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TMI Blog1974 (12) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down in the Office Memorandum dated 22-6-1949, prepared by the Ministry of Home Affairs, they would have been duly promoted. Each of them, on similar facts, relies upon the law laid down by this Court, in Union of India v. M. Ravi Varma & Ors. etc.(1) Assertions id the petition of Amrit Lal Berry illustrate the nature of the cases of all the petitioners. We will indicate the cases, of the parties before we take up the questions of law arising for consideration and decision by us here. Amrit Lal Berry was appointed Inspector in the Central Excise Collectorate at Delhi, by orders dated 22-11-1948, and, on 4-12-1948, was posted at Forozepur. On 22-6-1949, the Ministry of Homo (1) [1972] 2 S.C.R. 992. Affairs. issued a Memorandum containing the principle that the, seniority of existing Govt. servants will be determined by the date of their appointment and not from the date of their confirmation. The petitioner asserts that, in accordance with this principle, he was correctly assigned his seniority in the list issued in 1958 after the petitioner'had been confirmed in a permanent post under an order dated 5-5-1956 with effect from 1-7-1955. An extract from the order shows that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner's number 204 in the list prepared before 1959. were specifically mentioned in the list of allegedly illegal promotions of' 1970-71. Amrit Lal Berry's petition to this Court was filed on 9-12-1971. By an application dated 9-3-1973, Amrit Lal Berry sought an amendment of his Writ Petition asking this Court to quash the Office Memorandum dated 22-7-1972 on the ground that it does not interpret correctly the judgment of this Court in Ravi Varma's case (supra) delivered on 4-1-1972. The, petitioner contends that office Memorandum, dated 22-7-1972 was baud on a wrong interpretation of the law laid down by this Court inasmuch as, while determining the seniority of the petitioner according to the 1949 rule, it does not award consequential benefits which would have been reaped by the petitioner in the past, if the seniority rule, laid down in the 1949 memorandum, had been followed in the past. K. N. Kapur and 14 others also give the dates of their appointments as Inspectors ranging from 15-5-1944 in the case of K. N. Kapur to 19-1-1950 in the case of Ravinderlal. The dates of confirmation vary from 1-7-1956, in the case of K. N. Kapur, to 1-12-1962, in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just the operations of two opposing principles of justice and law laid down by this Court : the seniority according to length of service rule of 1949 and what may be called the principle of non-disturbance of rights claimed due to confirmations or promotions to a higher post going far back. It was submitted that there had been no infringement of any right or provision of law at all. Alternatively, it was urged that,' even if the petitioners could make out violation of any applicable rules of law regulating the conditions of service of the petitioners, they do not establish the denial of any fundamental right of the petitioners Constitution. In any event, the petitions are said to be barred by the principles of laches and acquiescence. It was also suggested by the learned Counsel for the opposite parties, particularly in the case of K. N. Kapur & Ors., that the cause of action asserted by each alleged infringement of a right being separate on each occasion it should have been made the subject matter of a distinct and separate petition assailing the particular alleged infringement on each occasion. In the case of K. N. Kapur & others, the contention appeared to be that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of the total length of continuous service in the grade, as well as service in an equivalent ,grade, the term "Service in an equivalent grade" being defined as service on a rate of pay higher than the minimum of the time-scale of the grade concerned, irrespective of whether it was rendered in the Central or Provincial Government in India or Pakistan. Seniority of persons appointed on a permanent or quasi-permanent basis prior to the 1st January, 1944 was, however, not disturbed by the office memorandum of 22-6-1949. The instructions contained in that O.M. were issued in order to safeguard the interests of displaced Government servants appointed to Central Services after partition, but as it was not possible to regulate the seniority of only displaced Government servants by :giving them credit for previous service, the instructions of 22-6-1949 referred to above were made applicable to other categories of persons also a appointed to Central Services. There were, however, certain services/posts which were exempted from the operation of the O.M. ,of 22-6-1949. In the course of time, displaced Government servants had, by and large, been absorbed in the various Central Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already fixed according to the then existing orders would be maintained and they will rank senior to those confirmed in that grade after 22-12- 1959. Amongst those confirmed after 22-12-1959, the relative seniority will be according to the order of confirmation. Similarly, amongst non-permanent employees of a grade, the relative seniority of those appointed prior to 22-12-1959 will be on the basis of the then existing orders, but they will rank on bloc senior to those appointed to that grade,' after 22-12-1959, but not yet confirmed in the grade. 4. This matter, however, came up for consideration before the Supreme Court in Civil Appeals (1) No. 1845 of 1968 (Union of India and others Versus M. Ravi Varma and others), (2) No. 1846 of 1968 (Union of India and others Versus S. Ganapati Kini and others) and (3) No. 50 of 1969 (Union of India and others Versus Suresh Kumar and others). In its judgment, dated 4-1-1972 (copy annexure 111) in these cases, the court has not agreed with the view taken by the Ministry of Home Affairs (now Department of Personnel) in this matter, as 'outlined in para 3 above. The court while dismissing the three appeals has held that, except in cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is otherwise eligible for the same. However, on promotion to the higher grade, the seniority of such persons among the promotees in the higher grade would be regulated in accordance with para 5 of the general principles of seniority contained in the annexure to Ministry of Home Affairs' office memorandum of 22-12-1959. 5. In this connection it may also be mentioned that the general principles of seniority contained in annexure to Ministry of Home Affairs O.M. dated 22-12-1959 were applied to some service/posts from a date subsequent to 22-12-1959. Such a course was permissible, vide para 3 of the O.M. dated 22-12-1959 referred to above. If, in those services/posts, seniority was actually continued to be determined beyond 22- 12-1959 in accordance with the instructions laid down in Ministry of Home Affairs' O.M. of 22-6-1949, seniority of the employees in the service/posts concerned might have been revised from the date from which the general principles of seniority contained in the annexure to the O.M. of 22-12- 1959 were adopted in respect of those services./posts on the basis of the interpretation of the Ministry of Home Affairs (now department of Personnel) given in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e result of the misinterpretation by the office memorandum of 1972 of the decision of this Court in Ravi Varma's case (supra) is that the petitioners" rights under Article 16 of the Constitution are violated, whereas learned Counsel for the respondents denies any such violation of a fundamental right irrespective of whether his contention, that the 1972 office memorandum correctly interprets judgment of this Court in Ravi Varma's case is accepted or not. As this Court had, in Ravi Varma's case (supra), set out the pro-visions of the memoranda of 22-6-1949 and 22-12-1959 in extenso, it is not necessary for us to reproduce their contents. We will only indicate the conclusions which emerged from their consideration irk Ravi Varma's case. This Court had, after pointing out that the principles contained in the office memorandum of 22-6-1949, although intended originally to meet the situation created by the partition of India and the need to absorb the influx of a large number of new Central Govt. servants, whose seniority had to be determined, were more generally applied to all Central Govt. servants, proceeded to hold that the provisions of the memorandum of 1959 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larly, cases of those superseded by. juniors in making promotions were to be considered afresh for promotion. Such consideration for confirmation or promotion was, however made to depend on the existence of vacancies, in the quotas for confirmation or promotion of Government servants. It does appear to us that, in so far as memorandum of 1972 does not direct reconsideration of cases of all those persons who have actually missed confirmation or who were not considered at all for promotion at the time when they ought to have been considered, it fails to give due and complete effect. as a matter of general policy, ID what was decided by_ this Court in Rovi Varma's case (supra). The excuse put forward on behalf of the respondent is that rights said to be created by the actual facts of confirmations and promotions in the past cannot now be taken away by the respondents and that more persons cannot be introduced in any grade than its sanctioned strength. It is true that the petitioners were not parties to the decision in Ravi Varma's case (supra) so that they cannot claim the benefit directly of any direction given in that case. It seems that it for this reason that learned Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th those who joined service after him could have resulted from justifiable grounds of discrimination from the point of view of an application of Article 16(1) of the Constitution. Thus, as already indicated above, although, it appears, on the, face of it, unjust that the petitioner Amrit Lal Berry, who is a B. A. and entered service on 15-12-1948, should be confirmed from 1-7-1955, but, Narinder Singh, who is only a Matriculate and entered into service on 7-2-1949, should be confirmed from 1-7-1953 under orders of the Collector of Central Excise dated 5-5-1956; yet, this difference is explained by the uncontroverted assertion in paragraph 3 of the count" affidavit dated 10-10-73 of Shri N. Subramanian, Under Secretary, that the petitioner did not pass the prescribed departmental examination until November 1954. It appears that, the petitioner Amrit Lal '.Berry was confirmed as soon as be could reasonably be confirmed on the occur- rence of a vacancy in the permanent cadre after he bad, passed his examination, as required by rule 7 of the Departmental Examination Rules, made applicable on 25-6-1949 to all existing officiating and temporary Government servants in the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court that he was not given the senior grade although he satisfied all the required conditions of it and that others, who were promoted into it, were given un- justifiable preference over him. It is difficult, on the assertions made in the affidavits before us, to see how the petitioner war. denied equality of opportunity in not being given the senior grade in 1961 but only in 1967. Even if we were to assume, as the petitioner would like us to do, that a disregard of seniority determined solely by length of service was the only reason for his failure to get the senior grade in 1961. there is yet another hurdle before the petitioner which was not shown to be present in Ravi Varma's case (supra), and, therefore, not considered or adjudicated upon in that case. There, no objection based on delay in applying to the Court was taken persumably because it could not be taken. But, a number of promotions having taken place between 1959 and the filing of Amrit Lal Berry's petition in 1971, those who were so promoted and had been satisfactorily discharging, for considerable periods before the filing of the petition, their duties in a higher grade would acquire new claims and quali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion since the accrual of the cause of com- plaint, and this delay, contended the respondents, was sufficient to disentitle the petitioners to any relief in a petition under Art. 32 of the Constitution. We do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice 'based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts". Rabindra Nath Bose's case (supra) was distinguished here on the ground that no rights, legal or equitable, of third parties had arisen by lapse of time in the case before the Court. The following principle laid down in Tilokchand Motichand v. H. B. Munshi(t) was also affirmed : "The party claiming fundamental rights must move the Court before other rights come into existence. The action of Courts cannot harm innocent parties if their rights emerge by reason of dalay on the part of the person moving the Court". It is true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties affected by slumbering over their rights, we think that the Central Excise Department am be presumed to know the law as declared by this Court in Mervyn Coutindo's case (supra) in 1966. We find its lethargy in waiting until 1972 to make any attempt to rectify its errors far from com- mendable. The memorandum of 1972 contains a set of instructions intended for carrying out the requirements of the law declared by this Court in Ravi Varma's case (supra) on 4-1- 1972 without disturbing such equitable rights as may have accrued to other Govt. servants by lapse of time. It is not suggested that this attempt was not a bonafide one. It had resulted in the conferment of such benefits from the declaration of the law in Ravi Varma's case, as could, in the estimation of the Central Excise Department, be reasonably reaped by the petitioners. It could only be understood in the context of the past executive instructions and declarations of law by this Court. It will be noticed that Ravi Varma's case (supra) was decided on an appeal from a decision of the High Court on Writ Petition under Article 226 of the Constitution. It was enough, for the purposes of a, petition under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he filed copies, to which no replies had been received so far by him. It was denied by the Excise Department that he ever sent the first representation. It is evident that he had waited for a considerable period before making his representation in 1965 even if we were to assume that he did make such a representation then. Furthermore, the copy of the alleged representation of 1965 shows that it was directed only against the imposition of test by examination before confirmation. We do not think, that, merely by filing repeated or delayed representations, a petitioner can get over the obstacles which delay in approaching the Court creates because equitable rights of others have arisen. We may, however, observe that when a citizen aggrieved by the action of a Government Department has approached the Court and obtained a declaration of law is his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the Department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to Court. In the petition of K. N. Kapur & others, we do not even find at assertion that any representation was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that 4-1-1972 was the date on which this Court delivered judgment in Ravi Varma's case (supra) making it finally clear and definite to the Central Excise Department what the correct interpretation of memorandum of 1959 was, and, therefore, the date had not been chosen altogether arbitrarily. A perusal of the memorandum of 1972 shows that the date 4-1-1972 was only chosen for giving the retrospective effect to whatever may be the actions taken on a wrong view of the law after this date. In other words, it means that promotions and confirmations made after 4-1-1972 would, in any case, be reopened. The provisions of the memorandum, which are not very clear as to what will happen in decisions taken before 4-1-1972 by the Excise Department, have been now interpreted by us so that they may be construed in a manner consistent with the apparent objects of the memorandum. The result seems to be that the seniority of all unconfirmed persons is to be determined in accordance with the law as declared by this Court on 4-1- 1972; but, as regards persons who had already been bona fide confirmed or promoted before 4-1-1972, no undoing of what had already be" done in their favour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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