# [1982] 2 S.C.R. 69 - **Citation:** [1982] 2 S.C.R. 69 - **Court:** Supreme Court of India - **Decided:** 1982 - **Case number:** Civil Appeal No. 1003 of 1980 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1982-2-s-c-r-69-8943 - **Pages:** 40 ## Headnote - ~ ·'·l '. 6~ R. S. MAKASHI & ORS. ,, i l ~ • I. M; MENON &·'OR.S. (~ 'I :i .• . · .... ,. '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 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 Organisation (BRO) the ·State Gove.rnment sanctioned a skelton staff. In addition to the sanctioned staff, the' existia'g' staff of the erstwhile adhoc organisation 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 BRO were not enough, some persons were directly recruited into the BRO. In 19.68 the State .Gm1ernment ·issuekilME cotJkt REPORTS iI982] 2 s.c.~. 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 ofRationB 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. SomeC time later on April 9, 1973 another provisional gradation list as on April I, 1972 was drawn up and published as before. D E F G H Siilce at that tim: there were many employees who were temporarily recruited ,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 benefit 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 resolution. A provisional gradation list as on Apr ## Text _Characters 0–39,748 of 96,220. This is a partial read: ask again with offset=39748 for what follows._ - ~ ·'·l '. 6~ R. S. MAKASHI & ORS. ,, i l ~ • I. M; MENON &·'OR.S. (~ 'I :i .• . · .... ,. '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 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 Organisation (BRO) the ·State Gove.rnment sanctioned a skelton staff. In addition to the sanctioned staff, the' existia'g' staff of the erstwhile adhoc organisation 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 BRO were not enough, some persons were directly recruited into the BRO. In 19.68 the State .Gm1ernment ·issuekilME cotJkt REPORTS iI982] 2 s.c.~. 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 ofRationB 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. SomeC time later on April 9, 1973 another provisional gradation list as on April I, 1972 was drawn up and published as before. D E F G H Siilce at that tim: there were many employees who were temporarily recruited ,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 benefit 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 resolution. A provisional gradation list as on April 1, 1974 was published following 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 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 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. 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 rules. The Division Bench dismissed in /:mine the appeal preferred by the res· pondents in the writ petition. Allowing the appeal, 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 consideration these provisions. [90 B·C] 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 B c D 1971 and the said list was circulated to all the personnel working in the establishE 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] 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] F GThe 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] .B 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 different sources and this inevitably necessitated the formulation of reasonable principles for the determination of int~f'se seni0rity. At the time of formation of· the· BRO the ·petitioners were not holding. any substantive or regular appointments in the CFD which itself was .a mere temporary department. In 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 unreasonable 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 D E F H 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 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,. referred to. " · ·· ' · 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] · 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 maintenance 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 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 redress for alleged infringement of fundamental rights could not be dismissed on the ground of !aches under any circumstances is inconsistent with the pronouncements 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. A 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 gradation 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] 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 D 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. V.B. Desai, R.H. Dhebar and R.N. Poddar for RespondentState. The Judgment of the Court was delivered by BALAKRISHNA ERADI, J. The second world war left in its wake conditions of scarcity of foodgrains and other essential commodities 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 foodgrains were periodically introdqced in the different States in the country. F G H A B c D E F G H 74 SUPn!'ME COURT REPORTS [ 1982] 2 s.c.n. In the State of Bombay, an informal (non-statutory) scheme of rationing was introduced in November, 1957 and for administering 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 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 departments (3) retrenched former Civil Supply Department personnel, and (4) persons directly recruited to the CFD by the Controller of Foodgrains Distribution on temporary basis through the Employment Exchange. Since no rules had been framed laying down the qualifications or method of recruitment to the various posts, the guiding factor which seems to have weighed with the authorities in effecting appointments in the CFD was the suitability of the person concerned 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 Government Departments for regular appointment into the Government service in the clerical category and also quite a few persons who were over-aged for being entertained in the Government service as on the dates of their ad hoc appointments into the CFD. The principles to be observed for fixing the seniority of the 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 all the State Governments advising them to start statutory rationing schemes in metropolitan areas and big towns. With a view to implement 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 preliminary 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 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 (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 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 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 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 necessary 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 instruct the persons concerned to report for duty to him. It was further mentioned in the letter that for the posts of Assistant A B c D E G 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 considered and that for the posts of Rationing Inspectors/Senior Clerks, Clerks who had put in at least two years' service would be A c D E F G H 76 SUPRi:Mti C00RT ktPbilts [ l 982] 2 s.C.R. 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 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 Government 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 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 personnel released from other departments of the State Government for 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 Government Servants". Rule 4 which lays down the principles for fixation of seniority of persons in the cadre of Senior Clerks/Rationing Inspectors/Deputy Accountants is in the following terms : "Senior Clerks/ Rationing Inspectors/ Deputy Accountants. (a) Seniority of a released Government Servant and a Merged Government Servant in the cadre of senior 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 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 rank. Name Date of commencement of continuous service as Clerk. Deemed date of appointment for fixation' of seniority. D 1. I. 2. 3. 2. 3. 4. B 1.5.1958 1.5.1960 A 1.10.1960 1.10.1962 c 1.5.1966 1.5.1968 Provided that in the case of merged Government servant who was recruited to the post of Supply Inspector or Senior Clerk, by nomination, he shall take rank above E F 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. A B u E F G H suPREMil couilT REPoins ti 982] 2 s.c.ft. 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 promoted 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 :- Seniority rank Name B 2 A 3 c 4 D (b) Seniority of a Government servant appointed in the 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 : Illustration : Suppose there are three persons in the cardre of Senior Clerks, Rationing Inspectors and Deputy Accountants who were recruited to the cadre by nomination. 'A' was recruited as Rationing Inspector from 24th February 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 rank. 1. 1. 2. 3. Name 2. A c B Date of commencement of continuous service. 3. 24.2.1966 28.2.1966 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 (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:- 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 continuosly 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 September 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 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 Inspector on !st August 1967. 'G' was a released Government servant holding the post of a clerk_ in his former B c D E F G H A B -c D E F G H 80 SUPREME COURT REPORTS [1982] 2 s.c.R 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 tSenioName rity Mode Actual date DEEMED rank. 1. 2. 1. E 2. B 3. A 4. c 5. F 6. D 7. 3. Promoted clerk (released) Direct S.I. -doPromoted Ex. CFD Clerk Promoted Clerk (released) Direct Rationing Inspector. Released Clerk absorbed in Bombay Rationing Area Organisation as Clerk and subsequently promoted as Rationing Inspector." As Clerk As Sr. Cl./ R.I./Dy. Acctt. 4. (a) 4. (b) 1.8.60 2.8.67 1.5.63 4.5.63 1.9.60 5.5.63 1.2.64 1.8.67 2.2.66 1.12.64 1.4.67 5. 1.3.62 31.8.62 31.8.62 1.9.62 1.2.66 2.2.66 1.12.66 However, it was further provided under Rule 7 that "notwithstanding anything rc\ntaine,1 in the foregoing Rules ; - - - - ., k.s. M:AKASHt v. i.M. MENON (Balakrishna Eradi, J.) (a) In case of Government servants released from one and the same office to join the Bombay Rationing Organisation 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 Government 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; (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/ 8i A D 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 Department shall prevail. 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, 1966 as Inspecting Officer. 'C' who started his career as Assistant in General Administration Department from !st F ,H ) A B c D E F G H 82 stiPREME couRt llEPoRts [1982] 2 s.c.:tl. 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 be fixed as under :- Seniority rank. Name Department Date of recruitment as Asstt. Date of joining in Bombay Foodgrains Distribution Scheme. Date of joining in Bombay Rationing Organisation I. 2. I. c. 2. D. 3. B. 4. A. 3. General Admn. Department. General Admn. Department. Revenu & Forests Depart~ ment Revenue & Forests Department in the present Deptt. 4. 1.4.60 1.5.60 1.5.61 1.5.62 5. 6. 18.5.65 1.3.1966 1.7.67 22.8.1966 18.10.64 1.3.1966 (Date of merger) 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 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 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. 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 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 would get attracted only when persons already working in the BRO as Clerks were to be appointed as Senior Clerks/Rationing Inspectors. The other alternative provided was to fill up the vacancy by transfer of Clerks working in the Secretariat Departments or in the Offices of the Heads of Departments who possessed not less than two y~ars of service. · 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 Government Resolution dated March 22, 1968. It was also stated that while preparing the said list, the inter se seniority of the ex-CFD personnel had been kept in tact except in the case of those who had been working in the CPD on deputation from other Departments and Offices in respect of whom the seniority had been fixed according to their position inter se in the respective former Departments and Offices from which 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 working in the respective offices should be taken in a separate copy A B c D E F G H A B c 84 SUPREME COURT REPORTS (1982] 2 S.C.R. 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. 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 April I, 1972 was published with a like direction that it should be brought to the notice of all the persons borne on their establishment. By Resolution dated March l, 197 4, 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 selected by the Public Service Commission had come to be recruited temporarily 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 following two conditions : F G H "(I) The non-P.S.C. persons concerned should have the . minimum educational qualifications prescribed for 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 retention 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 continuance 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 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 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 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 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 put forward by them in the writ petition was that the impugned lists were violative of Articles 14 and 16 of the Constitution, inasmuch 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 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 promoted 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. A B c D E F 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 A B c D E F G H 86 SUPRBMIJ COURT REPORTS l 19 82) 2 S.C.R. 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 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 dismissed 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 personnel in the BRO as on April I, 1968 and it had been specifically stated in the said gradation list that it had been drawn up on the basis of the principles laid down in the impugned Government Resolution dated March 22, 1968. The said list had been circulated to all the Offices attached to the BRO and signatures of all the personnel working in the different Offices had been taken in token of their having seen the list. The respondents stressed before the High Court the fact that even though objections had been invited against the provisional Gradation List, none of the petitioners had filed any objections. Subsequently, a final Gradation List was publised on November 23, 1972, which was also brought to the notice of the personnel working in the BRO.