1974 (12) TMI 73 - SC - Central Excise

seniority of existing Govt. servants- determined by the date of their appointmentor by the date of their confirmation. seniority for Service in an equivalent grade

Issues Involved:
1. Violation of Article 16 of the Constitution.
2. Incorrect seniority lists and illegal promotions.
3. Application of Office Memoranda dated 22-6-1949, 22-12-1959, and 22-7-1972.
4. Delay in filing petitions and the principles of laches and acquiescence.
5. Demand for justice and refusal as a prerequisite for filing a writ petition.
6. Equitable rights of third parties due to delay in seeking relief.

Detailed Analysis:

1. Violation of Article 16 of the Constitution:
The petitioners alleged a violation of Article 16, asserting that they were illegally discriminated against by not being confirmed and promoted according to their seniority as per the Office Memorandum dated 22-6-1949. They argued that the seniority lists were altered after the Office Memorandum dated 22-12-1959, leading to juniors being promoted over them.

2. Incorrect Seniority Lists and Illegal Promotions:
The petitioners contended that the seniority lists prepared after 22-12-1959 were incorrect and led to illegal promotions of juniors. They sought the quashing of the seniority list dated 1-7-1967 and the Office Memorandum dated 22-7-1972, which they claimed misinterpreted the judgment in Ravi Varma's case. The respondents argued that the memoranda of 1972 and 1973 were attempts to balance the principles of seniority and non-disturbance of existing rights.

3. Application of Office Memoranda:
The Court examined the Office Memoranda of 22-6-1949, 22-12-1959, and 22-7-1972. The 1949 memorandum determined seniority based on the length of service. The 1959 memorandum introduced new principles, which were held to be prospective and not applicable to those appointed before 22-12-1959. The 1972 memorandum attempted to reconcile the principles of the 1949 and 1959 memoranda in light of the Ravi Varma judgment, restoring pre-1959 seniority but preserving confirmations and promotions made before 4-1-1972.

4. Delay in Filing Petitions and Principles of Laches and Acquiescence:
The respondents argued that the petitions were barred by laches and acquiescence due to the delay in filing. The Court emphasized that a petitioner must establish how their fundamental right was infringed and that delay in seeking relief could jeopardize their claims. The Court cited Rabindra Nath Bose's case, noting that inordinate delay could lead to the dismissal of a petition under Article 32.

5. Demand for Justice and Refusal as a Prerequisite:
The Court noted that a demand for justice and its refusal is a prerequisite for filing a writ petition. In the case of K. N. Kapur and others, the Court found no assertion that any representation was made against the alleged violations, making the petitions liable for dismissal on this ground as well.

6. Equitable Rights of Third Parties:
The Court observed that the equitable rights of those who were confirmed or promoted before 4-1-1972 should not be disturbed due to the petitioners' delay in seeking relief. The Court emphasized that treating unequals equally would violate the right to equality and that the equitable rights of third parties must be considered.

Conclusion:
The Court dismissed the writ petitions, stating that the petitioners failed to establish that just and reasonable considerations did not prevail in any particular instance. The Court interpreted the 1972 memorandum to mean that the 1949 memorandum would apply to all cases covered by it until the 1959 memorandum came into effect. However, those confirmed or promoted in good faith under the 1959 memorandum would not be disturbed. The Court also highlighted the need for the Central Excise Department to evolve just and reasonable rules to prevent future litigation.

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