ORIGINAL JURISDICTION: Writ Petition No. 156 of 1972.
(Under Art. 32 of the Constitution of India).
S.S. Javali, A. K. Srivastava and B.P. Singh, for the petitioner.
G.L. Sanghi, S.P. Mital and Girish Chandra, for respondents Nos. land3.
B. Datta, for respondent No. 194.
The Judgment of the Court was delivered by
This is a petition under Article 32 of the Constitution praying for a writ of certiorari, or a writ of Mandamus or, any other appropriate, writ, order or direction for the enforcement of the fundamental rights of the petitioners under Article 14 and 16 of the Constitution. The petitioners have been working as Upper Division Clerks and pray for the quashing of a list, issued with Office Memorandum dated 7.2.1972, for making promotions to the next grade of Assistants on which the names of respondents 4 to 203 appear but not those of the petitioners. They claim that the principles of seniority, contained in the Ministry of Home Affairs O.M. dated 22.6.1949, as interpreted by this Court in UNION OF INDIA v.M. RAVI VERMA & ORS. ETC.(1) had not been applied to them. The contention seems to be that the last mentioned decision contained an invariable mechanical rule of seniority applicable to all classes of services so that nothing beyond length of service in a particular grade could determine seniority. It was alleged that the impugned list was formulated in an arbitrary fashion. Hence, the petitioners complain of violation of Articles 14 and 16 of the Constitution.
In paragraph 6 of the petition it was stated that even persons appointed nine or ten years after the petitioners had been promoted as long ago as 1969 to the grade of Assistants to which the petitioners put forward their own claims. It was also stated that a large number of persons have superseded the petitioners but a few names only have been mentioned from amongst them. The whole case of the petitioners thus rests on the submission that nothing beyond length of service must determine the place on the list for promotion to the grade of Assistants.
The petitioners allege a common cause of action inasmuch as the impugned list of 17.2.1972 affects all of them. They claim that all of them should have been governed by the principles contained in
(1) [1972] 2 SCR 992. the Memorandum of 22.6.1949. This Memorandum (Annexure ’C’ to the petition) shows that it was only directory laying down a general rule of seniority which was presumably subject to other exceptional factors which could also be taken into account. Hence, an alleged violation of the rule of seniority according to length of service was not decisive even according to this Memorandum.
The counter-affidavit filed by Shri P.L. Gupta, Deputy Secretary to the Government of India, gives the long history of a scheme which culminated in the promulgation of the statutory rules framed under Article 309 of the Constitution of India called the Central Secretariat Clerical Service Rules, 1962 by the President of India. It shows that the scheme of 1949 was given a final shape by the Cabinet in 1954. and became effective from 1.5.1954. Under the scheme, as finally framed, it was provided that those officers who were otherwise eligible for confirmation in the. services at the initial constitution, should also pass a typewriting test to be held by the Union Public Service Comntission within a period of two years from 1-5-1956. It appears that the confirmation of the initial constitution of the service was delayed until 1958.
Some of the rather ambitious assertions of the petitioners suggest that their case is that they had been appointed to an Upper Division grade on a regular basis so that their seniority must date back to their date of promotion. This suggestion was controverted by the respondents who alleged that the petitioners had been only allowed to continue provisionally on a temporary basis in the grade of Upper Division of Clerks. It was stated, in the counter-affidavit, that as typing test had to be passed within two years of 1st of May 1958, those who did not come within this class came in the, class of the petitioners who, were serving on an ad hoc or temporary basis. Hence, it was submitted that those who had passed the typewriting test within two years of the fixed date belong to another category altogether. The respondents,. therefore, submit that there has been no contravention of Articles 14 and 15.
Serious grounds of objection to the petitioner’s case are three fold: firstly, that there was a reasonable criterion for the difference made between the cases of the petitioners and those placed on the impugned list of 7.2.1972 who are above the petitioners because they have passed the prescribed typing test so that Articles 14 and 16 of the Constitution could not be said to have been violated in this case whatever else may have been infringed; secondly, that the petitioners, not having assailed the order of confirmation of the scheme on 1.5.1958. prescribing a reasonable ground for distinction between the class of cases in which typing test had been passed, to which the contesting respondents in the impugned list belong and the class of the petitioners, which had not passed this test, the petitioners’ could not challenge the impugned scheme of 1972 at all; thirdly, a member of persons had been promoted and put above the petitioners since 1962, acting under the scheme providing the typing test, so that there was inordinate delay in filing the petition under Article 32 of the Constitution on 24.4.1972.
In their Writ Petition the petitioners
have no doubt challenged the validity of rule
17 of the Central Secretariat Clerical Service
rules for inconsistency with the Memoranda of
22.6.1949 and 22.12.1959 and alleged that this
also constitutes a violation of Articles 14
and 16 of the Constitution. This rule was
among rules notified on 28-9-1962. It lays
down as follows :--
"17. Seniority(1) The relative seniority of
members of Service appointed to any Grade
before the appointed day shall be regulated by
their relative seniority as determined before
that day.
Provided that if the seniority of any
such officer had not been specifically deter-
mined before the appointed day it shall be as
determined by the Department of Personnel in
the Cabinet Secretariat.
MHA No. 6/2/67-CS-II dated 20.12.67.
Provided further that the seniorty of an
officer referred to in the proviso to clause
(a) of rule 2 shall be determined by the
Department of Personnel in the Cabinet Secre-
tariat by taking into account the continuous
length of regular service rendered before the
appointment day by such officer in the grade
of lower Division or in any higher grade in
the offices of the Central Government.
(2) All permanent officers included in
the initial constitution of a Grade under rule
7 shall rank senior to all persons substan-
tively appointed to that Grade with effect
from a date after the appointed day, and all
temporary officers included in the initial
constitution of a Grade under that rule shall
rank senior to all temporary officers appoint-
ed to that Grade after the appointed day.
(3) Except as provided in sub-rules (4)
and (5), the seniority of persons appointed to
the two grades of the service after the ap-
pointed day shall be determined in the follow-
ing manner, namely :
(i) Permanent Officers.--The seniority
inter se of officers substantively appointed
to the Grade after the appointed day shall be
regulated by the order in which they are so
appointed to the Grade.
(ii) Temporary Officers.--The seniority
inter se of temporary officers appointed to
the Grade after the appointed day shall be
regulated as follows, namely:
(a) Persons included in the Select List
for a Grade shall rank senior en bloc to those
not included in the Select list.
(b) The seniority inter se of person includ-
ed in the Select List shall be in the
order in which their names are included in
the Select List.
(c) The seniority inter se of persons
not included in the Select List shall be
regulated by the order in which they are
approved for long term appointment to the
Grade.
Rule 7 provides as follows
"7. Initial Constitution of each
cadre.--The permanent and temporary officers
of each Grade in each cadre on the appointed
day shall be as determined by the Deptt. of
Personnel in the Cabinet Secretariat."
We find that, acting under Rule 7 set out above, the Government of India had issued an order on 12-11-1962 allotting permanent and temporary officers of the Upper Division grade to the Central Secretariat Clerical Service. Apparently, that allotment also determined the order of seniority. In other words, the rule relating to the passing of a typing test had been followed for a long period and had actually been given effect to under the statutory rules in promotions made and lists drawn up. This explains the petitioners’ challenge to the validity of Rule 17.
We are unable to see how a rule prescribing a typing test is unconnected with the duties of Clerks who desire a promotion to the next grade. We do not find that a discrimination made on such a ground could violate Articles 14 or 16 of the Constitution whatever also it may be said to violate. It is not necessary for us to hold that a violation of a statutory or other kind of rule in a particular case cannot amount to a violation of Articles 14 and 16 of the Constitution. There may also be cases in which a rule made is ultra vires for mreasonableness or on any other ground and should not be deemed to exist. In such a case, if the rule is enforced, it may, on the facts of the particular case, amount to a violation of Articles 14 and 16 of the Constitution also. The case before us does not appear to be such a case at all. It seems to be covered by what this Court said in P.C. Sethi & Ors. v. Union of India & Ors., (1) with regard to the Office Memorandum of 22.6.1949 (at pp. 207-208):
" .... the Office Memorandum of June
22, 1949, is no bar to the Government in
making separate provisions for the mode of
constitution and future maintenance of the
service of Assistants. There is, therefore,
no obligation under the aforesaid Office
Memorandum on the part of the Government to
enforce a rule of bald length of continuous
service irrespective of other considerations
than the service was sought to be reorga-
nised and reinforced. As noticed earlier the
service had to be reconstituted and the tempo-
rary Assis-
(1) [1975] 3 SCR 20.
tanks properly observed keeping in view the
question of quality and efficiency as well as
at the same where regard being had to accom-
modate as large number as possible to gradual
absorption. In doing so we are unable to hold
that the Government has violated the provi-
sions of articles 14 or 16 of the Constitu-
tion. The Classification under the instruc-
tion for the constitution of regular temporary
establishment in the manner done cannot be
characterised as unreasonable in view of the
object for which these had to be introduced in
reconstituting the service to ensure security
of temporary employees assistant with effi-
ciency in the Service. There is no discrimi-
nation whatsoever amongst the equals as such
nor any arbitrary exercise of power by the
Government."
This Court has also explained in Joginder Nath & Ors. v. Union of India & Ors.(1) and Amrit Lal Berry v. Collector of Central Excise, New ’Delhi & Ors.(2) the principles on which this Court will interfere under Article 32 of the Constitution for an alleged violation of Articles 14 and 16 of the Constitution. It is also explained, there how delay in invoking the jurisdiction of the Court, which may create equitable rights of others, may give rational grounds for discrimination so that it would cease to be a case of any violation of Articles 14 and 16 at all.. We think that the principles laid down in the cases mentioned above apply here.
Consequently, we dismiss this Writ Petition, but, in the circumstances of the case, the parties will bear their own costs. S.R Petition dismissed. (1) [1975] 2 S.C.R. 553. (2) [1975] 2 S.C.R. 960.