Holding

The seniority rules of the 1968 Government Resolution are constitutionally valid, not violative of Articles 14 and 16, and the High Court was wrong to strike them down; the appeal is allowed and the seniority lists must be revised accordingly.

Summary

The State of Maharashtra created the Bombay Rationing Organisation (BRO) by merging staff from the former Controller of Foodgrains Distribution (CFD) with personnel drawn from various sources. In 1968 it issued a government resolution fixing seniority rules (Rule 4(a), (c) and a proviso to Rule 7) that gave released government servants a two‑year credit and preserved inter‑se seniority from their previous departments. Petitioners, directly recruited Supply Inspectors from the CFD, challenged these rules and the 1975 seniority lists as violative of Articles 14 and 16 and argued the writ was barred by delay and laches. The Bombay High Court struck down the rules and ordered fresh lists; the State appealed. The Supreme Court held that the seniority rules were a reasonable policy choice, not arbitrary or discriminatory, and that the High Court was wrong to invalidate them. It also rejected the contention that the petition was barred by delay, noting the petitioners had ample opportunity to object earlier. The appeal was allowed, the High Court judgment set aside, and the State directed to revise the seniority lists in accordance with the 1968 rules.

Issues considered

The validity of clauses (a) and (c) of Rule 4 and the proviso to Rule 7 of the 1968 Government Resolution under Articles 14 and 16 of the Constitution.
Whether the writ petition filed after more than eight years is barred by the doctrines of delay and laches.
Whether the 1975 seniority (gradation) lists were prepared in conformity with the seniority principles laid down in the 1968 Resolution.
Whether the High Court erred in striking down the seniority rules and directing preparation of fresh seniority lists.
The scope of the State's power under Article 309 to frame inter‑se seniority rules for a newly constituted department.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309

Subjects

seniorityinter se seniorityArticle 14Article 16delaylachesgovernment resolutionBombay Rationing Organisationpublic service commissionequalityadministrative law

Judgment

~ ·'·l '.

6~ A
R. S. MAKASHI & ORS.
,,
i l~ •

I. M; MENON &·'OR.S.
(~ 'I

:i .• . .... ,.
·
B
'Dec~inber 8, l9BI

[A.D. KOSHAL, V. J}ALAKRISHNA ERADI AND
:;R . B.: !\{is~A, JJ.J . . . .· ,;· ,;
•• j'-.., i-- '\
Constitution of India Article 309-Proviso-Power of government to frame
.; .... ,
c
- rules of inter se seniority of persons borrowed from different sources-Exp/ain.ed.

P~ocedure-Defoy of eight /ears ;ii filing' writ petitkm-P;titioner sukin;
redress for alleged infringenleiit of fqndamental righi_:.Ifigh Court, if could 1101
dismiss o'n grounds of !aches. ~ '~
·

To man the various posts in the newly ·~stablished :Bombay Rationing D
Organisation (BRO) the ·State Gove.rnment sanctioned a skelton staff. In
addition to the sanctioned staff, the' existia'g' staff of the erstwhile adhoc organi-
sation of Controller of Foodgrains (CFD) were taken into the BRO. Since it
was considered necessary to have experienced staff for manning higher posts in
the .new Organisation the Government ·borrowed the· services of experienced
bands from ..other departments. Since, as work expanded, it was found that the
number of persons brought on deputation to .fill up aJ.I the new ·posts in· the E
BRO were not enough, some persons were directly recruited into the BRO.

In 19.68 the State .Gm1ernment ·issue<j, under ,the proviso to. Article 309 of
the,Constitution, the :Bombay Rationing Org;misation {F'ixation of·~Seriiority)
Rules, 1968. laying down the principles ·c10 .be applied fori;the .fixlition'·of senio··
rity of p,ersons working in the ;BRO. .The rules were· given retrospective .effect
from the date of the Gov.ernment. resolu.tion. sanctioning ·the.· skelton-.staff.for F
introduction of s,\atutory rl1-tionipg, . · r:. · ,, ; ~'. . ,; H ~- ·_, •
-; • 'J •• '

Rule 4(a) provided that seniority of a
releas~d government servant and a
merged government servant in · the cadre of ~enior clerk etc., as also ·a person'
who was initially appointed as a clerk etc. in the Bombay Rationing Organisa·
tion and subsequently promoted to the said cadre shall be determined with G
reference to the dates which shall be fixed after deducting two years from the
length of continuous service.

Clause (cl of this rule provided that senio~ity ()f g0vernrµent servants in the
cadre Of Senlor clerks fixed OD tb~ basis of rules (a) and (b)' Of this rule shall be
0

merged and refixed with reference to the dates from which their seniority is H
determii;ied according to th~ pr,inciples in 1rules 4(a) and (b),
• l i·. '··d
7o stJi>kilME cotJkt REPORTS iI982] 2 s.c.~.

A The proviso to rule 7 provided that where there is a clash of principles
contained in the government resolution with the seniority inter se in the former
department shall prevail.

Based on the principles laid down in 1968 Rules the Controller ofRation-
B ing had drawn up a gradation list of Rationing Inspectors, Senior Clerks and
Deputy Accountants working in the BRO as on April 1, 1968. 'the list was
exhibited on the notice board of the head office of BRO, regional offices and
Rationing Offices and was communicated to the individual members of the
staff.

A final gradation list was thereafter drawn up as on April I, 1968. Some-
C time later on April 9, 1973 another provisional gradation list as on April I, 1972
was drawn up and published as before.

Siilce at that tim: there were many employees who were temporarily recrui-
ted ,pending allotment of candidates selected by the State Public Service
Commission rules were relaxed and their appointmel)ts were regularised subject
-
to the condition that seniority of such non P.S.C. candidates on whom the bene-
D fit of continuance of service was conferred was to be fixed only with reference to
the date of issue of the resolution, as a result of which candidates selected by the
Public Service Commission already working in the varioqs departments were
treated as seniors in relation to the non P.S.C. p~rsons covered by the resolu-
tion.

A provisional gradation list as on April 1, 1974 was published following
E the seniority principles laid down by the BRO in 1968 and those laid down iri
the resolution concerning non P.S.C. candidates.

In January 1976, respondents 1 to 22 who wer~ directly recruited in the
former CFD but subsequently absorbed in the BRO challenged in a writ petition
the validity of the two gradation lists contending that in preparing these lists the
normal rule of fixation of seniority according to the date of appointment to the
F post was given a go-by and that while fixing seniority unequals had been treated
as equals in that the service rendered in the clerical cadre had been reckoned and
equated 'With the service rendered in the Rationing Inspectors' cadre.

The respondents raised a preliminary objection' that the petition was
barred by )aches because though the gradation list had been circulated to all
cmwerned In 1968 itself no objection had been raised and no effective steps had
been taken by the petitioners to challenge the validity of the principles laid down
G in the government resolution and that after a lapse of 8 years it was not open to
them to raise the challenge against the gradation list and try to unsettle a settled
principle; (2) in view of the fact that persons from various departments had
been recruited, it was necessary to evolve some fair and reasonable principles
for the fixation of inter se seniority of the integrated personnel in the different
categories.
H
A single Judge of the High Court struck down cluses (a) and (c) of rule 4
!Ind the proviso to rule 7 of the government Order dated March 22, 1968 as
R.S. MAKASHI V. l.M. MENON 71

being violative of Articles 14 and 16 of the Constitution and directed the State
Government to prepare fresh lists of seniority without taking into consideration
the provisions struck down by him. On the question of !aches the Single Judge
held that the law did not Jay down any obligaiion on the Court to refuse to
grant relief merely because there was a lapse of time but that since the cause of
action arose and the challenge was based on infringement of Articles 14 and 16
of the Constitution, the Court could not shut out the petitioners on the ground
cf !aches because such a course would amount to condoning the invalid B
rules.

The Division Bench dismissed in /:mine the appeal preferred by the res·
pondents in the writ petition.

Allowing the appeal, c
HELD : The High Court was wrong in holding that clauses (a) and (c)
Qf rule 4 and the proviso to rule 7 of the government resolution dated March 22,
1968 are violative of Articles 14 and 16 of-the constitution and in directing the
State Government to prepare a fresh seniority list without taking into consi-
deration these provisions. [90 B·C]
D
Assuming that the principles for determining the inter se seniority of per·
sons appointed in the different categories of the newly constituted BRO laid
down in the government resolution of March 22. 1968 were not known to the
members of the staff immediately after the resolution was passed by the State
Government a Provisional Gradation List of Rationing Inspectors etc. as on !st
-Apr{!, 1968 was drawn up in implementation of these principles on 28th May
1971 and the said list was circulated to all the personnel working in the establish- E
ment of the BRO. Neither after the publication of the provisional gradation list
on May 28, 1971 which was followed up by the publication and circularisation of
a final gradation list on November 23, 1972, nor even after the gradation list
was revised and published on April 9, 1973, did the writ petitioners file any
objections against their ranking in those gradation lists, within the time
allowed. [90 F-H]
F
Even in the belated representations filed by some of the writ petitioners
no objection was raised against the principles for determination of seniority
enunciated in the government resolution of 1968, nor was there any protest
whatsoever against the provisi.:in made in the resolution for fixation of seniority
of released government servants. Nqr again when their representations were·
rcj~cted by the government did the petitioners challenge the constitutionality
of the rules contained in the impugned resolution. [92 D-E] G-
The goverment resolution in regard to the position of non P.S.C. candi·
dates i·is a vis the P.S.C. candidates did not in any way . affect the inter se
seniority betw :en the petitioners and the released government servants drafted
to the BRO because that resolution was a general order applicable to all the
non P.S.C. personnel functioning on a temporary or ad hoc basis in th~ various ff
departments of the State Government. (93 E-F]
72 . ·:SUPREME COURT .REPORTS [1982] 2 s.c.R. .

There is no substance in the contention of the· petitioners that they stood
on a separate and .superior footing for the purpose of seniority in the new
organisation. The staff in the new organisation was drawn from four diffe-
rent sources and this inevitably necessitated the formulation of reasonable
principles for the determination of int~f'se seni 0rity. At the time of formation
of· the· BRO the ·petitioners were not holding. any substantive regular or
appointments in the CFD which itself was .a mere temporary department. In
.B contrast the deputationists (released government, servants) were regular hands
recruited by the Public Service Commision and they were holding posts on a
substantive basis in other departments. The principles of equation evolved for
determining the inter se seniority could not be regarded as arbitrary or unrea-
sonable viewed· iii the context that the CFO· candidates were merely temporary
hands in a temporary department. [IOI E-H] : 1

C It is not an invariable rule that seniority should be determined only on the
basis of the respective dates of appointment to the post and that any depar-
,ture from it would be unreasonable and illegal,. IUs,open to the rule making
.authority to take. a note of the relevant circumstances obtaining in relatioll' to
each department and determine. objectively the. rqles that should govern the
inter se seniority and ranking. Such rules. should be reasonable, just and
equitable. [102 F-G] :·'.'I l
D
Jn the instant case the action of the Qovernmept in determining the
inter s~ seniority of derkal personnel under rtil'e 4(a) c'anilot be .said to be in
aii~ w~y discr'iminatory dr iliegal. . . . . ' ..
• ,' I , ,,- ",1'. •,, . . '

· S.G. iaisinghani v~ Union of .India & Ors , [i967] 2 S.C.R: 703; Bishan
Sarup Gupta v. Union of Indid & Ors., [1975] l S.C.R. 104 at p. 114,. refer-
red to. " · ·· ' ·
E
When pe~sntmnef drawrl from different sources were being absorbed and
integraten in a new department' it was Jrlmarily for the government to decide
as a matter of policy how the equation .of posts should oe' effected, Courts
would not interfere with' sucli a decisi~ri unless· it is shown to be unreasonable
or unfair. [104 E] ·

F All that the proviso to rule 7 does is to state that in respect to persons
drafted into the CFD from· one' in·df' the· 'same'.!Cgovern'ment . department on
deputation basis their inter se se.niority in the formel" ·department should not be
--
disturbed and to that extent a deviation shoultl·be made from the principles laid
down in the government resolution: of April l,:1963. This 'proviso contains a
just and .wholesome principle commonly applied in such situations and it cannot
be said to be arbitrary or unreasonable. The tfigh Court· was in error in striking
down the rule as being viblative·,ofArticles Mand 16 bf the Constitution.
[105 E-H]
~: ' I r~' b·1.,. •''
The.object of
clause (b) of rule<7 is limited to the pre'servation 'and main-
tenance of the pre-exisiog inter se seniority as between CFD personnel even after
their absorption in the BRO and this provision does not in any way hamper the
H operation of the principle laid down· in rule 4 for the, fixation of seniority of all
the personnel including the merged govemmefft' :servants' in the respective' cate:
11ories of BRO. [106 D-E]
R.S. MAKASHI V, l.M. MENON 73

The view of the single Judge that a petition under Article 226 seeking A
redress for alleged infringement of fundamental rights could not be dismissed on
the ground of !aches under any circumstances is inconsistent with the pronounce-
ments of this Court on the subject. The High Court was wrong in over-ruling
the preliminary objection based on delay and !aches. [94 B-C]

Ti/okchand Motichand and Ors. v. H.B. Munshi and Anr. [1969] 2 S.C.R.
824 at pp. 805, 836, 853-855, Rabindra Nath Bose and Ors. v. Union of India and B
Ors. (1970] 2 S.C.R. 697 at pp. 711-712; Malcom Lawrence Cecil D'Souza
v. Union of India and Ors. [1976] 1 S.C.C. 599 at p. 602; S.S. Moghe and Ors.
v. Union of India and Ors. [1981] 3 S.C.C. 271 at p. 292, referred to.

The petitioners had ample opportunities to file their objections to the grada-
tion list but they failed to avail those opportunities. They had not furnished
any valid explanation whatsoever for the inordinate delay on their part in C
approaching the Court with the challenge against the principles of seniority
laid down in the resolution of 1968. The single Judge was in error in thinking
that the passing of the government resolution of l '!74 furnished a fresh cause of
action for the petitioners for agitating their contentions regarding the validity
of the government resolution of 1968. [99 B-F]

D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1003 of
1980.

Appeal by special leave from the judgment and order dated
the 3rd March, 1980 of the Bombay High Court in Appeal No. 106
of 1980. E

V.M. Tarkunde, P.H. Parekh and Miss Vineeta Caprihan for
the Appellants.

- K.K. Singhvi, Brij Bhushan, N.P. Mahindra and A.K. Gupta,
for Respondents Nos. l, 2, and 3. F
V.B. Desai, R.H. Dhebar and R.N. Poddar for Respondent-
State.

The Judgment of the Court was delivered by
G
BALAKRISHNA ERADI, J. The second world war left in its wake
conditions of scarcity of foodgrains and other essential commodi-
ties in different parts of the country. To tide over that situation
and with intent to ensure a fair and equitable distribution of the
available supply of foodgrains etc., schemes of rationing of food- H
grains were periodically introdqced in the different States in the
country.
74 SUPn!'ME COURT REPORTS [ 1982] 2 s.c.n.

A In the State of Bombay, an informal (non-statutory) scheme
of rationing was introduced in November, 1957 and for adminis-
tering the said scheme, an ad hoc Organisation was set up under
the Controller of Foodgrains Distribution. Since this Organisa ·
tion (hereinafter referred to as CFD) was intended to be only a
temporary and short-term set up, no recruitment rules were framed
B for appointment to the various categories of posts created therein.
The CFD was manned principally by (I) 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 winding up of that department,
(2) persons taken on deputation from other Government depart-
c ments (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 quali-
fications or method of recruitment to the various posts, the guiding
--
D factor which seems to have weighed with the authorities in effecting
appointments in the CFD was the suitability of the person con-
cerned to carry out the duties attached to a particular post irrespec·
tive of qualifications, age, etc. Admittedly, amongst the persons
appointed to the CFD, there were several non-matriculates who
were ineligible under the prevailing rules applicable to other Govern-
ment Departments for regular appointment into the Government
E 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 dates of their ad hoc appointments into the CFD.

The principles to be observed for fixing the seniority of the

F
personnel appointed to the CFD were laid down by the State
Government by a Resolution dated April I, 1963. Under the said
Resolution, the seniority of personnel in each category was to be
--
determined with reference to the date of first appointment in the
particular cadre in which they were initially appointed in the CFD.

In July 1965, the Government of India issued instructions to
G all the State Governments advising them to start statutory rationing
schemes in metropolitan areas and big towns. With a view to imple-
ment those instructions of the Central Government, the State
Government of Maharashtra sanctioned on October 21, 1965 a
skeleton staff for working out details and carrying out other preli-
H minary work for the introduction of a scheme of statutory rationing
in Gref!t~r :eomba,v,
k.s. MAKASHi v. t.111. MENON (Balakrishna Eradi, 1.) 1$

Subsequently, by a Resolution dated February 11, 1966, the A
Government of Maharashtra announced its decision to introduce a
statutory rationing scheme in Bombay and the Industrial Complex
around it including some areas of Thana District and to
set up an organisation under the Controller of Rationing, Bombay,
for efficiently administering the said statutory scheme. The streng1h
and patten of the staff for the Bombay Rationing Organisation B
(for short, the BRO) which was newly created under the said
Resolution was to be as shown in Annexure 'A' appended to the
Resolution. The skeleton staff which had been already sanctioned
for carrying out the preliminary work as per the prior Government
Resolution dated October 21, 1965 was to be treated as belonging
to the BRO. The existing staff of the CFD consisting of 884 posts c
as shown in Annexure 'B' to the aforesaid Resolution was to be

- merged into the new BRO with effect from March 1, 1966, excepting
9 posts of part-time Mehtars, which were to be abolished with
effect from the said date. In addition, 2818 posts in 23 different
categories were also created in the BRO as per the particulars shown
in Annexure 'C' to the aforesaid Resolution. Out of these, 1220 D
newly created posts were in the category of Rationing Inspectors
and 165 posts were of Senior Clerks.

Since it was considered necessary to have experienced staff for
manning the higher posts in the new Organisation, it was decided to
obtain the services of experienced hands from other departments on E
deputation. Accordingly, 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 neces-
sary to draw upon senior and experienced persons already working
in other Government offices 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 to the Controller of Rationing, Bombay and G
instruct the persons concerned to report for duty to 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 H
in a scale comparable to the scale of Rs. 200-10-300 would be con-
sidered and that for the posts of Rationing Inspectors/Senior
Clerks, Clerks who had put in at least two years' service would be
76 SUPRi:Mti C00RT ktPbilts [l 982] 2 s.C.R.
A considered. In compliance with the directions contained in the
said letter, a large number of personnel from different departments
of the State Government of Maharashtra in the Greater Bombay
area were sent over to the BRO on deputation and they were
appointed to posts in different categories in the new Organisation
(B.R.O.) Apparently for the reason that the number of persons so
obtained on deputation was not adequate to fill up all the new
posts in the BRO, some persons were also directly recruited into
the said Organisation subsequent to March 1, 1966.

As an essential preliminary step for the integration of the
former CFD personnel with the staff appointed in the BRO from
c other sources, the Controller of Rationing, Bombay published on
29.8.1966 a provisional Gradation List of the CPD personnel as
on March 1, 1966. Subsequently, on March 22, 1968, the Govern-
ment of Maharashtra issued the "Bombay Rationing Organisation
(Fixation of Seniority) Rules, 1968", laying down the principles to
-
be applied for the the fixation of seniority of the persons working
D in the BRO. These rules were issued under the proviso to Article
309 of the Constitution and they were given retrospective effect
from October 21, 1965 (the date of the Government Resolution
sanctioning the skeleton staff for carrying out the preliminary work
for introduction of the scheme of statutory rationing). T)le per-
sonnel released from other departments of the State Government for
E work in the BRO, including retrenched or replaced Government
servants who had not suffered any break in service before joining
the BRO were designated under these Rules as "Released Govern-
ment Servants". Rule 4 which lays down the principles for fixa-
tion of seniority of persons in the cadre of Senior Clerks/Rationing
Inspectors/Deputy Accountants is in the following terms :
F
"Senior Clerks/ Rationing Inspectors/ Deputy Accoun- --
tants.

(a) Seniority of a released Government Servant and a
Merged Government Servant in the cadre of senior
G clerk, Rationing Inspector and Deputy Accountants,
as also a person who was initially appointed as
a clerk, or Typist or Clerk-cum-Typist in the Bombay
Rationing Organisation and subsequently promoted in
the said cadre shall be determined with reference to
H dates which shall be fixed after deducting two years
from the length of continuous service, whether official-
k.s. MAKASHI v. t.M. MENON (Balakrishna Eradi, J.) 11
ing or permanent rendered by him in the cadre of A
clerks, typists, and clerk-cum-typist.

Illustration :-

Suppose there are three persons in the cadre of Senior
Clerks/Rationing Inspectors and Deputy Accountants, 'A' 8
a released Government servant was holding the post of
clerk continuously from 1st October 1960 prior to his
release, 'B' a merged Government Servant was holding the
post of typist continuously from 1st May, 1958. 'C' was
appointed as a direct recruit to the post of clerk in the
Bombay Rationing Organisation on lst May, 1966 and was C
subsequently promoted as Senior Clerk on 22nd May,

- 1968. The seniority amongst them will be fixed as
under:-

Seniority Name Date of commence- Deemed date of
rank. ment of continuous appointment for D
service as Clerk. fixation' of
seniority.

1. 2. 3. 4.
E

I. B 1.5.1958 1.5.1960

2. A 1.10.1960 1.10.1962

- 3. c 1.5.1966 1.5.1968

Provided that in the case of merged Government
F

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 G
was promoted to the cadre of Supply Inspector or Senior
Clerk, in the former Foodgrains Distribution Scheme
immediately, after him and if this be not the position,
above the first person in the cadre of clerks belonging to
that organisation who is posted in the cadre of Senior H
Clerks, Rationing Inspectors and Deputy Accountants on
and after !st March 1966.
suPREMil couilT REPoins ti 982] 2 s.c.ft.
A Illustration :-

Suppose there are four persons in the cadre of Senior
Clerks, Rationing Inspectors and Deputy Accountants.
All of them were in the Bombay Foodgrains Distribution
Scheme. 'A' was a clerk in the Scheme and he was pro-
B moted to the post of Supply Inspector with effect from
1st May 1960 and since then was continuously officiating
in the post. 'B' and 'C' were recuited as Supply Inspectors
by nomination and were officiating continuously in that
post from 15th April, 1960 and 15th April, 1965. None
of the Clerks in that scheme was promoted after 'C' till the
merger of the staff in the Bombay Rationing Organisation.
'D' was a Clerk and he was promoted as Senior Clerk with
effect from 15th April 1966 i.e. after merger of the staff
in the Bombay Rationing Organisation. Their seniority ..._
amongst them will be as under :-

u Seniority rank Name

B

2 A
E 3 c
4 D

(b) Seniority of a Government servant appointed in the
F Bombay Rationing Organisation by direct requirement
to the carde of Senior Clerks, Rationing Inspectors
and Deputy Accountants shall be fixed with reference
to the dates of appointments to the posts in the said
-
cadres :

G Illustration :

Suppose there are three persons in the cardre of
Senior Clerks, Rationing Inspectors and Deputy Accoun-
tants who were recruited to the cadre by nomination. 'A'
was recruited as Rationing Inspector from 24th February
H I 966. 'B' was recruited as Senior Clerk from I 5th March
1966. 'C' was recruited as Deputy Accountant, from 28th
R.S. MAKASHI v. l.M. MENON (Balakrishna Eradi, J.) 79
February, 1966. The seniority amongst them will be fixed A
as under:-
·'

Seniority Date of commencement
rank. Name of continuous service.
B
1. 2. 3.

1. A 24.2.1966

2. c 28.2.1966 c

- 3. B 15.3 1966

(c) Seniority of Government servant in the cadre of
Senior Clerks, Rationing Inspectors and Deputy
Accountants fixed on the basis of the rules in (a) and D
(b) al:>ove, shall be merged and refixed with reference
to the dates from which their seniority is determined
according to the principles in the rules 4 (a) and 4 (b)
above.
Illustration:-
E
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 con-

- tinuosly officiating in those posts from 4th May, 1963 and
1st May 1963 respectively. 'C' was a Clerk in the former
Bombay Foodgrains Distribution Scheme from !st Sep-
F

tember 1960. He was promoted as Supply Inspector on 5th
May, 1963. 'D' was a Rationing Inspector directly
recruited to it from 2nd February, 1966. 'E' was a released
Government servent holding the post of Clerk in the former
G
office from 1st August 1960. He was taken up as Senior
Clerk from 2nd August, 1967, in the Bombay Rationing
Organisation. 'F' was a released Government servant
holding the post of a clerk in his former office from
1st February, 1964. He was taken up as Rationing H
Inspector on !st August 1967. 'G' was a released Govern-
ment servant holding the post of a clerk_ in his former
80 SUPREME COURT REPORTS [1982] 2 s.c.R

A office from !st December 1964. He was taken up as a
clerk in Bombay Rationing Organisation subsequently he
was promoted as Rationing Inspector from !st April,
1967. The seniority amongst them will be as under t -

Senio- Name Mode Actual date DEEMED
B
rity
rank. As Clerk As Sr. Cl./
R.I./Dy.
Acctt.

-c 1. 2. 3. 4. (a) 4. (b) 5.

1. E Promoted clerk
(released)
1.8.60 2.8.67 1.3.62 -
D 2. B Direct S.I. 1.5.63 31.8.62

3. A -do- 4.5.63 31.8.62

4. c Promoted Ex.
CFD Clerk 1.9.60 5.5.63 1.9.62
E 5. F Promoted Clerk
(released) 1.2.64 1.8.67 1.2.66

6. D Direct Ration-
ing Inspector. 2.2.66 2.2.66

F 7. Released Clerk
absorbed in
-
Bombay Ration-
ing Area Or-
ganisation as
Clerk and sub-
G sequently pro-
moted as
Rationing
Inspector." 1.12.64 1.4.67 1.12.66

H
However, it was further provided under Rule 7 that "notwith-
standing anything rc\ntaine,1 in the foregoing Rules ;
k.s. M:AKASHt v. i.M. MENON (Balakrishna Eradi, J.) 8i
(a) In case of Government servants released from one and A
the same office to join the Bombay Rationing Organisa-
tion the seniority inter se in their former office shall
not be disturbed ;

(b) in case of the merged Government servants, they shall
be governed by the principles contained in the Govern-
ment Resolution, Agriculture and Co-operation
Department No. EST-1060/40002/SIV, dated the 1st
April 1963; and

(c) in case of -

-
(i) those ·who were recruited directly in the former
Bombay Foodgrains Distribution Scheme shall be
governed by the principles contained in the
Government Resolution No. Agriculture and
Cooperation Department No. EST 1060/40002/
SIV dated the 1st April, 1963; D
(ii) those who were drawn in the Bombay Foodgrains
Distribution Scheme from one and the same
Government Office/Department shall take their
rank according to seniority inter-se in the office/
department from which they were drawn. E
Provided further where there is a clash of principles
contained in the Government Resolution Agriculture and
Cooperation Department No. EST 1060/40002/SIV, dated

- the 1st April, 1963 with the seniority inter-se in the former
Department the seniority inter-se in the former Depart-
ment shall prevail.
F

Illustration :-

., 'A' who started his career as Assistant in Revenue and
Forests Department from !st May 1962 was drawn in
Bombay Foodgrains Distribution Scheme on 18th October,
1964 and was taken up as Inspecting Officer, 'B' an
Assistant in Revenue and Forests Department working in
that cadre continuously from I st May, 1961 was released
to join Bombay Rationing Organisation on 22nd August, ,H
1966 as Inspecting Officer. 'C' who started his career as
Assistant in General Administration Department from !st
)

82 stiPREME couRt llEPoRts [1982] 2 s.c.:tl.

A April 1960 was drawn in Bombay Foodgrains Distribution
Scheme on 18th May, 1965 as Inspecting Officer. 'D' as
Assistant in General Administration Department working
in that cadre continuously from 1st May, 1960 was released
to join Bombay Rationing Organisation on 1st July 1967
as Inspecting Officer. The seniority of these persons will
B be fixed as under :-

Senio- Name Department Date of Date of Date of
rity recruit- joining in joining in
rank. ment as Bombay Bombay
c Asstt. Food- Rationing
in the
present
Deptt.
grains
Distri-
bution
Scheme.
Organi-
sation
-
D
I. 2. 3. 4. 5. 6.

I. c. General Admn.
Department. 1.4.60 18.5.65 1.3.1966
E
2. D. General Admn.
Department. 1.5.60 1.7.67

3. B. Revenu &

F
4. A.
Forests Depart~
ment

Revenue &
1.5.61 22.8.1966 -
Forests Depart-
ment 1.5.62 18.10.64 1.3.1966
(Date of ,.
merger)
G

By State Government's Resolution dated July 25, 1968, various
posts that existed in the former CFD were equated with posts in
the BRO in the manner indicated therein. Items 9 to 11 in the
H
Table appended to the said Resolution dealt with the posts of
Deputy Chief Supply Inspectors, Supply Inspectors and Senior
R.S. MAKASHI v. J.M. MENON (Balakrishna Eradi, J.) 83

Clerks, respectively in the CPD. All those three categories of posts A
were equated with the posts of Retioning Inspectors/Senior Clerks in
the BRO on Rs. 160-10-220-EB-10·270 despite the fact that in the
CFD the pay scale of the post of Deputy Chief Inspector was a
higher post than that of Supply Inspectors and Senior Clerks and it
carried a higher pay scale.
B
By a Resolution dated July 29, 1968, the State Government of
Maharashtra promulgated the Recruitment Rules for non-gazetted
posts in the establishment of the BRO specifying also the method of
appointment to the various posts in the said Organisation. Under
these Rules, appointments to the category of Senior Clerks/Rationing
Inspectors in the BRO were to be made either by promotion from
c
among Clerks, Clerks-typists, Typists etc., who had worked as such

- for not less than two years, or by transfer of General Duty Clerks
from the Secretariat Departments and the Offices of Heads of
Departments with not less than two years of service in the cadre.
Obviously, the first of the two alternative methods aforementioned
D
would get attracted only when persons already working in the BRO
as Clerks were to be appointed as Senior Clerks/Rationing Ins-
pectors. The other alternative provided was to fill up the vacancy
by transfer of Clerks working in the Secretariat Departments or in
the Offices of the Heads of Departments who possessed not less than
two y~ars of service. · E
On May 28, 1971, a Gradation List of Rationing Inspectors,
Senior Clerks and Deputy Accountants working in the BRO as on
April, I, 1968 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 Govern-
ment 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 tact except in the case of those who had
F

been working in the CPD on deputation from other Departments
and Offices in respect of whom the seniority had been fixed accord-
ing to their position inter se in the respective former Departments
G
and Offices from which they had been drawn on deputation A
specific direction was contained in paragraph 3 of the Order that
copies of the said order should be exhibited on the Notice Boards in
the Head Office of the BRO, all the Regional offices as well as in
the Rationing Offices, and the signatures of all the employees
H
working in the respective offices should be taken in a separate copy
84 SUPREME COURT REPORTS (1982] 2 S.C.R.

A of the order which should be kept on the record of the respective
Offices. It was further ordered that a report to the effect that the
Gradation List had been brought to the notice of all the persons
concerned should be forwarded to the Assistant Controller of
Rationing, (EST), Head Office in his personal name on or before
June 10, 1971.
B
Subsequently, a final Gradation List as on April 1, 1968 was
also published with a similar direction for bringing it to the notice
of all the persons borne on the establishment of the BRO. Still
.later, on April 9, 1973, another provisional Gradation List of
Rationing Inspectors, Senior Clerks and Deputy Accountants as on
c April I, 1972 was published with a like direction that it should be
brought to the notice of all the persons borne on their establish-
ment.

By Resolution dated March l, 1974, the Government of
Maharashtra took note of the fact that during the course of the
--
I) previous few years a number of candidates who had not been selec-
ted by the Public Service Commission had come to be recruited tem-
porarily to the posts of Clerks, Typists, Stenographers, Assistants,
etc. pending allotment of ca11didates selected by the Public Service
Commission, and it was directed that since many of such temporary
employees had put in several years of service, they may be retained
E in Government service without being replaced by candidates selected
by the Public Service Commission, provided they fulfilled the follow-
ing two conditions :

"(I) The non-P.S.C. persons concerned should have the
. minimum educational qualifications prescribed for
F the posts to which they were appointed.

(2) They were 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 also specified in the Resolution that the benefit of such reten-
G
tion in service would be applicable only to the non-P.S.C. persons,
who were recruited in various Government offices prior to January
1, 1971 and were in service on the date of issue of the said order.
Further, the Resolution contained a clear stipulation that the
seniority of such non-P.S.C. persons on whom the benefit of continu-
H
ance of service was thereby conferred was to be fixed only with
,:eference ~o t)le 9;it~ of i~suance of the said Resolution, with th1:
ll.S. MAKASHI v. I.M. MENON (Balakrishna Eradi, J.) 85

consequence that P. S. C. selected candidates who were already A
working in the various Departments or Offices prior to the said date
were all to be t1eated as seniors in relation to the non-P.S.C. persons
covered by the said Resolution.

On November 18, 1975, a provisional Gradation List of
Rationing Inspectors, Senior Clerks and Deputy Accountants of the
B
BRO as on April I, 1974 was published on a combined application
of the seniority principles laid down by the BRO in the Rules dated
March 22, 1968 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 Officers/Junior Accountants
c
of the BRO as on April 1, 1974 was also published by the Controller
of Rationing on November 27, 1975.

On January 31, 1976, respondents Nos. I to 22 herein who
were directly recruited in the former CFD as Supply Inspectors and D
had been subsequently absorbed in the BRO in the category of
Rationing lnspectors/Senior Clerks/Deputy Accountants, filed a
Writ Petition under Article 226 of the Constitution in the High
Court of Bombay · Misc. Petition No. 166/76 - challenging the
legality and validity of the aforementioned two Gradation Lists dated
November 18, 1975 and November 21, 1975. The main contention
E
put forward by them in the writ petition was that the impugned
lists were violative of Articles 14 and 16 of the Constitution, inas-
much as, firstly, the State Government and the Controller had given
a go-by to the normal rule of fixation of seniority according to the
date of appointment to the post, and secondly, unequals had been
treated as equals while fixing the seniority inasmuch as the period F
- of service rendered by the employees in the clerical cadre had been
reckoned and equated with the service rendered in the Rationing
Inspector's cadre. Another plea taken in the writ petition was that
the seniority of the writ petitioners has been made. to depend upon
an uncertain factor, namely, the seniority of persons who get pro-
moted to the cadre of Rationing Inspectors/Senior Clerks etc., from
time to time and this rule which kept the question of seniority of
employees in a state of flux for all time to come was grossly arbitrary
and unreasonable.

Respondents I to 3 in the writ petition were the State of H
Maharashtra. the Controller of Rationing and the Under Secretary
to the Government of Maharashtra, Food & Supply Department,
J
86 SUPRBMIJ COURT REPORTS l 19 82) 2 S.C.R.
A respectively. One hundre<1 and sixty-two employees working in the
BRO in different categories of posts were impleaded as respondents
Nos. 4 to 165 on the ground that they were likely to be affected in
case the reliefs claimed by the writ petitioners were granted by
the High Court. The respondents raised a preliminary objection
before the High Court the main attack levelled in the petition being
B against the validity of the Government Resolution dated March 22,
1968, the writ petition filed after the lapse of more than seven years
since the passing of the impugned Resolution was liable to be dis-
missed on the ground of delay and )aches. It was pointed out that
on the basis of the impugned Resolution, the provisional Gradation
List had been published on May 28, 1971 showing the seniority of
c personnel in the BRO as on April I, 1968 and it had been specifi-
cally 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 cir-
culated to all the Offices attached to the BRO and signatures of all
the personnel working in the different Offices had been taken in
D 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 peti-
tioners had filed any objections. Subsequently, a final Gradation
List was publised on November 23, 1972, which was also brought
to the notice of the personnel working in the BRO. Reliance was
E also placed by the respondents on the fact that the second provi-
sional 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 I, 1972 and though writ peti-
tioners I to 3 filed certain objections against the said list long after
the date fixed for the receipt of such objections, no contention has
F been taken therein objecting to the seniority principles laid down in ·
the Government Resolution of 1968. The objections raised by
writ petitioners I to 3 were rejected by the Controller of Rationing
-
as per his communications dated December 6, 1973 and December
19, 1973. Even thereafter, no steps were taken by the petitioners
to challenge the validity of the principles laid down in the Govern-
-.
G ment Resolution. It was urged by the respondents before the High
Court that in view of the aforesaid conduct of the petitioners, it
was not legally open to them to raise a challenge against the said
Resolution in the writ petition filed after eight years and thereby
upset the seniority position of personnel which had become settled
H during the course of the period of eight years and disrupt rights
k.$. MAKASHi v. l.M. MENON (fJalakrish11a Eradi, J.) $1
which have become vested in others by virtue of the various postings A
and promotions that have taken place in the meantime.

On the merits, the respondents contended before the High
Court that the BRO being a newly constituted Organisation with its
personnel drawn from different sources, it was perfectly open to the
State Government to lay down the principles to be applied for the 8
determination of inter se seniority of the members of the staff
belonging to the different categories. Since the new Department
was to consist of "merged Government servants" who were absorbed
from the CPD, "released Government servants" drawn on deputa-
tion from other departments and also direct recruits, it was necessary
to evolve some fair and reasonable principle for the fixation of the c
inter se seniority of the integrated personnel in the different cate-
gories. The respondents submitted before the High Court that
viewed in the context of the relevant facts and circumstances, the
principles laid down in the impugned Resolution were perfectly
reasonable and that the challenge levelled by the petitioners against
the said Resolution and the Gradation Lists dated November 18, D
1975 and November 27, 1975 on the ground of alleged violation
of Articles 14 and 16 of the Constitution was wholly devoid of
merit.

The writ petition was heard by a learned Single Judge of the
High Court and by judgment dated September .11, 1979, the
E
petition was allowed and clauses (a) and (c) of rule 4 and the pro-
viso to rule 7 of the impugned Government Resolution dated
March 22, 1968 were struck down on the ground that they were
violative of Articles 14 and 16 of the Constitution. The ·Grada-
tion Lists dated November 18, 1975 and November 27, 1975 were
also quashed by the learned Judge, and the first respondent-State
F
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. G
The preliminary objection on the ground of !aches and delay,
raised by the respondents before the High Court, was over-ruled by
the learned Single Judge by stating, firstly; that the law with res-
pect to !aches did not lay down any obligation on the Court to H
refuse to grant reliefs merely because there was a lapse of time since
the cause of action arose and since the challenge against the
SOPRhiH COURT REPORTS [i 982j 2 s C.R.
Government Resolution was based on the contention that the
fundamental rights of the petitioners under Articles 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 !aches since such course would
tantamount to "condoning the continuance of invalid rules or sta-
B tutes." The second reason stated by the learned Judge for over-
ruling the preliminary objection was that beyond making a vague
statement that the seniority list of November 23, 1972 showing the
placement of the officers as on A::iril l, 1968 had been since followed
and promotions made on that basis. no factual data had been placed
before the High Court by the respondents "to show the extent of
c such promotions and the manner in which the promotees would be
affected if the relief was granted to the petitioners". A further
ground mentioned by the learned Judge for rejecting the preliminary
objection put forward on the ground of delay is that by reason of
the Resolution dated March 1, 1974 passed by the State Govern-
ment directing that all temporary employees in the clerical 1;adre,
who had been recruited prior to January l, 1971 without insistence
on the passing of the Public Service Commission examination, may
be regularly absorbed in service with effect from March l, 1974
subject to the conditions mentioned therein, the final Gradation
List of personnel in the BRO published on November 23, 1972 has
inevitably been upset and hence it cannot be said that any rights
E have accured to such of the employees in the BRO who were
assigned ranks above the writ petitioners in the impugned seniority
list, so as to entitle them to put forward the objection based on
!aches and delay.

F
We may also briefly set out the reasons mentioned by the·
learned Judge in support of his conclusion that clauses (a) and (c)
of rule 4 and proviso to rule 7 of the Government Resloution dated
-
March 22, J968 offend Articles 14 and 16 of the Constitution.
Firstly, it is stated by the learned Judge tha.t since the petitioners
had been directly recruited as Supply Inspectors in the former CFD,
they were in the position of direct recruits to the cadre of Rationing
G
Inspectors in the BRO and the provision contained in the
impugned rules for assignment of deemed dates to the promotees
coming from other departments on the basis of their continuous
service in the clerical cadre minus two years is against "the normal
rule which determines the seniority on the basis of the dates of
appointment to the post". According to the learned Judge, any
R.s. MAKASHi v. i.M. MENON (Balakrishna Eradi, J.) 89

departure from the "normal rule" mentioned by him must be justi- A
fied by rational, 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 infringe-
ment of Articles 14 and 16 of the Constitution. The second reason B
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 posts in clerical cadres in other depart-
ments and the impugned rules in so far as they provide for the
fixation of inter se seniority of Rationing Inspectors/Senior Clerks/
Deputy Accountants in the BRO by giving credit to the service c
rendered by the "released Government servants" in the clerical cadre
in their parent departments subject to a deduction of two years
therefrom is violative of Articles 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 Ration·
ing Inspectors/Senior Clerks, to make a provision for taking into
D
consideration any service rendered by the deputationists in the lower
post of Clerk and that by itself spells out discrimination. The
learned Judge has expressed the view that in treating a clerk with
two years' service on a par with the Supply Inspector of the CFD,
the impugned Resolution has treated unequals as equals and thereby
committed a clear Lreach of provisions of Articles 14 and 16 of the E
Constitution. Lastly, it was held by the learned Judge that, since
under the provisions of the impugned Resolution the deemed date of
appointment of a promotee depends upon two factors, namely, his

-
inter se seniority amongst the persons who have been promoted from
his department and his continuous service in the clerical cadre minus
two years, it is inevitable that whenever a person from some other
F
department is taken on promotion to the BRO, the deemed date of
appointment of persons drawn earlier from the same department is
likely to get altered and since in consequence thereof the deemed
dates of the direct recruits will also undergo a change, the seniority
of the direct recruits is made dependant on uncertain events which
G
has no reasonable nexus with the object and purpose of the rules
and the rule has therefore to be struck down as arbitrary and vio-
lative of the principles of equality of opportunity enshrined in
Articles 14 and 16 of the Constitution.
H
Twenty nine persons belonging to the category of "released
Govern111ent servants" who are amongst the respondents in the writ
90 SUPREME COURT REPORTS [I 982] 2 s.C.k.

A petition and whose seniority etc., were adversely affected by the
decision rendered by the learned Single Judge, preferred a Letters
Patent Appeal before a Division Bench of the High Court, but that
appeal Wl\s dismissed in limine by the Division Bench, and hence
they have filed this appeal in this Court after obtaining special
leave.
B
After giving our anxious consideration to the arguments
addressed by counsel appearing on both sides, we have unhesitatingly
come to the conclusion that the view expressed by the High Court
that clauses (a) and (c) of rule 4 and the proviso to rule 7 of the
impugned Government Resolution dated March 22, 1968 are vio-
c lative of the provisions of Articles 14 and 16 of the Constitution, is
unsustainable in law and that the direction g:ven by the High Court
to the State Government to prepare a fresh seniority list without
taking into consideration the aforesaid provisions of the impugned
Government Resolution and to give to the writ petitioners con-
sequential benefits, including promotions and the emoluments on the
D basis of such revised seniority gradation list was not called for. We
are also of opinion that the High Court was wrong in over-ruling the
preliminary objection raised before it by the present appellants that
the writ petition in so far 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 )aches and delay.
E
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. lt may be assumed that the principles enunciated in the said
F 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/
Senior Clerks/Deputy Accountants of the BRO as on April 1, 1968
was drawn up and issued by the Controller of Rationing on May 28,
G 1971. Paragraph 3 of the Order dated May 28, 1971 whereunder
the said gradation list was issued contained a specific direction to
all the Deputy Controllers of Rationing in the Head Office and also
in the regions and to the Rationing Offices, to exhibit one copy of
the gradation list together with a copy of the said Order whereunder
H the list was issued on their respective Office Boards, use another
copy for obtaining signatures of all the persons who were still borne
R.S. MAKASHI v. l.M. MENON (Ba/akrishna Eradi, J.) 91

on the establishment of the BRO and keep the third copy for the A
office record. It was directed in the same paragraph that "it should
be seen that all the persons working in this Organisation, including
those on leave or under suspension or retired, are informed of their
seniority and rank and their signatures obtained in token thereof".
In the absence of any acceptable evidence to the contrary, it is
legitimate to presume that the said direction had been duly carried B
and that the provisional gradation list and the order dated May 28,
1971 had been duly brought to the notice of all personnel belonging
to the concerned categories then working in the BRO. It is impor-
tant to notice that in the first paragraph of the aforesaid Order dated
May 28, 1971, it had been expressly mentioned that the provisional
gradation list had been drawn up in accordance with the seniority c

-
principles enunciated in the Government Resolution dated March 22,
1968. Paragraph 2 of the said Order also contained a brief summary
of the principles on which the gradation list had been drawn up.
In paragraph 5 of the Order, it was stated that it was open to the
persons whose names were included in the gradation list to make
representations about the fixation of their seniority on or before
D
June 21, 1971, and that representations received thereafter will not
be entertained on any account. It is to be remembered in this
context that the BRO is a small Organisation functioning only in the
city of Bombay. Since copies of the Order dated May 28, 1971 and
the provisional gradation list had been circulated in the Head
E
Office, the Regional Offices and all the Rationing offices of the BRO
and also shown individually to all the members of the staff working
in the different offices, the writ-petitioners must be taken to have
become fully 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
F

November 23, 1972, a final gradation list of Rationing Inspectors/
Senior Clerks/Dy. Accountants of the BRO as on April I, 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 Organi-
sation. Even after the circulation of the said list, the writ-petitioners
did not file any objections against tile ranking given to them in the
said list, which was based on. tlle principles enunciated in the
Government Resolution dated March 22, 1968, nor did they take
any steps whatever to challenge the -.;onstitutional validity of those
principles.
92 SlJPHEME COURT REPOR'IS [1982] 2 S.C.ll.

A Subseq ucntly, another provisional gradation list of Rationing
Inspectors/Senior Clerks/Dy. Accountants as on April I, 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 up in
accordance with the seniority principles enunciated in the Govern-
ment Resolution dated March 22, 1968. This list was admittedly
B brought to the knowledge of the petitioners and the other personnel
working in th·~ concerned categories in the BRO. In the Order
dated April 9, 1973, whereunder the said list was issued, it had been
specified that representations against the seniority and ranking should
be submitted to the Controller of Rationing on or before May l,
1973 and that thereafter no representations would be entertained on
c any account. The writ-petitioners did not file any objections within
the said period. However, writ-petitioners 1 to 3 submitted certain
written representations to the Controller of Rationing in November,
1973, contending that the "deemed dates" assigned to them in the
gradation list were incorrect. Even in those representations, no
objection was raised against the principle 0• for determination of
D seniority enunciated in the Governmen: Resolution of 1968, and
there was no protest whatever against the provision made in the said
Resolution for fixation of the seniority of "released Government
servants",~·by giving them credit for the length of regular service put
in by them as clerks in other departments minus two years. The
E representations filed by petitioners 1 to 3 were rejected by the Con-
troller of Rationing by orders passed in December 1973, wherein it
was stated that the seniority and ranking assigned to them in the
provisional gradation list could not be altered in view of the pro-
visions contained in rule 4 (a) and the provision to rule 7 of the
Rules laid down in the Government Resolution of 1968. If the
F petitioners desired to challenge the constitutionality 0f Rules con-
...-
.
tained in the Government Resolution dated November 22, 1963, they
should have woken up at least when they received the aforesaid
replies from the Controller of Rationing and approached the Court
for appropriate relief within a reasonable time thereafter. No such
action was taken by them and all that they did was merely to address
G some further representations to the Secretary, Food & Civil Supply
Department reiterating the request made by them before the Cont-
roller of Rationing for alteration of their "deemed dates". Writ-
petitioners 11 and 12 are also seen to have submitted some belated
representations against the provisional gradation list complaining
that the "deemed dates" assigned t:o them were incorrect. In those +
H
representations also, there was no protest or objection raised against
its. MAKASHl v. J.M. MENON (Balakrishna Erudi, j,) 93

the principles laid down m the Government Resolution dated A
November 22, 1968.

On March I, 1974, the Government of Maharashtra passed a
Resolution directing that non-PSC persons who were employed in the
Ministerial posts, namely, Clerks, Typists, Clerks-typists, Steno-
typists and Stenographers in the Secretariat Departments and various
B
Government Offices in Greater Bombay, prior to January l, 1971,
and who ,,·ere iii the service of Government on the date of the issue
of the said order, 'hould continue in Government service without
being replaced by the candidates selected by the Maharashtra Public
Service Commission, provided they possessed the minimum educ-
ational qualifications piescribed for the post to which they were c
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 para-
graph 4 of the said order that the seniority of the non-PSC persons
on whom the benefit of permanent absorption in service was con-
ferred thereunder was to be fixed only with reference to the date of
D
the said order and that all the Public Service Commission selected
candidates ''ho were working in the various departments/offices prior
to the date of the said Resolution would be treated as seniors in
relation to the non-PSC persons covered by the said order. It is
manifest that this order did not in any way affect the in:er se
seniority between the writ petitioners and the released government
E
servants drafted to the BRO from other Government departments
wherein they had been holding posts on a regular basis after having
passed the "Public Service Commission examination. It is also worthy
of note that the Government Resolution of 1974 was a general order

- applicable to all the non-PSC personnel functioning on a temporary
or ad hoc basis in the Secretariat as well as the various departments
of the State Government and except as indicated above it did not
have any special applicability to the BRO.
F

On November 18, 1975, another provisional gradation list of
I'ationing Inspectors/Senior Clerks/Deputy Accountants of the BRO
G
as on April l, 1974 was published by the Controller of Rationing.
Representations were filed by writ petitioners I to 3 objecting to the
ranking assigned to them in the said provisional gradation list and
it was only in those representations that an objection was specifically
+ taken by them for the first time that the "released" personnel from H
other departments who h;,d been appointed in the cadre of Rationing
Inspectors in the BRO should not be assigned seniority over thern
94 SUPREME COURT REPORTS [1982] 2 s.c.k.
A since those persons had been working in their parent departments
only in the capacity of Clerks. The representation of writ-petitioner
1 was filed on December 3, 1975 while those of writ petitioners 2
and 3 on November 27, 1975 and December 9, 1975. Shortly there-
after, the petitioners approached the High Court by filing the writ
petition on January 31, 1976.
B
The view expressed by the learned single Judge of the High
Court that a writ petition filed under Article 226 of the Constitution,
seeking redress on the ground of alleged in fringement of fundamental
rights cannot be dismissed by the court on the ground of !aches,
under any circumstances, is inconsistent with the pronouncements of
c this Court on the subject and cannot be accepted as correct or
sound.

In Tilokchand Motichand and Ors. v. H.B. Munshi & Anr.,(1) 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
D fundamental right, a writ petition filed in the Supreme Court under
the said provision cannot be dismissed on the ground of delay or
!aches, since such a course would amount to a denial of a funda-
mental right. Repelling the said argument, Mitter, J. observed
thus:
E "I cannot however find any merit in the contention
that because there is an invasion of a fundamental right of
a citizen he 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 is there
any statute of limitation expressly applicable, but never-
F theless, on grounds of public policy I would hold that
this Court should not lend its aid to a litigent even under
Art. 32 of the Constitution in case of a inordinate delay
in asking for relief and the question of delay ought
normally to be measured by the periods fixed for the insti- ,,
tution of suits under the Limitation Acts.
G
The Limitation Acts do not in terms apply to claims
against the State in respect of violation of fundamental
rights. A person complaining of infraction of any such
rights has one of three courses open to him. He can either
H
(!) p969) 2(SCR 824 at['.pp. 835, 836, 853-855,
k.S. MAKASHI v. J.M. MENON (Balakrishna Eradi, i.) 95
make an application under Art. 226 of the Constitution to A
a High Court or he can make an application to this Court
under Art. 32 of the Constitution, or. he can file a suit
asking for appropriate reliefs. The decisions of various
High Courts in India have firmly laid down that in the
matter of the issue of a writ under Art. 226 the courts have
a discretion and may in suitable cases refuse to give relief B
to the person approaching it even though on the merits the
applicant has a substantial complaint as regards violation
of fundamental rights. Although the Limitation Act does
not apply, the courts have refused to give relief in cases of
long or unreasonable delay. As noted above in Bhailal
Bhai's case [1964] 6 SCR 261, it was observed that the c
"maximum period fixed by the legislature as the time with-
in which the relief by a suit in a civil court must be brought
may ordinarily be taken to be a reasonable standard by
which delay in seeking remedy under Art. 226 can be mea-
sured." On the· question of delay, we see no reason to
hold that a different test ought to be applied when a party
D
comes to this Court under Art. 32 from one applicable to
applications under Art. 226.

In my view, a claim based on the infraction of funda-
mental rights ought not to be entertained if made beyond
the period fixed by the Limitation Act for the enforcement E
of the right by way of suit. While not holding that the
Limitation Act applies in terms, I am of the view that ordi-
narily the period fixed by the Limitation Act should be
taken to be a true measure of the time within which a per-

- son can be allowed to raise a plea successfully under
Art. 32 of the Constitution."

To the same effect are the following observations of Sikri, J. in his
F

separate judgment in the same case :
"A delay of 12 years or 6 would make a strange
bed-fellow with a direction or order or writ in the nature
of mandamus, certiorari and prohibition. Bearing in mind
G
the history of these writs I cannot believe that the Consti-
tuent 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 reason-
able explanation slept over his rights for 6 or 12 years.
H
The history of these writs both in England and the U.S.A.
96 SUPREME COURT REPORTS [1982] 2 s.c.R..

A convinces me that the underlying idea of the Constitution
was to provide an expeditious and authoritative remedy
against the introads of the State. If a claim is barred
under the Limitation Act, unless these are exceptional cir-
'
cumstances, prima facie it is a stale claim and should not
be entertained by this Court. But even if it is not barred
B under the Indian Limitation Act, it may not be. entertained
by this Court if on the facts of the case there is unreason-
able delay.

It is said that if this was the practice the guarantee of
Art. 32 would be destroyed. But the article no where says
c 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 have slept over their rights."

D In Rabindra Nath Bose and Ors. v. Union of India and Ors.,(1)
the identical question again came up to be considered by this
Court, and Sikri, J. speaking on behalf of the Constitution Bench,
said this:

"But in so far as the attack is based on the 1952
E Seniority rules, it must fail on another ground. The
ground being that this petition under Art. 32 of the Con-
stitution has been brought about 15 years after the 1952
Rules were promulgated and effect given to them in the

-
Seniority List prepared on August I, 1953. Learned
Counsel for the petitioners says that this Court has no
F discretion and cannot dismiss the petition under Art. 32
on the ground that it has been brought after inordinate
·delay. We are unable to accept this contention.
•.
The learned Counsel for the petitioners strongly urges
that the decision of this Court in M/s. Tilokchand
G Motichand's (2) case needs review. But after care-
fully considering the matter, we are of the view that
no relief should be given to petitioners who, without any
reasonable explanation, approach this Court under Art. 32
H
(1) [19.70] 2 SCR 697 at pp. 711-712.
(2) [1969] sec 110.
R.S. MAKASHI v. 1.M. MENON (Bafakrishna Eradi, J.) 97

A
of the Constitution after inordinate delay. The highest
Court in this land has been given Original Jurisdiction to
I entertain petitions under.Art. 32 of the Constitution. It
could not have been the intention that this Court would
go into stale demands after a lapse of years.

It is said that Art. 32 is itself a guaranteed right. So
B
it is, but it does not follow from this that it was the inten-
tion of the constitution makers that this Court should
discard all principles and grant reli~f in pt:titions filed
after inordinate delay. We are not anxious to throw out
petitions on this ground, but we must administer justice
in accordance with law and principles of equity, justice
c
and good conscience. It would be unjust to deprive
the respondents of the rights which have accrued
to them. Each person ought to be entitled to sit back and
consider that his appointment and promotion effected a
D
long time ago would not be set aside after the lapse of
a number of years."

The same position was reiterated by this Court in Malcom
Lawrence Cecil D' Souza v. Union of India and Ors.,(1) and again in
a very recent pronouncement of this Court in SS. Moghe and Ors.
v. Union of Indio and Ors.(2) We may usefully extract th.! following
E
observations contained in paragraph 23 of the judgment of this
Court in the last mentioned case :

"At this stage, it will be convenient to first dispose of
the contentions urged by the petitioners, against the vali-
dity of the promotions given to respondents 8 to 67 during
the priod between 1968 and 1975. In our opinion, the F
challenge raised by the petitioners against these promo-
tions 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
G
by the said actior. 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
H
(1) [1976] I S.C.C. 599 at p. 602.
(2) [1981] 3 S.C.C. Z71 at p. ~94.
98 SUPREME COURT REPORTS [1982) 2 S.C.R.

A before this Court the promotions that were effeoted
during the years 1968 to 1975. A party seeking the inter-
vention 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 arises
B and if there has been undue delay or !aches on his part,
this Court has the undoubted discretion to deny him relief
(see Rabindra Nath Bose v. Union of Jndia,( 1)

The Government Resolution of March 22, 1968 must have
come to the knowlegde of the writ petitioners at least ,when the
c provision al seniority list dated May 28, 1971 was circulated

-
amongst the staff of the BRO. Thereafter, in November 1972, a
final Gradation List of Rationing Inspectors/Senior Clerks/Deputy
Accountants of the BRO as on April I, 1968 had been published
and the said list was circulated to all the members borne on
the concerned categories of the Organisation. It was expressly stated
D in both the aforesaid lists that the ranking of personnel had
been effected in accordance with the principles laid down in
the Government Resolution dated March 22, 1968. The writ peti-
tioners did not file any objections against the provisional '.ist
despite representations having been invited, nor did they take any
steps to question the validity of the final gradation list or the senio-
E rity principles laid down in the Government Resolution of 1968, on
the basis of which the said list had been prepared.

Still later, in April 1973, another provisional Gradation List of
personnel working in the aforesaid categories was published by the
Controller of Rationing and the said list, which was also drawn up
F in accordance with the seniority principles enunciated in the Govern-
ment Resolution of March 22, 1968, had been admittedly brought
to the knowledge of the writ petitioners. They did not file any
objections against the said list within the time prescribed. And
what is more significant is that even in the earlier representations
filed by writ petitioners 1 to 3, which they filed in November 1973,
G no objection or protest was raised by them against the principles
for determination of seniority laid down in the Government Resolu- ·
tion of 1968. The Controller of Rationing informed writ petitioners
l to 3 in December 1973 it self that the representations stood
rejected since the seniority and rank assigned to them in the pro-
H
(1) (1970] 2 SCR 697.
Its. MAKASiit v. l.M. MENON (!Ja/akrishna Eradi, J.) 99

visional Gradation List were in strict conformity with the principles
,• laid down in the Government Resolution of 1968. Even there-
after, the petitioners did not wake up and it was only on January
31, 1976 that they approached the High Court by filing the present
writ petition out of which this 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 8
not furnished any valid explanation whatever for the inordinate
delay on their part in approaching the Court with. the challenge
against the seniority principles laid down in the Government
Resolu~ion 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 tempory appointments of c
non-P.S.Cs. clerical personnel working in Ministerial posts in the
different Government Departments in Greater Bombay, has no
relevancy at all in this context of dealing with the qul!stion of
delay and )aches 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 D
absorbed in the BRO who have 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 therein that the temporary personnel who are
entitled to the benefit of regularisation thereunder were to be
assigned seniority only on the basis that regular appointments were E
effected .on the date of issue of the said order. The learned Single
Judge of the High Court was, therefore, clearly in error in thinking
that the passing of the Government Resolution of 1974 furnished
a fresh cause of action for the petitioners for agitating their con-
tentions regarding the invalidity of the Government Resolution of
1968. We are unable to appreciate the further reason stated by the
F
learned Single Judge, that the respondents had not placed on
record any factual data to show the extent of promotions made on
the basis of the seniority list of 1972 and the manner in which the
promotees would be affected if the relief was granted to the writ-
petitioners, and the same we find to be is based on a totally incorrect
G
approach. It is to be noticed that there was no dispute before the
High Court that from the date 0f publication of the provisional list
of May 28, 1971, which was expressly based on the principles laid
down in the Government Resolution of 1968, the seniority and
rank of all the personnel in concerned categories had been fixed in
H
accordance with the principles laid down in the impugned Resolµ-
l ()Q SUPREME COURT REPORTS fl 982] 2 S.C.R.

tion. In the counter-affidavits filed in the High Court en behalf
of the State Government and the Controller of Rationing as well as
in the affidavits filed by t11e other respondents, it had been specifi-
cally averred that innumerable promotions had been made during
the period of six years on the basis of seniority a~ fixed in
B accordance with the impugned rules and many officers had gone up
by two or three stages as a result of such promotions. Further,
there is the clinching fact that the writ petitioners themselves had
impleaded as many as 162 officers as respondents on the ground
that they were all likely to be affected in case the reliefs claimed in
the writ petition were granted. In these circumstances, we consider
c that the High Court was wrong in over-ruling the preliminary objec-
tion raised by the respondents before it, that the writ petition
should be dismissed on the preliminary ground of delay and !aches,
inasmuch as it seeks to disrupt the vested rights regarding the
seniority, rank and promotions which had accrued to a large
number of respondents during the period of eight years , that had
D intervened between the passing of the impugned Resolution and
the institution of the writ petition. We would accordingly hold
that the challenge raised by the petitioners against the seniority
principles laid down in the Government Resolution of March 22,
1968 ought to have been rejected by the High Court on the ground
of ctelay and !aches and the writ petition in so far as it related to
E the prayer for quashing the said Government Resolution should
have been dismissed.

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
F
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 I, 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 :
G

(a) the skeleton staff already sanctioned under an earlier
Government Resolution dated October 21, 1965 for
carrying out the preliminary work in connection
H with the establishment of the new Organisation
(BRO);
ll.S. MAKASl-11 v. I.M. MENON (Ba/akrishna Eradi, J.) 101

(d) the existing staff under the Controller of Foodgarins A
,· Distribution, Bombay, consisttng of 384 posts which
were to be merged with a new Bombay Rationing
Office (BRO) with effect from March I, 1956;

(c) personnel drawn on deputation from other depart-
ments of the State Governments; and B

(d) persons directly recruited to the BRO.

Here is, therefore, a case where the staff for manning a new
department has been drawn from four different sources. In such
a situation, it was inevitable that some reasonable principles had C
to be formulated for the determination of the inter se seniority of
the personnel appointed to work in the different categories of posts
in the new Organisation. The entire argument of the petitioners is
based on an erroneous assumption that from the very inception
they belonged to the BRO and had some vested rights with respect
to seniority and rank in the said Organisation. The petitioners D
who were members of the staff of the CPD were taken into the
BRO along with the skeleton staff appointed under the Government
Resolution dated October 21, 1965 and the "released Govern·
ment servents" etc., as part of the single scheme formulated by the
Government for the constitution of a new department (BRO).
There is therefore, no substance in the contention advanced by the E
writ petitioners that they stood on a separate and superior footing
for the purpose of seniority etc., in the new Organisation. In this
connection, it is relevant to note that the writ petitioners were
holding the posts of Supply Inspectors in the CFD only on the
basis of appointments which were purely temporary. They had
not been recruited through the Public Service Commission but were F
given temporary appointments on the basis of recommendations
made by the Employment Exchange and their services were termi-
nable at any time without notice. Thus the position that existed
at the time of the formation of the BRO was that the writ peti-
tioners were not holding any substantive or regular appointments
in the CFD which itself was only a temporary Department. In con- G
trast, the deputationists who came over to the BRO as "released
Government servants" were persons who had been holding for
many years Ministerial posts in other Government departments on
regular basis pursuant to their recruitment by the Public Service
Commission. Under the impugned seniority rules laid down by H
the Government Resolution dated March 22, 1968, a deputationist
102 SUPREME CouRt REl>Ollts (1982) 2 S.C.R.

A (released Government servant) 'with two years' regular service as
Clerk in other Government departments has been equated with a
Supply Inspector of the CFO 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.
B In our opinion, the said equation cannot be regarded as arbitrary
or unreasonable, especially when it is viewed i~ the context of the
factual background that the Supply Inspectors in the CFO were
merely temporary hands whose appointments were of a precarious
nature and the functions and duties performed by them are not
shown to have been substantially different from those discharged by
c the clerks in other Government departments. The principle laid
down in rule 4 (a) that the seniority of "released Government ser-
vants" 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
D
officiating or permanent rendered by him in the cadre of clerks,
typists etc., appears to our minds to be perfectly just and unexcep-
tionable in the circumstances of the case. The reasons stated by the
learned Single Judge of the High Court for declaring the aforesaid
rule to be arbitrary and violative of Article 16 of th.e Consti-
tution do not appeal to us as correct or sound. Almost the entire
E
reasoning of the learned Single Judge is based on an assumption that
there is an invariable "normal rule" that seniority should be deter-
mined only on the basis of the respective dates of appointmeat to
the post and that any departure from the said rule will be prima
fade unreasonable and illegal. The said assumption is dev()id of
F any legal sanction. We are unable to recognise the existence of any
such rigid or inflexible rule. It is open to the rule-making autho-
rity to take a note of the relevent circumstances obtaining in relation
to each department and determine with objectivity and fairness
what rules should govern the inter se seniority and ranking of the
personnel working in the concerned departments and the courts will
G only insist that the rules so formulated should be reasonable,
just and equitable. Judged by the said test of reasonableness and
fairness, the action taken by the Government in equating the clerical
personnel which had rendered two years regular service in other
departments with the temporary Supply Inspectors of the CFO and·
H in directing as per impugned rule 4 (a) that their inter se seniority
shall be determined with reference to the length of service calcu-
lated on the basis of the said equation cannot be said to be in any
•

R.S. MAKASHI v. J.M. MBNON (Balakrishna Eradi, J.) 103

way discriminatory or illegal. We are unable to accept as A
correct the view expressed by the learned Single Judge of the
High Court that "while fixing the seniority in the higher post, it is
not open to take into consideration any service rendered in the
lower post and that by itself spells out discrimination." Firstly,
it is not correct to regard the post of a regular clerk in the other
departments as lower in grade in relation to that of a Supply B
Inspector in the CFD. Further, in S.G. Jaisinghani v. Union of India
and Ors.,(1) this Court has pointed out that in the case of recruit-
ment to a service from two different sources and the adjustment of
seniority between them a preferential treatment of one source m
relation to the other can legitimately be sustained on the basis of
a valid clasification, if the differences between the two sources has G
a reasonable relation to the nature of posts to which the recruit-

- ment is made. ln that case, this Court upheld the provision con-
tained in the seniority rules of che 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 years of probation in Class I (Grade II) Service. D

We may also extract, with advantage, the following observa-
tions of Palekar, J., speaking on behalf of· the Constitution Bench,
in Bishan Sarup Gupta v. Union of India and Ors.(') :

"There is no question in this case of any discrimina-
E
tion being made in a service after officers from the 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. Tl1e argument that the promotees and direct
recruits became one class immediately on entry and, there-
after, there could be no classification between them does
F

not disclose the correct approach to the problem of fixing
inter se seniority between them. When recruits from two
sources have come into a service it is essential to fix inter se
G
seniority for a proper integration of the cadre. Therefore,
it is really a case of adjustment of seniority between the
recruits and does not ar.10unt to making a classification
after their absorption in one service."
B
(!) (1967] 2 SCR 703.
<2) (1975j l SCR 104 at p, 114,
•

104 SUPREME COURT REPORTS ( 1982] 2 S.C.R.

A A comparison of the pay scales of the Supply Inspectors in
CPD with that of Clerks in the other departments shows that though
the clerks started with a lower salary, their pay scale reached a much
higher level than that of the Supply Inspectors It is also relevant
to notice that the next promotion post available to the clerks in
other Government departments from where they had gone on depu-
B tation to the BRO was that of Assistant or Head Clerk in the Grade
of Rs. 200-450 or Rs. 200-300, while the next promotion post of
Supply Inspector in the former CPD was that of an Assistant Zonal
Officer in the Grade of Rs. 200-300. Further the post of· Assistant'
to which the Clerks in other Government departments get a promo·
tion has been declared to be equivalent to the post of Assistant
c Rationing Officer in the BRO which is the post immediately above
that of Rationing Inspector in the BRO. When all these factors are
taken into account, it becomes clear that the post of Supply Inspec-
tor in the CPD cannot be regarded as a post higher than or superior
to that of clerk in the other Government Departments. Hence, we
-
do not find it possible to uphold the view expressed by the learned
D Single Judge of the High Court that the seniority principle embo-
died in rule 4{a) treats unequals as equals and that it is, therefore,
violative of Articles 14 and 16 of the Constitution.

When personnel drawn from different sources are being absor-
E bed and integrated in a new department, it is primarily for the
Government or the executive authority concerned to decide as a
matter of policy bow the equation of posts should be effected. The
courts will not interfere with such a decision unless it is shown to be
arbitrary, unreasonable or unfair, and if no manifest unfairness
or unreasonableness is made out, the court will not sit in
F appeal and examine the propriety or wisdom of the principle of
equation of posts adopted by the Government. In the instant case,
we have already indicated our opinion that in equating the post of
--
Supply Inspector in the CPD with that of Clerk with two years
regular service in the other Government departments, no arbitrary
or unreasonable treatment was involved.
G
C!ause (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 Ins-
e pectors/Deputy Accountants shall be refixed in accordance with the
principles laid down in clauses (a) and (b) of rule 4. We have re·
pelled the challenge against clause (a) of rule 4 and no challenge has
tut MAKASltl v. l.M. MENON (Balakrishna Eradi, i.) 105

been rais~d by the petitioners before us against clause (b) of the A
said rule. It must automatically follow that the aforesaid provision
contained in clause (c) of rule 4 is perfectly valid and constitu·
tional.

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 B
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 relating to the "merged Government
servants" (ex-CFD personnel). Clause (c) of rule 7 lays down that
the inter se seniority of persons directly recruited in the former CFD c
Organisation shall be governed by the principles set out in the

- Government Resolution dated April l, 1963. It is further stated in
the said clause that in regard to persons who were taken to the CFD
from one and the same Government office/department, they shall
take their rank according to their inter se seniority in the office/
department from which they were drawn. Thereafter, follows the D
impugned proviso which lays down that where there is a clash of
principles contained in the Government Resolution dated April I,
1963 with the seniority inter se in the former department, the senio-
rity inter se in the former Department shall prevail. The principles
for fixation of inter se seniority of personnel working in the CFD
had been enunciated by the Government in the Resolution E
dated April 1, 1963. What has done under the impugned proviso
is only to state that with respect to persons who have been drafted
into the CFD Organisation from one and the same Government
department on deputation basis, their inter se seniority in the former
department shall not be disturbed and that to the said extent a
F
deviation should be made from the principles laid down in the
Government Resolution dated April I, 1963. We fail to see how
the said direction contained in the impugned proviso for preserva-
tion of the inter se seniority of deputationists who have been drawn
from one and the same Government department to serve the CFD
.•. can be said to be arbitrary or unreasonable. It is a just and whole- G
some principle commonly applied in such situations where persons
ri from other departments are drafted to serve on deputation their
'
inter se seniority in the parent department should be respected and
preserved during the period of such deputation to the new depart-
ment. We, therefore, consider that the High Court was in error in H
striking down the proviso to rule 7 as being violative of Articles 14
and 16 of the Constitution.
SUPREME COURT REPORTS [l 982] 2 s.c.ii..
A It now only remains for us to examine whether there is
substance in the contention put forward by the writ petitioners
that even if the impugned seniority principles laid down in the
Government Resolution dated March 22, 1968 are to be regarded
as valid, the seniority lists dated November 18, 1975 and Novem-
ber 27, 1975 have not been drawn up in accordance with those
B principles. The first point urged before us is that the c~ffect of
clause (b) of rule 7 is to make the provisions of clauses (a) and (b)
of rule 4 inapplicable to merged government servant& and to direct
that the seniority of the merged Government servants should be
determined only in accordance with the principles laid down in the
Government Resolution dated April 1, 1963. This argument is
c 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 absorded in the BRO their inter se seniority
reckoned on the basis of the principles contained in the Govern-
ment Resolution dated April 1, 1963 shall be preserved. In other
words, the object and purpose of sub-clause (b) is limited to the
lJ presesvation and maintenance of the pre-existing inter se seniority
as between the CFD personnel even after their absorption in the
BRO and the said provision does not in any way hamper the opera-
tion of the principles laid down in rule 4 for the fixation of the
seniority of all the personnel including the merged Government
servants in the respective categories in the BRO. A careful reading
of the provision of clause (c) and the illustrations given thereunder
makes this position abundantly clear. The aforesaid contention
put forward on behalf of the writ petitioners will, therefore, stand
rejected.

There is, however, some substance in the grievance put for-
F ward on behalf of the writ petitioners that in drawing up the
impugned seniority lists in pu_rported application of the principles
laid down in clause (a) rule 4, many persons who were juniors to the
writ petitioners in the category of Supply Inspectors in the CFD
have ranked above the petitioners in the category of Inspectors/
Senior Clerks/Deputy Accountants. There are also instances where
G
persons who were working in the CFD as clerks at the time of the
merger and were appointed in the BRO as clerks but have been
subsequently promoted in the BRO as Rationing Inspectors/Senior
Clerks/Deputy Accountants have been shown in the gradation list
H as seniors in relation to the writ petitioners despite the fact that
the writ petitioners were all along functioning as Supply Inspectors
in the CFD by virtue of their having been recruited to the said cate-
R.S. MAKASHI V. 1.M. MENON (Ba/akrishna Eradi, J.) 107

gory in that Organisation. We do not find anything in rule 4 (a) A
which warrants such an unfair treatment being meted out to persons
like the petitioners who were directly recruited as Supply Inspectors
in the CFO. Rule 7 clearly lays down that the operation of clause
(a) of rule 4 is subject to the limitation specified therin, namely,
that in the case of merged Government servants their inter sc
seniority will be preserved in tact. Hence, no pefson who was
B
functioning as a junior in relation to the writ petitioners in the
category of Supply Inspectors in the CFO can be assigned seniority
or rank above the writ-petitioners in the cadre of Rationing
Inspectors/Senior Clerks/Deputy Accountants in the BRO. Simi-
larly, no person who has been taken into the BFO as a clerk from
c
- the CFO can under any circumstances be pJaced · above the writ
petitioners in the gradation list of Rationing Inspectors/Senior
Clerks/Deputy Accountants of the BRO. It is clear from the
averments contained in the counter-affidavit filed on behalf of the
State Government that the aforesaid principle has been violated
while preparing the two impugned gradation lists dated November D
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 Exhibit 'A' produced along
with the counter-affidavit of the first 'respondent herein shows that
as many as 30 persons, who had joined the BRO as Clerks and- E
were subsequently promoted as Ratfoning Inspectors, have been
shown as seniors in relation to the· writ petitioners in the gradation
list dated November 18, 1975. Similarly, Exhibit 'B' gives the
names and particulars of persons who were appointed as supply
Inspectors in the CFO subsequent to the appointment of the peti-
tioners, but who have nevertheless been shown in the impugned F
gradation list as seniors to the writ petitioners in the corresponding
cadre in the BRO. We have already made it clear that on a
combined reading of rules 4 and 7 of the impugned seniority rules,
the inter se seniority of the CFO personnel has to be strictly main-
tained in tact, and that no person who was junior in the CFD in
the category of Supply Inspector can go above his senior in that G
Organisation after being absorbed in the BRO, and also that no
person who has been taken as a clerk in the BRO can go above
persons absorbed therein in the category of Rationing Inspectors.

In the light of what we have said above, the impugned senio- H
rity lists in so far as they have been drawn up in <levitation from
the legal position explained abovt; cal! for immediate revision. We
108 SUPREME COURT REPORTS (1982) 2 S.C.k

A would accordingly direct respondents 23 and 24 (State of
Maharashtra and the Controller of Rationing, Bombay) to revise
the two impugned seniority lists and refix the ranking assigned to
the writ petitioners and others in the light of what we have said in
this judgment.

B In the result, this appeal is allowed and the judgments
of the High Court are set aside. The writ petition-Misc.
Petition No. 166 of 1976- is allowed only to the limited extent of
the aforesaid direction issued to respondents 23 and 24 for revision
of the impugned seniority lists and it is dismissed in other respects.
The parties will bear their respective costs.
c
P.B.R. Appeal allowed.
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