# AMRIT LAL BERRY v. COLLECTOR OF CENTRAL EXCISE, NEW DELHI & ORS

- **Citation:** [1975] 2 S.C.R. 960
- **Court:** Supreme Court of India
- **Decided:** 1974-12-10
- **Case number:** Writ Petitions Nos. 463 of 1971
- **Bench:** M. H. Beg, v. R. KRISHNA IYER, P. K. GoswAM1
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amrit-lal-berry-v-collector-of-central-excise-new-delhi-ors-6377
- **Pages:** 19

## Headnote

Constitution of India 1950-Arts. 14, 16, 32 and 226-Fai/ure ro opp/JI a
rule-Wherher Justified invoking powers under Art. 32-Petition under Art. 32
m11st contain avmnents in full....:.Petitioner to satisfy the Court how hts f1111dllmental right was infringed-Inordinate delay-Effect of-Distinction bttW•!tn
a petition urukr Art. 32 and 226-Beneflt of law declared by the Court to be
given to others in like, circumstances withdut the need to go to Court --
Demand for j1l,stice and it.r refusal must precede a petition for mandaltllll.
The Ministry of Home Mairs by a memorandum dated 22-& 1949 laid
down that the seniority of government se1vants should be determined by 1tbe
date of their appointment and not the date c>f their confirmaion. Jn the 6enfority list issued in 1958 by the Excise Department the appellant was given bis
due pla.ce. Tu: rule was altered in the Department by offi::e memorandum dat·
ed 22-12·1959 by which seniority was determined from the date of confirmation. On 22-7··1972 an office memorandnm was issl!ed after the judgment of
this' Court in Ravi Varma's case. It was alleged that this memorandum was
based on a wrong interpretation of the law laid down by this Court because while
determining the seniority of the petitioner according to the 1949 rule. it did
not award consequential benefits to which he was entitled had the 1949 memorandum been followed.
Representations to the Government impugning 1he
seniority list having failed the petitioner has filed a petition under. article 32
of the Comtitution.
I
It was contended on behalf of the respondent that tile petitions were barred
by the principl~s of I aches and acquiescence. and that the assertions in the
petitions did not conlain necessary averments to establish violations of fundamental righl'S.
Dismissing the petitions,
HELD·. ( l) The petitions rest on the assumption that all that neeu to "be
asserted was violation of some rule contained in an office memorandum. There
is no doubt that the office memorandum dated 22-7-1972 was issued ·in corn;equence of the decision of this Court in Ravi Varma'a case to meet the situa·
tion created by it in the context of previous offioe memorandum on !he sulbject. If the 1972 memorandum had· been correctly interpreted and applied the
law laid down by this Court. had lbeen correctly applied there was no need to
proceed further .with the consideration of the petitions: [96SE-F}
·
(2)(a) A mere failure to apply a rule which ought to have been applic~
may not, by itself, justify an invocation of the powers of this Court under 1111.
32 of the Constitution. In order to succeed in a petition under art. 32 of tile
Constitution the petitioner has to disclose how his fundamental right has bel•n
infringed by a p~rticular rule or decision or its application. The impoct of tl1e
rule or decision upon the facts of each petitioner's fundamental right has to be
clearly brought c>ut. [971 BJ
(b) Wliere a petitioner alleges that .he had been denied equality of opportunity for service. during the cou.rsi: of his employment as a government ser·
vant, it is incumbent upon him to disclose not only the rule said to be infringed
but also how this opportunity was unjustifiably denied on each particulu
oct'asion. [971 C1
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E
F
G
(c) The equa~ity of opportunity in a matter relating to employment implies
equal treatment to persons similarly situated or in the same category as the
H
petitioner. It postulate!l equality of conditions under which a number of persoo!
belonginr to the same category compete for the same opportunities and a just and
competing claims.
It does not exclude justifiable discrimination. [971 DJ
competing claims. It does not exclude justifiable discrimination. [971 Dl
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B
c
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E
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A. L. BERRY V. COLLECTOR CENTRAL EXCISE (Beg, /.)
901
(d) In so far as memorandum of 1972 does not direct reconsideratio!I of
cases of all those persons who have actually missed confirmation or who were
not considered at all for promotion at the time

## Text

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AMRIT LAL BERRY
v.
COLLECTOR OF CENTRAL EXCISE, NEW DELHI & ORS.
December 10, 1974
[M. H. BEG, v. R. KRISHNA IYER AND P. K. GoswAM1, JJ.]
Constitution of India 1950-Arts. 14, 16, 32 and 226-Fai/ure ro opp/JI a
rule-Wherher Justified invoking powers under Art. 32-Petition under Art. 32
m11st contain avmnents in full....:.Petitioner to satisfy the Court how hts f1111dllmental right was infringed-Inordinate delay-Effect of-Distinction bttW•!tn
a petition urukr Art. 32 and 226-Beneflt of law declared by the Court to be
given to others in like, circumstances withdut the need to go to Court --
Demand for j1l,stice and it.r refusal must precede a petition for mandaltllll.
The Ministry of Home Mairs by a memorandum dated 22-& 1949 laid
down that the seniority of government se1vants should be determined by 1tbe
date of their appointment and not the date c>f their confirmaion. Jn the 6enfority list issued in 1958 by the Excise Department the appellant was given bis
due pla.ce. Tu: rule was altered in the Department by offi::e memorandum dat·
ed 22-12·1959 by which seniority was determined from the date of confirmation. On 22-7··1972 an office memorandnm was issl!ed after the judgment of
this' Court in Ravi Varma's case. It was alleged that this memorandum was
based on a wrong interpretation of the law laid down by this Court because while
determining the seniority of the petitioner according to the 1949 rule. it did
not award consequential benefits to which he was entitled had the 1949 memorandum been followed.
Representations to the Government impugning 1he
seniority list having failed the petitioner has filed a petition under. article 32
of the Comtitution.
I
It was contended on behalf of the respondent that tile petitions were barred
by the principl~s of I aches and acquiescence. and that the assertions in the
petitions did not conlain necessary averments to establish violations of fundamental righl'S.
Dismissing the petitions,
HELD·. ( l) The petitions rest on the assumption that all that neeu to "be
asserted was violation of some rule contained in an office memorandum. There
is no doubt that the office memorandum dated 22-7-1972 was issued ·in corn;equence of the decision of this Court in Ravi Varma'a case to meet the situa·
tion created by it in the context of previous offioe memorandum on !he sulbject. If the 1972 memorandum had· been correctly interpreted and applied the
law laid down by this Court. had lbeen correctly applied there was no need to
proceed further .with the consideration of the petitions: [96SE-F}
·
(2)(a) A mere failure to apply a rule which ought to have been applic~
may not, by itself, justify an invocation of the powers of this Court under 1111.
32 of the Constitution. In order to succeed in a petition under art. 32 of tile
Constitution the petitioner has to disclose how his fundamental right has bel•n
infringed by a p~rticular rule or decision or its application. The impoct of tl1e
rule or decision upon the facts of each petitioner's fundamental right has to be
clearly brought c>ut. [971 BJ
(b) Wliere a petitioner alleges that .he had been denied equality of opportunity for service. during the cou.rsi: of his employment as a government ser·
vant, it is incumbent upon him to disclose not only the rule said to be infringed
but also how this opportunity was unjustifiably denied on each particulu
oct'asion. [971 C1
A
B
c
D
E
F
G
(c) The equa~ity of opportunity in a matter relating to employment implies
equal treatment to persons similarly situated or in the same category as the
H
petitioner. It postulate!l equality of conditions under which a number of persoo!
belonginr to the same category compete for the same opportunities and a just and
competing claims.
It does not exclude justifiable discrimination. [971 DJ
competing claims. It does not exclude justifiable discrimination. [971 Dl
A
B
c
D
E
F
G
H
A. L. BERRY V. COLLECTOR CENTRAL EXCISE (Beg, /.)
901
(d) In so far as memorandum of 1972 does not direct reconsideratio!I of
cases of all those persons who have actually missed confirmation or who were
not considered at all for promotion at the time when they ought to have been
considered, it fails ta give due and complete effect to what was decided by tbis
Court ill Ravi Vanna's case. [970 F}
( e) As regards the contention of the petitioner that he was not given a senior
grade, neither the office memorandum of 1949 nor the petitioner gave conditions
of entry into the senior grade. It was for the petitioner to satisfy the Court that
he wa.~ not given the senior grade althoi.:gh he satisfied all the required conditions
and that others, who were promoted into it, were given unjustifiable· preference
over him. It is difficult to see how the petitioner was denied equality of opportunity in not being given the senior grade in 1961 but was given only in 1967.
[972 F}
(3) The inequality in the equitable balance brought into being by a petitioner's
own laches and acquiescence cannot be overlooked when considering a claim to
enforce the fundamental right to equal treatment. To treat unequals equally
would also violate that right. Although it may not be possible for the State or its
agents to plead an estoppel against a daim to the fundamental right to equal
tre'lltment, yet, if a petitioner has been so remiss or negligent as to approach
the Court for relief af'ter an inordinate and unexplained delay, he certainly
jeopardises his claims as it may become inequitable, with circumstances altered
by lapse of time and other fac!s, to enforce a fundamental right to the detriment of simila'r claims cif innocent third persons. [973 BJ
·
Rabindra Nar/1 Bose & Ors. v. U11ion of !11dia & Ors. [1970) 2 S.C.R. 697
and Ramac/iandra Sliankar Deodhar and Ors. v. The Stale of Maharashtra and
Or.<., [1974] S.C.R. 317 @ 325-326, referred to.
( 4) Ravi Varma's case was decided on an appeal from a decision of the High
Court in Writ Petition under Art. 226 of the Constitution.
It was enOUl!h, for
the purposes of a petition under Art. 226 to show a violation of an applicable
rule of seniority laid down in the relevant executive instructions. But in a petition under Art. 32 of the Constitution violations of fundamental rights under Art.
16(1) of the Constitution have to be satisfactorily shown. [975 DJ
U11io11 of India v. Vasant Jayaram Karnik & Ors. A.I.R. 1970 SC 2092 dis-
. ting?ished.
(5) (a) Merely by filing repeated or delayed representations, a petitioner can·
not get over the obstacles Which, delay in approaching the Court creates, because
e41uitable rights of others may have arisen. When a citizen aggrieved by the ac·
tion of a government department has approached the Court and obtained a declaration of law. in his favour, others, in like circumstances, should be able to··
Jely on the sense of responsibility of the department concerned and to expect tha.t
they will be given the benefit of this declaration without the need to take their
grievances to Court. [976 DJ
(b) A demand for justice and its refusal must precede the filing of a petition
asking for direction or writ of mandamus. [976 El
Kamini Kumar Das Choud/111ry v. State of West Bmga/ and· Ors. AIR 1972
SC 2060 @ 2065, referred to. ·
(6) (a) The 1972 memorandum may fairly be interpreted to mean that (a)
the 1949 memorandum will apply to all cases coyered by i! till the. 19S9 memorandum came into effect (b) that those who are m good faith and m th~ re~lar
course. confirmed and/or protno!ed regularly, though, by. an hones~ ~1sapphco·
tion of the 1959. memorandum will not be disturbed even 1f they be 1umor to the
daim:mts under the 1949 memorandum; (c) that in future. for vacancies and
quotas. those with longer servic.e, as contempl~ted by the 1949 l!lemorandum,
will ·be considered for confirmat10n and promotion:. and (d) that m the subsequent career of those who stand to benefit by the 19S9 i;n~morandum, tl!at fac!or
will be ·reckoned in their favour when further opnortumt1es for J:>romo!lon anse,
so that they may not suffer for ever from the mis-construction of .the meOloran·
dum made by the Excise Department. [976 G-H; 977 Al
· ·
962
SUPREMl!COURT REPORTS
[1975] 2 S.C.ll.
(b). Th& seJliority of all u~confirmed persom is to bo determined iii acco.rd·
anco with the law as declared by this Court on 4·1-1972, but, as reRlil'ds persons
who had already been bona fide confirmed or promoted before 4-1-1972, no
undoin11 of what had already been done in their favour would bo J?OSSible. Ntwer·
theleaa, it wu laid down there that the cases of those who had failed to be either
considered for confirmati!)n or promotion merely because of the failure to aP11ly
tlte· length of service rule for determining seniority would not suffer but will be
reconsidered no:W subject to existence of vacancies·in the ·grade for confimatfon,
or in the promotion quota.. [977 F]
.
In the instant case, the petitioner in writ petition No. 463 of 1971 did 1101
p~ the prescribed departmental examination until November, 1954. He-was
confirmed as soon as he could reasonably be Considered on the occurrence of the
vacancy after he passed his examination. If the reasons for tho earlier confirn1a·
lion of some persoris who obtained earlier promotions in the year 1971, are ju11tiable on grounds other than length of service, it is difficult to see how the petitioner
could complain of any unjust treatment violative of Art. 16(1) of the Constitution. · A numbec of promotions having taken place between 1959 and the. filing
of the petition in 1971; and those who were so promoted and had been aatisfa.ctoril y dischargin.g, for considerable period's before the filing of the petition. thciir
'luties in a .higl)er grade would acquire new claims and qualification by lapse> of
time and due discharge of their new fun:tion., so ihat they could not, unless relief
has been sough!; speadily agairist their allegE:dly illegal confirmation and pron:iotions bo equ.itably equated with the .petitioner. [972 H; 973 A]
ORIGiNAL JURISDICTION : Writ Petitions Nos. 463 of 1971 & 2004
of 1973.
Petitions . under Art. 32 of the Constitution of India.
D. L. Singhvi, S. I(. Mehta and M. Qamaruddin, for the petitioners
(In W.P; No. 463/71.)
.S. K. Mehta and M. Qamaruddin, for the petitiqners (In W.P. No.
2004/73)
.
.
A
B
c
D
M. N. Phadke and M. f':I. Shroff, for respondents (In W.P. No.
E
463/71) and respondents Nos. 1-4 (In W.P. No. 2004/73)
The Judgment of the Court was delivered by
BEO, J._.,Amrit Lal Berry in Writ Petition No. 463 of 1971 and
K. N. Kapur & 14 others in Writ Petition No. 2004 of 1973 haye ·
applied to this Court under Artiele 32 of the Constitution of India.
They complain of violation of Article 16 of the Constitution on the
F
ground that they were illegally discriminated against by the respond·
ents inasmuch as they_ were not confirmed and then promoted whim
they ought to have been. They assert that if, according tQ the appli-.
cable rule, they had been assign~ their correct places in. the seniority
lists, as laid down in the ()fflce Memorandum dated 22:-6-1949, prepared by the Ministry of Home Affairs, they woilld have been duly
promoted. Each of them, on similar facts,. relies UJ>'!? the law laiid
G
.down by this Court, in Union of. lnilia v. M. Ravi Vanna & · Ol's.
e~.(1) Assertions m the petition of Amrit Lal Berry . illustrate die
nature of the cases of all the petitioners. We will indicate the c8sea
of. the parties before we take up the questions of law ariSing for consideration and decision by us here.
Amrit Lal Berry was appointed Inspector in tho ~ntral · Bxcil;e
Co!lectoratc at Delhi, by ordirs dated 22-11-1948, and, on 4-12-194:8,
H
l7CO pootC!I at Feror.epm. On 22-6~1949, the Mini.s_try of ·.Home
(I) [1972] 2 S.C.R. 9'>2~
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A,L, BERRY. v. COLLBCTOI. CBNTllAL EXCISE (Beg, 1:)
96~
Affairs issued a Memorandum containing the principle that the seniority of. existing Govt. servants will be determined by the date of their
appointment and not from the date of their confirmation. The petitioner asserts that, in accordance with this principle, he was correctly
assigned his senioriny in the list issued in 1958 after the petitioner had
been confirmed in a permanent post under an order dated 5-5-1956
with 'effect from 1-7-1955.
An extract from the order shows that;
although, the petitioner is· a B.A. and shewn
as
appointed
on
15-12-1948, and. Narinder Singh, the Inspector next in order of seniority, who was only a Matriculate, appointed subsequently on 7-2-1949,.
was confirmed retrospectively with effect from 1-7-1953, that is to
say, two years earlier than the petitioner. There 'is, however, a difference in age shown between the two inasmuch as the date of birth of
the petitioner is given as 5-4-1925 whereas that of Narinder Singh
is shown as 24-7-1911. The petitioner points out that, despite these
different dates of confirmation of Inspectors, so that _juniors were
sometimes confirmed earlier, they retained their seniorities in accordance with the Office Memorandum of 22-6-1949 which made the length.
of service the only material consideration for purp0ses of seniority.
But, after the Office Memorandum dated 22-12-1959, the rule applied
was altered in the Excise Department. New seniority lists were prepared in which seniorities were determined from the dates of confirmation. The result was that Government servants, who ought to have
been placed below the petitioner have been, it is asserted, promoted
as Superintendents of Central Excise in the years 1970 to 1971. The
petitioner gave a list of twelve juniors who have been so promoted
because, according to him, the impugned seniority list of 1-7-1967
illegally put them above the petitioner. The petitioner also complained that, owing to the illegally prepared senioritv list, he had . been
givep the grade of a Senior Inspector only on 8-12-1967 and not with
effect from 21-3-1961 as it ought to have been done. The petitioner
complains of the allegedly illegal confirmation, going as· far back as
1955, and illegal .seniority lists prepared after 22-11-1959. He has
annexed copies of representations dated 6-3-1965, and, 13-8-1971,
to whlcQ, according to him, no replies were given. The petitioner,
therefore, came to this Court seeking relief against what lte describes
as the impugned list which, according to paragraph 8 of his petition
is dated 1-7-1967 (Annexure 7 to his petition), and to allegedly illegal
promotion of juniors without setting out the names or dates of prom()J.
tions of all those so promoted. Presumably, these prmoted In.~pectors·
are the 77 persons impleaded as respondents 5 to 81 in the petition·
before us. Out of these, only twelve, with their places shown as lower than the petitioner's number 204 in the list prepared before 1959.
were soecifically mentioned in the list of alle~ illegal promotions of
1970-71. Amrit Lal Berry's petition to this Court was filed
on
9-12-1971.
By an application dated 9-3-1973, Amrit Lal Berry sought an
amendment of his Writ Petition asking this Court to quash the Office
Memorandum dated 22-7-1972 on the ground that it does not interpret correctly the judgment of this Courtin Ravi Ya1'1na's case (supra)
964
SUPREME cqullT llJIPo:lTI
(lt7S} 2 S.C.R.
delivered on 4-1-1972.
The petitioner contends that office Men~o
randum, dated 22-7-1972, was based on a wrong interpretation of ;the
law laid down by this Court inasmuch as, while determining the senie>rity of the petitioner according to the. 1949 rule, it does not award
consequential benefits which would have been reaped by the petitio11er
in the past, if the seniority rule, laid down in the 1949 memorandum,
had been foll'owed in the past.
K. N. K:tpur and 14 others also give ·the dates of their appoint·
ments as Inspectors ranging from 15-5·1944 in the case of K. N. Kapur
to 19-1-1950 in the case of Ravinderlal. The dates of confirmation
vary from 1-7-1956, in the case of K. N. Kapur, to 1-12-1962, in 1he
case of S. L. Chopra.
The dates of their entny into the senior grade
also extend from 29-3-1965, in the case of M.
S.
Ahluwalia, to
22-11-1971, in the cases of~- L. Sharma and R. L~ Kapania.
Columns in a list given in the Writ Petition, showing the serial numb1irs
according to the seniority list prior to 22-12-1959 and the subsequi:nt
seniority list of 1961, show wide gaps the biggest of which is in the
.case of K. N. Kapur who came down from his place at No. 32 to No.
252.
The seniority list complained of was, however, stated to be the
one prepared in 1961.
All the petitioners assert that the seniority
lists of 1958 to 1959 were correctly prepared 'in accordance with the
Office Memorandum of 22-6-1949. The whole mischief, according
to the petitioners, resulted from misplacing of the names of the peti·
tioners, after the 1959 memorandum, in the seniority list of 1961,
which ignored the correct or applicable principle for preparation of fhe
seniority lists according to the memorandum of 1949.
The Writ Petition of K. N. Kapur and 14 others dated 20-10-1973
was filed on 22-10·1973.
In this petition, it is asserted that the offi.ce
memorandum dated 22-7-1972 issued by the Ministry of Home Affairs
(Annexure 'D' to the petition) and the Office mempranda, dat1id
16-3-1973 and 17 -3-1973, issued by the Ministry of Finance,
are
illegal inasmuch as they do not properly give effect to the decision of
this Court in Ravi Varma's case (supra). The petitioners asked for
the quashing of office memorandum dated 22-7-1972 prepared by the
Ministry of Home Affairs and the office memoranda dated 16·3-1973
and 17-3-1973 prepared in the Ministry of Finance.
The further
relief asked for is that this Court ma~ direct the Collector of Central
Excise and the Union of India to impfement the decision of this Court
given on 4-1-1972 in Ravi Varma's case (supra) so that the offic:e
memorandum dated 22-6-1949 and not the office memorandum dat1~
22-f2-1959 rnay govern the cases of the petitioners.
They also claim
the· award of all benefits consequential ,to the correct preparation of
seniority lists, such as confirmations, promotions, and payments
of
amounts which should· have been made in the past.
·
The petitions were opposed on various grounds.
The alleged violation of the law by the memoranda of 1972 and 1973 were, it was
submitted, only attempts made by the opposite parties to adiust t11e
operations of two opposing principles of justice and law laid down by
this Court : tl'le seniority according to length ot serviee rule of 194•9
:and what may be t1111ed 'the principle of non-dillturbance of rights
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J\.L. BERRY v. COLLECTOR CENTRAL EXCISE (BeJ?, /.)
965
claimed due to confirmations or promotions to a higher post going far
back. · It was submitted that .there had been no infringement qf any
right or provision of law at all. Alternatively, it was urged that, even
if the petitioners could make out violation of any applicable rules of
law, regulating the conditions of service of the petitione~, they do not
establish the. denial of any fundamental right of the petitioners conferred by Article 16 of the Constitutio1,1. In WllY event, the petitions
are said to be barred by the principles 6f laches and acquiescence. It
was also suggested by the learned Counsel for the opposite parties,
particularly in the case of K. N. Kapur & Ors., that the cause of action
asserted by each alleged infringement of a right being separate on each
occasion it should have been made the subject .matter of a distinct and
separate petition assailing the particular alleged infringement on each
occasion. In the case of K. N. Kapur & others, the contention appeared to be that there was not only a misjoinder of causes of action but
also of a number of petitioners each of whom could only have a separate cause of action whenever any alleged violatibn of a fundamental
right took place. .It was. also submitted that the assertions in the
applications did not contain necessary averments to establish violations
of fundamental rights so that petitions under Article 32 of the Constitution should be dismissed in limine on this ground alone. It was
pointed out that the petition of K. N. Kapur and others did not even
disclose a demand made to the opposite parties to do justice, followed'
by its refusal by the opppsite parties, so that a condition precedent
to the issue of a Writ of Mandamus was also wanting here.
It is true that assertions in each of the two petitions life of a very·
general character. The petitions seem to rest on the assumption that:
all that need be asserted is the violation of some rule contained in an·
office D1emorandwn which governed the rights of the petitioners in the·
past. There is no doubt that the office memorandum of 22-7-1972'.
was issued, in consequence of the decision of this Court in Ravi'
Varm<ls case (supra) dated 4-1-1972, to meet the situation created·
by it in the context of previo\ls office memoranda on the subject. If
the 1972 memorandum correctly interprets and applies the law laid
down by this Court there would be no need to proceed funher with
the consideration of the petitions before us. This memorandum itself
gives the history of previous relevant office memoranda and the. need
for their displacement by new instructions due to the decision of this
Court in Ravi Varmtis case. It reads as fqllows : .
"No. 9/3/72-Estt(D)
Government of India
Cabinet Secretariat,
Department of Personnel,
New Delhi, dated the 22nd July, 1972.
OFFICE MEMORANDUM
SUBJECT :~upreme Court-Civil Appeals Nos. 1~45 of 19~~. 1846
of 1968 and 50 of 1969-lnterpretauon of MtlliStry or
Home Affairs O.M. No. 9/11/SS-RPS., dated 12.12-1959.
regardin$ general p. rinciples for d~g
seniority of
verious categories of persons employed m Central Services-
966
SUPREME COURT REPORTS
[1975) 2 s.c.!t.
As the Ministry of Finance etc. are aware, under the orders conA
tained in Ministry of Home Affairs O.M. No.
30/ 44/ 48-Apptts.,
dated 22-6-1949, (copy enclosed as annexure 1), seniority in a grade
was to be determined, as a g(!neral rule, on the basis of the total length
of continuous service in the grade, as well as service in an. equivalent
grade, the term ''Service in an. equivalent grade" being defined !IS service on a rate of pay higher than the minimum of the time-scale of t:l1c
grade concerned, irrespective of whether it was rendered in the Central
B
or Provincial Government in India or Pakistan. Seniority of persons
appointed on a permanent or quasi-permanent basis prior to the 1st
January, 1944 was, however, not disturbed by the office memorandum
of 22-6-1949. The instructions contained in that 0.M. were issu1:d
in order to safeguard the interests of displacerl Government servat1ts
appointed to Central Services after partition, but as it was not possible
to regulate the seniority of only displaced Government servants by
C
giving them credit for previous service, the instructions of 22-6-1949
referred to above were made applicable to other categories of persons
also appointed to Central Services. There were, however, certain
services/posts which were exempted from the operation of the O.M.
of 22-6-1949. In the course of time, displaced Government servar1ts
h!ld, by and large, been absorbed in the various Central Services and
their senioritiy fixed with reference to the length of service render1:d
D
by them, as provided in the O.M. of 22-6-1949. It was, therefore,
felt that it was no longer necessary to apply the instructions
of
22-6-1949 in preference to the normal principles for determination of
seniority.
As a result, revised principles of seniority were issued in
December, 1959, in consultaticm with the Union Public Service Commission, vide Ministry of Home Affairs O.M. No. 9J11J55-RPS, dated
22-12-1959 (copy enclosed as annexure II), which is still in force.
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2. As would be seen from para 2 and 3 of t11e O.M. of 22-12-1959
mentioned above, except as otherwise provided in that 0.M. or except for such services and posts for which separate principles of had
already been issued or which might be issued thereafter, the seniority
of all persons appointed to the various central services after the date
of that O.M. (viz. 22-12-1959) was to be determined in accordance
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with the general principles of seniority contained in the annexure :to
that O.M. and those general principles were not to apply with retrospective effect. According .to para 2 of the annexures to that O.M.,
persons appointed in a substantive or officiating capacity to a grade
prior to the issue of the general principles of seniority shall retain .
their relative seniority already assigned to theni, or such seniority as
maiy thereafter be assigned to them under the existing orderi; appliG
cable to .their cases and shall en bloc be senior to all others in that
grade. However, pam 3 of the annexure provides that permanent
officers of each grade shall be ranked senior to persons who ljre ofliciating in that grade.
3. Keeping in view the objectives of the revised instructions coi~
tained in the O.M. of 22-12-1959, the Ministry of Home Affairs (now
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department of personnel) have all along held that while
persons
appointed prior to 22-12-1959 will retain their relative seniority alread:y
fixed under the then existing orders, with effect from 22-12,1959,
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A.L. BERRY V. COLLECTOR CENTRAL EXCISE
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967
permanent employees of a grade, including those confirmed in that
grade prior to 22-12-1959, will r!lllk en bloc senior to non-permanent employees of that grade, irrespective of the fact whether such
non-permanent employees were appointed to the ·grade before, on, or
after 22-12-1959 .. Amongst permai;ient employees confirmed in the
grade prior to 22-12-1959, their relative seniority already fixed according to the then existing orders would be maintained and they will rank
senior to those confirmed in that grade after 22-12-1959. Amongst
those confirmed after 22-12-1959, the relative seniority will be according to the order of confirmation. Similarly, amongst non-permanent
employees of a grade, the relative seniority of those appointed prior to
22-12-1959 will be on the .basis of the then existing orders, but they
will rank ~n bloc senior to those appointed to that · grade· after
22-12-1959, but not yet confirmed in the grade.
4. This matter, however, came up for consideration before the
Supreme Court in Civil Appeals (1) No. 1845 of 1968 (Union of India
and others Versus M. Ravi Varma and others), (2) No. 1846 of 1968
(Union of India and others Versus S. Ganapati Kini and others) and
(3) Ne. 50 of 1969 (Union of India and others Versus Suresh Kumar
and otkers). In its judgment, dated 4-1-1972 (copy anne:-;ure ·III)
in these cases, the court has not agreed with the view taken by the
Ministry of Home Affairs (now Department of Personnel) in this
matter, as outlined in para 3 above. The court while dismissing the
three appeals has held that, except in certain cases (with which the
Court were not concerned), the general principles embodied in the
annexure to the O.M. of 22-12-1959 did not have retrospective effect
and could not apply to persons appointed to the various Central Services before that date.
As a result of the judgment, the question
.whether, and 1f so, to what extent the seniority of persons appointed
on a regular basis pri,or .to 22-12-1959, which had been determined
according to the O.M. of 22-6-1949 or office Memorandum no. 65/
28/49-DGS(Apptts), dated the 3rd February, 1950, No. 31/223/50DGS dated the 27th April, 1951, or No. 9/58/56-RPS dated the 4th
August, 1956, but which had subsequently been revised according
to the view taken in the matter vide para 3 above, should be revised
further, has bec.n examined in consultation with the Union Public
Service Commission and it has been decided that in services/posts
under the Central Government to which the general principles for determining seniority contained in the office memorandum of 22-12-1959
apply, seniority of such persons should, with effect from 4th January
1972 (the date of the judgment of the Supreme Court) be restored as
it stood 011 21-12-1959 in the grade concerned, irrespective of the fact
or date of their confirmation and such persons a1011g with
those
appoimed on a regular basis to tlze grade prior to 22-12-1959, shall
continue to remain en bloc senior to the persons appointed to that
grade after 22-12-1959. T-he revision of seniority in such cases will not,
however, affect the con{irmationi already made in the grade prior to
4th January, 1972 or regular promotions therefrom prior to that date.
Confirmations /promotions made on or after 4th Jai1uary, 1972 shall
be reviewed, wherever necessary in the light of the above decision. If
any person whose seniority is now revised according to these orders
968
SUPREME COURT REPORTS
[1975] 2 S.C.R.
is still not confirmed, though a person junior to him has been confirmA
ed, he may also now be considered, subject to availability of perma·
nent vacancies in the grade, for confirmation in the grade, if he is othe.r·
wise eligible for the same and is suitable for 111. Similarly, if a peuon
whose seniority is 11ow revised under these orders was not considered
·for promotion prior to 4·1-1972 for want of the requisite seniority, he
may also be considered for such promotion subject to availability of
promotion quota vacancies in the higher grade, if he is otherwise eligi·
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b/e for the same. However, on promotion to the higher grade, the
seniority of such persons among the ·promotees in the higher grade
would be regulated in accordance with para 5 of the general principle:s
of seniority contained in . the annexure to Ministry of Home Affair:;'
office memorandum of 22-12-1959.
5. In this corlnection it may also be mentioned that the general
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principles of seniority contained in a11nexure to Ministry of Home
Affairs O.M. dated 22-12-1959 were applied to some services/posts
from a 'date s1~bsequent to 22-12-1959. Such a course was permissible, v~de para 3 of the O.M. dated 22-12-1959 referred to above.
I:e,
in those services/posts, seniority was actually continued to be deteirmined beyond 22-12-1959 in accordance with' the instructions laid
down in Ministry of Home Affairs' O.M. of 22-6-1949, seniority of th.e
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employees in the service/posts concerned might have been revised
from the date from which the general principles of seniority contained
in the annexure to the O.M. of 22-12-1959 were adopted in resr'.C:t
of those services/posts on the ·basis of tpe interpretation of the Minis:.
try of Home Affairs (now department of Personnel) given in parll
3 above. In such cases also, the principle laid down by the Supreme
Court would apply, viz. that the S!lniority of persons appointed to the
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services/posts referre4 to above prior tc1 t~ date of application .of tlle
principles contained in the O.M, of 12-12·1959, would continue to bt:Y
governed by the rules/orders in force before such application. Hence
tm action suggested in para 4 above would apply pari passu to those
cases as well.
6. Ministry of F'ma1,1ce etc. are requested to take action accordinB:·
r
ly in respect of Government employeLls serving in or under
tha1t
Ministry.
To
FIARlSH CHANDRA
Unde1 Secretary to the Goverrunent of Indil!:.
All Ministries with usual number of spare copies. Departll)ents
of the Govenmient of India (including all attached and subordina~ offices under -the Department c1f PCJ'$onnel.
Commissioner for Linguistic Minorities, Allahabad.
Institute. of Secretariat Training and Management, New Delhi.
D.G.E. & T. l).Q., P & 'I,' and B~eau of Pubiie Enterprises.
All Uni1>JJ1 Territory Govenunents/ Admini$tl'atloos.
All regular sections of ~t
of Pm:ooiiel.
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96~
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No. 9/3/72-Estt.{D)
Dated the 22nd Iul.y, 1972.
Copy with 10 spare copies forwarded to the Secretary, Union
Public Service Commission with reference to the UPSC's letter
No. F.2/14/72-S.II dated 5th May, 1972.
HARISH CHANDRA
Under Secretary to the Government of India."
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Each party before us relies upon the contents of· an office memorandum as interpreted by tills Court in Ravi Varma's case (supra).
The case of the respondents, however, is that this Court did not have
before it for consideration, in Ravi Varma' s case {supra), the effect
of rights which may have been acquired by Central Govt. servants,
other than the petitioners then before the Court by reason of earli«
confirmation and promotions whether rightly or wrongly made.
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also urged that this Court was not then concerned with the correctness of the practical solution attempted by the memorandum of 1972,
the validity of which is assailed by the petitioners before us now only
on the ground that .it incorrectly interprets the judgment of this Court
in Ravi Varma's case (supra) but not on the ground. that the Govt .. did
not have the power to lary down the correct principle. for determinin:
seniority by means of a decision or rule contained in an office memoD
randum. The petitioners, however, contend that the result of the misinterpretation by the office memorandum of 1972 of the decision of
this Court in Ravi Varma's case (supra) is that the petitioners' right&
under Article 16 of the Constitution are violated, whereas learned
Counsel for the respondents denies any such violation of a fundamental right irrespective of wh~her his conter..tion, that the 1972 office
memorandum correctly interprets judgment of this Court in
Ravi
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Var1na's case, is accepted or not.
As this Court had, in Ravi Varma' s case (supra), set out the provisions of the memoranda of 22-6-1949 and' 22-12-1959 in extenso,
it is not necessary for us to reproduce their contents. We will only
indicate the conclusions which emerged from their consideratio1,1 ia
Ravi Varma's case.
This Court had, after pointing out that the principles contained in the office memorandum of 22-6-1949, although inF
tended originally to meet tlie situation created by the partition of India
and the need to absorb the influx of a large number of new Central
Govt. servants, whose seniority had to be determined, were moro
generally applied to all Central Govt. servants, proceeded to hold that
the provisions of the memorandum of 1959 specifically stated that
they were prospective and did not affect cases which were governed
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by the earlier office memorandum.
The effect of the provisions of tho
office memorandum of 22-12-1959 was held to be that the new principle "could not apply t0 the persons appointed to the various Central
Services befot v. the date of that memorandum."
It was also ob!!erved
there that this Court had,· even in Marvyn Coutindo & Ors. v. Collector of Customs, Bombay & Ors.,(1) held that the new principle
of_
aeniority, contained in memorandum of 22-12-1959, was not to apply
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retrospectively. In fact, the so called new. principle of 1959 was
a
restoration of a principle applied before the memorandum of 1949;
inued to meet a spec~al and. unprecedented situation created by the
(l) [1966) 3 S. C. R. 600.
1 S-Ll46Sup CI/75
970
SUPR!!M! COURT R!POllTS
[1975] 2 S.C.l.
int1m: of a _large number of Government servants as a result of tM
partition of lndia. It may be observed here that the validity ()f the so
called "new" principles of 1959 memorandUID is not assailed befiore.
us on the ground that they, standini! by themselves, violate Article
16(1) of the Constitution. Ravi Vanna's case (supra) was decided
on the asswnption ibat the whole memorandum of 19!!9 was valid but
had been misinterpreted and misapplied.
We find, from paragraph 4 of the memorandum of 1972, that,
with effect from 4-11-1972, when this Court pronounced judgment in
Ravi Vanna's case (supra), the pre-19!!9 seniority of all pmom
was restored, or, in other words, it was to be govci'ned by the l!~@
memorandum "irrespective of the fact or date of their confinna1ion
and such peMons along with those appointed on a regular basia to
th~ grade prior to 22-12-1959, shall continue to remain en l•Joc
senior to the persons appointed to that grade after 22-12-19!!9".
Nevertheless, it is laid down there tbat this restoration of seniority
will neither affect the confirmations alrea9y made in a grade nor Jiromotions made therefrom prior to 4-1-1972. Evidently, this was an
a !tempt to recognise and preserve the rights, if any, of those alre:ady
confirmed or promoted before 4-1-1972 so that these arc not undcrne.
The prospect, however of confirmation, after due consideration of
their cases, was held out to Government serv:wts who were still not
confirmed although their juniors had been so confirmed in a gracb
provided that such Government servants satisfied eligibility tests.
Similarly, cases of those superseded by juniors in making promotions
were to be considered afresh for promotion. Such consideration for
conftrmation or promotion was, however made· to depend on the c:dsience of va:ca_ncies in the quotas for confirmation or promotion of
Government servants.
It does appear to us that, in so far as memorandum of 1972 does
not direct reconsideration of. cases of all those persons
who ha-.o
actually mis$ed confirmation or who were not considered at all for
promotion at the time when they ousht to have been considered, it
fails to give due and complete effect, as a matter of general policy,. to
"'·hat was decided by this Court in Ravi Varmtls case (supra). 'I'ho
excuse put forward on behalf of the respondent is that rights said to
be created by the actual facts of confirmations and promotiom in tho
past cannot now be taken away by the respondents and that moro
pcnons callI!ot be introduced in any grade thaQ. its sanctioned
~trength. It is true that the petitioners were not parties to the Jecisicmi
in Ravi Varma's case (supra) so that they.cannot claim the benefit
directly of any direction given in that case. It seems that it for this
reason .that learned Counsel for the rec:xmdents attaches considerablo
importance to delay in approaching thi; Court against alleged illegalitie~. We arc unable to commend the argument, coming as it does on
behalf of a Department of the State, that the effect of the decision of
this Court in Ravi Vanna's case must be confined to parties before
the Court in that case. We are, however, concerned here with the
-i1eaning and affect of the Memorandum of 1972 which proceeds on
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A. L. BERRY V. COLLECTOR CENTRAL EXCISE (Beg, J,)
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the correct footina that .the Central Excise ·Department waa .duty
bound to give efiect ~o the law declared by this Court in Ravi Varma's
case. But, we may point out here that a mere failure to apply a rule
which oupt to have been applied may no!, by itself, justify an invocation of the powers. of this !Court under Article 32 of the Constitution. In order to succeed ill a petition under Article 32 of the Constitution f.!!e petitioner lias to disclose how his fundamental right has
been infringed by a particular rule or decision or its application. The
impact of the rule or decision upon the facts of each petitioner's case
has to be clearly brought out.
In the cases before us, the fundamental ri&hts alleged to be violated could o_nly be the general ones embraced by Article 16(1) of
the Constitution which reads : "There shall be equality of opportunity
for all citizens in .matte~ relating to employment or appointment to
any office under the ·state". Where a l!Ctitioner alleges that he has been
denied equality of opportunity for. se"'ice, during the course of his
employment as a GovernmenJ servant, it is incumbent upon hini to
di~lose not only the rule said to be infringed but also how this opportunity was unjustifiably denied on each particular occasion.
The.
equality of opportunity in a matter relating to employment implies
equal treatment to persons similarly_ situlited or in the same category
as the petitioner.