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TMI Blog1981 (12) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... by (1) personnel who had been working in the temporary Civil Supplies Department created during the second world war period and who were attending to certain residual duties concerned with the widening up of that department, (2) persons taken on deputation from other government departments, (3) retrenched former Civil Supply Department personnel, and (4) persons directly recruited to the CFD by the Controller of Foodgrains Distribution on temporary basis through the Employment Exchange. Since no rules had been framed laying down the qualifications or method of recruitment to the various posts, the guiding factor which seems to have weighed with the authorities in effecting appointments in the CFD was the suitability of the persons concerned to carry out the duties attached to a particular post irrespective of qualifications, age, etc. Admittedly, amongst the persons appointed to the CFD, there were applicable to other government departments for regular appointment into the government service in the clerical category and also quite a few persons who were over-aged for being entertained in the government service as on the date of their ad hoc appointments into the CFD. 3. The prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, the Chief Secretary to the Government of Maharashtra addressed a letter dated February 22, 1968 to all Heads of Departments stating that huge staff was required for manning the posts in the newly created BRO, that for the higher posts of Assistant Rationing Officers/ Inspecting Officers/Head Clerks and Rationing Officers/ Senior Clerks, it was absolutely necessary to drawn upon the senior and experienced persons already working in other government officers in Greater Bombay and hence the Government had decided that each department should immediately on receipt of the letter release the requisite number of persons under intimation tot he Controller of Rationing, Bombay and instruct the persons concerned to report for duty of him. It was further mentioned in the letter that for the posts of Assistant Rationing Officers, persons who had put in at least two years' service in a scale comparable tot he scale of ₹ 200-10-300 would be considered and that for the posts of Rationing Inspectors/ Senior In compliances with the directions contained in the said letter, a large number of personally from different departments of the State Government of Maharashtra in the Greater B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erk continuously form October 1, 1960 prior to his release, 'B' a merged Government servant \ was holding the post of Typist continuously form May 1, 1958. 'C' was appointed as a direct recruit to the post of Clerk in the Bombay Rationing Organisation on May 1, 1966 and was subsequently promoted as Senior Clerk on May 22, 1968. The seniority amongst them will be fixed as under ---------------------------------------------------------------------- Seniority Name Date of commencement Deemed dated of appointment rank of continuous service for fixation of as Clerk seniority ---------------------------------------------------------------------- 1 2 3 4 ---------------------------------------------------------------------- 1 `B' May 1, 1958 May 1, 1960 2 `A' October 1, 1960 October 1, 1962 3 `C' May 1, 1966 May 1, 1968 ---------------------------------------------------------------------- Provided that in the case of merged Government servant who was recruited to the post of Supply Inspector or Senior Clerk, by nomination, he shall take rank above a Clerk in the former Foodgrains Distribution Scheme who was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ------------------------- 1 2 3 ---------------------------------------------------------------------- 1. `A' February 24, 1966 2. `C' February 28, 1966 3. `B' March 15, 1966 ---------------------------------------------------------------------- (c) Seniority of Government servant in the cadre of Senior Clerks, Rationing Inspections and Deputy Accountants fixed on the basis of the rules in (a) and (b) above, shall be merged and refixed with reference to the date from which their seniority is determined according to the principles in Rules 4(a) and 4(b) above. Illustration. - Suppose there are 7 persons in the cadre of Senior Clerks, Rationing Inspectors, Deputy Accountants. `A' and 'B' were Supply Inspectors directly recruited in the Bombay Foodgrains Distribution Scheme and were continuously officiating in those posts form May 4, 1963 and May 1, 1963 respectively. 'C' was a Clerk in the former Bombay Foodgrains Distribution Scheme from September 1, 1960. He was promoted as Supply Inspector on May 5, 1963. 'D' was a Rationing Inspector directly recruited to it form February 2, 1966. 'E' was a released ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principles contained in the Government Resolution, Agriculture and Cooperation Department, No. EST-1060/40002/SIV dated April 1, 1963; (ii) those who were drawn in the Bombay Foodgrains Distribution Scheme from one and the same Government Office/Department shall take rank according to seniority inter se in the Officer/Department form which they were drawn Provided further were there is a clash of principles contained in the Government Resolution, Agriculture and Cooperation Department, No. EST-1060/40002/SIV dated April 1, 1963 with the seniority inter se in the former Department, the seniority inter se in the former Department shall prevail. Illustration. - 'A' who started his career as Assistant in Revenue and Forests Department from May 1,1 962 was drawn in Bombay Foodgrains Distribution Scheme on October 18, 1964 and was taken up as Inspecting Officer. `B' as Assistant in Revenue and Forests Department working in that cadre continuously from May 1, 1961 was released to join Bombay Rationing Organisation on August 22, 1966 as Inspecting Officer. `C' who started his career as Assistant in General Administration Department from April 1,1 960 was drawn i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned would get attracted only when persons already working in the BRO as Clerks were to be appointed as Senior Clerks/Rationing Inspectors. The other alternative provided was to fill up the vacancy by transfer of Clerks working in the Secretariat Departments or in the Officers of the Heads of Departments who possessed not less then two years of service. 11. On May 28, 1971, a gradation list of Rationing Inspectors, Senior Clerks and Deputy Accountants working in the BRO as on April 1,1 968 was published by the Controller of Rationing. It was expressly recited therein that the said list had been drawn up in accordance with the seniority principles enunciated in the Government Resolution dated March 22, 1968. It was also stated that while preparing the said list, the inter se seniority of the ex-CFD personnel had been kept in test except in the case of those who had been working in the CFD on deputation form other departments and offices in respect of whom the seniority had been fixed according to their position inter se in the respective former departments and offices from which paragraph 3 of the order the copies of the said order should be exhibited on the notice boards in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that the seniority of such non-S. P. C. persons on whom the benefit of continuance of service was thereby conferred was to be fixed only with reference to the date of issuance of the said Resolution with consequence that P. S. C. selected candidates who were already working in the various departments or officers prior to the said date were all to be treated as seniors in relation to the non-P. S. C. persons converted by the said Resolution. 14. On November 18, 1975, a provisional gradation list of Rationing Inspectors, Senior Clerks and Deputy Accountants of the BRO as on April 1, 1974 was published one a combined application of the seniority principles laid down by the BRO in the Rules dated March 22,1 968 and those laid down in the Resolution dated March 1, 1974 concerning the non-P. S. C. candidates who were granted the benefit of retention in service under the said Resolution. A similar gradation list of Assistant Rationing Officer/Junior Accountants of the BRO as on April 1, 1974 was also published by the Controller of Rationing no November 27, 1975. 15. On January 31, 1976 respondents 1 to 22 herein who were directly recruited in the former CFD as supply Inspectors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of personnel in the BRO as on April 1, 1968 and it had been specifically stated in the said gradation list that it had been drawn up on the basis of the principles laid down in the impugned Government Resolution dated March 22, 1968. The said list had been circulated to all the offices attached to the BRO and signatures of all the personnel working in the different offices had been taken in token of their having seen the list. The respondents stressed before the High Court the fact that even though objections had been invited against the provisional gradation list, none of the petitioners had filed any objections. Subsequently, a final gradation list was published on November 23, 1972, which was also brought to the notice of the personnel working in the BRO. Reliance was also placed by the respondents on the fact that the second provisional gradation list based on the impugned Resolution of 1968 was published on April 9, 1973 showing the seniority of personnel working in the BRO as on April 1, 1972 and though writ petitioners 1 to 3 filed certain objections against the said list long after the date fixed for the receipt of such objections, no contention has been taken therein objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violative of Articles 14 and 16 of the Constitution. The gradation lists dated November 18, 1975 and November 17, 1975 were also quashed by the Learned Judge, and the 1st respondent - State of Maharashtra - was directed to prepare a fresh seniority list without taking into consideration the aforesaid provisions of the impugned Government Resolution dated march 22, 1968 which had been struck down and to give consequential benefits to the writ petitioners, including increments, promotions etc. 19. The preliminary objection on the ground of laches and delay, raised by the respondents before the High Court, was overruled by the learned Single Judge by stating firstly, that the law with respect to laches did not lay down any obligation on the court to refuse to grant reliefs merely because there was a lapse of time since the cause of action arose and since the challenge against the Government Resolution was based on the contention that the fundamental rights of the petitioners under article 14 and 16 of the Constitution were violated, it was not open to the court to shut out the petitioners from putting forward their challenge against the Rules on the ground of delay or laches since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant and cogent reasons and since there was no material to justify the enactment of the said abnormal rule for determining seniority either in the impugned Resolution itself or in the return filed on behalf of the state, the provisions contained in the impugned Rules had to be struck down on the ground of infringement of Article 14 and 16 of the Constitution. The second reasons stated by the learned Judge is that there is an inherent fallacy in the attempt made by the impugned rules to equate the post of Supply Inspector in the CFD to the post in clerical cadre in other departments and the impugned Rules insofar as they provide for the fixation of inter se seniority of Rationing Inspectors/Seniority Clerks/Deputy Accountants in the BRO by giving credit to the service rendered by the 'released governments servants' in the clerical cadre in their parent departments subject to a deduction of two years therefrom are violative of Article 14 and 16. In the opinion of the learned Judge, it was not legally open to the Government, while laying down rules for fixation of seniority in the category of Rationing Inspectors/Senior Clerks, to make a provision for taking into conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid provisions of the impugned government Resolution and to give to the writ petitioners consequential benefits, including promotions and the emoluments on the basis of such revised seniority gradation list was not called for. We are also of opinion that the High Court was wrong in overruling the preliminary objection raised before it by the present appellants that the writ petition insofar it sought to challenge the legality of the Government Resolution dated March 22, 1968, was highly belated and was liable to be dismissed on the ground of laches and delay. 23. The challenge in the writ petition was directed mainly against the Government Resolution dated March 22, 1968, which laid down the principles for determining the inter se seniority of personnel appointed in the different categories of posts in the newly constituted BRO. It may be assumed that the principles enunciated in the said Resolution did not come to the knowledge of the petitioners and other employees of the BRO immediately after the Resolution was passed by the State Government. But in implementation of those principles, a provisional gradation list of Rationing Inspectors/Seniority clerks/Deputy Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly aware of the principles laid down in the Government Resolution dated March 22, 1968 at least when the provisional gradation list dated may 28, 1968 was so published and circulated. None of the writ petitioners, however, preferred any objection against their ranking in the said provisional gradation list. On November 23, 1972, a final gradation list of Rationing Inspectors/Senior Clerk/Deputy Accountants of the BRO as on April 1, 1968 was published with directions for bringing the said list also to the notice of all the persons borne on the concerned categories of the Organisation. Even after the circulation of the said list, the writ petitioners did not file any objections against the ranking given to them in the said list, which was based on the principles enunciated in the Government Resolution dated March 22, 1968, nor did they take any steps whatever to challenge the constitutional validity of those principles. 24. Subsequently, another provisional gradation list of Rationing Inspectors/Seniority Clerks/Deputy Accountants as on April 1, 1972 was published by the Controller of Rationing on April 9, 1973, In that list also, it was expressly mentioned that it had been drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted representations against the provisional gradation list complaining that the deemed dates assigned to them were incorrect. In those representations also, there was no protest or objection raised against the principles laid down in the Government Resolution dated November 22, 1968. 25. On March 1, 1974, the Government of Maharashtra passed a Resolution directing that non-P. S. C. persons who were employed in the ministerial posts, namely, Clerks, Typists, Clerk-cum-Typists, Steno-Typists and Stenographers in the Secretariat departments and various government offices in Greater Bombay, prior to January 1, 1971, and who were in the service of Government on the date of the issue of the said order, should continue in government service without being replaced by the candidates selected by the Maharashtra Public Service Commission, provided they passed the minimum educational qualification prescribed for the post to which they were appointed and they were also within the age limits prescribed for appointment to the respective posts held by them at the time of their initial appointment to such posts. It was made very clear in paragraph 4 of the said order that the seniority of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court on the subject and cannot be accepted as correct or sound. 28. In Tilokchand and Motichand v. H. B. Munshi, this Court had occasion to deal with a contention that the right to move the Supreme Court under article 32 of the Constitution, being a fundamental right, a writ petition filed in the Supreme Court under the said provisions cannot be dismissed on the ground of delay or laches, since such a course would amount to a denial of a fundamental right. Repelling the said argument, Mitter, J. observed thus I can however find no merit in the contention that because there is an invasion of a fundamental right of a citizen the can be allowed to come to this Court, no matter how long after the infraction of his right he applies for relief. The Constitution is silent on this point, nor in there any statute of limitation expressly applicable, but nevertheless, on grounds of public policy I would hold that this Court should not lend its aid to a litigant even under Article 32 of the Constitution in case of an inordinate delay in asking for relief and the question of delay ought normally to be measured by the periods fixed for the institution in case of an inordinate delay in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of these writs I cannot believe that the Constituent Assembly had the intention that five Judges of this Court should sit together to enforce a fundamental right at the instance of a person, who had without any reasonable explanation slept over his rights for 6 or 12 years. The history of these writs both in England and the U. S. A. convinces me that the underlying idea of the Constitution was to provide an expeditious and authoritative remedy against the inroads of the State. If a claim is barred under the Limitation Act, unless there are exceptional circumstances, prima facie it is a stale claim and should not be entertained by this Court. But even if it is not barred under the Indian Limitation Act, it may not be entertained by this Court if on the facts of the case there is unreasonable delay. [SCC p. 118, para 18]. It is said that if this was the practice the guarantee of Article 32 would be destroyed. But the Article nowhere says that a petition, howsoever late, should be entertained and a writ or order or direction granted, howsoever remote the date of infringement of the fundamental right. In practice this Court has not been entertaining stale claims by persons who hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing observations contained in paragraph 23 of the judgment of this Court in the last-mentioned case [SCC p. 292, para 23]. At this stage, it will be convenient to first dispose of the contentions urged by the petitioners, against the validity of the promotions given to respondents 8 to 67 during the period between 1968 and 1975. In our opinion, the challenge raised by the petitioners against 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, should exercise due diligence and approach this Court within a reasonable time after the cause of action ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal has arisen seeking to quash the Government Resolution of 1968 and the gradation lists of November 18, 1975 and November 27, 1975. The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the court with the challenge against the seniority principle laid down in the Government Resolution of 1968. As already indicated by us, the fact that the Government had subsequently passed a Resolution dated March 1, 1974 directing the regularisation of the temporary appointments of non-P. S. Cs. clerical personnel working in ministerial posts in the different governments departments in Greater Bombay, has no relevancy at all in this context of dealing with the question of delay and laches on the part of the petitioners in taking steps to challenge against the Government Resolution of 1968. The inter se seniority between the petitioners and the other personnel regularly absorbed in the BRO who has come over to the BRO as 'released government servants' is not in any way affected by the said Government Resolution of April 1, 1974, inasmuch as it has been expressly made clear that the temporary personnel who are entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niority principles laid down in the Government Resolution of March 22, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition insofar as it related to the prayer for quashing the said Government Resolution should have been dismissed. 31. On the merits also, we do not find any substance in the attack levelled by the petitioners against the legality and validity of the seniority principles laid down in the impugned Government Resolution of March 22, 1968. We shall briefly indicate our reasons for reaching this conclusion. The BRO was a totally new department which was constituted on March 1, 1966 pursuant to the Government Resolution dated February 11, 1966. Under the said Resolution, it was directed that the staff for manning the new Organisation should consist of [a] the skeleton staff already sanctioned under an earlier Government Resolution dated October 21, 1965 for carrying out the preliminary work in connection with the establishment of the new Organisation [BRO]; [b] the existing staff under the Controller of Foodgrains Distribution, Bombay, consisting of 384 posts which were to be merged with a New Bombay Rati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other government departments has been equated with a Supply Inspector of the CFD and it is on this basis that the inter se seniority as between the erstwhile CFD personnel and the 'released government servants' appointed to a post of Rationing Inspectors/Senior Clerks/Deputy Accountants in the BRO is to be reckoned. In our opinion, the said equation cannot be regarded as arbitrary or unreasonable, especially when it is viewed in the context of the factual background that the Supply Inspectors in the CFD were merely temporary hands whose appointments were of a precarious nature and the functions and duties performed by them and are not shown to have been substantially different from those discharged by the Clerks in other government departments. The principle laid down in Rule 4 [a] that the seniority of 'released government servants' and 'merged government servants' in the cadres of Senior Clerks, Rationing Inspectors and Deputy Accountants shall be determined with reference to dates which shall be fixed after deducting two years from the date of continuous service whether officiating or permanent rendered by him in the cadre of Clerks, Typists etc., appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the two sources has a reasonable relation to the nature of the post to which the recruitment is made. In that case, this Court upheld the provision contained in the recruitment is made. In that case, this Court upheld the provision contained in the seniority rules of the Income Tax Service, whereby a weightage was given to the promotees by providing that three years of outstanding work in Class II will be treated as equivalent to two year of probation in Class I [Grade II [Service. 32. We may also extract, with advantage, the following observations of Palekar, J., speaking on behalf of the Constitution Bench, in Bishan Sarup Gupta v., Union of India [SCC p. 126, para 14]. There is no question in this case of any discrimination being made in a service after officers from two sources have been brought in one cadre. It is true that seniority is a vital element in the matter of promotion but that does not mean that allotment of seniority by rule relative to recruitment, involves any classification for the purposes of promotion. The argument that the promotees and direct recruits became one class immediately on entry and, thereafter, there could be no classification betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already indicated our opinion that in equating the post of Supply Inspector in the CFD with that of Clerk with two year's regular service in other government departments, no arbitrary or unreasonable treatment was involved. 35. Clause [c] of Rule 4 which is the next provision that has been struck down by the High Court merely states that the seniority of government servants in the cadre of senior Clerks/Rationing Inspectors/Deputy Accountants shall be re-fixed in accordance with the principles laid down in clauses [a] and [b] of Rule 4. We have repelled the challenge against clause [a] of Rule 4 and no challenge has been raised by the petitioners before us against clause [b] of the said Rule. It must automatically follow that the aforesaid provision contained in clause [c] of Rule 4 is perfectly valid and constitutional. 36. That takes us on to the proviso to Rule 7 which is the only other provision struck down by the High Court. Clause [a] of Rule 7 lays down that in the case of government servants taken into the BRO on release from one and the same office, their seniority inter se in their former office shall be maintained in the BRO. Clause [b] is a similar provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18, 1975 and November 27, 1975 have not been drawn up in accordance with those principles. The first point urged before us is that the effect of clause (b) of Rule 7 is to make the provisions of clause (a) of Rule 7 is to make the provisions of clauses (a) and (b) of Rule 4 in applicable to 'merged government servants' and to direct that the seniority of the 'merged government servants' should be determined only in accordance with the principles lid down in the Government Resolution dated April 1, 1963. This argument is based on a total misconception of the scope and effect of Rule 7 (b). What that rule provides is only that as between the CFD personnel who have been absorbed in the BRO their inter se seniority reckoned on the basis of the principles contained in the Government Resolution dated April 1, 1963 shall be preserved. In other words, the object and purpose of clause (b) is limited to the preservation and maintenance of the pre-existing inter se seniority between the CFD personnel even after their absorption in the BRO and the said provision does not in anyway hamper the operation of the principles lid down in Rule 4 for the fixation of the seniority of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned gradation lists dated November 18, 1975 and November 27, 1975. The explanation given in the counter-affidavit for adopting the said course does not appear to us to be acceptable or sound. It was pointed out by the counsel for the respondents (writ petitioners) that EX. A produced along with the counter-affidavit of the 1st respondent herein shows that as many as 30 persons, who had joined the BRO as Clerks and were subsequently promoted as Rationing Inspectors, have been shown as seniors in relation to the writ petitioners in the gradation list dated November 18, 1975. Similarly, Ex. B gives the names and particulars of persons who were appointed as Supply Inspectors in the CFD subsequent to the appointment of the petitioners, but who have nevertheless been shown in the impugned gradation list as seniors to the writ petitioners in the corresponding cadre in the BRO. We have already made it clear that on a se seniority of the CFD personnel has to be strictly maintained intact, and that no person who was junior in the CFD in the category of Supply Inspectors can go above his senior in that organisation after being absorbed in the BRO, and also that no person who has been taken as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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