# P. C. SETHI & ORS v. ·UNION OF INDIA & ORS

- **Citation:** [1975] 3 S.C.R. 201
- **Court:** Supreme Court of India
- **Decided:** 1975-01-17
- **Bench:** M. H. Beg, V. R. Krishna Iyer, P .. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-c-sethi-ors-v-union-of-india-ors-6710
- **Pages:** 10

## Headnote

201
Constitution of India, Art. 16-Civil Service-Ctntral Secretariat Service (Re·
organisation and Reinforcement) Scheme-Home Ministry circular dated 22nd
June, 1949-Whether subsequent direct
recruits can supersede tliose who . are
absorbed in service earlier-Delay and /aches.
. .
Petitioners are Assistants in Grade IV Class II of the Central Secretariat
Service. Petitioners were appointed as Assistants during the period 1944-54. The
respondent Union of India appointed a large number of persons as Assistants by
direct recri.itment and many of those appointed after the petitioners have been
confirmed in the grade and have since been promoted to the next higher grade of
Section Officer. In 1948, the Government framed a Scheme known as the Central Secretariat Service (Reorganisation & Reinforcement) Scheme. Thereafter·
instructions for the initial constitution of the Assistants Grade were issued In
March, 1949. Thereafter, the Ministry of Home Affairs issued Office Memorandum dated June 22, 1949, dealing with ti:~ qu.estion of seniority. Para 2 of the
office memorandum provided that the rule of seniority on the basis of length of
service should be takeq as a model in framing the rules of seniority for other Services. The main question to be determined in the present petition is whether the
office memorandum of June, 1949 is applicable in determining seniority of the
petitioners.· .
·
'·
HELD·. Office Memorandum of June 22, 1949 is no bar to the Government
making separate provision for the mode of constitution and future maintenance
of the service of Assistants. The classification made in the instructions cannot be
characterised as unreasonable. There is no discrimination amongst equals nor
any arbitrary exercise of powers by the Government. In the abse~e of any statutory rules prior to the Central Secretariat Service Rules 1962 it was open to
G,overnment in exerc.ise .of its executive .PO'Yer to issue ad~inistrative instructio'!s
with regard to constitution and reorganisation of the. Service· as long as there IS
no violation of ArtS. 14 and 16 of the Constitution. The instructions of the Government issued from time to time do not violate any fundamental rights of the
petitioners. In the present petition, the Civil List of 1962 has not been challenged
as invalid. Only office Memorandum of 1971 is challenged. The said Memoran·
dum of 1971 is based on the civil list of 1962. The validity of which is not specifically challenged in the petition. There is no infirmity in the Memorandum of
1971 simply because it is not in conformity with the Memorandum of 22-6-1949.
[207H; 208B-EJ
HELD FURTHER : Once the temporary Assistants have been absorbed in the
Service after they are found to be eligible in accordance with the instructions their
claim for seniority cannot be superseded by the direct recruitment if appointed
after the farmer's absorption in the service. It appears that the quota of direct ·
recruitment was not enforced and perhaps for good reasons. Administrative in·
structions if not carried into effect for obvious and good reasons cannot confer a
right upon entrants on later recruitment to supersede the claims of others already
absorbed in the service in. accordance with the appropriate and valid instruction.,,
Nothing has been brought to our notice which could justify such a wholesale
or en bloc discrimination in favour of those who suddenly enter the same Rtade
of service by direct recruitment. It could if 11ermitted be violative of Art: 16 of th·e
Constitution. The direct recruits who are appointed after the absorption of the
Assistants in conformity with the instructions on tile initial constitution or in the
regular temporary establishment. shall rank junior to the l~tter. [209B; 0]
HELD FUR.'I'HU : Jn view of the entire circumstances of the case and the
hopes held out by the Government from ~me to time we are not prepared to
dismiss the petition on account Qf delay and· !aches. [210B]
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SUPREME COURT REPORTS
[1975) 3 s

## Text

A
B
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D
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F
G
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P. C. SETHI & ORS.
v.
·UNION OF INDIA & ORS.
· January 17, 1975
[M. H. BEG, V. R. KRISHNA IYER AND P .. K. GOSWAMI, JJ.]
201
Constitution of India, Art. 16-Civil Service-Ctntral Secretariat Service (Re·
organisation and Reinforcement) Scheme-Home Ministry circular dated 22nd
June, 1949-Whether subsequent direct
recruits can supersede tliose who . are
absorbed in service earlier-Delay and /aches.
. .
Petitioners are Assistants in Grade IV Class II of the Central Secretariat
Service. Petitioners were appointed as Assistants during the period 1944-54. The
respondent Union of India appointed a large number of persons as Assistants by
direct recri.itment and many of those appointed after the petitioners have been
confirmed in the grade and have since been promoted to the next higher grade of
Section Officer. In 1948, the Government framed a Scheme known as the Central Secretariat Service (Reorganisation & Reinforcement) Scheme. Thereafter·
instructions for the initial constitution of the Assistants Grade were issued In
March, 1949. Thereafter, the Ministry of Home Affairs issued Office Memorandum dated June 22, 1949, dealing with ti:~ qu.estion of seniority. Para 2 of the
office memorandum provided that the rule of seniority on the basis of length of
service should be takeq as a model in framing the rules of seniority for other Services. The main question to be determined in the present petition is whether the
office memorandum of June, 1949 is applicable in determining seniority of the
petitioners.· .
·
'·
HELD·. Office Memorandum of June 22, 1949 is no bar to the Government
making separate provision for the mode of constitution and future maintenance
of the service of Assistants. The classification made in the instructions cannot be
characterised as unreasonable. There is no discrimination amongst equals nor
any arbitrary exercise of powers by the Government. In the abse~e of any statutory rules prior to the Central Secretariat Service Rules 1962 it was open to
G,overnment in exerc.ise .of its executive .PO'Yer to issue ad~inistrative instructio'!s
with regard to constitution and reorganisation of the. Service· as long as there IS
no violation of ArtS. 14 and 16 of the Constitution. The instructions of the Government issued from time to time do not violate any fundamental rights of the
petitioners. In the present petition, the Civil List of 1962 has not been challenged
as invalid. Only office Memorandum of 1971 is challenged. The said Memoran·
dum of 1971 is based on the civil list of 1962. The validity of which is not specifically challenged in the petition. There is no infirmity in the Memorandum of
1971 simply because it is not in conformity with the Memorandum of 22-6-1949.
[207H; 208B-EJ
HELD FURTHER : Once the temporary Assistants have been absorbed in the
Service after they are found to be eligible in accordance with the instructions their
claim for seniority cannot be superseded by the direct recruitment if appointed
after the farmer's absorption in the service. It appears that the quota of direct ·
recruitment was not enforced and perhaps for good reasons. Administrative in·
structions if not carried into effect for obvious and good reasons cannot confer a
right upon entrants on later recruitment to supersede the claims of others already
absorbed in the service in. accordance with the appropriate and valid instruction.,,
Nothing has been brought to our notice which could justify such a wholesale
or en bloc discrimination in favour of those who suddenly enter the same Rtade
of service by direct recruitment. It could if 11ermitted be violative of Art: 16 of th·e
Constitution. The direct recruits who are appointed after the absorption of the
Assistants in conformity with the instructions on tile initial constitution or in the
regular temporary establishment. shall rank junior to the l~tter. [209B; 0]
HELD FUR.'I'HU : Jn view of the entire circumstances of the case and the
hopes held out by the Government from ~me to time we are not prepared to
dismiss the petition on account Qf delay and· !aches. [210B]
I
20~
SUPREME COURT REPORTS
[1975) 3 s:.c.R.
ORIGINAL JuR1s01cr10N : Writ Petition No. 163 of 1972.
Petition under Art. 32 of the Constitution of India.
S. S. Javali and B. P. Singh, for the petitioners.
M. N. Phadke and R. N. Sachthey, for respondent No. L
P. P. Rao and A. K. Ganguli, for respondent No. 2 & the intl.!rveners.
T. V. S. Narasimhachari, for respondent Nos. 27-32.
The Judgment of the Court was delivered by
GOSWAMI, J.-The petitioners are Assistants in Grade IV (Class
II Non-gazetted) of the Central Secretariat Service
(briefly the
Servic~) and have been working in the various Ministries of the Ooverr.ment of India. They were appointed as Assistants during tire period
between 1944 and 1954. Their next promotional post is now that of
Section Officer (Class II, Gaz.etted). They have raised in this Writ
Petition the question of their seniority and challenged the validity of
the Office Memodandum of 7th September,.1971, issued by the first
Respondent fixing zones for promotion to the grade of Section Officer
on the basis or ranks assigned in the Civil List of 1962 for the grade
of Assistant on the ground of being in contravention of the Office
Memorandum of June 22, 1949, of the Ministry of Home Affairs.
They also challenge the validity of rule 18(1) of the Central Secre·
tariat Service Rules, 1962 (briefly the Rules) in so far as it is con·
strued to protect the seniority determined prior to the commencement
of the said Rule fa violation of the Office Memorandum of Ju11c 22,
1949. Th~ petitioners allege that the Government havoe not fo:l!owed
any consistent principle or rule in regulating the seniority of the
Assistants. It: is said the first Respondent prepared lists of ofti<:ers in
the Assistant's Grade by different combination of classifications, such as
initial constitution, regular temporary establishments, non·test cate·
gory, first test category, second test category, hard cases category, displaced persons, direct recruits, etc. and effected promotions in utter
disregard of the dates of confirmation. The first Respondent appointed
a large number of persons as Assistants by direct recruitment and many
of those appointed after the petitioners have been confirmed in the
grade and have since bee.n promoted to the next higher grade of
Section Officer. A~cording to the petitioners gla.ring instance of arbitrary action is the assignment of en bloc seniority to persons appointed
by direct recruitment in 1956 exceeding 800 in number who have
been assigned seniority over all the petitioners appointed as Assistants
long prior thereto. Such instances' were there also in 1958 and 1959.
In retrospect, on July 19, 1948, the Government.framed a scheme
known as the Central Secretariat Service (Re-organisation and Reinforcement) Scheme (briefly the Scheme). It constituted four grades in
the Service, namely, Under Secretary
(Grade I), Superintiendent
(Grade ID. Assistant Superintendent (Grade III) and
Assistant
(Grade IV). The Scheme was,
~owever,
not implemented until
November 1951. Under para 15 of the Scheme, the authorised 1iermanent strength of the Service will be fixed by the Ministry of Home
Affairs with th~ concurrence of the Ministry of Finance. It was recogA
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2-03
nised therein that "it is essential' from the poin~ of
Yiew alike of
economy and efficiency ,that as large. a proportion as possible of the·
members of the Service should be recruited on a permanent basis. A
flexible system of fixation of Authorised Permanent Strength will therefore be followed. . . . should be revised once in every three years". It
is also mentioned in the same paragraph that "if as a result of any such·
triennial refixation, the Authorised Permanent Strength is
reduced,.
effect should given to such reduction by equivalent reduction in the·
following triennium of the rate of direct recruitment to the Service and'
:Promotions from grade to grade .... ". It is also particularly men-·
tioned in the said paragraph that "the rights of members appointed to·
the Service on a permanent basis will not be prejudiced by any revision
of permanent strength, effected subsequent to such appointment".
·Under Paragraph 19 of the Scheme, after the Authorised Permanent Strength of the Service is determined, the initial coustltution of
the Service will be undertaken, and, inter alia, appointments to Grade·
IV will be completed within thirty months. Under para 25 of the:
Scheme, the mode of constitution of Grade IV is as follows :-
"Assistants who have already been
appointed on a
permanent basis and are not appointed . to a higher grade in
the Service as reorganised will be appointed permanently to
Grade IV first. The remaining vacancies in Grade IV will be
filled by persons who are 'qualified' in terms of the Ministry
of Home Affairs bffice Memorandum No. ~3/20/48-NGS,
dated the 25th May, 1948. A'.s contemplated in that Memorandum two tests will be held by the Federal Public Servi~
Commission in which the temporary 'qualifiables' as defin"d
therein will be enabled to qualify for permanent absorption
in Grade IV. In the first of two ~ests only qualifiable tempcrary Assistants will be allowed to appear. H \Jl'.OUld then be
considered with reference to the number of vacancies to be
filled as well as the number of qualifiable candidates remain·
ing whether, and if so Jo what extent, the. second test should
be th~own open partia~ly to the outsiders also".
.
Paragraph 26 in Part V of the Scheme dealing with future maintenance of the Service, provitles,
i111er alia, for the recruitment as
follows:-
"Permanent vacancies in the
Authorised
Permanent
Strength of this Grade will be filled in two ways. One out of
every 4 vacancies will be filled, Ministry-wise, by promotion
from the Ministerial Grades below the rank of Assistant. The
remaining 3 vacancies will be poofod for the Central Secretariat as a whole and filled from among the successful candidates at the competitive· Ministerial Services Examination
held by the Federal Public Service Commission, The qualifications for admission to this examination will continue to
be graduates in the age-groups 20-22 with relaxation of age
limit for the Scheduled Castes".
·/
\
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SUP~EME COURT REPORTS
[197 5} 3 S.C:.R0
With regard to promotion it is stated in the said paragraph as
follows:-
"Assistants who have completed 5 years' but not more
than 1 O · y1~ars' service in_ their grade will be eligible for promotion by selection based strictly on the result of .a limited
competitive test held among Assistants of that ~erv1ce group
to the rank of Ass~stant Superintendent, prov1d~d that no
Assistant will be allowed rnore than three consecutive chances
to compete in this test. _Those Assistants who are not. so
promoted will also be eligible in due course for promotion
based on seniority, subject to the rejection. of the unfit,. to
vacancies in the Grade of Assistant Supermtendent which
would. be reserved for being filled by such promotion".
Under para 31 of the Scheme, leave, pension and other con4_itions of
service will be as applicable at present to all offi(ferS of Central
Services, Class I or II, as the case may be.
-
After the publication of the Scheme, the Ministry of Home Affairs
-on.October 25, 1948, circulated an explanatory memorandum explaining the nature and purpose of the Service. The Central Secretariat is
pithily described therein as ''the workshop of policy" which helps
the Government to make and revise policies and to create, maintain
and direct the organs which execute the policies. The Assistants, we
are concerned with, are -the fifth layer at the lowest rung of the Secretariat Department and are engaged on case work as
distinguished
from clerks and typist~ employed on routine work in a separate lower
service.
It was pointed out that there was a phenomenal expansion in the
Service as would be reflected from the figures, for example, of Assistants in 1939 at 493 which rqse upto 2306 in 1948. This is said: to
have affected the quality of the Service which includes a large nu1mber
of staff employed on a temporary basis. In 1948 itself the ,entire
number of 2306 Assistants, except 95, were temporary employees. It
was further mentioned in the explanatory note that "reinforcement is
not required at the lowest level, viz., the Assistants' Grade. Here what
is necessary is the weeding out of the poor quality material and the
improvement of _efficiency of the rest through a permanent tenure and
better training and guidance".
Then in S'equence came the instructions for the initial constitution
of the Assistap.ts' Grade of the Service on March 1, 1949. These ins~
tructions gov1!med the manner in which the sanctioned permanent
strength of the grade of Assistants would be filled by existing perma~
nent Assistants and from various categories of existing temporary
employees.
The scheme of the Instructions contains these broad features :
( 1) All existing permanent Assistants
who
are
not
appointed to higher grades in the Service will forllll
pa.rt of the permanent strength of the Service.
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p, c. SETHI v. UNION (Goswami, J.)
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(2) The remaining number of permanent vacancies in
the Grade will be divided among three categories,
namely, (i) The Non Test Category, (ii) The First
Test Category and (iii) The Second Test Category.
A particular specified number of vacancies will be allotted to the Non
Test Category and the remaining vacancies will be divided among the
First Tesi Category and the Second Test Category in the ratio 2 : 1.
There is also reservation of a specific number of vacancies for allotment to Displaced Government servants. There are five categories of
employees which are included in the Non Test Category and for them
there will be two separate lists, ijamely, (a) for Displaced Government servants and (b) for others. Both the lists will be drawn up
ranking the employees in order of seniority according to their length
of service. The employees who are included in these lists will be eligible for permanent appointments in accordance with their position in the
lists upto the respective quotas prescribed for them. I.t will, therefore,
appear that although there may be a large number of employees included in the lists of Non Test Category, all may not be absorbed in
the permanent vacancies but only these in order of St)niority in the
lists upto the sanctioned strength of the vacancies in the Non Test
Category.
Next comes those Assistants who are eligible to be considered for
permanent. appointment to the vacancies reserved for the First Test
Category by qualifying at the first test to be held by the Federal
Pub!ic Service Commission. Here again on the results of the fiirst test
candidates in order of merit upto the number of vacancies allotted to
this category will be confirmed in the grade. That is to say, although
there may be a large number of temporary Assistants who may have
qualified at the first .test, only the candidates in order of merit upto
their quota in this category will l;>e confirmed. Similarly there will also
be a &cond Test Category which will .include candidates who have
qualified in the test but only these candidates in the order of merit upto .the number of vacancies allotted to this Category will be confinned.
The inter se seniority of the .confirmed employees it). the Non Test
Category, The First Test Category and The Second Test Category will'
be according to their !ength of se~c;e.
Paragraph 8 of the instructions which deals with seniority of
Assistants in. Grade IV as newly cQnstituted, which is even quoted in
G . the Office Memorandum of June 22, 1949, provides in substance as:
follows:-
H
All existing permanent Assistants who were confirmed
in their posts prior to October 22, 1948, will be arranged in
the first instance Ministry-wise in accordance with the rules
in force then. They will be senior to all others confirmed
thereafter in vacancies arising upto October 22, 1950. Those
who ar~ confirmed after 1943 in vacancies arising upto
October 22, 1950, will be arra11ged in a single list for all
Ministries and their seniot:'ity inter se will be detennined orr
(
206
SUPREME COURT REPORTS
[1975] 3 !i.C,R,.
the basis of their length of continuous service temporary or
permanent in the grade of Assistant or in an equivalent grade.
After the sanctioned strength of the permanent establishment has
b~en filled up as set out earlier, the :remaining persons in the Non Test,
flrst Test and Second Test Categories, because of lack of sanctioned
strength in the various categories, could not be absorbed will form a
regular temporary establis~ment (R.T.E.). There will be a s'.ngle
seniority list for such R.T.E. and· seniority will be determined on the
basis of the length of contin\10us service. The sanctioned strength of
the service upto Oqtober ~. 1950, will be filled as above. Thereafter
a proportion of future permanent vacancies will be filled by appointments, based upon seniority from the list of members of the R.T.E.
The next stage is reached when instructions for the constitution
and maintenance of the regular temporary establishment of Asshtants
were issued on August 26, 1952. The R.T.E. as initiallv constituted is
as follows :--
·
A list (List A) arranged in order of seniority as Assistants shall
be prepared of all existing Assistants that is those holding Posts of
Assistant as on July 1, 1952 and not confirmed in Grade IV and of
others specifically mentioned in sub-para (2) (i) of para 3 of the
instructions. These left over from the two Non Test lists mentioned
eadier are entered in one list (List B) in accordance with seniority
with some weightage for Displaced Government servants. The lists of
persons who have qualified m the First and the Second Test Categories but not confirmed in the service are ref :rred to as Lists C and
D respectively. For the first time a rotation system is introducf:d as
per sub-para ( S) of these instructions in so f11r as appointments ti:> the
R.T.E. shall now be made one from each lillt in serial order from the
top of each Ii1it until 1200 persons are chosen. There is, however, an
overall reservation of 12i% for Scheduled
Castes and 5%
for
'Schedulel:i Tribes. Persons who are neither ~ermanent members
of
'Grade IV nor members of the R.T.E. of Assistants are referred to as
"Ex-cadre" As1sistants. Under para 4 of these instructions the !fat of
R.T.E. prepare.d in accordance with para 3(5) shall be the Gradat'.on
List of the R.T.E. at its initial constitution. Para 6 provides that the per·
·800$ appofoted to the R.T .E. at its initial CC'lnstitution shall be senior to
these appointed later. The Ja«er shaU rank inter se in the order of
their appointment to the R.T.E. in accordance with para 5 ( 4) of the
instructions. Para 9 provides that all permanent vacancies in Grade
IV not filled by direct recruienent on the results of competitiv·e exami-
·nation held by the Umon Public Service Commission shall be filled
from the R.T.E. in the order of the Gradation List subject to certain
1proviso, the first one being that not l·~ss than one-fourth of the vacancies
1;hall be reserved for petmanent Clerks.
Then in the wake of these instructions came the Ministrv of Home
Affairs' Office Memorandum of June 22, 1949, dealing with th·~ 1mbjiect of "seniority of the displaced Government servants who have been
absorbed temporarily in service under the
Central
Government".
J>aragraph 2 of the said Office Memorandum may be set out :
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"The question of seniority of Assistants in the Secretariat
was recently examined very carefully in consultation with all
the Ministries and the Federal Public Service Commission
and the decisions reached are incorporated jn para 2 of the
Instructions far the initial constitution of the grade of
Assistants .... "
B
This paragraph 8 which is mentioned is the orie which is quoted earlier
from the Instructions of March 1,.1949, which was expressiy intended
for the initial constitution of the Assistant's Grade of the Central
Secretariat Services. The principle which was
adumbrated in the
. Office Memorandum of June 22, 1949, is the same as has been earlier
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mentioned in paragraph s· of the Instructions of March 1949.
In paragraph. 11 .of the counter-affidavit of the Deputy Secretary
to the Government of India, Department of Personnel, Cabinet Secretariat, it is stated as follows :-
"I say that the statement that persons who were appointed
Jong after the petitioners' appointment as Assistants have been
further promoted in supersession of the claims of the petitioners is a statement made shorn of its context. That criticism would have been valid if with regard to the Assistants of
the Central Secretariat Service the Office Memorandum of
1949 was applicable under which length of service was the
cri~erion in the matter of determining seniority ... " with reference to Annexure 'B' to the writ petition I am advised to
submit that if the 1949 or 1959 Office Memorandum were
applicable to the petitioners' case, then Annexure 'B' would
be valid and this respondent would have 110 reply thereto but,
unfortunately, for the petitioner, they being governed by
different principles as regards seniority and at any rate they
being hot governed by 1948 or 1959 Office Memoranaum,
it is only. a futile exercise to find out what would have been
their seniority in the Civil List of 1962 and 1949 · Office
Memorandum applied to them".
It may be noted that Annexure 'B' to the Petition is a statement showing the order "of seniority had it been based on length of service as
Assistant. ·
The principal question that arises for consideration in this case is
whether the Office Memorandum of June 22, 1949, is applicable in
G
determining seniority of the petitioners. Para 2 of the Office Memo-
. randum as quoted above clearly shows that paragraph 8 which contnins th~ rule of seniority being length of' continuous service was in
terms applicable to the initial cons(itution of the grade of Assistants.
The said rule of seni-0r1ty should be taken as "the medal in framing
the rules of seniority ·for other services". This w-0uld go to demonstrate
that the Office Memorandum of June 22, 1949, is no bar
ta the
H
Government in making separate prO'Visions for the mode of ~onstitu
tion 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 bal~ length of continuous
208
SUPREME COURT REPORTS
[19751 3 s.c.R.
service irrespective of other considerations then the service was sought
to be reorganised and reinforced. As noticed earlier the service had
to ·be reconstituted and the temporary Assistants properly observed
keeping in view the question of quality and efficiency as well as at the
same where regard being ha9. to, accommodate as large number as
possible for gradual absorption. In doing so we are unable to hold. that
the Government has violated the _provisions of articles 14 or 16 of the
Constitution. The clas:sification under the instructions 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 efficiency in the Service. There is
no discrimination whatsoever amongst the equals as such nor any
arbitrary exerc:ise of power by the Government. In absence of any
statutory rules prior to the Central Secretariat Rules 1962 it was open
to the Government in exercise of its executive power to issue administrative instructions with regard to constitution and reorganisation of
the Service as long as there is no violation of article 14 orarticle 16 of
the Constitution. Subje,ct to what is observed hereafter, as held above we
do not find that the instructions of the Government made from time
to time violated any fundamental rights of the petitioners. We should
also observe that the various Office Memorandum and instruc1ions
including the Civil list of 1962 have not been challenged as invalid
with the solitary exception of the Office
Memorandum of 1971
( Annexure I). This Office Memorandum again is based on the Civil
List of 1962 the validity of which is not specifically challenged in this
Petition. We, therefore, do not find any infirmity in the Office Me morendum of 1971 (Annexure I), simply because it is not in conformity
with the Office Memorandum of June 22, 1949. Besides, it is stated
ii11 the countet-.affidavit of the Deputy Secretary
(page 176 of the
record) that "the Office Memorandum of 1971 is no longer operative .. , " We have seen that the rule of length of continuous
servk~
has been adopted in the case of different categories reconstituted in
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the Service in accordance with the administrative instructions of the
Horne Ministry issued after consultation with the Union Public .Service
Commission, The grievance that the said Office Memorandum should
have been applied to all the temporary employees without the req11drement of their being eligible in accordance with other instructions is
without any foundation and cannot be upheld. A regular set of separate
instructions governed the Service the existence of w~ch cannot be
explained if th(l Office Memorandum of June L2, 1949, alone were
applicable, de hors the!ie other instruction.~.
. , .. a
It is further contended that rule 18 of the Rules is invalid in . so
far as it protectl1 the seniority of _the Assistants already observed vioiating the rule of continuous length of servfoe amongst the entire gmup
as a whole. This argument is untenable as the rule of continuous length
· of service cannot be invoked unl(!ss the temporary Assistants are
~absorbed in the Service in accordance with the instructions which are
valid. The entirn group of temporary Assistants canno~ claim senio:rity
by the rule of length of continuous service without prior c.omplia:nce
with the conditions l~d down under the instructions. Rule 18 is, the:reH
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fore not violative of article 14 or article 16 of the Consti.tutiol\ on the
scor~ of giving effect to the' earlier or other instructi011s which are not
lound to be othe.rwise objectionable.
That leaves one more question to be resolved, that is, with refe·
. rence to the direct recruits. Once the temporary Assistants have been
nbsorbed in the service after they are found to be ~Hgible in accordance
with the instructions their claim for seniority can11llt be superseded
by the direct recruits if appointed after the farmer's absorption in the
Service. This conclusion is based on the following factors :-
Although the Scheme was made in July 1948 it was not enforced
until November 1951. Even then there. was no direct recruitment until 1956. The reasons for delaying direct recruitment can be foumi
from a perusal of paragraph 1 S of the 1948 Scheme itself, that "it is
essential from the point of view alike of economy and efficiency tha~
as large a proportion is possible of the members of the service should
be recruited on a permanent basis ..... If the Authorised permanent
strength is reduced, effect should be given to such reduction by
equivalent reduction in the following triennium of the rate of direc~
recruitment to the Service ... " It was, therefore, not the intention of
the scheme to prejudice the seniority of the Assistants
after their
absorption in the Service nor such an intention was evident in the.
explanatory memorandum annexed to the Office Memorandum of
October 25, 1948. In para 11 of the latter Memorandum it is unambiguously stated the "reinforcement is not required at the lowest
level, namely, the Assistants' Grade. Here what is necessary is
the
weeding out of the poor quality material . and the improvement of
efficiency of the re_st through permanent tenure and better training
and guidances. This is also clear from the instructions for the constitution and maintenance of the regular .temporary establishment of
Assistants dated August 26, 1968. Para 9 thereof provides that "all
permanent vacancies in Grade IV not filled by direct recruitment on
the results of Competitive Examination, held by the Union Public
Service Commission shall be filled from the Regular Temporary Establishment in the order of Gazetted List" subject lo certain provisions
with which we are not concerned.
It appears the quota, if any, of direct recruitment was not enforced
and perhaps for good reasons as noted above;- the policy of the Government being different.
Administrative instructions, if not carried
into effect for obvious and good reasons, cannot .:onfer a right upon
entrants on later recruitment to enforce the same to supersede the
claims of others already absorbed in the Service in accordance with
the _appropriate and valid instructions._ Nothing was broug!1t to · our
notice which could justify such a wholesale or en bloc discrimination
in favour of those who suddenly enter the same grade of service by
direct rec:ruitment. It would, if permitted, be violative of article 16 of
the Constitution which should never be overlooked in such cases.
We are, therefore, clearly of opinion that the direct ;ccruits who
were appointed after the absorption of the Assistants, in conformity
with the instructions of the initial constitution or in regular temporary
15-L379 Sup. CI/75
210
SUPREME COURT REPORT~
[1975] 3 s.c.R.
1i:stablishment shall ranlc junior to the latt1~r. We, th@refore, direct that
the seniority of such Assistants shall be adjusted and the seniority list
corrected accordingly. This will, J?owever, not affect the cases of these
Assistants who are already promoted and confirmed in a higher 1rank
prior to the date of this petition.
The learned counsel for the respondents strenuously
contended
1that the petition may ~ dismissed on account of delay and laches. Jn
·view of the entire circl)mstances of the case and the hopes held out by
1the Government from time to time we are not prepared to acced1~ to
this submission.
The petitioners also sought to take advantage of what they describeji
as admission in Government's affidavits filed in connection with certain earlier proceedings of similar nature and other admissions in Parliament on behalf of the Government. We, are, however, unable to hold
that such admissions, if any, which are mere expression Of opinion
limited to the context and also being rather vague hopes, not specific
assurances, are binding on the Government to create an estoppel.
In the view we have tilken the case is distinguishable from Union
of India and Ors. v. M. Ravi Varma and Ors. etc.(1) principally relied
upon by the petitioners.
In the result the petition is partly allowed only to the extent that
the Assistants who have been absorbed in the Service in conformity
1vith the instructions will rank senior to the direct recruits appointed
111fter such absorption. The seniority list shall be adjusted and correc:ted
accordingly. This direction will, however, not affect those Assistants
who have already been promoted and confirmed m a higher rank p.rior
to the date of this petition. In the circumstances of the case we leave
the parties to bear their own costs.
P.H.P.
Petition allowed in part.
I. [1972] 2 S.C.R. 992;
A
B
c
D
E