# S.S. MOGHE & ORS v. UNION OF INDIA & ORS

- **Citation:** [1981] 3 S.C.R. 875
- **Court:** Supreme Court of India
- **Decided:** 1981-05-08
- **Case number:** Writ Petition No. 119 of 1979
- **Bench:** Y.V. Chandrachud, A.P. Sen, V. Balakrishna Eradi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-s-moghe-ors-v-union-of-india-ors-8253
- **Pages:** 37

## Headnote

Constitution of India 1950, Articles 14, 16, 32 and 309.
875
Petitioners in 1979 assailing validity of promotion given to respondents between
1968 and 1975-No valid explanation for delay in filing petition-Denial of relief.
No regular cadre and hierarchy of posts-No rules laying down modes of
appointment/promotion to posts-Government whether competent to fill posts by
securing services of suitable persons.
Constitution of a new service-Method of appointment to various postsA
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President whether competent to prescribe the methods by which vacancies in the
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different categories are to be filled.
Aviation Research Centre (Technical) Service Rules, 1976, Rules, 6. 7, 8
and 12-Va/idity of.
Civil Service Regulations, Article 26(7)(iii)-lnitia/ constitution of serviceAbsorption of deputationists-Whether appointment by transfer.
The Aviation Research Centre was a temporary and ad hoc Organisation
set up in 1962 for carrying out the work of collecting intelligence by the use of
highly sophisticated techniques. For manning this Task Force, persons with
experience in the specialised nature of the work were taken on deputation basis
from different sources, such as the Intelligence Bureau, the Departments of
Defence Science, Wireless Planning 'and Coordination, the Directorate-General
of Civil Aviation and the Police Cadres of different States and they were grouped
together to form the ARC. To supplement the man power some persons were
also directly recurited to the Organisation on a purely ad hoc basis. The ARC
Organisation was initially treated as an extension of the Intelligence Bureau. In
February 1965, it was brought under the control of the Director-General of
Security. The administrative control over the Organisation which was originally
vested in the Ministry of Exterml Affairs and later with the Prime Minister's
Secretariat was transferred to the Cabinet Secretariat in 1965. The sanction for
continuance of the temporary Organisation was accorded by the Government
from year to year till the year 1971 when a decision was taken by the Government
to make the ARC a permanent Department. The finalisation of the principles to
be adopted for constitution of the new permanent Department took considerable
time and it was only on April 26, 1976 that the President of India promulgated
the Aviation Research Centre (Technical) Service Rules 1976 providing for the
constitution of a new service the Aviation Research Centre (Technical) Service.
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SUPREME COURT REPORTS
(1981] 3 S.C.R.
Rule 6 of the said Rules dealt with the initial constitution of the new ARC
permanent Service and
provided that all persons holding, as on the appointed day, any one of the categories of posts specified in rule 4, whether in a
permanent or tempoarary or officiating capacity or on deputation basis, shall be
eligible for appointment to the service at the initial constitution thereof. Rule 7
laid down the principles to be applied for fixation, of seniority of those appointed
to the various posts at the time of its initial constitution, while Rule 8 dealt with
the filling up of vacancies in various grades remaining unfilled immediately after
the initial constitution of the service and all vacancies that may subsequently
arise in the Department. Rule 12 provided that in regard to matters not specifically covered by the rules or by order issued by the Government, the members of
the service shall be governed by general rules, regulations and orders· applicable
to persons belonging to the corresponding Central Civil Service.
The petitioners, who were persons recruited directly to the ARC Organisation during the period between 1965 and 1971 challenged in their writ petition,
the validity of the promotion given to respondent nos. 8 to 67 from the year 1968
onwards officers whose services were borrowed on deputation. They contended
that the deputationists were occupying the posts in the Department. only on
an ad hoc basis and such ad hoc appointees

## Text

_Characters 0–39,372 of 100,871. This is a partial read: ask again with offset=39372 for what follows._

S.S. MOGHE & ORS.
v.
UNION OF INDIA & ORS.
May 8, 1981
[Y.V. CHANDRACHUD, C.J., A.P. SEN AND
V. BALAKRISHNA ERADI, JJ.]
Constitution of India 1950, Articles 14, 16, 32 and 309.
875
Petitioners in 1979 assailing validity of promotion given to respondents between
1968 and 1975-No valid explanation for delay in filing petition-Denial of relief.
No regular cadre and hierarchy of posts-No rules laying down modes of
appointment/promotion to posts-Government whether competent to fill posts by
securing services of suitable persons.
Constitution of a new service-Method of appointment to various postsA
B
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President whether competent to prescribe the methods by which vacancies in the
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different categories are to be filled.
Aviation Research Centre (Technical) Service Rules, 1976, Rules, 6. 7, 8
and 12-Va/idity of.
Civil Service Regulations, Article 26(7)(iii)-lnitia/ constitution of serviceAbsorption of deputationists-Whether appointment by transfer.
The Aviation Research Centre was a temporary and ad hoc Organisation
set up in 1962 for carrying out the work of collecting intelligence by the use of
highly sophisticated techniques. For manning this Task Force, persons with
experience in the specialised nature of the work were taken on deputation basis
from different sources, such as the Intelligence Bureau, the Departments of
Defence Science, Wireless Planning 'and Coordination, the Directorate-General
of Civil Aviation and the Police Cadres of different States and they were grouped
together to form the ARC. To supplement the man power some persons were
also directly recurited to the Organisation on a purely ad hoc basis. The ARC
Organisation was initially treated as an extension of the Intelligence Bureau. In
February 1965, it was brought under the control of the Director-General of
Security. The administrative control over the Organisation which was originally
vested in the Ministry of Exterml Affairs and later with the Prime Minister's
Secretariat was transferred to the Cabinet Secretariat in 1965. The sanction for
continuance of the temporary Organisation was accorded by the Government
from year to year till the year 1971 when a decision was taken by the Government
to make the ARC a permanent Department. The finalisation of the principles to
be adopted for constitution of the new permanent Department took considerable
time and it was only on April 26, 1976 that the President of India promulgated
the Aviation Research Centre (Technical) Service Rules 1976 providing for the
constitution of a new service the Aviation Research Centre (Technical) Service.
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SUPREME COURT REPORTS
(1981] 3 S.C.R.
Rule 6 of the said Rules dealt with the initial constitution of the new ARC
permanent Service and
provided that all persons holding, as on the appointed day, any one of the categories of posts specified in rule 4, whether in a
permanent or tempoarary or officiating capacity or on deputation basis, shall be
eligible for appointment to the service at the initial constitution thereof. Rule 7
laid down the principles to be applied for fixation, of seniority of those appointed
to the various posts at the time of its initial constitution, while Rule 8 dealt with
the filling up of vacancies in various grades remaining unfilled immediately after
the initial constitution of the service and all vacancies that may subsequently
arise in the Department. Rule 12 provided that in regard to matters not specifically covered by the rules or by order issued by the Government, the members of
the service shall be governed by general rules, regulations and orders· applicable
to persons belonging to the corresponding Central Civil Service.
The petitioners, who were persons recruited directly to the ARC Organisation during the period between 1965 and 1971 challenged in their writ petition,
the validity of the promotion given to respondent nos. 8 to 67 from the year 1968
onwards officers whose services were borrowed on deputation. They contended
that the deputationists were occupying the posts in the Department. only on
an ad hoc basis and such ad hoc appointees who were having the benefit of lien
in their parent departments and were getting promotions in those departments
had no claim whatever to seniority or promotions in the borrowing department
viz. A.R.C.
They also assailed the Aviation Research Centre {Technical)
Service Rules as cantering arbitrary powers on the controlling authority to equate
the ad hoc service rendered by the deputationists in the ARC with the regular
service rendered by persons like the petitioners who had been directly recruited
to the Department on a regular basis which resulted in permanently blocking all
the future chances of the petitioners in matters of promotion and other service
benefits. The rules were highly arbitrary and infringed Articles 14 and 16 of
the Constitution since it was based on illegal treatment of unequals as equals by
equating persons functioning on a mere ad hoc basis with those holding posts
in the Organisation on a regular basis.
Rule 6(2) confered arbitrary and unfettered powers on the Screening Cammi ttee and suffered from the vice of excessive
delegation. Rule 7 in so far as it empowered the Department to reckon the
s~niority of the deputationists by giving them the benefit of the ad hoc service
rendered by them in the ARC as well as the prior service put in by them in their
parent departments was arbitrary. Rule 8(1) enabled the deputationists to con·
solidate the illegal advantage gained by them at the initial constitution by further
promotions/appointments to still higher posts in the ARC, and by specifying the
method of recruitment to the various posts in the Service and fixing a quota as
between the vacancies to be filled up by promotions and those to be fill,ed up by
direct recruitment/deputation or re-employment in Schedule II of the rules, the
deputationists have been treated on a par with regular departmental personnel
and this involved a clear violation of Articles 14 and 16 of the Constitution. It
was further contended that the positiOn of the deputationists being that of persons
permanently transferred from the parent departments to the ARC, under Article
26 of the Civil Service Regulations, such persons appointed by transfer shall
be ranked below all the direct recruits as well as the promotees already functioning in the Department and the seniority list dated November 6, 1978 having been
drawn up in contravention of the aforesaid principle laid down in Article 26,
the said list should be declared to be illegal and void.
S.S. MOGHE V. UNION OF INDIA
877
The case of the petitioners was resisted by respondent No. 1, who contended
that the appointments made by direct recruitment were merely temporary
and ad hoc in character.
While the deputationists were persons with rich
experience and Jong years of service, the direct recruits were inexperienced
and new to the job. The delay in promulgation of the rules was due to the fact
that because of the special features of the Department and the sensitive nature
of the functions to be discharged by it, various circumstances and factors had to
be taken into account before the draft rules were finally cleared by the several
Ministries concerned. There is no principle of Jaw prohibiting the absorption
in a newly constituted Department of persons who are functioning on deputation in a temporary Organisation which was later constituted into a permanent
service. The Service Rules extend equal treatment to all categories of employees
who were in position on the crucial date viz., April 26, 1976 in the matter of
absorption as well as determination of seniority at the intitial constitution, irrespective of whether they were direct recruits or deputationists.
The Screening
Committee prepared the seniority list of the persons found suttable for absorption
in accordance with the provisions contained in Rule 6(2) read with Rule 7. The
Rules cannot be said to be arbitrary or violative of the principles of equality
enshrined in Articles 14 and 16.
Dismissing the writ petition,
HELD: l(i) A party seeking the intervention and aid of this Court under
Article 32 of the Constitution for enforcement of his fundamental rights, should
exercise due diligence and approach this Court within a reasonable time after the
cause of action arises and if there has been undue delay or !aches on his part,
this .Court has the undoubted discretion to deny him relief. [900 H-901 A]
(ii) The challenge raised by the petitioners against the validity of the promotions given to respondent nos. 8 to 67 during the period between 1968 and
1975 is liable to be rejected on the preliminary ground that it is most highly
belated. Thero is no valid explanation from the petitioners as to why they did
not approach this Court within a reasonable time after those promotions were
made. This writ petition has been filed only in the year 1979 and after such a
Jong lapse of time the petitioners cannot be permitted to assail before this
Court the promotionr that were effected during the years 1968 to 1975. [900F-G)
(iii) There is also no satisfactory explanation from the petitioners as to
why no action at all was taken to challenge the validity of the promotions
given to respondents nos. 8 to 67 for a period of nearly seven years subsequent
to the judgment of the High Court in 1972.
[901 Fl
Rabindra Nath Bose and Ors. v. Union of India and Ors. [1970) 2 S.C.R. 697
referred to.
2.
So long as there was no regular cadre and hierarchy of posts and no
rules laying down the mode of appointmont/pro:notioa to '.those posts, it was
perfectly open to the Govern:nent to fill up the po3ts by)ecuring the] services of
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persons who in its opinion were by virtue of their experience ·iand qualifications,
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best suited for being entrusted with the spocialised kinds. of functions attached
to the various posts. [902 E]
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SUPREME COURT REPORTS
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In the instant case the petitioners had been appointed as ACIOs·H only on
a temporary and ad hoc basis. Such appointments did not confer on them any
rights even to the posts of DFOs. It had also been categorically made clear to
them in the letters containing the offers of appointmenr that such appointments
will not confer on them any right to be permanently. absorbed in the post if and
when it was made permanent. There was also not even any executive order or
administrative instruction declaring the post of DFO as the feeder category for
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appointment to the higher posts. The petitioners, therefore, had no legal
right or claim for being appointed by promotion to the higher posts of ACI0-1
(FO), ATO, etc. (902 F-G]
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3(i) When a new service is proposed to be constituted by the Government,
it is fully within the competence of the Government to decide as a matter of
policy the sources from which the personnel required for manning the service are
to be drawn. (903 Fl
(ii) It is in the exercise of the said power, that provision has been made by
sub-rule (I) of Rule 6, that all the persons who, as on the appointed day, were
already working in the ARC Organisation on a temporary and ad hoc basis and
had thereby acquired valuable experience in the specialised kinds of work would
be eligible for appointment to the new service at the stage of its inititial constitution. Equal opportunity was given to all to get permanently appointed in the
new ARC (Technical) Service subject to their being found fit by the Screening
Committee under sub-rule (2) of Rule 6. The provision cannot be said to be
violative of Articles 14 and 16. (903 G, 904 A]
4(i) The provision for Constitution of a Screening Committee for adjudging
the suitability of the persons in the field of eligibility for permanent appointment
to the service is absolutely reasonable. [904 DJ
(ii) The power conferred on the controlling authority to issue general or
special instructions to a Screening Committee is really in the nature of a safeguard
for ensuring that the rules relating to the initial constitution of the service were
applied fairly and justly. The controlling authority is the "Secretary Department
of Cabinet Affairs". When supervisory powers are entrusted to such a high and
responsible official, it is reasonable to assume that they will be exercised fairly
and judiciously and not arbitrarily. The contention that the provisions of subrule (2) of Rule 6 suffer from the vice of arbitrariness or excessive delegation
therefore, fails. (904 E]
5(i) When recruitment to the new Service was being made from two different classes of sources, it was necessary for the Government to evolve a fair
and reasonable principle for regulating the inter se seniority of the personnel
appointed to a new Department. What has been done under Rule 6 is to give
credit to the full length of continuous service put in by all the appointees in the
concerned grade, whether such service was rendered in the temporary ARC
Organisation or in other departments of the Government.
The criterion
applied, namely the quantum of previous experience possessed by the appointees
measured in terms of the length of continuous service put in by them in the
concerned or equivalent grade is perfectly relevant to the purpose underlying the
framing of the rule. The principle laid down in rule 6(2) for determination of
S.S. MOGHE v. UNION OF INDIA
879
inter se seniority was quite reasonable and fair and did not involve any arbitrary
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or unfair discrimination against the petitioners. (905 C-E]
In the instant case while the petitioners had no substantive lien in respect
of or title to any post in any department, the deputationists were having a lien
on the posts held by them in their parent departments. The petitioners, therefore, formed a different class consisting of persons who were virtually being
recruited for the first time into regular Government service, as distinct from
respondents 8 to 67 who had been holding posts in their parent departments for
several years on regular basis who formed a separate class. (905 BJ
6. The provisions contained in Rule 7 that the seniority of persons
appointed on permanent basis in each grade at the initial constitution of the
service shall be in the order in which they are shown in the relevant list
prepared by the Screening Committee in accordance with the provisions of Rule
6 was upheld as perfectly valid and constitutional. [905 F-G]
7. At the time of constituting a new service and laying down the mode of
appointment to the various posts it is fully within the powe1 s of the President
of India to prescribe the methods by which vacancies arising in the different
categories of posts in the department should be filled up. In the instant case this
is precisely what has been done by Rule 8 and the provisions of Schedule II.
(906 Bl
8. The draft rules were prepared by the Directorate of ARC and submitted to the Government in 1972 itself but on a detailed scrutiny being made
it was found that the said draft required substantial modification in several
respects. Revised rules were, therefore, drafted and submitted to the Government late in 1974. The time taken in finalising the rules was due to the fact that
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intei:isive examination of all the relevant aspects had to be done by the various
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concerned Ministries before the draft rules could be finally approved and issued.
The plea of ma/a fides put forward by the petitioners is not €stablished.
[906 H-907 BJ
9. Article 26(7)(iii) of the Civil Services Regulations applies to cases
"where a person is appointed by transfer in accordance with a provision in the
recruitment rules providing for such transfer in the event of non-availability of
candidates by direct recruitment or promotion". The absorption of the erstwhile
deputationists in the ARC (Technical) Service at the time of its initial constitution was not by such transfer. The provisions of Article 26(7)(iii) are, therefore,
not attracted. [909 F-G)
10. The provisions of Rule 6(3) and Rule 7 will be strictly conformed, to
both in letter as well as in spirit, by respondents nos. 1 to 7. In case it is found
on examination that the ranking assigned to any of the petitioners in the
impugned seniority list dated· November 6, 1978 is not consistent with the
principles laid down _in the aforementioned rule, necessary action should be
immediately taken to rectify the said defect. If the promotional chances of any
of the petitioners have been adversely affected by reason of any defect in the
seniority list, such !promotions should also be reviewed after following the
requisite procedure. The petitioners may bring to the notice of the first respondent specific instances, if any, of deviation from the principles enunciated in Rule
6(3) and Rule 7 resulting in incorrect assignment of seniority and rank by subF
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milting representations. Such representations, if received, will be duly examined
and appropriate orders passed thereon as expeditiously as possible. [910 F-911 A]
ORIGINAL JURISDICTION:
Writ Petition No. 119 of 1979.
(Under Article 32 of the Constitution of India)
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V.M. Tarkunde, G.L. Sanghi, Mrs. Jayashree Wad, G.D. Gupta
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and Miss Anita for the Petitioners.
K. Parasaran, Solicitor General and Miss. A. Subhashini for
Respondents 1-2 and 4·7.
Dr. Y.S. Chita/e, A.T.M. Sampath and P.N. Ramalingam for
the other appearing Respondents.
The Judgment of the Court was delivered by
BALAKRISHNA ERADI, J. In this petition filed under Article 32]
of the Constitution, the petitioners-31 in number-who are all
officers serving in the Aviation Research Centrej(for short, the 'ARC')
have challenged the constitutionality of Rules 6 to 8 of the "Aviation
Research ·Centre (Technical) Service Rules, 1976" issued by the
President of India
under the proviso to Article 309 of the
Constitution, as also the legality and validity. of the "absorption"
of respondents Nos. 8 to 67 in the said Department pursuant to
the impugned Rules. There is a further prayer in the writ petition to
declare the Seniority List dated November 6, 1978 (Annexure 'G')
published by the the Department as illegal, unconstitutional and
void. Yet another relief claimed by the petitioners is that all the
promotions granted to respondents Nos: 8 to 67 in the ARC service
from 1968 till 1978 should be declared by this Court as illegal and
void, and that a writ of mandamus or any other appropriate writ,
order or direction should be issued to respondents Nos. 1 to 7 the
Union of India, the C'lbinet Secretary, the Director of Department of
Personnel, the Director General of Security, the Director of ARC
and the Adviser (Technical), A.R.C., respectively-to constitute the
ARC afresh in accordance with law and to rearrange the seniority in
the Service in conformity with law.
The petitioners' case is that shortly after the formation of the
ARC in 1963 the petitioners were directly recruited to the said
department on a regular basis during the period between 1963 and
1966 in the category of Assistant Central Intelligence Officers Graden, (whic\l has since been redesignated as Deputy Field Officers (Tech.)
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S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.)
881
(for short DFO) under the impugned Rules while
respondents
Nos. 8 to 67 are officers whose services have been borrowed on
deputation to
the
ARC from some departments of Central
Government and from the Police Cadre of State Governments.
The petitioners contend that by virtue of their regular appointments in the ARC, they were, as of right, entitled to be
promoted to the higher posts of Assistant Central Intelligence
Officer, Grade-I-now called the Field Officer (Tech.)-Deputy
Central Intelligence Officer (Tecb.)/Assistant Technical Officer subject
only to the right of the Department to supersede those found
unsuitable for such promotions. However, instead of promoting
the petitioners to the vacancies that arose in such higher categories
of posts, the Department filled up those vacancies by granting promotions to the deputationists, thereby illegally denying to the petitioners
the opportunities legitimately due to them for promotion in the
Department. It is contended by the petitioners that the deputationists were occupying the posts in the Department only on ad hoc
basis and such ad hoc appointees who were having the benefit of lien
in their parent departments and were getting promotions in those
departments had no claim whatever to seniority or promotions in
the borrowing Department, namely,
the ARC. On this basis the
petitioners have raised a ...... challenge in this writ petition against
the legality of the various promotions given to respondents Nos. 8
to 67 in the year 1968 and thereafter.
A draft combined seniority list of Assistant Central Intelligence·
Officers Grade-II (Tech.) working in the ARC was publi~hed in
March 1971 (Annexure 'A'), wherein the officers on deputation as
well as those who are directly recruited in the ARC had all been included and the seniority of the deputationists had been fixed by taking
into account the total length of service put in by them in the rank
of ACIO in their parent departments as well as in the ARC.
According to the petitioners, the said list had been prepared in
violation of the principle that the same period of service of a Government servant cannot be legally considered twice over for service
benefits in two Departments, namely, the parent department and the
borrowing department.
A Writ Petition-Civil Writ Petition No. 1020 of 1971-was
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filed in the Delhi High Court by three of the present petitioners
complaining against the promotions given to the deputationists and
challenging the validity of the combined seniority list published by
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the Department in 1971. During the pendency of that writ petition
the impugned seniority list of 1971 was substituted by two separate
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lists-one consisting of the direct recruits and the other consisting of
deputationists. Thereupon. the writ petition before the Delhi High
Court was got amended by the petitioners therein by incorporating
objections against the new seniority lists published by the Department.
When the case came up for hearing, counsel appearing
on behalf of the Union oflndia submitted before the High Court
that statutory rules governing the Service were then under preparation, that the arrangements till then made were all purely on ad hoc
basis and the whole question will eventually be finalised after the
rules were framed. In the light of the said submission, the High Court
dismissed that writ petition observing that since no rules governing
the Service had been framed and the appointments in question had
all been made on purely ad hoc basis, the petitioners did not have
at that point of time any legitimate grievance and the writ petition
was, therefore, premature. It is submitted by the petitioners that,
contrary to the assurance given to the Delhi High Court, the
Department did not take early action for framing the rules but
instead continued to confer on the deputatiOnists the benefit of further
illegal promotions and it was only after all the higher posts were
filled by promoting deputationists that the Department ultimately
promulgated the impugned statutory Service Rules on April 26,
1976.
Strong reliance has been placed by the petitioners on Office
Memorandum dated December 22, 1959 issued by the Ministry of
Home Affairs (Annexure 'C') laying down certain general principles
for determining seniority of various categories of persons employed
in Central Services.
According to the petitioners, in the absence of
statutory rules governing the conditions of· service of personnel in
the ARC, the principles laid down in the aforesaid Office Memorandum were applicable to the said Department. It is urged that
under clause (viii) of the said Office Memorandum, it was incumbent
on the authorities to replace all the deputationists who, according
to the petitioners, were holding the posts in
the Department only
on ad hoc basis, by persons approved for regular appointment by
direct recruitment, and until the deputationists were so replaced the
deputationists had to be placed en bloc below person directly recuited to the grade. The petitioners have sought to derive support from
Annexure 'D' which is a letter dated October 15, 1971 addressed by
the Department of Personnel, Cabinet Secretariat to the Director
General of Security, wherein it is pointed out that persons appointed
to a grade on deputation basis are appointed for a specific period,
after the expiry of which they are required to revert back to their
parent departments and since the said deputationists do not have any
locus stand; in the borrowing departments, they are not entitled to
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S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.)
883
promotions/confirmations in
the borrowing departments. The
letter proceeds to state that the question of fixation of their inter se
seniority of such deputationists vis-a-vis other categories of officers
of a particular grade by preparing a combined seniority list does
not, therefore, arise. However, it was also added in the next paragraph of the letter that though deputationists are not entitled to
promotion to a higher grade, yet they can be considered for
appointment on deputation to the higher grades, if the Recruitment
Rules of the higher grade provide for appointment on deputation
basis, and in the absence of the Recruitment Rules, it is for the
appointing authority to decide whether a person already serving as
a deputationist in the lower grade should be considered for appointment on deputation to the higher po>ts. According to the petitioners,
on the basis of the principle enunciated in this letter, perso1s serving
on deputation in the ARC should all have been repatriated to their
parent departments as soon as direct recruits became available in
sufficient number and the action taken by the Department in filling
up the vacancies in the higher categories, namely, ACIOs Grade I
(Field Officers) and Assistant Technical Officers by granting promotions to respondents Nos. 8 to 67 was totally illegal. The petitioners
have alleged that some of the deputationists were holding posts in
their parent departments which were inferior in rank in comparison
with the posts of DFOs.
It is contended by the petitioners that the
grant of such promotions to the deputationists amounted to conferment of double benefits on them since they were simultaneously
earning promotions in their parent departments.
Some of the
petitioners who had joined the ARC in 1963 as DFOs became
eligible for promotions in 1968 by completing the five years' qualifying period, but instead of promoting them to the category of Field
Officers, the Department filled up the vacancies which became
available in 1968 and subsequent years by promoting some of the
respondents who were only deputationists.
The petitioners contend
that the deputationists were serving in the A RC only on ad hoc basis
and hence they were not eligible under the terms of the Memorandum dated December 27, 1959 (Annexure 'C') for the grant of any
promotions in the borrowing department. It is alleged that while
eF.ccting such irregular promotions, the petitioners were not even
co:'.sidered and they were illegally denied the opportunity of competing with the respondents for promotions to the posts of Field
Officers.
In 1975, a further injustice is said to have been done to
the petitioners when twenty of the deputationists functioning as
Field Officers were promoted as Assistant Technical Officers (for
short, ATOs).
Writ-petitioners Nos. I and 4 made representations
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complaining against those promotions, but those representations
were rejected by the Director, ARC by his Memorandum dated
September 8, 1975 (Annexure 'E'). On December 1, 1975, seven
more deputationists were promoted as ATOs. The petitioners have
raised the plea that the aforesaid promotions of the deputationists
were illegal and discriminatory since the Department had fixed
an arbitrary date, namely, December 1972 for computing the
qualifying period of three years for eligibility to be considered
for promotions.
It was
only after most of the posts in the
higher categories of A TOs and FOs had come to be occupied by
the deputationists as a consequence of such irregular promotions
that the impugned Rules were promulgated by the President of I1:dia
on April 26, 1976. Through the said Rules, the Department has
purported to absorb all the deputationists/respondents Nos. 8 to 67
in the ARC Service as TOs/ A TOs/FOs and thereby legalised all the
illegal promotions granted to those deputationists. This, according
to the petitioners, has been done with the ma/a fide intention of
giving favoured treatment to a deputationist at the expense
of the direct recruits like the petitioners. The petitioners have
put forward the contention that the impugned Rules are arbitrary
and discriminatory and are violative of Articles 14 and 16 of the
Constitution. It is their further plea that the wholesale absorption
of the drputationists is a colourable and unconstitutional exercise
of power and the impugned Rules in so far as they provide for such
absorption are in the nature of a fraud on the powers conferred on
the President by the proviso to Article 309 of the Constitution. The
petitioners point out that even after the constitution of the Service
by the impugned Rules, no seniority list was published for more
than two years, but promotions to the posts of FOs were, in the
meantime, granted to several of the deputationists. It is contended
by the petitioners that Rule 6 of the impugned Rules confers
arbitrary powers on the controlling authority to equate the ad hoc
service rendered by the deputationists in the ARC with the 'regular'
service rendered ·by persons like petitioners who had been directly
recruited to the Department on a regular basis and this has resulted
in permanently blocking all the future chances of the petitioners in
matters of promotion and other servicelbenefits. According to the
petitioners the "initial constitution" of the Service purported to be
brought about under the Rules is itself highly arbitrary and it
infringes Articles 14 and 16 of the Constitution since it is based on
illegal treatment of unequals as equals by equating persons functioning on a mere ad hoc basis with those holding posts in be Organisation on a regular basis. Another ground of attack put forward by
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885
the petitioners is that Rule 6(2) confers arbitrary and unfettered
powers on the Screening Committee and hence it suffers from the
vice of excessive delegation. It is also urged that the said sub-rule is
unconstitutional because it enables the controlling authority to retain
to itself an arbitrary power to control the decision-making of the
Screening Committee by means of "general or special instructions '
thereby rendering it impossible for the Screening Committee to
function in an independent and objective manner. According to
the petitioners, Rule 6(2) enables the controlling authority to impose
its will and whims on the Screening Committee. The petitioners
allege that the controlling authority had imposed its favoured
treatment to deputationists and displayed a discriminatory attitude
against the regular departmental personnel like the petitioners
by treating the ad hoc service of the deputationists in the ARC
as regular service and absorbing them in the posts or grades
to
which they
have been granted illegal promotions. The
petitioners have urged that Rule 6(2) in so far as it vaguely uses the
words "continuous . appointment in the grade" has vested an
arbitrary power in the Department to take into consideration the
ad hoc service rendered by the deputationists in grades to which
they have no right in law and hence the said provision is highly
arbitrary and violative of Article 14 of the Constitution. Alternatively, it is submitted by the petitioners that the aforesaid words
"continuous appointment in the grade" should be reasonably construed to mean "continuous appointment on regular basis in the
grade" in which event alone the rule can be regarded as free from
the vice of arbitrariness. Rule 6(6) has also been attacked by the
petitioners as infringing Articles 14 and 16 of the Constitution on
the ground that it enables the Screening Committee to discriminate
against the direct recruits by treating them on a par with the
deputationists. It is contended by the petitioners that the said subrule confers power on the Screening Committee to absorb such of
the deputationists in a lower grade who were found to be unsuitable
for absorption in a higher grade and thereby completely blocks the
chances of persons like the petitioners to get promotions into such
lower grades despite their being found suitable for such promotions.
Another point raised by the petitioners is that it was incumbent on
the Screening Committee before it took its final decision regarding
the absorption of personnel in the various grades to give an
opportunity to the petitioners to represent their case, and inasmuch
as this procedure was not followed, the decisions taken by the
Screening Committee were in clear violation of the principles of
natural justice. The petitioners have also voiced a grievance that
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even though the Screening Committee had prepared a list of the
officers whom it had decided to absorb in the various grades, the
Department did not disclose the contents of the said list to personnel
working in the ARC but kept the matter secret.
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Reiterating their contention that the promotions given to
respondents Nos. 8 to 67 during the period from 1968 to 1978 were
all illegal on the ground that these promotions had been made
without considering the cases of the petitioners, the petitioners have
put forward further plea that the publication of the impugned
Seniority List was deliberately delayed by the Department till
November 6, 1978, with intent to favour the deputationists, some
of whom were promoted as ATOs on November 5, 1978.
On this
basis, it is contended that the action taken by the Department in
publishing the Seniority List dated November 6, 1978 was ma/a fide.
Another argument advanced by the petitioners is that Rule 7
in so far as it empowers the Department to reckon the seniority of
the deputationists by giving them the benefit of the ad hoc service
rendered by them in the ARC as well as the prior service put in by
them in their parent departments is arbitrary. The petitioners contend that this deviation from the principle uniformly followed for
fixing the seniority in all other departments of the Government of
India namely those laid down in the Home M nistry's Office Memorandum dated December 22, 1959 was wholly unjustified and. as a
result thereof the direct recruits in the ARC are subjected to
a differential treatment resulting in gross prejudice to them without there being any rational basis for separate classification.
There
is also an allegation that in fixing the seniority of personnel as per
the impugned gradation list dated November 6, 1978, even service
rendered by the deputationists in non-comparable and lower ranks
has been wrongly taken into account.
Rule 8(1) has beea attacked
by the petitioners as empowering the controlling authority to enable
the deputationists to consolidate the illegal advantage gained by
them at the intial constitution by further promotio.1s/appointmeats
to stiII higher posts in the ARC. It is pointed out by the petitioners
that while specifying the method of recruitment to the various posts
in the Service and fixing a quota as between the vacancies to be
filled up by promotions and those to be filled up by direct recruitment/deputation or re-employment in Schedule II of the rules the
deputationists have been treated on a par with regular departmental
personnel, and this involves a clear violation of Articles 14 and 16
of the Constitution.
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S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.)
887
Lastly, it is contended that even if it is to be assumed that the
A
decision taken by respondents 1 to 7 to retain the deputationists in
the Department at the time of the intial constitution of the ARC
was valid, the position of the deputationists would, in law, be only
that of persons permanently transferred from the parent departments
to the ARC and under Article 26 of the Civil Service Regulations,
such persons appointed by transfer shall be ranked below all the
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direct recruits as well as the promotees already functioning in the
Department. The petitioners contend that since the Seniority List
dated November 26, 1978 has been drawn up in contravention of the
aforesaid principle laid down in article 26, the said list should be
declared to be illegal and void.
Detailed counter-affidavits have been filed on behalf of respondent No. 1 and
respondents Nos. 13 to 16, 22, 25, 28 and
31. In the counter-affidavit filed on behalf of respondent No. 1, by
the Deputy Secretary, Cabinet Secretariat, it is stated that the
A via ti on Research Centre was initially set up as a Sensitive Security
Organisation in the year 1963 on a purely temporary basis by way of
an extension of the Intelligence Bureau. In Feburary !965, the ARC,
along with two other schemes, was brought under the control of the
Director General of Security. The Department was continued by the
Government on temporary basis from year to year till 1971 when
the Government, after reviewing all the relevant factors, took a
decision to make the ARC permanent. The administrative control
over the ARC was originally vested in the Ministry of External
Affairs and later with the Prime Minister's Secretariat till 1965 when
it was transferred to the Cabinet Secretariat. The re were no Recruitment and Carde Rules for the ARC during the period when the
Department was functioning on a temporary and purely experimental
basis and a number of officers, including respondents Nos. 8 to 67,
were taken on deputation from other Central and State Government
Departments to man the various posts in the Organisation. Some
persons, like the petitioners, were also directly recruited as ACIOs-II
on a purely temporary and ad hoc basis against temporary posts in
the ARC. The contention of the petitioners that they were regularly
recruited as DFOs in the ARC is denied by the Governmentrespondents. It is submitted in the counter-affidavit of respondent
No. 1 that the appointments given
to the
petitioners
were
merely '"ad hoc )n character and this had been clearly specified
in the Memos issued to them containing the offer of appointment
that the appointments were
temporary and would not confer
on them any right for permanant appointment if and when the
posts were made permanent. It is stated that the Memos issued
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· to all the petitioners were on identical terms and a specimen copy of
the Memo issued to the petitioners has been appended to the counter
affidavit of respondent No. 1, as Annexure 'R-1 '.