Articles 14 and 16 of the Constitution. 887      Lastly, it  is contended  that even  if  it  is  to  be assumed that  the decision  taken by  respondents I  to 7 to retain the  deputationists in  the Departmental  the time of the initial  constitution of the ARC was valid, the position of the deputationists would, in law, be only that of persons permanently transferred  from the  parent departments to the ARC and  under Article  26 of the Civil Service Regulations, such persons appointed by transfer shall be ranked below all the  direct  recruits  as  well  as  the  promotees  already functioning in  the Department. The petitioners contend that since the  Seniority List  dated November  26, 1978 has been drawn up  in contravention  of the  aforesaid principle laid down in  article 26,  the said list should be declared to be illegal and void.      Detailed counter-affidavits  have been  filed on behalf of respondent  No. 1  and respondents Nos. 13 to 16, 22, 25, 28 and  31. In  the counter-affidavit  filed  on  behalf  of respondent  No.   1,  by   the  Deputy   Secretary,  Cabinet Secretariat, it  is stated that the Aviation Research Centre was initially set up as a Sensitive Security organisation in the year  1963 on  a purely  temporary basis  by way  of  an extension of  the Intelligence Bureau. In February 1965, the ARC, along  with two  other schemes,  was brought  under the control of  the Director General of Security. The Department was continued by the Government on temporary basis from year to year  till 1971  when the Government, after reviewing all the relevant  factors, took  a  decision  to  make  the  ARC permanent. The  administrative  control  over  the  ARC  was originally vested  in the  Ministry of  External Affairs and later with  the Prime  Minister’s Secretariat till 1965 when it was transferred to the Cabinet Secretariat. There were no Recruitment and  Cadre Rules  for the  ARC during the period

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when the  Department was  functioning  on  a  temporary  and purely  experimental   basis  and   a  number  of  officers, including respondents Nos. 8 to 67, were taken on deputation from other  Central and  State Government Departments to man the various  posts in  the organisation.  Some persons, like the petitioners, were also directly recruited as ACIOs-II on a purely  temporary and ad hoc basis against temporary posts in the ARC. The contention of the petitioners that they were regularly recruited  as DFOs  in the  ARC is  denied by  the Government- respondents.  It is  submitted in  the  counter- affidavit of respondent No. I that the appointments given to the petitioners  were merely  ’ ad hoc in character and this had been  clearly specified  in the  Memos  issued  to  them containing the  order of  appointment that  the appointments were temporary  and would  not confer  on them any right for permanent appointment  if  and  when  the  posts  were  made permanent. It is stated that the Memos issued 888 to all  the  petitioners  were  on  identical  terms  and  a specimen copy of the Memo issued to the petitioners has been appended to  the counter  affidavit of  respondent No. 1, as Annexure ’R-1’.  The further submission made in the counter- affidavit of  the first  respondent is that in the ARC there was no regular cadre nor any Recruitment Rules prior to 1976 and as  and when  posts in  the various  categories  in  the grades were  sanctioned, they  were  filled  up  by  getting suitable hands  with the  requisite qualifications  and some experience from  other departments  on deputation  and  some vacancies were also filled up by direct recruitment.      Briefly sketching  the history  of the formation of the ARC,  the   first  respondent   has  stated   that  the  ARC organisation was  set up  in the  wake of Chinese aggression that took  place in  the winter of 1962 and its primary role was to  collect intelligence  by employing  the most  modern highly sophisticated  techniques and  to furnish it to other Agencies like  the Special  Frontier Force  and the  Special Security Bureau  which were  in need of such intelligence in order to  give better  protection  to  our  borders  against external aggression.  For manning  such an  organisation, it was absolutely  essential to  secure the services of persons possessing the  requisite experience,  technological  skill, special attitude  and  ability.  Initially,  therefore,  the various posts  in the ARC organisation, which was started on a mere  experimental basis,  were filled  up  by  taking  on deputation officers  from the  intelligence Bureau and other departments which  had the expertise in related fields, such as, the Department of Defence Science, Wireless Planning and Coordination and Directorate General of Civil Aviation. With the gradual  expansion in  the activities of the ARC, it was found that  the aforesaid  Departments could  not supply  on deputation basis  enough hands  for meeting the needs of ARC and hence,  the direct recruitments from the open market had also to  be made.  How ever,  all the  appointments made  by direct recruitment  were merely  temporary  and  ad  hoc  in character. While  the deputationists  were persons with rich experience and  long years  of service,  the direct recruits were inexperienced and new to the job. In the circumstances, the higher posts of FOs, ATOs and Assistant Directors had to be filled  up  by  ad  hoc  appointments  from  amongst  the deputationists who by virtue of their long experience in the particular type  of work  were considered suitable for those posts.  As   and  when   direct  recruits   gained  adequate experience,  several   of  them   were  also  given  ad  hoc appointments to  such higher posts. It is further averred in the counter  affidavit that  in making  such appointments to

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the higher posts, only considerations of public interest and maintenance of efficiency in the 889 functioning  of   the  Department   had  weighed   with  the appointing authority.  The allegation  put  forward  by  the petitioners that  the  direct  recruits  were  discriminated against has  been denied  by the first respondent as totally unfounded, and  it is  stated that  all such appointments to the various technical posts in the higher categories of FOS, ATOS and  Assistant Directors were made by the Department on the recommendations  of the  duly constituted DPCs/Selection Committees. Some  of the  deputationists were also appointed to  the   higher  post  when  they  got  promotions  to  the corresponding  ranks   in  their   parent  departments.  The Department treated  both the  direct recruits as well as the deputationists as  ad hoc  apponintees in the ARC with equal rights, and  equal weightage was given to both categories of employees in  respect of  length of service in a given grade irrespective of  whether or  not it  was rendered  wholly in ARC. As  regards the  petitioners’ contentions  based on the MHA Memorandum dated December 22, 1959, it is pointed out in the counter-affidavit  that the general principles laid down therein had  no application till the matter of filling up of temporary posts in a temporary department. Stress is laid in the counter-affidavit  on the  fact that simultaneously with the constitution of the ARC as a regular department, the ARC (Technical) Service  Rules, 1976  were  promulgated  by  the Government and  it has  been submitted  that the  principles laid down  in the aforesaid Memorandum did not get attracted to the  new service  inasmuch as  it is clearly specified in the Memo  itself that the principles enunciated therein will not be  applicable for  such Services  and posts  for  which separate principles  have been  already  issued  or  may  be issued thereafter  by the  Government, The allegation of the petitioners that  they had not been considered for promotion at the  time when  the vacancies  in the  categories of DFOs were filled  up during the year 1968 to 1975 has been denied by the  first respondent  and it  is averred in the counter- affidavit that  the direct recruits were given promotions in the higher  posts when  they were  found suitable by the DPC for ad  hoc promotions  to the  grades of  FOs (Tech.), etc. Reliance  is   placed  by   the  first   respondent  of  the observations made by the Delhi High Court in its judgment in Civil Writ  Petition No. 1020 of 1971, filed by three of the present petitioners, that no discrimination could be said to have been made against the direct recruits either in drawing up the  seniority list of 1971 or in the action taken by the authorities to  filling up  some  of  the  higher  posts  by appointing deputationists.  Though a  decision was  taken by the  Government   in  1971  to  make  the  ARC  a  permanent department, and  steps to  frame rules were also immediately initiated,  the   draft  rules   could  be  finalised  after intensive examination  by various  concerned Ministries only by April 1976 when the Rules were 890 promulgated. The allegation made by the petitioners that the promulgation of  the rules was deliberately delayed in order to confer  an undue advantage on the deputationists who were granted promotions to the higher grades in the meantime, has been categorically  denied by  the first  respondent in  its counter-affidavit. The  delay in  promulgation of  the rules was due  to the fact that because of the special features of the Department  and the sensitive nature of the functions to be discharged  by it,  various circumstances and factors had to be taken into account before the draft rules were finally

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cleared by the several Ministries concerned.      The  first   respondent  has  stated  in  the  counter- affidavit that  equal treatment  had been  meted out  to the direct recruits  and the  deputationists in  the  matter  of promotion/appointment from  the grade  of AClO-1  to that of ATO. The  allegation of  the petitioners  that the  DPC  had fixed the  crucial date  for eligibility  for promotion from the category  of ACIO-I  to the grade of ATO in an arbitrary manner so  as to exclude the petitioners from consideration, has f) been denied by the first respondent and it is averred that the  crucial date  was determined  by the  DPC on  each occasion  by   taking  into   consideration  the  number  of vacancies likely to be available for promotion/selection and the number of persons who could reasonably be considered for such promotions/selection.  It is  pointed out by tile first respondent that  when deputationists  were selected  by  the DPC, they were ’appointed’ to the higher posts on deputation and it  was not  a process of promotion as wrongly contended by the petitioners.      In reply  to the  challenge  made  by  the  petitioners against Rule  6 of the impugned Rules which provides for the initial constitution  of the  new service to be known as the Aviation Research Centre (Technical) Service it is submitted by the  first respondent  that there  is no principle of law prohibiting the absorption in a newly constituted Department of persons  who are functioning on deputation in a temporary organisation which  was later  constituted into  a permanent service. It  is also  submitted by the first respondent that the provision  in the  impugned rules  for absorption of the deputationists in  the ARC  (Technical) Service  was Made in public interest  since  it  was  found  that  the  continual retention  of  the  deputationists  who  possessed  valuable experience and  had long  association with  the organisation was absolutely  necessary for  the efficient  functioning of the  Department.   The  first  respondent  states  that  the impugned rules  extend equal  treatment to all categories of employees who  were in position on the crucial date, namely, April 25, 1976, in the matter of absorption as 891 well  as   determination  of   seniority  at   the   initial constitution,  irrespective  of  whether  they  were  direct recruits or  deputationists. Since  the direct recruits were all occupying  the posts  in the ARC only on a purely cd hoc basis, they  had no  legal right  to be appointed in the new Department  and   merely  by   reason  of   their  temporary appointments as ACIO-II (Tech.) in the ARC organisation they could not  automatically  become  members  of  the  new  ARC (Technical) Service which was constituted for the first time with effect  from April 26, 1976. All persons working in the ARC in  various temporary  posts as  on April 26, 1976, were given the  option to  express their willingness or otherwise to be  absorbed in  the new  Department. The  petitioners as well as the direct recruits were treated alike in the matter of the assessment of their suitability for absorption by the Screening Committee  and on  being found suitable, they were absorbed either  in the same posts which they were occupying immediately prior  to April  26, 1976  or in  a lower  post, subject to  availability of  permanent posts.  The Screening Committee prepared  the seniority  list of the persons found suitable for  absorption in  accordance with  the provisions contained in  Rule 6  (2) read  with Rule  7 of the impugned Rules. The counter-affidavit of the first respondent goes on to state  that the  seniority list  published on November 6, 1978 had  been prepared  strictly  in  accordance  with  the provisions of  the impugned Rules, the names of the officers

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having been  arranged with  reference to  the dates of their continuous appointment  to the concerned grade. Printing out that the  benefit of  the  ad  hoc  service  rendered  in  a particular grade  has been  given not  only  to  the  former deputationists but also to the direct recruits in the matter of determining their inter se seniority in the grade of FOs, it is  submitted by  the first  respondent that  there is no merit in the petitioner’s contention that the seniority list of November  6, 1978  has been  prepared in a discriminatory manner so  as to violate Article 16 of the Constitution. The first respondent  has further  submitted that  the charge of discrimination has been made by the petitioners on the basis of an  erroneous assumption  that the  petitioners  were  in regular service  in the ARC prior to the promulgation of the impugned Rules  and that hence they had a superior claim for promotion  to   a  higher   post  in   comparison  with  the deputationists. The  petitioners had been appointed/promoted to various  grades in  the ARC only on ad hoc basis prior to April, 26  1979 and  the benefit  of  such  ad  hoc  service rendered by  them had  been given  to the petitioners in the same way  and to  the same extent as service rendered by the former deputationists  on deputation.  The first respondent, therefore, submits that the provisions of Rule 6 892 cannot be  said  to  be  ’arbitrary  or  violative’  of  the principle of equality enshrined in Articles 14 and 16 of the Constitution.      Repelling the  contention of  the petitioners  that the principle  for  fixation  of  seniority  laid  down  in  the impugned  Rules  is  illegal  for  the  reason  that  it  is inconsistent with  the guidelines and general principles for determination  of   seniority  in   the   Central   Services enunciated  in   MHA  Memorandum  dated  December  22,  1959 (Annexure ’C’)  the first  respondent has  submitted in  the counter affidavit  that there  is no  substance in this plea since  it  has  been  specially  stated  in  the  Memorandum (Annexure ’C’)  itself that the principles contained therein will not  apply  to  "such  services  and  posts  for  which separate principles  have already  been  issued  or  may  be hereafter issued  by Government". The allegation made by the petitioners  that   the  framing   of  the   rules  and  the constitution   of.   the   ARC   (Technical)   Service   was deliberately delayed  with a view to give undue advantage to the deputationists  has been  denied by the first respondent as baseless  and  untrue.  Prior  to  1971,  there  were  no permanent posts at all in the ARC because the Department was temporary and  all the temporary posts were being sanctioned on a  year to  year basis.  Action to  frame the  rules  was initiated shortly  after the  decision was  taken in 1971 to make the  ARC a permanent Department. The first set of draft rules was  prepared and  submitted to  Government  in  1972. Since it  was found  to be  defective in  certain aspects, a revised draft  was prepared  in 1974. Since the whole matter had to  be subjected  to extensive and intensive examination by various  Ministries  taking  into  account  all  relevant factors, the  finally approved  rules could  be  promulgated only in April 1976.      The first  respondent has  submitted that Rule 6 of the impugned Rules  provides equal treatment to all the officers in position  in the ARC on the crucial date in the matter of absorption and  determination of  inter se  seniority at the time of  initial constitution  of the  service. The  service rendered by  the former  deputationists  in  various  grades prior to  their absorption  in the ARC could not be ignored, as their  services were required by the Department in public

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interest. It  is pointed  out that  if the contention of the petitioners that only persons who are regularly appointed in the ARC  could be absorbed in the service is to be accepted, then none  of the  petitioners could  have been  permanently appointed in  the ARC Technical Service, as the appointments held by the petitioners prior to the constitution of the ARC Service in 1976 were purely temporary and ad hoc in 893      The further  plea put  forward by  the petitioners that Rule 6(2)  of the  impugned Rules  suffers from  the vice of excessive delegation of power has been stoutly denied by the first respondent.  The Screening  Committee was  required to act within  the  frame-work  of  the  scheme  of  absorption envisaged in the Rules and the Committee had followed proper guidelines  which  had  been  approved  by  the  controlling authority, namely,  the  Secretary,  Department  of  Cabinet Affairs, Cabinet  Secretariat. The  provision  enabling  the controlling authority  to  issue  general  instructions  was incorporated in  the rules  for the purpose of ensuring that the rules  relating  to  the  initial  constitution  of  the service  were   applied  uniformly   and  judiciously.   The contention put  forward by  the petitioners  that  the  said provision renders the functioning of the Screening Committee nugatory, is  C refuted  by the  first respondent  as  being devoid of  any merit. The allegation made by the petitioners that the  deputationists were  given illegal promotions from time to  time has also been denied in the first respondent’s counter-affidavit as  totally baseless.  It is admitted that during  the  period  when  the  ARC  was  functioning  as  a temporary Department.  some of  the deputationists  who were initially appointed  as (Tech.)  were subsequently appointed to higher posts on deputation basis but the first respondent submits that  there could  be no  valid  objection  to  such appointments, as  they had  all  been  made  in  the  public interest and  in accordance with the general instructions on the subject.  Referring to  the provisions contained in Rule 5(3) of  the impugned Rules regarding the exercise of option by officers willing to be absorbed on permanent basis in the ARC, it  is submitted in the counter-affidavit that the said provision was  equally applicable to direct recruits as well as  the   erstwhile  deputationists.   Since  the  temporary appointments of  the direct  recruits in the post of ACIO-II (Tech.) did not confer on them any right of confirmation and the ARC  (Technical) Service  was altogether  a new service, the  first  respondent  states  that  the  petitioners  were rightly asked  to exercise  their option  in terms  of  Rule 6(3). Dealing  with the  attack levelled  by the petitioners against the  validity of Rule 6(6), it is pointed out in the counter-affidavit that the spirit and content of the rule is that persons  who were  holding higher  posts on the crucial date and  were considered suitable for permanent appointment in the  said posts  but could not be appointed substantively to such  posts for want of vacancies, may be given permanent posts in  the owner grade. It is pointed out in the counter- affidavit that  the  said  rule  was  applicable  to  direct recruits as  well as  to the  deputationists and  that, as a matter of  fact, some  of the petitioners got the benefit of this rule inasmuch as they were 894 appointed substantively  in the  grade of DFO(T) with effect from April  26, 1976,  while they are holding posts of Fo(T) on the  said date.  The charge of discrimination levelled by the  petitioners   is,  therefore,   denied  by   the  first respondent as being devoid of any foundation.      With reference  to the  grievance put  forward  by  the

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petitioners  that   they  were   denied  an  opportunity  to represent their  case before  the Screening Committee, it is submitted by  the first  respondent that under the scheme of the impugned Rules, the Screening Committee was not expected to entertain  any representations  from any  quarter and, in fact, no  representations were  received. The  Committee had acted strictly  in accordance  with the provisions contained in the  Rules in  determining the suitability of the persons concerned for  absorption in  the  new  Department  and  the principles of  natural justice have no applicability in such a context.  The allegation  of mala fides put forward by the petitioners has been stoutly denied by the first respondent. After the  seniority list  was  prepared  by  the  Screening Committee in  accordance with  the provisions  contain ed in Rule 6(2)  read with  Rule 7  of the impugned Rules, certain formalities had  to be  gone through before orders regarding substantive appointments  of the  officers  to  the  various grades could  be issued.  It was  only after  the  issue  of substantive appointment  orders to persons who had opted for absorption into  the  service,  that  the  Department  could publish the  seniority list.  The formalities aforementioned included obtaining  the  options  from  all  the  employees, getting the  approval  of  the  parent  departments  of  the erstwhile deputationists  for their  permanent absorption in the ARC  Service, medical  examination of employees, etc. It was on account of the delay involved for completing the said procedure that the seniority list could be finally published only on  November 6, 1978. The counter-affidavit proceeds to state that promotions in the Department were effected in the meantime strictly  on the  basis of  the seniority  list  of officers recommended  for  absorption  which  the  Screening Committee had  prepared. It  is further pleaded by the first respondent that  no  illegality  whatever  was  involved  in adopting the  principle of  reckoning  the  seniority  in  a particular post  on the  basis of total length of continuous service put  in by  the concerned officers in the particular grade in  the ARC  or in  the equivalent grade in the parent department. The  said rule  was framed  keeping in  view the special  requirements   of  the   new  Department.   If  the deputationists had not been given the benefit of the service put in  by them  in the  equivalent grade  in  their  parent departments, they 895 would have  all opted  for their  reversion to  their parent departments  and   that  would   have  resulted   incomplete dislocation  of  the  functioning  in  the  ARC.  The  first respondent states  that  lin  formulating  or  applying  the seniority  rule   there   has   not   been   any   arbitrary discrimination as between direct recruits and deputationists and hence  neither the  rules nor  the seniority list can be said  to   be  violative  of  Articles  14  and  16  of  the Constitution. B      Dealing  with   the  contention   put  forward  by  the petitioners on  the basis of article 26 of the Civil Service Regulations, it  is submitted  by the  first respondent that the said  article, which deals with appointments by transfer "in accordance  with a  provision in  the Recruitment  Rules providing for such transfers" had no applicability at all in the matter  of taking  persons on deputation to the ARC when it  was   a  purely   temporary  Department   which  had  no Recruitment  Rules.   The  subsequent   absorption  of  such deputationists and  other categories  of employees  has been done strictly in accordance with the provisions contained in the impugned  Rules which  are statutory  in origin.  In the absence of  any Recruitment  Rules, there  was no  legal bar

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whatever preventing  the competent  authority from borrowing persons from  other departments  on deputation  basis to man the various  posts in the ARC during the period prior to the introduction of  the impugned  Rules with  effect from April 26, 1976.  The former  deputationists had  occupied a larger percentage of  the higher  posts during the aforesaid period because they  had put  in more years of service in different grades and  had much  greater experience in carrying out the functions which  were of  a highly  specialised nature  when compared to  the direct  recruits whose induction in the ARC started only from 1965.      On the  basis of  the aforesaid  averments contained in his counter-affidavit,  the first  respondent has  submitted that the  petitioners are not entitled to any relief in this writ petition and that the petition should be dismissed.      In the  separate counter-affidavit  filed on  behalf of respondents 13,  16,22 etc.,  they have  put forward more or less the same contentions in defence of the writ petition as have been taken by the first respondent.      From the  averments contained  in counter-affidavit  of the first  respondent and  the documents produced before us, it is  seen that  .. the  Aviation  Research  Centre  was  a temporary and ad hoc organisation set up late in 1962, on an emergency basis, when the country 896 was threatened  with the Chinese aggression for carrying out the work  of collecting  intelligence by  the use  of highly sophisticated  techniques.  For  manning  this  Task  Force, persons with  experience in  the specialised  nature of  the work were  taken on deputation basis from different sources, such as  the intelligence Bureau, the Departments of Defence Science, Wireless  Panning and Coordination, the Directorate General of Civil Aviation and the Police of different States and  they   were  grouped   together  to   form   the   ARC. Subsequently, to supplement the man power, some persons were also directly  recruited to  the organisation on a purely ad hoc basis.  The ARC organisation was initially treated as an extension of  the intelligence  Bureau. In February 1965, it was brought  under the  control of  the Director  General of Security. The  administrative control  over the organisation which was  originally vested  in the  Ministry  of  External Affairs and  later with tho Prime Minister’s Secretariat was transferred to the Cabinet Secretariat in 1965. The sanction for continuance  of the  temporary organisation was accorded by the  Government from year to year till the year 1971 when decision was  taken by  the Government  to make  the  ARC  a permanent  Department.   But,  the   finalisation   of   the principles  to  be  adopted  for  constitution  of  the  new permanent Department  took considerable time and it was only on April  26, 1976  that the  President of India promulgated the  Aviation  Research  Centre  (Technical)  Service  Rules providing for  the constitution of a new service to be known as Aviation  Research Centre  (Technical) Service and laying down the  principles regulating the method of recruitment to the various  posts in the said Service. Till 1976, there was no regularly constituted cadre of posts in the temporary ARC organisation and  there were also no rules or even executive orders laying  down any  principles regulating the method of appointment to the various posts in the organisation.      Clause 6  of the  impugned Rules deals with the initial constitution of  the new  ARC permanent Service. That clause is in the following terms:      "6. Initial Constitution-      (1)  All persons  holding, as on the appointed day, any           one of  the categories  of posts specified in rule

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         4,  whether   in  a   permanent  or  temporary  or           officiating capacity or on deputation basis, shall           be eligible  for appointment to the service at the           initial constitution thereof. 897      (2)  The  controlling   authority  shall  constitute  a           Screening Committee  in respect  of each grade for           adjudging the  suitability of  persons, who, being           eligible to  be appoint  ed to  the service  under           sub-rule (1) were serving in any grade immediately           before the  initial constitution  of the cadre for           permanent appointment  therein and every committee           so constituted  shall, subject  to such general or           special instructions  as the controlling authority           may give and after following such procedure as the           committee may  deem fit,  prepare lists of persons           considered suitable  for such  appointment in each           grade with  the names  of such persons arranged in           the order  of  seniority  based  on  the  date  of           continuous appointment  in the grade in which they           are to be absorbed or in an equivalent grade;                Provided that  if the  controlling  authority           deems it  necessary so  to do,  the same committee           may be  constituted to function in relation to two           or more grades. D      (3)  An  intimation  shall  be  sent  to  every  person           considered suitable for appointment on a permanent           basis to  a  post  in  any  grade  giving  him  an           opportunity to  express, within thirty days of the           receipt of intimation by him his willingness to be           so appointed  on a  permanent basis and the option           once exercised shall be final.      (4)  Persons who  are willing  to  be  appointed  on  a           permanent basis shall be so appointed in the order           of seniority  against permanent posts available as           on the appointed day.      (5)  Notwithstanding anything  contained  in  sub-rules           (2) to  (4),  every  person  holding,  as  on  the           appointed day,  a permanent post in any one of the           categories specified  in rule  4 in  the  Aviation           Research Centre  shall, without  prejudice to  his           being considered  for appointment  to a  permanent           post in  the higher grade or to his continuance in           such higher  grade  in  officiating  or  temporary           capacity,   be    absorbed   in   his   respective           substantive  grade  against  the  permanent  posts           available as on the appointed day.      (6)  The  Screening   Committee   may   recommend   for           permanent appointment  in a lower grade any person           who 898           is serving  in  a  higher  grade  irrespective  of           whether he  is deputationist  or a  direct recruit           and every  appointment made on such recommendation           shall be  without prejudice  to his  continuing to           serve in the higher grade.      (7)  Persons holding posts, as on the appointed day, in           any  grade  of  the  service  who  are  not  found           suitable for permanent appointment under sub-rules           (2) to  (6), may be continued in posts in the same           grade of the service in a temporary or officiating           capacity as the case may be." Rule 7  lays down  the principles to be applied for fixation of seniority  of those appointed to the various posts in the ARC at  the time  of its  initial  constitution.  That  rule

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reads:      "7.  Seniority of  persons appointed on permanent basis           in each  grade at  the initial constitution of the           service shall  be in  the order  in which they are           shown in  the relevant list prepared in accordance           with provisions of rule 6." The next  rule under  challenge by the petitioners is Rule 8 which deals  with the  topic of  filling up  of vacancies in various grades  remaining  unfilled  immediately  after  the initial constitution  of the  service and all vacancies that may subsequently  arise in  the Department.  That rule is in the following terms:      "8. Maintenance-      (1)  Subject to the initial Constitution of the various           grades  in   the  service,  every  post  remaining           unfilled  and   every  vacancy   that  may   arise           thereafter shall  be filled in accordance with the           provisions   contained    in   Schedule   II,   by           appointment on promotion, deputation transfer, re-           employment after  retirement or direct recruitment           as the case may be.      (2)  For a  period not  exceeding three  years from the           date   of    commencement    of    these    rules,           notwithstanding the  limits specified  in column 7           of Schedule  II, the controlling authority may, if           it considers  it necessary  so to  do, exceed  the           percentage specified  for filling  up of vacancies           by deputation and decrease the percentage 899           prescribed  for   filling  up   of  vacancies   by           promotion,  direct  recruitment  of  re-employment           after retirement, as it may deem fit." The only other rule which requires to be referred to for the purpose of the present case is Rule 12 which states that "in regard to matters not specifically covered by these rules or by orders  issued by  the Government, members of the service shall be  governed by  general rules, regulations and orders applicable to persons belonging to the corresponding Central Civil Service".      The petitioners  are some amongst the persons recruited directly to  the ARC  organisation during the period between 1965 and  1971. The  basic premise  on which the petitioners have rested  their challenge  against the  validity  of  the promotions given  to respondents  Nos. 8 to 67 from the year 1968 onwards  as well  as of the provisions contained in the impugned Rules  is that  they  (petitioners)  had  all  been regularly appointed  to the ARC at the time of their initial appointment itself  and  that  by  virtue  of  such  regular appointments, they had acquired vested rights for seniority, promotions  etc.,  in  the  said  organisation.  As  already noticed, during  the period  between 1965  and 1971, the ARC organisation was  a purely temporary one, the continuance of which, on  an experimental  basis, was being sanctioned from year to  year. There  was no  regular cadre  of posts in the organisation nor  was there  any set of rules regulating the method of  appointment to the various posts that had created on a mere temporary and ad hoc basis.      Annexure  ’R-l’   produced   along   with   the   first respondent’s counter-affidavit  is  a  copy  of  the  letter issued by  the Directorate General of Security to one of the petitioners, communicating  the offer  of appointment to the temporary post of ACIO-II(Tech.). It was on the basis of the acceptance of  that offer by the said petitioner that he was appointed in  the Department  of ARC.  It is  stated in  the counter-affidavit  of   the  first   respondent   that   the

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appointments of  all the  remaining writ-petitioners  to the cadre of ACIO-II (DFO) were made on identical terms and this averment has not been controverted by the petitioners. It is expressly recited  ill Ex.  R-1 that  what was being offered thereunder was  a temporary  appointment to a temporary post and that  the perm anent appointment of the person concerned to the  post, if and when the post was made permanent, would depend upon  various factors governing permanent appointment in such  posts in  force at the time, and that the temporary appointment will not 900 confer on him the title of permanency from the date the post is converted.  It is  further stipulated  in the letter that the appointment was liable to be terminated at any time by a notice given  by either  side, namely,  the appointee or the appointing authority  without assigning any reason. There is also a  further condition that the services of the appointee were liable  to be  terminated within a period of six months from the  date of  his appointment  without any  notice  and without any reason being assigned. Since the petitioners are shown to  have been appointed to the cadre of ACIO-Il on the aforementioned conditions,  it is  difficult to see how they can  successfully  contend  that  they  had  been  regularly appointed to  the ARC  with effect  from the  dates of their initial  recruitment.   They  were  holding  merely  ad  hoc appointments which  did not  confer on  them any entitlement for permanent  absorption in the posts if and when the posts were  made   permanent.  The  basic  premise  on  which  the petitioners  have   sought  to   build  up   their  case  of arbitrariness  and   discriminations,   namely,   that   the petitioners had all been initially recruited directly to the ARC on a regular basis while the deputationists were holding posts only  on ad  hoc basis, is thus seen to be contrary to facts. The correct position which obtained as on the date of the  promulgation   of  the  impugned  Rules  was  that  the petitioners as  well as  the deputationists were all working in the  temporary ARC  organisation only  on a purely ad hoc basis. It is against this factual background that we have to examine the  contentions put  forward by  the petitioners in support of  the  challenge  levelled  by  them  against  the impugned Rules as well as against the seniority list of 1968 and the  various promotions  given to  respondents Nos. 8 to 67.      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 Nos. 8 to 67 during the period between 1968 and 1975. In our opinion, the challenge raised by the petitioners against those promotions is liable  to be  rejected on the preliminary ground that it is most  highly belated. No valid explanation is forthcoming from the  petitioners as  to why  they did not approach this Court within  a reasonable  time after those promotions were made, in  case they  really did  feel aggrieved  by the said action of  the Department. This writ petition has been filed only in  the year  1979, and after such a long lapse of time the petitioners  cannot be  permitted to  assail 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, 901 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

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Rabindra Nath Bose & Ors v. Union of India & Ors.      In this case before us, many of the impugned promotions had been  effected during the year 1968-69 onwards. Three of the present  petitioners had challenged the validity of some of the  promotions granted to various deputationists as well as the  ranking given  to them  in a  seniority list  of ARC personnel published  in 1971  by filing  Civil Writ Petition No. 1020  of 1971  in the  Delhi High Court. Though the High Court by  its judgment  dated April  7, 1972  dismissed that writ petition  on the  ground that it was premature inasmuch as it  had been  submitted before  it by the counsel for the Union of India that all the existing arrangements in the ARC were purely  ad hoc  and that  service rules would be framed shortly, the  High Court  has recorded clear findings in the judgment that  the principle  adopted for the preparation of the combined  seniority-list of  1971 could  not be  said to have violated Articles 14 to 16 of the Constitution and that it had  not been  shown by the writ petitioners in that case that the  impugned promotions had been effected in violation of  any   "statutory  rules,   constitutional  or  statutory limitations or even administrative instructions" .      If  the   petitioners  were   dissatisfied   with   the aforementioned findings entered by the Delhi High Court, one should have  expected then  to approach  this Court at least soon after  that decision was rendered by that High Court in April 1972-we  are not  suggesting that  the findings of the High Court  operate as  res judicata against the petitioners in these  proceedings. There  is no satisfactory explanation forthcoming from  the petitioners as to why no action at all was taken  by them to challenge the validity of the impugned promotions given  to respondents  Nos. 8  to  67  from  1968 onwards for a period of nearly seven years subsequent to the aforesaid pronouncement by the Delhi High Court.      Quite apart  from what  has been  stated above  on  the aspect of  ’laches’, on  the merits  also we do not find any substance  in  the  contentions  urged  by  the  petitioners against  the   legality  of   the  promotions   granted   to respondents Nos.  8 to 67 during the period between 1968 and 1975. At that time, as already, noticed, the ARC was a H 902 purely temporary organisation which was being continued on a year to  year basis.  There was no regular cadre of posts in the said  organisation, nor  were there  any rules governing the mode  of recruitment  etc. All  the appointments made in the  organisation,  whether  of  direct  recruits  like  the petitioners or  of deputationists like respondents Nos. 8 to 67, had  been made  only on an ad hoc basis. Since there was no regularly  constituted service,  the principles contained in the  office Memorandum  dated December 22, 1959 issued by the Ministry of Home Affairs (Annexure ’C’), on which strong reliance was  placed  by  the  petitioners,  could  have  no application at  all to the temporary ARC organisation. It is clear from  a reading  of the said Memorandum (Annexure ’C’) that its  provisions will  get attracted only in relation to Government servants appointed to the Central Services.      During the  period aforementioned,  the ARC  was just a Task Force  set up  on an  ad hoc and experimental basis for the purpose  of carrying  out certain  functions of a highly specialised  and  sensitive  nature.  Quite  naturally,  the personnel required  for manning  the organisation  had to be picked and  grouped together  in the  manner best  suited to effectuate the object and purpose underlying the creation of the organisation.  So long as there was no regular cadre and hierarchy of  posts and  no rules  laying down  the mode  of appointment/promotion to  those posts  it was perfectly open

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to the  Government to  fill up  the posts  by  securing  the services of persons who, in its opinion, were, by virtue. Of their experience  and qualifications,  best suited for being entrusted with  the specialised  kinds of functions attached to  the  various  posts.  We  have  already  seen  that  the petitioners had  been appointed  as ACIOs-II(DFOs) only on a temporary and ad hoc basis. Such appointments did not confer on them  any rights  even to  the posts of DFos. It had also been  categorically  made  clear  to  them  in  the  letters containing the  offers of appointment that such appointments will not  confer  on  them  any  right  to  the  permanently absorbed in  the post  if and  when it  was made  permanent. There  was   also  not   even   any   executive   order   or administrative instruction  declaring the post of DFo as the feeder category for appointment to the higher posts. In such circumstances, it has to be held that the petitioners had no legal right or claim for being appointed by promotion to the higher posts of ACIO-I (FO), ATO, etc.      It has  been averred  in the  counter-affidavit that as and when  vacancies arose  in the  higher posts  of FO. ATO, etc, in the tem- 903 porary  ARC  organisation  in  the  early  years  after  its formation, deputationists  who, by  virtue of  their greater experience in  the particular type of specialised work, were considered suitable  for carrying out the duties attached to those posts  on deputation basis to the category of FO, ATO, etc. Subsequently,  after the  direct  recruits  had  gained sufficient experience, some of them who were found suitable, were also  appointed as ACIOs-I, ATOs, etc. No illegality of any kind  was  involved  in  the  action  so  taken  by  the concerned authorities to fill up the vacancies in the higher posts by  ad hoc  appointments  of  persons  possessing  the requisite ability  and experience.  We have,  therefore,  no hesitation to  reject the  contention  put  forward  by  the petitioners that  the promotions granted to respondents Nos. 8 to 67 during the period between 1968 and 1975 were illegal and violative of Articles 14 and 16 of the Constitution .      We shall  now proceed to deal with the challenge raised by the  petitioners against  the provisions contained in the impugned rules.  It is  under Rule  3 of  the Rules that the Aviation Research Centre (Technical) Service was constituted for the first time. The com position of the service has been described   in    Rule   4,    wherein   the   designations, classifications and  scales of  pay  of  the  various  posts included in  the Service  have been set out. Rule 6 provides for the initial constitution of the Service. The petitioners have challenged  f the validity of sub-rule (I) of this Rule which declares that all persons holding, as on the appointed day, any one of the categories of posts specified in Rule 4, whether in  a permanent or temporary or officiating capacity or on deputation basis, shall be eligible for appointment to the service  at the initial constitution thereof. When a new service is  proposed to be constituted by the Government, it is fully  within the  competence of the Government to decide as a  matter of  policy the sources from which the personnel required for  manning the  Service are to be drawn. It is in the exercise  of the  said power  vested in  the Government, that provision  has been  made by  sub-rule (I) that all the persons who, as on the appointed day were already working in the ARC organisation on a temporary and ad hoc basis and had thereby acquired  valuable  experience  in  the  specialised kinds of  work would  be eligible for appointment to the new service at  the stage of its initial constitution. The writ- petitioners  as   well  as   the   deputationists,   namely,

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respondents Nos.  8  to  67  were  all  functioning  in  the temporary  ARC  organisation  on  an  ad  hoc  basis.  Equal opportunity was given to all of them by sub rule (I) of Rule 6 to get permanently appointed in the new ARC 904 (Technical) Service  subject to their being found fit by the Screening Committee referred to in the sub-rule (2). We fail to see how the said provision can be said to be violative of Articles 14  and 16 of the Constitution. The attack levelled by the  petitioners against  sub-rule (1)  of Rule 6 is thus manifestly devoid of merit.      The next  contention urged  by the  petitioners is that sub-rule (2)  of Rule  6 confers  arbitrary and  uncanalised powers on  the Screening Committee and is hence violative of the principles  of  equality  of  opportunity  enshrined  in Article 16  of the Constitution. Another point urged is that the said  sub-rule  in  so  far  as  it  provides  that  the Screening Committee  should discharge  its functions subject to such  general or  special instructions as the controlling authority may give, confers an arbitrary and unlimited power on the  controlling authority  and enables  the  controlling authority to  impose its  will and  whims on  the  Screening Committee. We  see no  force  in  either  of  the  aforesaid contentions. The  provision for  constitution of a Screening Committee for  adjudging the  suitability of  the persons in the field  of eligibility  for permanent  appointment to the service is absolutely reasonable. The power conferred on the controlling  authority   to   issue   general   or   special instructions to  a Screening  Committee  is  really  in  the nature of  a safeguard  for ensuring that the rules relating to the  initial constitution  of the  service  were  applied fairly  and  justly.  The  ’controlling  authority’  is  the "Secretary, Department of Cabinet Affairs". When supervisory powers  are   entrusted  to  such  a  high  and  responsible official, it  is reasonable  to assume  that  they  will  be exercised fairly  and judiciously  and not  arbitrarily.  We are, therefore,  unable to  uphold  the  contention  of  the petitioners that  the provisions  of sub-rule  (2) of Rule 6 suffer from  the vice  of  the  arbitrariness  or  excessive delegation.      The  petitioners  have  also  attacked  the  provisions contained in  sub-Rule (2) of Rule 6 enjoining the Screening Committee  to   arrange  the  names  of  persons  considered suitable for  appointment in  each grade  in  the  order  of seniority based on the date of continuous appointment in the grade in which they were absorbed or in an equivalent grade. We have already found that the basic assumption on which the petitioners have  founded the attack against this provision, namely,  that  the  petitioners  were  all  holding  regular appointments as  DFOs in the ARC organisation from the dates of their  initial recruitment  and that  the  deputationists (respondents Nos.  8 to  67) l  were  functioning  in  their respective posts  only on  an ad  hoc basis is incorrect and fallacious. As  on the date of the promulgation of the rules and  the   initial  constitution  of  the  ARC.  (Technical) Service, 905 petitioners as  well as  respondents Nos.  8 to  67 were all holding the  various posts in the ARC organisation only on a temporary and  ad hoc  basis. While  the petitioners  had no substantive lien  in respect  of or title to any post in any department, the  deputationists were  having a  lien on  the posts held  by  them  in  their  parent  departments.  l  he petitioners, therefore,  formed a different class consisting of persons  who were virtually being recruited for the first

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time into  regular Government  service, as distinct from the respondents 8  to 67  who had  been holding  posts in  their parent departments  for several  years on  the regular basis who formed  a separate  class When  recruitment to  the  new Service  was  being  made  from  two  different  classes  of sources, it  was necessary  for the  Government to  evolve a fair and  reasonable principle  for regulating  the inter se seniority of  the personnel  appointed to  a new Department. What has  been done  under Rule  6 is  to give credit to the full  length  of  continuous  service  put  in  by  all  the appointees in  the concerned grade, whether such service was rendered in  the temporary  ARC  organisation  or  in  other departments of the Government. The criterion applied, namely the  quantum   of  previous   experience  possessed  by  the appointees measured  in terms  of the  length of  continuous service put  in by them in the concerned or equivalent grade is perfectly  relevant to the purpose underlying the framing of the  rule. In  our opinion,  the aforesaid principle laid down hl  rule 6(2)  for determination  of inter se seniority was quite  reasonable and  fair and  it did  not involve any arbitrary or  unfair discrimination against the petitioners. The attack  levelled by  the petitioners  against  the  said provision contained  in sub-rule  (2) will, therefore, stand repelled.      In  the  light  of  what  we  have  stated  above,  the provision contained  in rule 7 that the seniority of persons appointed on  permanent basis  in each  grade at the initial constitution of  the service  shall be in the order in which they  are  shown  in  the  relevant  list  prepared  by  the Screening Committee  in accordance with provisions of Rule 6 has also to be upheld as perfectly valid and constitutional.      We see  no substance  at all in the challenge raised by the petitioners against Rule 8 of the impugned rules and the provisions  of   Schedule  II.  Under  the  said  rule,  the appointing authority  is empowered  to fill  up  every  post remaining   unfilled    immediately   after    the   initial constitution of the various grades in the service as well as 906 every   vacancy   that   subsequently   arises   by   making appointments   on    promotion,   deputation/transfer,   re- employment  after   retirement  or  direct  recruitment,  in accordance with  the provisions contained in Schedule II. At the time  of constituting  a new service and laying down the mode of  appointment to  the various  posts,  it  was  fully within the powers of the President of India to prescribe the methods  by   which  vacancies   arising  in  the  different categories of  posts in  the department  should be filled up and this  is precisely  what has been done as per rule 8 and the provisions of Schedule II. The petitioners have not been able to  make out that the provisions of Rule 8 and Schedule II are tainted by illegality of any kind.      The next  point urged  by the  petitioners is  that the Screening Committee had acted in violation of the principles of natural  justice in as much as it had not afforded to the petitioners an  opportunity to  make  their  representations before  the   Committee.  The   function  entrusted  to  the Committee was  to adjudge the suitability of person who were holding posts  in the  different grades in the temporary ARC organisation  for   permanent  appointment   in  the   newly constituted ARC  (Technical) Service  on the  basis  of  the records  relating   to  their   past  performance   in   ARC organisation, etc.  We do  not see  how  the  principles  of natural justice can get attracted in such a context. The law does not cast any obligation on a Committee discharging such a function to invite representations from the persons in the

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eligible categories and consider those representations while adjudging their  suitability for  appointment into  the  new service. Hence  we do not find any substance in the argument advanced on  behalf of  the petitioners  that  there  was  a violation of  principles of natural justice by the Screening Committee.      The petitioners  have put  forward a  further plea that the promulgation  of the  impugned  rules  was  deliberately delayed till  April 1976  with a  view to  confer an  unfair advantage  on  the  deputationists,  several  of  whom  were granted promotions  to higher  posts  during  the  v  period between 1971  when  the  decision  to  make  the  department permanent was  taken and  April 26,  1976 when  the impugned rules were finally issued. We find it stated in the counter- affidavit filed  on behalf  of the first respondent that the draft rules  were prepared  by the  Directorate of  ARC  and submitted to  the Government  in  1972  itself,  but,  on  a detailed scrutiny being made, it was found that the 907 said draft  required  substantial  modification  in  several respects.  Revised   rules  were,   therefore,  drafted  and submitted  to   the  government  late  in  1974.  The  first respondent has  submitted that  the time taken in finalising the rules  was due to the fact that intensive examination of all the relevant aspects had to be done by various concerned Ministries before  the draft rules could be finally approved and issued.  We  are  inclined  to  accept  the  explanation offered  by   the  first   respondent  for   the  delay   in promulgation of the Rules, and we hold that the plea of mala fides put forward by the petitioners is not established.      All the  promotions given to the deputationists as well as to the direct recruits during the period between 1968 and 1976 had  been effected  only on a purely ad hoc basis. Even though temporary  in character,  those promotions  had  been made only  on the  basis of  the recommendations made by the Departmental Promotion  Committee  which  had  effected  the selections by  applying uniform and relevant considerations, such as  length of  service in  the lower grade and over-all experience and  performance. It  is stated  in the  counter- affidavit   that,   while   making   such   promotions   for appointments to  higher posts, no deputationists with lesser years of service vis-a-vis direct recruits had been given ad hoc appointment to any higher post. The first respondent has submitted that  in making the promotions aforementioned, the authorities concerned  were actuated  only by considerations of the  best interests of the department and the maintenance of a higher standard of efficiency in its function and there was no  intention whatever  to confer  any advantage  to the deputationists  or   to  discriminate   against  the  direct recruits. We  do not  find any  ground for  not accepting as correct and true the aforesaid submissions made on behalf of the first  respondent. Accordingly  we hold that in granting promotions to  the deputationists  during the period between 1971 and  1975 respondents  1 to  S were not actuated by any intention   to   confer   an   unfair   advantage   on   the deputationists.      Another argument  advanced on behalf of the petitioners was that  at the  time of  their initial  appointment in the ARC, they  had been  given high expectations regarding their promotional prospects  from the  post of  DFO, and  that  by bringing in  large number of deputationists and fitting them into the  higher posts,  the Government  had illegally  gone back on  the promise  held out to the petitioners. We see no merit in this contention. As already noticed, in the letters 908

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sent to the petitioners offering appointment to the category of AClO-  II (DFO),  it had  been made abundantly clear that their appointments  would be  purely temporary and ad hoc in nature and  would not confer on them any claim for permanent absorption  even   in  the   post  of   DFo.  No  subsequent representation is shown to have been made to the petitioners by the  Department at any time prior to 1976 holding out any prospects of  Department permanent  absorption in service or promotions to  higher grades.  The petitioners  continued to function in  the ARC  organisation only on ad hoc basis till the rules  were promulgated  and they were absorbed into the new ARC  (Technical) Service  at the  stage of  its  initial constitution on  the basis  of the  provisions contained  in Rules 3  and 6.  It is  significant to  note in this context that it was only after the petitioners had seen the impugned rules and  had  gained  full  knowledge  of  the  provisions contained therein  relating to  absorption and  seniority in the department,  that  they  opted  for  absorption  in  the service in  accordance with  those rules  and it  was on the basis of  the options  so exercised  by them  that they were appointed in the hew constituted service.      The petitioners  have also  put  forward  a  case  that despite the  provision contained in rule 6 (3) there was, as a matter  of fact,  no adjustment  of the suitability of the various officers  by the  Screening Committee  and, instead, there was a wholesale absorption of all the personnel in the posts which  they were holding in the ARC organisation as on April 26,1976.  This allegation has been strongly refuted in the counter-affidavit  filed by the first respondent wherein it has  11 been  staled that  the  Screening  Committee  has examined individually  9 the  cases  of  all  the  concerned officers before  deciding about  their  ,,  suitability  for permanent absorption  in the  service  and  prepared  ranked lists strictly in accordance with the principle laid down in Rule 6  (2). The  learned Solicitor  General,  appearing  on behalf of  the Union  of India. submitted before us that the files  containing   the  minutes  of  the  meetings  of  the Screening Committee  and the ranked select lists prepared by the Committee  for the  different grades were available with him in  Court and he offered to place them before us for our perusal. In  the circumstances,  we see  no  reason  not  to accept as  correct the  aforesaid averments contained in the counter affidavit  of the  first respondent. It then follows that this contention of the petitioners has also to fail.      Another point  urged on  behalf of  the petitioners was that some  of the  deputationists were  not holding in their parent depart- 909 ments posts  equivalent in  rank to those in which they were appointed on  deputation in  the ARC  organisation and  such persons should  not have  been subsequently  absorbed in the new ARC Service In those higher categories. We are unable to uphold this  contention. At the time when the ARC was a mere temporary organisation  without any  recruitment  rules  the posts in  that organisation could be filled up by appointing suitable hands  possessing the  requisite specialised  skill and experience  drawn from any source in respect of whatever was the position occupied by such appointees in their parent service, if  any. Likewise,  at the  stage  of  the  initial constitution  of   the  new   ARC  (Technical)  Service  the Government had  the right  and full  freedom to  decide from what all sources the personnel for the new Department should be drawn  and there  is no  warrant in  law for  imposing  a limitation that in taking persons from other departments the field of  choice should be restricted to persons holding any

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particular ranks  in those  other departments.  The relevant consideration for  appointment of  personnel in a department of this  nature has necessarily to be the suitability of the person concerned  for the  specialised type  of the work for adjudging  which   the  experience  and  expertise  that  he possesses in  carrying out  such functions would be the most relevant  criterion.  Once  appointments  are  made  to  the various grades  in the new service the inter se seniority of the persons  appointed in  each category  or grade  is to be fixed under  Rule 6  on the  basis of  the total  length  of service in  the particular  or equivalent Grade and this, in our opinion, is a perfectly reasonable principle.      The argument  advanced  by  the  petitioners  that  the seniority of  the deputationists who have been absorbed into the ARC (Technical) Service is governed by the provisions of Article 26  (7) (iii)  of the  Civil Service  Regulations is wholly devoid  of merit.  Article 26  (7) (iii)  applies  to cases "where a person is appointed by transfer in accordance with a provision in the recruitment rules providing for such transfer in  the event  of non-availability of candidates by direct recruitment  or promotion".  The  absorption  of  the erstwhile deputationists  in the  ARC (Technical) Service at the time  of  its  initial  constitution  was  not  by  such transfer and hence the provisions of Article 26 (n (iii) are not attracted.      We do  not also  see any  merit  in  the  argument  put forward on  behalf of  the petitioners  that sub-rule (6) of Rule 6 of the impugned 910 Rules enables  the Screening  Committee to absorb in a lower grade such  of the  deputationists who were found unsuitable to be  absorbed in  the higher posts which they were holding as on  April 26,  1976. Firstly,  this is  not  a  provision applicable only  to the  erstwhile  deputationists.  On  the other hand, the sub-rule itself makes it very clear that its provisions apply equally to all the persons who are eligible for  absorption   in  the   service   under   sub-rule   (1) irrespective of  whether they  are deputationists  or direct recruits. Sub-rule (6) comes into operation when a person in the eligible  category holding  a post  in a higher grade on the appointed day, who has been found suitable for permanent appointment  in   such  higher  grade  cannot,  however,  be absorbed in  the said grade on account of non-availability o a vacancy  therein. What  the sub-rule  lays down is that in such eventuality  the Screening Committee may recommend such a person  for permanent  appointment in  a lower  grade  and thereby retain  his services  in the new Department. We fail to see how this provision can be said to infringe any of the fundamental rights of the petitioners.      Lastly, it  was contended  on behalf of the petitioners that in preparing the impugned seniority list dated November 6, 1978,  the principles  laid down in Rule 6 (3) and Rule 7 have not  been correctly observed, and that by reason of the deviation from  those principles,  the promotional prospects of some  of the petitioners have been adversely affected. No concrete instance  of any such deviation from the principles set out  in Rule  6 (3)  and Rule  7 has been brought to our notice. All  the same, we think it necessary to observe that this Court  expects that  the provisions  of Rule  6 (3) and Rule 7 will be strictly conformed to, both in letter as well as in  spirit, by  respondents Nos. I to 7, and that in case it is  found on examination that the ranking assigned to any of the  petitioners in  the impugned  seniority  list  dated November 6,  1978 is not consistent with the principles laid down in  the aforementioned rule, necessary action should be

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immediately taken  to rectify  the said  defect, and  if the promotional chances  of any  of the  petitioners  have  been adversely affected by reason of such defect in the seniority list,  such   promotions  should   also  be  reviewed  after following  the  requisite  procedure.  We  direct  that  the petitioners may  bring to the notice of the first respondent specific instances, if any, of deviation from the principles enunciated in  Rule 6  (3) and Rule 7 resulting in incorrect assignment of  seniority and  rank  to  them  by  submitting representations before  the first respondent within a period of six weeks from today. In 911 case any  such representations  are received,  they will  be duly examined by the first respondent and appropriate orders will be  passed thereon  in the  manner indicated  above  as expeditiously as possible.      Subject to  the above  observations and  directions, we dismiss this  writ petition.  The parties  will  bear  their respective costs. N.V.K.                                    Petition dismissed