Holding

Seniority must be determined by the length of continuous officiation reckoned from the date of first appointment if that appointment is later confirmed, rendering the provisional seniority list invalid.

Summary

Petitioners, appointed as Khandsari Inspectors in 1960‑64 under temporary posts, challenged a provisional seniority list dated 22 March 1971 that placed them below later recruits. They argued that, since their appointments were later regularised by the Uttar Pradesh Public Service Commission, their seniority should be reckoned from the date of first appointment, not from the date of PSC approval, and that the list violated Articles 14 and 16 of the Constitution. The Court examined whether the 1940 Order prescribed a binding seniority rule, held that in the absence of a specific rule seniority is determined by length of continuous officiation, and that a stop‑gap appointment followed by confirmation must count the earlier service. The provisional list was found to be violative of Articles 14 and 16 and was quashed. The respondents were directed to draw up a fresh seniority list based on the principle of continuous service from the first appointment, and the petitions were allowed.

Issues considered

The appropriate basis for determining seniority of employees appointed under a stop‑gap arrangement and later confirmed by the Public Service Commission.
Whether the provisional seniority list dated 22 March 1971 violates Articles 14 and 16 of the Constitution.
Whether the 1940 Memorandum Order imposes a binding rule of seniority for Khandsari Inspectors.
Whether the petitioners' delay, laches or acquiescence bars relief.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309, s. Article 32
Government of India Act, 1935s. Section 241(1)(b), s. Section 241(2)(b)

Subjects

seniorityinter‑se senioritypublic service commissionstop‑gap appointmentArticles 14 and 16equalitylength of continuous officiationlachesacquiescenceKhandsari Inspectors

Judgment

10

A
G.P. DOV AL AND OTHERS

v.

THE CHIEF SJ;:CRETARY
GOVERNMENT OF U.P. AND ORS.
B
July 18, 1984

[D.A. DESAI AND A.P. SEN, JJ .]

Constitution of India 1950, Articles 14, 16, and 32.
c
Seniority-P'ixatlon of-Past service to be given credit if stop-gap
arrangement is followed .by confir1nation.

Khandsarl Licei·sing Scheme-.1ppointmer:t of Khandsari lnspectors-
D lnter-se seniof'ity of ad hoc appointees and di~ect recruits through Public Service
Co111mis.1ion- Fixation of- ft'hetlter to be reckoned Jron1 date of appoint111ent to
tenzporary po.H or fron1 date of approval by Public Service Conunission.

Provisional Seniority List issued-Violation of fimdan1ental right guaran-
teed under Articles 14 ar.d 16-Burden of proof on whon lies,
E
Provisio .a/ Seniority List isrued in 197J-1¥rir petilion·fi:ed h1 1983-
0

Whether /iqb/e to be disrnissed on g•·ound of latch~s or delay.

Wor,:s and Phrases. 'Or fro111 the date of the order of the first appoint-
1nent if such appoint1ne11t is followed by co11/innation'-A·fea11ing of.
F
In the year 1958-59 the State Governn1ent framed the l(handsari
Licensing Scheme to regulate the supply of sugarcane to sugar factories.
Posts of Khandsari Inspectors initially designated as Licensing Inspectors
were created in the pay-scale of Rs. 120-250. Petitioners in the writ
G petitions were appointed as Kbandsari lnspecto:s between March aind M<.ty,
1960. Thereafter so1ne of ihc respondents were recruited as J(handsari
Inspectors and along with some others who we.re recruited departmentally
were approved by Public Service Commission. On March, 22, 1971 the
third respondent-the Sugar Comm1ssioner-cin:ulatcd a provisional seniority
JI list of Kbandsari Inspectors.
G.P. DOYAL v. ClllEF-StCRETARY 71

The peti•io,crs fepresi;rtted against the seniority list contcbding; that ,\
they were assigned lower place in the seniority list even though they wer~
recruited earlier and have b~en continuously in service. The representations
having been rej~cted, writ petitions were filed in this Court.

Jn their writ pi!titions to this Court, the petitioners contended that
when recruitment .was made ia l be year 1S60, the post of Khandiari
[ospector was not within the purview of the Public Service Commission and
that they "'°·ere regularly ._recruited to posts which were temporarily sanction·
ed but indefinitely continued and therefore, in reckoning their seniority, thCy
• must be given the benefit or the length of continuous . officiation, and that '
once approval is granted by the Public Service Commission it would relate c
back to the date of their appointment and that the previous length of service
cannot be ignored or denied in computing seniority in the absence of any -
statutory rUle or administra~ive instruction. It was further pointed out that
y petitioner Nos. 4 to 8. who were recru 1 1s of 1961 had b~en a~signed places
Nos. 30. 34, 42, 35 and 31 respectively i.i the seniority list whil.: recruits
of 1963 had scored a march over them-in the provisionll seniority list.

The respondents contested the writ petitions contending that by a.
Goy~rnment order temporary post of Licensing Inspectors were re-designated
as Khandsari Inspectors 2nd that the post right from inception was \\'·ithin
the purview of the Public S_ervice Comrllission, that on the framing of the·
Kbaadsari Lincensing Scheme, it becan1e necessary to urgently appoint
Inspectors to implement the scheme, and therefOre the third respondent-
tbe Sagar Co~missioner who was the appointing authority pending reg~lar :
selection through open cOmpetition thrDugh Public Service Commission
proceeded to make the appointments or the p~titioners as stop.gap or ..id ho~
nature and that their appointment created no right to the post. The drawing
up C'f the t~ntative seniority list was justified J.S being based on the_ recoma _
mendJ.tion'i of the Public Service Commission, and it was submitted that the
service v. hich can be taken info consideration for determining ~be length or-
con1inuous officiation must commence from the date Or. substantive appoint·
ment and that the provisional seniority 1ist had been drawn up keeping in
view the date of approval by the Public /Service Commi!:osion in respect of a.·
each candidate and that there was no error in drawiol up the seniority list.
It was further contended_ that promotions which were granted on the basis
of the provisional seniority list were not questioned by the peittioners and
~.:.;ey have acquiesced in it, and that the petiiioners bad moved the Court
<.fl er a long un~explained d~lay and that the Court should not grant any
relief.'

Allowing the \Veit Petitions, II
72 SUPREME COURT REPORTS (1985] I s.c IL

A HELD: (I) The impugned seniority fot dated March 21, 1971 in
respect of Khandsari Inspectors i11 quashed. Respondents 1 to 3 are directed
to draw up a fresh seniority list based ·on the principle of length of
continuous officiation reckoned fron1 the date of first appointment if the
appointment is followed by confinn:1.tion i.e. selection/approval by the State
Public Service Commission. [87 F]
B
(2) (i) The Memorandum of 1940 mert:ly prescribed guidcli.nes for the
departments of the Secretariat either to frame statutory rules or executive
instructions governing conditions of service in resi:ect of existing services if
there are no rules, or thty may be modified or amended so as to bring them
generally in conformity with the 1940 Order, .and whenever a new post or a
C new cadre in a service is set up to frame rules in conformity wHh guidelines
prescribed in the 1940 Order. The 1940 Order does not purport to lay
down conditions of service governing any cadre either specifically or
generally. It provides a model and unless the model is adiJptcd it is not.
binding. [82 D-F)

D
(ii) Assu1ning that the model principle set out in the 1940 ()rder has
a binding ~ffe~t the impugned seniority list does not conform to the
prescrib,d guidelines and is invalid. (85 F]

(3) (i) A fair rule of seniority should crdioarily take Into account
the past service if the stop-gap arrangement is followed by confirmation. f86 E]
E
(ii) If a stop-gap appointment is made and the appointc1~ appears
before the Public Service Commission when the latter proceeds to select the
candidates and is selected, there is no justification for ignoring past service.
There is also no juHification for two person!: selected in the sarr:1e manner
being differently treated. If once a person in a stop.gap arrangement is
F
confirmed ia his P->~t by pro;:ier selectioJ, his past service has to be given
credit and he has to b~ assigJed seniority accordingly unless a rule~ to the
contrary is 1nade. In the instant case, that has not been done to all the
petitioners. The error is app:irent in the casf: of petitioner No. l and
respondent No. 7. [86 B-D]
G \
(iii) When a seniority list is chaiJenged as being violative' of the
guarantee of equality enshrined in Articles 14 and 16 and prin1a facie it
appears that those who came into the cadre later on scored a march over
those who were already in the cadre, it would be for the authority justifying
the seniority list to plead and point out the rule for deteuniniag seniority
on the basis of which the list is drawn up. If any such rule is pleaded it
ff would be for those impugning the seniority list to aver and establish that
G.P. DOVAL v. CHIEF SECRETARY

the a11eged seniority rule is violative of the fundamental rights guaranteed A
by Articles 14 and 16. [78 G-H; 79A]

(4) (i) It is open to the Government to lay down general conditions
of service governing all services in the State either by rules frrmed under
Section 241 of the Gove.rnmcnt of India Act 1935, or on the advent of the
Constitution under the proviso to Article 309 of the Constitution. In the B
absence of statutory rules, conditions of service in a particular cadre may be
governed by exrcutive instructions issu~d by the Government in exercise of
its execntive power. [81 C-E]

(ii) In the absence of any other rule valid for detern1ing seniority
• under Article 16, seoiority being determined by the length of contiuuous c
officiation has bee.a accep'ed as valid by the courts. [82 H; 83 A]

P.S. Mahal and Ors. v. Union of India and Ors. [1984] 3 S.C.R. 8,J
and Bishan Sarup Gupta v. Unio·i of India, [1975] 1 SCR 104, referred to.
D
(5) Model Ru'e 11 suggests as guidelines two independent principles
for determining seniority; namely ( 1) seniority. should be reckon~d from the
date of substantive appointment, and (2) from the date of the order of first
appointment if such appointm_ent is folio.wed by confirmation. (84 A]

In the instant case, recitals in the appointment order do not spell·out E
that the appointees were to hold stop.gap arrangement lill a candidate
selected by the Public Service Commission is made ayailable. On the con-
trary, the recitals clearly indicate that those appointees will have to faco the
approval test by the Public Service Com1nission .. If petitioner Nos. 1 and 2
came to be appointed in 1960 and respondent Nos. 4, 5 and 6 came to be
appointed in 1961 and the appointment of each of them had to be approved F
by the Public Service Commission, once the approval is granted the same
will relate back to the date of first appointment. That is the meaning of the
expression in Model No. l l ; 'or from the date of the order of the first
appointment if such appointment is followed by confirmation.' (85 A-C]

G
(6) Where officiating appointement is followed by confirmation unles,
a contrary rule is shown. the sefvice rendered as officiating appointment
cannot be ignored for reckoning lengib of continuous officiation for deter-
mi~!ng. the pla~e in the seniority list. [86 G]

Baleshwar Dass and Ors. etc. v. State of U.P. and Ors. etc., [198 l]
l SCR 449, referred to.
H
14 SUPREME COURT REPORTS (l98Sj 1 S.C.k.
A In lh ~ instant case, respond1Jnts 1 to 3 helve no~ finalised the seniority .
list for a period of 1nore than 12 years and arc operating the ~arne for
further promotion to the utter disadv.1ntage of the petitioners. Petitioners
\vent on making representations after tepresentation which did not yield any
response. reply or relief. Further, the petitioners belong to the !owe~
c:-helons of service and it is not difficult to visu::i.lise that they may find it
B extremely difficult to ru~h to the court. The· contention that th~ writ
petitions should be thrown out on the ground of delay, latch,~s and
acquicsence must therefore be rejected. [87 c~o]

ORIGINAL JURISDICTION : Writ Petition No1. 5105-13 of 1983.
c •
(Under article 32 of the ConstitJ.tion f India)

M.K Ramamurthi, Mrs. Tndra Sawlmey, Mrs. C. Malhotra and
M. A. Krishnamoorthy for the Petitioners.

D Yogeshwar Prasad, Mrs. Rani Chabra, Gopa/ Subramaniam and
Mrs. Sobha Dikshit for the Respondent.

The Judgment of the Court was delivered by
•

DESAI, J. The petitioners in this group of petitions under Art.
E 32 of the Constitution were inducted as Khandsari Inspectors
between March, 19 60 and I 96 4 Respondents 4 to 19 were also
recruited as Khandsari Inspectors on different dates. Respondents
I and 2 are the Chief Secretary, Govt. o' U. P. and the Secretary,
Industries respectively of the u. P. Government and respondent
F No. 3 is the Sugar Commissioner of U. P. The dispute amongst
the petitioners and the respondents 4 to 19 is about intcr-se
seniority between them in the cadre of Khandsari Inspectors.

It appears that in the year 195"-59, the State Gov<:rnment
framed what is styled as 'Khandsari Licensing Scheme' to regulate
the supply of sugarcane to sugar factories by G 0. No. 4 58 8 ( 1)
XVIII-A-680/59 dated November 21, 1959. Posts of Khandsari
Inspectors initially designated as Licensing Inspectors were created
in the pay·scales of Rs. 120-250· Petitioners Nos. I, 2 and 3
were appointed as Khandsari Inspectors between March and May,
H 1960. Thereafter some of the respondents were recruited as
G.1'. DOYAL v. CHIEF SECRETARY (Desai, J.) 75

Khandsari Inspectors and some others who were recruited depart- A
mentally were approved by the Public Service· Commission. On
March 22, 1971, the third respondent --the Sugar Commission
circulated a provisional seniority list of Khandsari Inspectors. The
grievance of the petttioners is that some of the petitioners have
been assigned lower place in the seniority list even though they B
were recruited earlier and have been continuously in service. To
illustrate, petitioners pointed out that petitioners I to 3 have been
placed at Serial Nos 25, 29 and 27 respectively though ali of them
were recruits of 1960 while respondent No. 7-J.S. Negi, who was
recruited on March 2 3, J 961 was assigned the place at Serial C
No. 15 and respondent No. 4 0. N. Chatuivedi, who was recruit-
ed on March 23, 1961 was shown at Serial No. 6. Similarly,
respondent No. 9-P.N. Rai, who was also recruited on March 23,
• 1961 was shown at Serial No. 17 and respondent No. 5 was
shown at Serial No. 8. The petitioners further pointed out that D
petitloners Nos. 4, 5, 6, 7 and 8, who were recruits of l 961
have been assigned places Nos. :o, 34, 42, 35 and
' . ,
31 respectively
whie recruits of J 9f3 have scored a march over them in the
provisional seniority list. The petitioners assert that when the
recruitment was made in the year 1960, the post of Khandsari E
Inspector was not within the purview of the Public Service
Commission and that they were regualrly recruited to posts which
were temNrarily sanctioned and indefinitely continued till today
and therefore, in reckoning the seniorty, they must be given the
benefit of the length of continuous officiation. They further F
contend that when the post of Kh.andsari Jnspecto_r was later
brought within the purview of the Public Service Commission,
the names of the petitioners who were already recruited in service
as also of some of the respondents were forwarded to the Public
Service Commission for approval and except petitioner No 9- G
s. P. Gupta: the names of rest of the petitioner were approved by
the Public Service Commission on September 30, 1963, the rele-
vant date in the case of petitioner No. 9 is April 14,. 1978. The
petitioners a5sert _that even assuming that their appointment
would be regular after approval of the public Service Commission,
yet once such approval is granted' it would relate back to the . H
76 StiPREME COURT REPORTS [1985J l s c.R.

A date of appointment and the previous length of service cannot . be
ignored or denied in computing their seniority in the absence of
any siatutory rule or administrative instruction which has the force
of law. The petitioners further aver that in the absence of any
other statutory rule or administrative instruction for determining
B seniJrity. length of continuous officiation provides a valid principle
for determining seniority. Viewed from this angle, petitioners
l to 3 would be senior to all the respondents and the placement
of the remaining petitioners vis-a.vis the respondents will have to
be recomputed. On the circulation of the p1ovisionnl seniority
c list, the petitioners submitted vari0us representations pointing out
the error in drawing-up the provisional seniority list but till this
day no reply was given nor any final seniority list circulated nor
reasons assigned for rejecting the representations. The petit10ners
further say that despite their representation, respondents 1, 2 and
D 3 are operating the tentative seniority list for making further
promotions to the post of Khandsari Officer and Assistant Sugnr
Commi8'ioner and thereby they are being denied eqnality of •
opportunity in the matter of promotion. The petitioners accor-
dingly questioned by these writ petitions the validity and legality
E of the provisional seniority list asserting that as the final seniority
list is not being drawn up and as the representations arc being
ignored and yet the provisional seniority list is being operated to
the disadvantage of the petitioners thereby denying them equality
of opportunity in the matter of promotion which action of t~e
F respondents I to 3 is violative of Arts. 14 and 16·

Kailash Narain Pandey, Additional Sugar Commissioner
filed affidavit in-opposition It was admitted that by the Govt.
Order dated November 21. 1~ 59 temporary posts of Licensing
G Inspectors later redesignated as Khandsari Inspectors in the pay
scale of Rs. 120-250 were created but according to him as the
maximum of the scale was over Rs. 200 right from its inception,
the post was within the purview of the Public Service Commission
in view of Regu;ation 5 (a) of Appointment Department Misc.
No. 99/II-B-151·60 dated January 29, 1954 issued under the
H Uttar Pradesh Public Service Commission (Limitation of Fune-
G.P. DOYAL v. CHIEF SECRETARY (Desa;, J.) 77

lions) Regulations, 19 54. It was then stated that on the flaming A
of the Khandsari Licensing 8cheme, it became necessary to ur-
gently appoint lµspectors to implement the sche.me and therofore,
the third respondent ·-·Sugar Commissioner as Appointing Autho-
rity pending regular selection through open competition by the
1
Public Service Commission proceeded to make appointments and B
the appointment of the petitioners were of a stopgap or ad-hoc
nature and that it created no right to the post. It was admitt~d
;
_.__.., that petitioners Nos I and 2 were recruited afte1 holding depart-
mental competitive test on March 4, J 960- Petitioner No. 3,
who was then working as a Clerk in Cane Union Federation Ltd., C
Lucknow was selected on May 24, I 960 by applying a weeding
out test. Petitioners Nos. 4 to 8 were recruited after holding
qualifying test and interview on 23rd March, 196 J and Petitioner
No. 9 was appointed as and by way of stopgap arrangement It
was conteuded that the petitioners were appointed on an ad hoc D
and temporary basis as a measure of stopgap arrangement. It was
conceded that all the petitioners· except petitioner No. 9, were
approved by the Public Service Commission for regular appoint-
ment in the year 1%3, to be specific on 30th September, 1963 and
·they have continued unmterruptedly in the posts of Khandsari Ins- E
pectors. It was further averred that within a period of one year and
seven months from the date of appointment of the petitioners the
State Public Service Commission selected candidates to replace the
already working unapproved Licensing Inspectors on the request of
the Department and sent a list of approved candidatos on September
14, 1961, but only 5 out of 44 such selected candidates joined and F
hence the Department has to permit the petitioners to continue
though according to the third respondent notice of termination of
service were served on some of the petitioners.· It was further po:nted
out that when the State Public Service Commission proceeded to
recommend candidates for the post of Khandsari Inspectors, some
of the petitioners applied for such posts, but their applications were G
rejected at the stage of scrutiny. But on a request from the Depart-
ment the State Public Service Commission entertained the appli-
cations, called the petitioners for interview and approved them. It
was admitted that except petitioner No. 9 all the rest of the petitioners
were approved by the Public Service Commission on September 30,
1963. Justifying the drawing-up of the tentative seniority list as rl
jleing based on recommendations of Public Service Commission, it
' - .. . . . ' ' JI
78 SUPREME COURT REPORTS [1985] l S.C.R.
A was said that the service which can be taken into consideration for
determining the length of continuous officiation must commence
from ,the date of substantive appointment and accordingly the pro-
visional seniority list has been drawn-up keeping in view the date
of approval by the Public Scrv1co Commission in respect of each
candidate. It was averred that if this principle is valid for the
B
purpose of Art. 16, there is no error in drnwing·up the seniority. It
was specifically stated that it was open to the Government to ignore
officiating service or service rendered on appointment in an ad hoc
or stopgap arrangement. It was broadly stated that before a man
can claim to have his seniority determined in the cadre, he must
c belong to the cadre and he can only enter the cadre on substantive
appointment.

The rival contentions would bring into focus the controversy
between the parties. The impugned provisional seniority list dated
March 22, 1971 is drawn-up on the length of continuous officiation
D determined by the date of selection)approval of each person be the
State Public Service Commission. ln the process service prior to
the approval by the Public Service Commission is wholly ignored
while reckoning seniority with the result that the recruits of 1961
have scored a march over those who were recruited earlier in the
cadre and have been uninterruptedly officiating in the post and who
E at a later date were approved by the Public Service Commission
for appointment as Khandsari Inspectors. The question is : where
on account of exigencies of service, recruitment to a post within the
purview of the Public Service Commission is made by the appointing
authority, but at a later dote the Public Service Commission puts its
F seal of approval on such an appointee, whether the continuous and
uninterrupted service rendered by such appointee prior to the appro-
val by the Public Service Commission can and should be taken into
computation while determining seniority based on the principle of
length of continuous officiation ?

G When a seniority list is challenged as being violative of the
guarantee of equality enshrined in Arts. 14 and 16 and primafacie
it appears that these who came into the cadre later on scored a
march over those who were already in the cadre, it would be for
the authority justifying the senior;ty list to plead and point out the
rule for determining seniority on the basis of which the list is drawn-
up. If any such rule is pleaded, it would be for those impugning
the seniority list to aver and estahli sh that the alleged seniority
G.P. DOYAL "· CHIEF S!'CRETARY (Desai, J.) 79

rule is violative of the fundamental rights guaranteed by Arts. 14 A
and 16.

In the affidavit-in.opposition filed by the Additional Sugar
Commissioner on behalf of respondents l to 1, i: was asserted that
the impugned seniority list of the Khandsari Inspectors was drawn-
up on the principle of the length of continuous officiation reckoned B
from the date of selection/approval by the Public Service Commis-
sion in respect of each employee belonging to the cadre. It is
• necessary to refer to this aspect because the aver1nc11t is Yague a11d
of a ·general ncture and later on at the hearing of the petitions
reliance was placed on memo No. 0·66/H-233·1938 dated January
30, 1940 ('1940 Order' for short) for sustaining the senior;ty list, c
·the affidavit being conspicuously silent with regard to this order.
There is not a whisper of the 1940 Order in the whole of the affi-
davit-in-opposition. However, if the respondents would be in a
position to justify the seniority list on any existing statutory rule
or administrative instruction which has been invariably followed,
it would not be proper to attach too much importance to the vague- D
ness in drawing-up pleadings shifting, the stand in the course of the
proceedings. It must, however, be made clear that Mr. Gopal
Subramaniam, learned counsel who appeared for respondent No.
I to 3 attempted to reconcile the averments in the affidavit and
the oral submissions made at the hearing of the petitions by
E
urging that when it is said in the affidavit that the seniority in
respect of each member of the cadre was reckoned .on the princi-

- ·ple ~f length of continuous officiation commencing from the date
of selection/approval of each member by the State Public Service
Commission. respondents 1 to 3 had the 1940 Order in mind. F

It is therefore, neoessary first to examine the nature and
character of the 1940 Order and whether it lays down either by
way of a statutory rule or administrative instruction a binding
rule of seniority for determining the seniority in the cadre of
G
Khandsari Inspectors. If it does, it will have to be further
ascertained whether upon its true construction, the relevant rule
excludes any service rendered hy a member of the service prior
to his approval/selection by the State Public Service Commission.

The 1940 Order styled as a Memorandum was not annexed
(o (he affidavit-in-o~position· A copy of it was submitted a\
H

'"
80 SUPREME COURT REPORTS (1985) 1 S.C.R.

A the time of hearing of the petitions. In its preamble it proceeds
to recite that in view of the 'Appointment Department Memo-
randum No. 233(1)/Il-JS dated July 27, 1939 the Department
of Secretariat are informed that under Section 241 (l) (B) and
(2) (b) of the Government of India Act, 1935, rules hav1: to be
B framed for appointment to the civil services and posts ancl condi-
tions of services of persons serving.' .It further proceeds to state
that 'the existing rules for the various provincial, specialist and •
subordinate services under the Government should be revised so
as to bring them tu conformity with the provisions of the Govern- •
c ment of India Act. 1935 and new rules should also be drawn·up
for services and posts which existed pnor to April l, 1937 but
for which no rules were framed, or which have been created after
that date.' The 1940 Order further recites that enquiries are
being received as to the lines on which either the old existing
It then
rules have to be revised or new ru !es have to be framed.
D
states that 'the general principles which have been acc1:pted by
Government are stated below ' Para 2 of the Order clearly brings
out the nature and character of the 1940 Order, the relevant
portion of which reads as under :

E
"2· Among other things the rules should provide
for the following matters.'•
-
At Item No. 11, seniority is mentioned. Elaborating how
the rule about seniority should be drawn-up, the m 'morandum •
F proceeds to prescribe guidelines as under :

"Seniority in service shall generally be determined
from the date of substantive appointment to a service,
or from the date of the order of fit st appointment. if
such appointment is followed by confirmation In special
G
cases seniority may be determined in accordance with the
conditions which may suit a particular service.''

After extensively referring to the 1940 Order, it was urged
on behalf of the respondents that the impugned seniority list
is dr~wn-up keepin~ in view the date of appointment, the llatQ
G. p, DOYAL v. CHIEF SECRETARY (Desai, J.) 81

of selection/approval by the Public Service Commission, which is A
the reievant date for the .Purpose of computing seniority under
G.O. of 1 940 and the date of confirmation by the department
an? date of promotion.

B
The first question is : does the 1940 Order lay down a
binding rule of seniority in respect of Khandsari Inspectors ? It
may at once be made clear that the cadre of Khandsari Inspectors
~--
was first formed under 'Khandsari Licensing Scheme' which was
framed somewhere in November, 1959. It is difficult to bejieve
that two decades earlier, a seniority rule for a future cadre was
c
prescribed. It is of cJurse open to the Government to lay down
general conditions of service governing all services in the State
either by rules framed under Sec. 241 of the Government of
India Act, 1935 or on the advent of the Constitution under the
D
proviso to Art. 309 of the Constitution· It must be conceded
that in the absence of statutory rules, conditions of service in a
particular cadre may be governed by executive instructions issued
by the Government in exercis,e of its executive power. At any
rate, 1940 Order does not purport to lay a statutory rule framed
E
under Sec. 24 1 of the Government of India Act, 1935 because

- the memorandum recites that in vi.ew of the provisions contained
in Sec. 241, rules have to be framed for appointment to civil
service· and posts and conditions of service of persons serving.
lt further recites that rules wiJI have to be framed in respect of
services which may be created for the first time after the advent F
of the Government of India Act, 1935. The memorandum
further provides that whenever there is an occasion for framing
statutory rules or issuing executive instructions governing condi.

- lions of service, there must be some uniformity in this behalf and
accordingly the memorandum proceeded to point out what should
generally be the contents of the rules and on what model they
should be framed. Therefore, unquestionably the memorandum
G

pre<cr.ibes guidelines for framing rules governing conditions of
ser·vice The memorandum· is something akin to model standing
orders. At any rate it does not purport to prescribe statutory H
rules Qr executive instructions governing conditions of service.
82 SUPREME CO.URT REPORTS (!98:5) I S.C.R.

A This.further becomes clear from the penultimate paragraph of the
memorandum in which it is stated that the principles set out in
the memorandum will be generally suitable for service or posts
recruitment to which is conducted through the Public Service
Commission and whenever the departure is made the same should
B be justified· Directions are given by the memorandum that
the departments of the Secretariat should proceed with the revi-
·•
sion of the existing service rules or frame rules for new service
and posts under their control in accordance with the: princi·
pies set ont in the memorandum. The departments were directed '
c to draw-up the draft rules and when ready tbey were required
to be submitted for the scrutiny of the appointment department
and should be accompanied by a self contained note in which the
important points and deviation from the above principles should
be explained and justified. It is thus abundantly clear that the
DJ memorandum of I 940 merely prescribed guidelines for th1e depart-
ments of the Secretariat either to frame statntory rules or executive
instructions governing conditions of service in respect of existing
services, if there are no rules or they may be modified or amended
so as to bring them generally in conformity with the 1940 Order
E and whenever a new post or a new cadre in a service is set up to
frame rules in conformity with guidelines prescribed in 1940 Order.
The 1940 Order does not purport to lay down conditions of service
governing any cadre either specifically or gener31ly. It provides a
model and unless the model is adopted, it is commonsense to say
that it is not bind:ng. Therefore, the contention that 1940 Order
-
F prescribes binding conditions of service and which have been
followed in drawing-up the seniority list does not comm(>nd to us
and must be rejected.

Assuming that in the absence of any specific rule to the
contrary having not been shown to have been adopted, the Depart-
G ment accepted the model as the binding one, the next question is :
whether upon its true construction it permits previous service to be
wholly ignored in reckoning seniority.

The model set out at Item No. 11 governing seniority merely
enacts the well-known rule of seniority in Government Service,
H · namely, seniority being determined in accordance with length of
co11tinuoµs officiation .. Ip t!w abse11ce of any other rule valid for
, G. P. DOYAL v. CHI.El' SECRETARY (Desai, J.) 83

determining seniority under Art. 16 rule or seniority being deter- A
mined by the length of continuous officiation has been accepted
as valid by the courts. In a very recent opinion of this Court in
P.S. Mahal and Ors. v. Union of India and Ors.( 1 ) Bha)\Vati, J. after
referring to Bishan Sarup Gupta v. Union of lndia(2) observed as
under:
·' B
"There was no specific seniority rule to determine
inter-se seniority between the direct recruits and the promo-
tees appointed regularly within their respective quota from
and after 16th January, 1959 and though, in the absence. of
any specific seniority rule, the Court could have applied
the residuary rule based on length of continuous officiation,
c
the Court did not do so because it felt that since the old
seniority rule had ceased to operate by reason of the in-
fringement of the quota rule, it would be for the Govern-
ment to devise "a just and fair seniority rule as between
the direct recruits and the promotees for being given effect D
to from 16th January, 1959."

Therefore, in the absence of any specific rule of seniority
governing a cadre or a service, lt is well-settled that length of con ti- ·
nuous officiation will provide a more objective and fair rule of
seniority. And that is exactly what the model in the memorandum E
prescribes. It says that seniority in service shall generally be deter-
m'ned from the date of substantive appointment to a service. If
the rule were to stop here, the question would arise : what' consti-
iutes substantive appointment to a post within the purview of the
Public Service Commission ? But the rule does not stop by merely
' saying that the seniority shall generally be determined from the F
date of substantive appointment to a service. It further provides
that it may be determined commencing from the date of the order
of the first appointment, but proceeds to qualify the last clause by
providing : 'if such appointment is followed by confirmation'. In
other words, a rule for determining seniority may provide length of
continuous officiation from substantive appointment ~H from the G
date Gf the ord~r 0f the first appointment if such appointment
is followed by confirmation. In the latter case, once confirmation
is made and the service till then is uninterrupted and continuous
'it relates back to the date of the order of the first appointment.
H
(l) [1914] 3 S.C.R. 823.
(2) [1975) I SCR 104, \
84 SUPREME COURT REPORTS [1985] 1 s.c.R. I
A Now model Ru!~ 11 sugg~sts. as guidelines two independent princi-
ples for determrnmg semonty, namely (I) seniority be reckoned
from the date of substantive appointment and (2) from the date of
the order. oflfirst appoinment, if ~uch appointment is followed by
confirmaho~. Two different startmg points for reckoning seniority
are set out m the model
.
and it is difficult
f .
to assume that depar t ment
B adopted one and rejected the other without making a specifi 1
. h If
m that be a .
c rue

The question that can then be posed is : what constitut
. t. eSf
substanhve appo1~ ment m a cadre which is within the purview of• i
the Public Service Commission. Now. the cadre of Khandsary I
c Inspectors was formed m 1959. There 1s no material to shpw that '·
at that time it was within the purview of the Public Service Com-
mission. A vague statement was made that under the Uttar Pradesh '··~
Public Service Commission (Limitation of Functions) Regulations,
J954, any post with a sanctioned scale, the maximum of whicn
D exceeds Rs. 200/- would be within the purview of the Public Service
Commission. ft was therefore, said that the post of Khandsari
Inspector was within the purview of the Public Service Commission ••
It was then urged that as the 'Khandsari Licensing Scheme' was to
he urgently implemented, the appointing authority filled-in the posts
pending recruitment by the Public Service Commission. This state-
E ment is not borne out by the record. On May 4, 1960, 9 persons
including petitioners Nos. 1 and 2 were temporarily appointed as
Licensing Inspectors. The appointment order does not show that the
appointment was pending selection of regular candidates by the
Public Service Commission. In fact, some confusion in this behalf
-
crept in because a statement was made at the hearing of these peti-
F tions that the post of Rhandsari Inspectors came w:ithin the purview'
of the Public Service Commission in 1961. Undoubtedly, the post
of Licensing Inspector was created in the first instance upto March,
31, 1960. But it may be mentioned that it has continued uniterrup- •
tedly till today and has become a permanent cadre. Identical
appointment orders was issued in favour of pel!tiornir No. 3 some of
G the petitioners including petitioners Nos. 4. 5, 6, 7 and 8 and some of
the responcents including respondents Nos. 4, 5, 6, 7 and several
-
others came to be appointed by the Order dated March, 23, 1961.
(Annexure 'B' to the petition). In this appointment order it was
clearly stated that 'on the result of the qualifying test and interview
held for the posts of Khandsari Inspectors in the months of
H February, and March, 1961, the candidates as noted in the enclosed
list are temporarily appointed as officiating Khandsari Inspectors iq
,, G. P. DOVAf; v. CHIEF SECRETARY (Desai, J.)

the scale of Rs. 120-6-210-EB-10-250 plus u9lial dearness
'
85
A
allowance per month subject to final selection bv Public Service Com- .
mission at any Ialer date.' The recitals in the order do not spell-out
that the appointees were to hold stop-gap arrangement till a
candidate by the Public Service Commission is made availahle. On
the contrary, the recitals clearly indicate that those appointees will
have to face the approval test by the Public Service Commission. B

l
Now if petitioner Nos. I and 2 came to be appomted in 1960 and
respondents 4, 5 and 6 came to be appointed in 1961 and th~
•appointment of each of them had to be approved by the Public
Service Commission, once the approval is granted, the same will
relate back to the date of first appointment. That i> the meaning of c
'the expression in Model No. I I; 'or from the date of the order of the
first app~intment, if such appointment is followed by confirmation·.'
It is not disputed that all the petitioners except Petitioner 4 were
approved by the Public Service Cornmhsion on September, 30, 1963
and yet respondent No. 7-J.S. Negi is shown at S. No. 17 while
I
petitioner No. l whu joined service on March, 4, 1960 and whose D
'appointment was approved on the same day has been assigned S.
No. 27 in the seniority list. If the first appointment is made by not
. following the prescribed procedure but later on the appointee is
'approved making his appointment regular, it is obvious commen-
sense that in the absence of a contrary rule, the approval which
means confirmation by the authority which had the authority power E
and jurisdiction to make appointment or recommend for appointment,
will relate back to the date on which first appointment is made and
the entire service will have to be computed in reckoning the ·seniority
according to the length of continuous officiation. That had not been
done in this case. Therefore, assuming that the model principle set
out in the J 940 Order has a binding effect, the impugned seniority F
, list docs not conform to the prescribed guideline and would certainly
be invalid.

Once it is shown that the 1940 Order did not prescribe any
binding rule or seniority, but it was a model prescribed for adoption
and the adoption having not been shown, it ,,annot prescribe a G
binding rule of seniority. Assuming that it is deemed to have been
adopted the seniority list does not conform to the model as inter-
preted by us.

Now if there was no binding rule of seniority it is well-settled
H
that length of continuous officiation prescribes a valid principle of
senfority. The question is from what date the service is to be reckoned ?
A
86 '
SUPREME COURT REPORts ,
[19851 t s.c.i\.

It was urged that any appointment of a stop-gap nature or pending
,
the selection by Public Service Commission cannot be taken into
account for reckoning seniority. In other words, it was urged that
to be in the cadre and to enjoy place in the seniority list, the service
rendered in a substantive capacity can alone be taken into considera-
B
tion,, We find it difficult to accept this bald and wide submission.
Each case will depend upon its facts aiid circumstances. If a stop-
gap appointment is made and the appointee app1:ars before the
Public Service Commission when the !alter proceeds to select the
candidates and is selected, we see no justification for ignoring his ,
J
past service. At any rate, there is no justification for two persons ·
selected in the same manner being differently treated. That becomes
c crystal clear from the place assigned in the seniority list to petitioner •
No. J in relation to respondent No. 7. In fact if once a person
appointed in a stop-gap arrangement is confirmed in his pos"t by
proper selection, his past service has to be given credit and he has to
be assigned seniority accordingly unless a rule to the contrary is
D made. That has not been done in the case of all the petitioners. The
error is appare.nl in the case of petitioner I and respondent No. 7.
These errors can be multiplied but we consider it unnecessary to do
so. In fact a fair rule of seniority should ordinarily take into account
the past service if the stop-gap arrangement is followed by confirma-
tion. This view which we are taking is borne out by the decision of
E this Court in Ba/eshwar Dass and Ors. etc. v. State of U.P. and Ors.
etc.,(') wherein this Court observed that the principle which has
received the sanction of this Court's pronouncement i~ that 'officiat~
ing serv ce in a post for all practical purposes of seniority is as good
as service on a regular basis. It may be permissible, within limits for
government to ignore officiating service and_ count. only regular
F service when claims of semonty come before it, provided the rules
·n that regard are clear and categorical and do not admit of any
1
mbiguitY and cruelly arbitrary cut-off r,f long years of service does
a ot take place or there is functionally and qualitatively, substantial
~ifference in the servic~ renderad in the two types. of posts.' It was
id that service rules will have to be reasonable, falf and not grossly
G ~:just if they are to survive the_ test of Art_icles 14. and 16. It is
thus well-settled that where offic1~tmg appomtment1s followed by
nfirmation unless a contrary rule 1s shown, the service rendered as
~~ciating appointment ·cannot be ignored for reckoning length of
tinuous otliciation for determinmg the place in the seniority list•
~~mittedly, that bas not been done and the seniority list is drawn
(!) [1981] l SCR 449.
6. P. bovAi. v. CHIEF SECRL'fARY (Desai, J.) 87

up from the date on which the approval/selection was made by the ,A
Public Service Cornmission in resp~ct of each member of the service,
which is clearly violative of Art. 16, and any seniority list drawn up
on _this invalid basis must be quashed.

A grievance was made that the petitioners have moved this
Court after a long unexplained delay and the Court should not grant
any relief to them. It was poi1ited out that the provisional seniority
list was drawn up on March, 22, 1971 and the petitions have been
• filed in the year 1983. The respondents therefore submitted that the
court should throw-out the petitions on the ground of delay, latches
and acquiesence. It was said that promotions granted on the basis of
inpugned seniority list were not questioned by the petitioners and
c
they have acquiesced into it. We are not disposed to accede to this
request because respondents l to 3 have not finalised tile seniority
list for a period of more than 12 yoars and are operating the s~ine '
for further promotion to the utter disadvantage of the petitioners.
Petitioners went on making representations after representations
which did not yield any response, reply or relief. Coupled with this ..
D.

is the fact that the petitioners belong to the lower echelons of service
and it is not difficult to visualise that they may find it extremely
difficult to rnsh to the Court. Therefore, the contention must be
rejected
E
In view of the discussion, these petitions succeed and are
allowed and a writ in the nature of certiorari is issued quashing the
impugned seniority list dated March 22, 1971 in respect of KJlandsari
Inspectors The respondents I to 3 are directed to draw-up a fresh
seniority list based on the principle of length of continuous officia-
tion reckoned from the date of first appointment if the appointment F
is followed by confirmation i.e. selection/approval by the State
·Pubtic Service Commission. We order accordingly, but in the
circumstances of the case, there will be no order as to costs.

N.V.K. Petitions allowed.