# N. S. MEHTA & ORS v. UNION OF INDIA & ORS

- **Citation:** [1977] 3 S.C.R. 664
- **Court:** Supreme Court of India
- **Decided:** 1977-04-20
- **Case number:** Writ PetitiQ\n No. 156 of 1972
- **Bench:** M. H. Beg, A. C. '1Vpta, P. S. Kailasa'.1
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/n-s-mehta-ors-v-union-of-india-ors-7226
- **Pages:** 6

## Headnote

Seniority-1-Yliether the decision in Union of India v. M. R«~'i Vermcr &:
Ors, etc. (1972) 2 S.C.R. 992 contained an invariable nzechanicc..l rule of seniority applicable to all classes of services so t!tat nothing beyond length o/ sen11ce
in a particular t::rade could determine seniority-Central Secretariat Sen1ice
Rules, 1962, Rule 17-Whether placing those who have passed tht type1vrili11g
test lvitlzin t1vo years of the fixed date in separate category for the purpose of
pro1notion violates Articles 14 and 16 of the Constitution of India.
Under the scheme which culminated in the promulgation of the
Central
Secretariat Clerical Service Rules, 1962 (effective from 1-5-1954), it was pro·
vided that those officers who were otherwise eligible for confirmation in the
services at the initial constitution should also pass a typewriting test to be held
by the Union Public Service Commission within a period of two years from
1-5-1956.
The names of the petitioners who had not passed the typewriting
test did not figure in the gradation list dated 7-2-1972 prepa1ed for making pro~
motions to the next grade of Assistants. The petitioners. challenged the orders
on several grounds, namely, (i) The principle of seniority contained in the
IVIinistry of Home Affairs' O.M. dated 22-6-1949 as interpreted by this 0Jurt
in 1972 (2) SCR 992 had not been applied to them; (ii) The impugned list
was formulated in an arbitrary fashion; (iii) Their seniority must date back
to their dates of promotion as Upper Division Clerks; and (iv) Rule 17 of
Central Secretariat Clerical Service Rules, 1962 being inconsistent with C~.M.
dated 22-6-1949 and 22-2-1959 violates Articles 14 and 16 of the Constitution.
The respondent raised three objections to the petitioners' case in their returns,
namely, (i) There was a reasonable criterion for the difference made bet~reen
the cases of the petitioners and those placed on the itnpugned list of 7-2-1972
who are above the petitioners because they have passed the prescribed ~ype
writing test so that Articles 14 and 16 of the Constitution could not be saijd
to have been violated in this case whatevcrelse may have been infringed; (ii)
The petitioners not having assailed the order of confirmation of the scheme: on
1-5-1958 prescribing a reasonable ground for distinction between the clasi1 of
cases in which typewriting tests have been passed
to which the contes,ting
respondents in the impugned list below and the class of the petitioners which
had not passed the test. the petitionern could not challenge the impugned
scheme of 1972 at all; (iii) A number of persons have been promoted and put
above the petitioners since 1962 acting under the scheme providing the typewriting test so that there was inonfinate delay in filing the· petition. 11nder Art. 32
of the Constitution.
Dismissing the petition, the Court,
HELD: (1) The alleged violation of the rule of seniority according
to;
length of service was not decisive even according to the Ministry of Home
Affairs' o·.M. dated 22~6-1949. This memorandum shov1s that it \Vas Dnly
directory laying down a general rule of seniority which was presumably subject
to other exceptional factors which could also be taken into account.
[666 A I
P. C. Sethi & Ors. v. Union of India & Ors. [1975) 3 S.C.R. 21, follo\¥ed.
(2) A rule prescribing a typing test cannot be said to be unconnected with
the duties of clerks who desire a promotion to the next grade.
A discrirrtination made on such a ground could not violate ArticJes 14 and 16 of the <:on·
stitution \Vhateverelse it may be said to, violate.
[668 E]
(3) A violation of statutory or other kind of rule in a particular case
cannot amount to a violation of Articles 14 and 16 of the Constitution. There
may also be cases in \Vhich a rule made is ultra vires for unreasonablen~s or
,
N. S. MEHTA V. UNION (Beg, C.J.)
665
on any other ground and should not be deemed to exist. In such a: case, if the
rule is enforced it may on the facts of the particular ca

## Text

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664
N. S. MEHTA & ORS.
v.
UNION OF INDIA & ORS.
April 20, 1977
[M. H. BEG,.C.J., A. C. '1VPTA AND P. S. KAILASA'.1, JJ.]
Seniority-1-Yliether the decision in Union of India v. M. R«~'i Vermcr &:
Ors, etc. (1972) 2 S.C.R. 992 contained an invariable nzechanicc..l rule of seniority applicable to all classes of services so t!tat nothing beyond length o/ sen11ce
in a particular t::rade could determine seniority-Central Secretariat Sen1ice
Rules, 1962, Rule 17-Whether placing those who have passed tht type1vrili11g
test lvitlzin t1vo years of the fixed date in separate category for the purpose of
pro1notion violates Articles 14 and 16 of the Constitution of India.
Under the scheme which culminated in the promulgation of the
Central
Secretariat Clerical Service Rules, 1962 (effective from 1-5-1954), it was pro·
vided that those officers who were otherwise eligible for confirmation in the
services at the initial constitution should also pass a typewriting test to be held
by the Union Public Service Commission within a period of two years from
1-5-1956.
The names of the petitioners who had not passed the typewriting
test did not figure in the gradation list dated 7-2-1972 prepa1ed for making pro~
motions to the next grade of Assistants. The petitioners. challenged the orders
on several grounds, namely, (i) The principle of seniority contained in the
IVIinistry of Home Affairs' O.M. dated 22-6-1949 as interpreted by this 0Jurt
in 1972 (2) SCR 992 had not been applied to them; (ii) The impugned list
was formulated in an arbitrary fashion; (iii) Their seniority must date back
to their dates of promotion as Upper Division Clerks; and (iv) Rule 17 of
Central Secretariat Clerical Service Rules, 1962 being inconsistent with C~.M.
dated 22-6-1949 and 22-2-1959 violates Articles 14 and 16 of the Constitution.
The respondent raised three objections to the petitioners' case in their returns,
namely, (i) There was a reasonable criterion for the difference made bet~reen
the cases of the petitioners and those placed on the itnpugned list of 7-2-1972
who are above the petitioners because they have passed the prescribed ~ype
writing test so that Articles 14 and 16 of the Constitution could not be saijd
to have been violated in this case whatevcrelse may have been infringed; (ii)
The petitioners not having assailed the order of confirmation of the scheme: on
1-5-1958 prescribing a reasonable ground for distinction between the clasi1 of
cases in which typewriting tests have been passed
to which the contes,ting
respondents in the impugned list below and the class of the petitioners which
had not passed the test. the petitionern could not challenge the impugned
scheme of 1972 at all; (iii) A number of persons have been promoted and put
above the petitioners since 1962 acting under the scheme providing the typewriting test so that there was inonfinate delay in filing the· petition. 11nder Art. 32
of the Constitution.
Dismissing the petition, the Court,
HELD: (1) The alleged violation of the rule of seniority according
to;
length of service was not decisive even according to the Ministry of Home
Affairs' o·.M. dated 22~6-1949. This memorandum shov1s that it \Vas Dnly
directory laying down a general rule of seniority which was presumably subject
to other exceptional factors which could also be taken into account.
[666 A I
P. C. Sethi & Ors. v. Union of India & Ors. [1975) 3 S.C.R. 21, follo\¥ed.
(2) A rule prescribing a typing test cannot be said to be unconnected with
the duties of clerks who desire a promotion to the next grade.
A discrirrtination made on such a ground could not violate ArticJes 14 and 16 of the <:on·
stitution \Vhateverelse it may be said to, violate.
[668 E]
(3) A violation of statutory or other kind of rule in a particular case
cannot amount to a violation of Articles 14 and 16 of the Constitution. There
may also be cases in \Vhich a rule made is ultra vires for unreasonablen~s or
,
N. S. MEHTA V. UNION (Beg, C.J.)
665
on any other ground and should not be deemed to exist. In such a: case, if the
rule is enforced it may on the facts of the particular case amount to a violation
of Articles 14 and 16 of the Constitution also.
The petitioners' case is not
such a case at all. [668 E-F]
(4) The principles laid down by this Court in Joginder Nath and Ors. v.
Union of India & Ors. [1976] (2) S.C.R. 553 and in Amrit Lal Berry v. Collector
of Central Excise [1975] 2 S.C.R. 960, apply to the petitioners' case regarding
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ORIGINAL JURISDICTION : Writ PetitiQ\n No. 156 of 1972.
(Under Art. 32 of the Constitution of India).
{;. S. Javali, A. K. Srivastava and B. P. Singh, for the petitioner.
G. L. Sanghi, S. P. Mital and Girish Chandra, for respondents Nos.
1 and 3.
B. Datta, for respondent No. 194.
The Judgment of the Court was delivered by
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BEG, C.J.-This is a petition under Article 32 of the Constitution
praying) for a writ of certiorari, or a writ of Mandamus or, any other
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appropriate writ, order or direction for the enfom .• "111ent of the fundamental rights of the petitioners under Article 14 and 16 of the Constitution.
The petitioners have been working as Upper Division Clerks
and pray for the quashing of a list, issued with Office Memorandum
dated. 7.2.1972, for making promotions to the next grade of Assistants
on which the names of respondents 4 to 203 appear but not
those
of the petitioners.
They claim that the principles of seniority, conE
tained in the Ministry of Home Affairs' O.M. dated 22.6.1949, as interpreted by this Court in UNION OF INDIA v. M. RAVI VERMA &
ORS. ETC.,(') had not been applied to them.
The contention seems
to be that the last mentioned decision contained an invariable mechanical rule of seniority applicable to all classes of services so that nothing
beyond length of service in a particular grade could determine seniority.
It was alleged that the impugned list was formulated in an
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arbitrary fashion.
Hence, the petitioners complain of violation
of
Articles 14 and 16 of the Constitution.
In paragraph 6 of the petition it was stated that even persons appointed nine or ten years after the petitioners had been promoted as
long ago as 1969 to the grade of Assistants to which the petitioners
put forward their own claims.
It was also stated that a large number
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of persons have superseded the petitioners but a few names only have
been mentioned from amongst them.
The whole case of the petitioners thus rests on the submission that nothing beyond length of service must determine the place on the list for promotion to the grade of
Assistants.
The petitioners allege a common cause of action inasmuch as the
impugned list of 17.2.1972 affects all of them.
They claim that all
of them should have been governed by the principles contained
in
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[t 9n]2 SCR 992.
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SUPREME COURT REPORTS
(1977] 3 S.C.R.
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the Memorandum of 22.6.1949.
This Memorandum (Annexure 'C'
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to the petition) shows that it was only directory laying down a general
rule of seniority which was presumably subject to other exceptional factors which could also be taken into account.
Hence, an alleged
violation of the rule of seniority according to length of service was
not decisive even according to this Memorandum.
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The counter-affidavit filed by Shri P. L. Gupta, Deputy Secretary
to the Government of India, gives the long history of a scheme which
culminated in the promulgation of the statutory rules framed
u.lldec
Article 309 of the Constitution of India called the Central Secretariat
Clerical Service Rules, 1962 by the President of India. It shows that
the scheme of 1949 was given a final shape by the Cabinet in 1954
and became effective from 1.5.1954.
Under the scheme, as finally
framed, it was provided that those officers who were otherwise eligible
for confirmation in the services at the initial constitution, should also
paiis a typewriting test to be held by the Union Public Service Comruission within a period of two years from 1-5-1956. It appears that
the confirmation of the initial constitution of the service was delayed
until 1958.
Some of the rather ambitious assertions of the petiiloners suggest
that their case is that they had been appointed to an Upper Division
grade on a regular basis so that their seniority must date back to their
date of promotion.
This suggestion was controverted by the respondents who alleged that the petitioners had been only allowed to continue
provisionally on a temporary basis in the grade of Upper Division of
Clerks.
It was stated, in the counter-affidavit, that as typing test
had to be passed within two years of 1st of May 1958, those who did
not come within this class came in the class of the petitioners who
were serving on an ad hoc or temporary basis.
Hence, it was submitted that those who had passed the typewriting test within
two
years of the fixed date belong to another category altqgether. · The
respondents, therefore, submit that there has been no contravention
of Articles 14 and 15.
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Serious grounds of objection to the petitioner's case are
three
fold : firstly, that there was a reasonable criterion for the difference
made between the cases of the petitioners and those placed on the
impugned list of 7.2.1972 who are above the petitioners because they
have passed the prescribed typing test so that Articles 14 and 16 of
the Constitution could not be said to have been violated in this case
whatever else may have been infringed; secondly, that the petitioners,
not having assailed the order of confirmation of the scheme on 1.5.1958,
prescribing a reasonable ground for distinction between the class of
cases in which typing test had been passed, to which the contesting
respondents in the impugned list belong and the class of the petitioners,
which had not passed this test, the petitioners' could not challenge the
impugned scheme of 1972 at all; thirdly, a member of persons had
been promoted and put above the petitioners since 1962, acting under
the scheme providing the typing test, so that there was inordinate delay
in filing the petition under Article 32 of the Constitution on M.4.1972.
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N. S. M1'H'lA V. LiNION (Beg, C./.)
667
In their Writ Petition the petitioners have no doubt challenged the
validity of rule 17 of the Central Secretariat Clerical Service
rules
for inconsistency with the Memoranda of 22.6.1949 and 22.12.1959
and alleged that this also constitntes a violation of Articles 14 and 16
of the Constitution.
This rule was among rules notified on 28-9-1962.
It lays down as follows :-
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"17. Seniority(!) The relative seniority of members of
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the Service appointed to any Grade before the appointed day
shall be regulated by their relative seniority as determined
before that day.
Provided that if the seniority of any such officer had not
been specifically determined before the appointed day it shall
be as uetermmed by the Department of Personnel in the
Cabinet Secretariat.
MHA No. 612167-CS-II dated 20.12.67.
Provided further that the seniorty of an officer referred to in the proviso to clause (a) of rule 2 shall be
determined by the Department of Personnel in the
Cabinet Secretariat by taking into account the continuous length of regular service rendered before the
appointment day by such officer in the grade of lower
Division or in any higher grade_ in the offices of the
Central Government.
(2) All permanent officers included in the initial constitntion of a Grade under rule 7 shall rank senior to all persons
substantively appointed to that Grade with effect from a
date after the appointed day, and all temporary officers included in the initial constitution of a Grade under that rule
shall rank senior to all temporary officers appointed to that
Grade after the appointed day.
(3) Except as provided in sub-rules ( 4) and (5), the
seniority of persons appointed to the two grades of the service
after the appointed day shall be determined in the following
manner, namely :
I. UPPER DIVISION GRADE
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(i) Permanent Of]icers.-Thc
seniority
inter se
of
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officers substantively appointed to the Grade after the appointed day shall be regulated by the order in which they are
so appointed to the Grade.
(ii) Temvorary Offlcers.-The seniority inter se of
temporary officers appointed to the Grade after the appointed day shall be regulated as follows, namely :
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(a) Persons included in the Select List for a Grade shall
nmk: senior en bloc to those not included in the Select list.
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668
SUPREME COURT REPORTS
[1977] 3 S.C.R.
(b) The seniority inter se o( person included in
the
Select List shall be in the order in which their names
are
included in the Select List.
(c) The seniority in'.er se of persons not included in the
Select List shall be regulated by the order in which they are
approved for long term appointment to the Grade.
Rule 7 provides as follows :
"7. Initial Constitution of each cadre.-The
permanent and temporary officers of each Grade in each cadre
on the appointed day shall be as determined by the Dept!. of
Personnel in the Cabinet Secretariat."
We find that, acting under Rule 7 set out above, the Government
of India had issued an order on 12-11-1962 allotting permanent and
temporary officers of the Upper Division
grade
to the Central
Secretariat Clerical Service.
Apparently, that allotment also determined the order of seniority.
In other words, the rule relating to the
passing of a typing test had been followed for a long period and had
actually been given effect to under the statutory rules in promotions
made and lists drawn up.
This explains the petitioners' challenge
to the validity of Rule 17.
We are unable to see how a rule prescribing a
typing test
is
unconnected with the duties of Clerks who desire a promotion to the
next grade.
We do not find that a discrimination made on such a
ground could violate Articles 14 or 16 of the Constitution whatever
also it may be said to violate. It is not necessary for us to hold
that a vfolation of a statutory or other kind of rule in a particular case
cannot amount to a violation of Articles 14 and 16 of the Constitution.
There may also be cases in which a rule made is ultra vires for unreasonableness or on any other ground and should not be deemed
to
exist.
In such a case, if the rule is enforced, it may, on the facts of
the particular case, amount to a violation of Articles 14 and 16
of
the Constitution also.
The case before us does not appear to
be
such a case at all.
It seems to be covered by what this Court said
in P. C. Sethi & Ors. v. Union of India & Ors., (') with regard to the
Office Memorandum of 22.6.1949 (at pp. 207-208) :
" .... tha Office Memorandum of June 22, 1949, is no
bar to the Government in making separate provisions for the
mode Qf constitution and future maintenance of the service
of Assistants.
There is, therefore, no obligation under the
aforesaid Office Memorandum on the part of the Government to enforce a rule of bald length of continuous service
irrespective of other considerations than the
service was
sought to be reorganised and reinforced. As noticed earlier
the service had to be reconstituted and the temporary Assis-
(!) [1975] 3 SCR 20.
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N. S. MEHTA V. UNION (Beg, C.J.)
!ants prop~rly observed keeping in view the
question of
quality and e_fficieucy as well as at the same where regard
being had to accommodate as large number as possible to gradual absorption. In doing so we are unable to hold that the
Government has violated the. provisions of articles 14 or 16
-0f the Constitution.
The classification under the instruction for the constitution of regular temporary establishment
in the manner done cannot be characterised as unreasonable
in view of the object for which these had to be introduced in
reconstituting the service to ensure. security of temporary employees assistant with efficieHcy .in the Service.
There is
no discrimination.whatsoever amongst the equals as such nor
any arbitrary exercise of power by the Government."
669
This Court has also explained in Joginder Nath & Ors. v. Union of
India & Ors.(') and Amrit Lal Berry v. Collector of Central Excise,
New Delhi & Ors.( 2 ) the principles on which this Coure will interfere
under Article 32 of the Constitution for an alleged violation.of Articles
14 and 16 of the Constitution. It is also explained, there how delay
in invoking the jurisdiction of the Court, which may create equitable
rights of otl1ers, may give retional grounds for discrimination so that
it would cease to be a case of any violation of Articles 14 and 16
at all. We think that the principles laid down in. the cases mentioned
above apply here.
Consequently, we dismiss this Writ Petition, but, in the circumstances of the case, the parties will bear their own costs.
S.R.
Petition dismissed.
{1)
[1975] 2 S.C.R. 553.
(2)
[1975] 2 S.C.R. 960.
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