BALESHWAR DASS & ORS. ETC v. STATE OF U. P. & ORS. ETC (2)

Citation: [1981] 1 S.C.R. 449

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, R.S. PATHAK

Case summary

Rules 5 and 6 relate to this branch of enquiry. The High Court, on both the occasions, when challenges were made, quashed the seniority lists and directed fresh lists to be prepared.

Judgment text

BALESHWAR DASS & ORS. ETC. v. STATE OF U. P. & ORS. ETC. August 19, 1980 {V. R. KRISHNA IYER AND R. S. PATHAK, JJ. ] Service matter-Duly qualified persons appointed as Assistant Engineers in temporary posts-Officiating service-Whether could count for seniority-Seniority, how counted-Appointment in a substantive capacity, whether should be to a permanent post-Substantive capacity-Meaning of. Under rule 3(b) of the U. P. Service of Engineers (Junior and Senior Scales) Irrigation Branch Rules a member of the service means a government servant appointed in a substantive capacity under the provisions of the rules to a post in the cadre of the service. Rule 4 empowers the State Goyernment to increase the cadre by creating permanent or temporary posts from time to time according to the exigencies.

Rules 5 and 6 contemplate recruitment (i) by direct appointment from amongst engineer students of the Thomson Civil Engineering College, Roorkee, (ii) by direct appointment, (iii) by appointment of officers in the temporary service of the United Provinces, Public Works Department (Irrigation Branch), (the selection in all these three categories was to be after consulting a permanent Board of Selection) and (iv) by promotion of mem-' hers of the Subordinate Engineering ·service, who have, in the opinion of the Government, shown exceptional merit. The proviso to rule 5 states that it would not be necessary to consult the Commission in the case of appointment of a temporary Officer to a permanent vacancy, if he has already been appointed to a temporary post in the cadre of service after consultation with the Commission. In 1950 recruitment through Thomson College was stopped and in 1961 direct recruitment was made through the Public Service Commission.

Rule 6 empowers the Government to fix quotas for members of the Subordinate Engineering Seryice. Rule 17 stipulates a period of probation in regard to all candidates who were not in the permanent employment of the Irrigation Branch. Rule 19 proYides the mode of confirmation of a probationer in his appointment. Rule 23 regulating the inter se seniority of tbe officers states that seniority in the service shall be determined according to the date of the order of appointment to it. In 1948 by . combining class I and class II officers into one service the Government constituted the U. P. Service of Engineers (Junior and Senior Scales) but since the rules regulating their recruitment, conditions and classifica- 1ions could not be made, the Government followed the 1936 Rules which were modified from time to time by Government orders.

The High Court struck down the seniority list of engineers prepared by the State Government in 1965 and gaYe directions to the Government to re-determine the seniority in accord- . ance with Rules 23 of the Rules. Purporting to act on these directions a fresh -seniority _list was drawn up by the Government in May, 1969 but that too · was struck down by the High Court. / In appeal to this Court it was contended that it was not correct to say that the temporary Assistant Engineers were not members of the service on the ground that their appointment was not in a substantive capacity in permanent posts since they had fulfilled all the requirements of the mies for being appointed on a regular basis viz. possessing the requisite qualifications, selection by the State Service Commission etc. irrespective of whether their appointments. were to temporary posts or not, the Jong service they had put in must weigh in reckoning the seniority. Allowing the appeal in part HELD: The G. 0.

of December 1961 in so far as it fixes the proportion of permanent vacancies to be filled from the various sources had statutory force being under mle 6. So much so, the various groups can claim permanency '('- \ only in terms of that proportion, although not being holder of a permanent post neither debars membership of the Service nor earning the benefit of officiating service for purposes of seniority. [470 B-q While temporary and permanent posts have great relevancy in regard to the career of the government servants, keeping posts temporary fer Jong, sometimes by annual renewals for several years and denying the claims of the incumbents on the score that their posts are temporary, makes no sense and is arbitrary especially when both temporary and permanent appointees are functionally identified.

If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no right. Not so, if the post is, for· certain departmental or like purposes, declared temporary, but it is within the ken of both the government and the appointee that the temporary posts are virtually long-lived. It is irrational to reject the claim of the temporary appointee on the nominal score of the terminology of the post. [462 D-F) Officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. It may be permissible, within limits, for govern· ment to ignore officiating service and count only regular service when claims of seniroity come before it, provided the rules in that regard are clear and categoric and do not admit of any ambiguity and an arbitrary cut off of long years of service does not take place.

While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, such mles have to be reasonable, fair and not grossly unjust if they are to survive the test of articles 14 and 16. [462 G-H] For purposes of seniority, one has to go by the order of appointment to the Service in a substantive capacity. But no fixed connotations can be attri· buted to expressions like 'substantive capacity', 'service', 'cadre' and the like because probation even for temporary appointees is provided for in the rules which means that even temporary appointments can be substantive. For there cannot be probation for a government servant who is not to be absorbed substantively in the Sel'l"ice on completion thereof. Permanency carries with it other rights than mere seniority and promotion. Permanent posts and temporary posts are in official terminology sharply different but in the' historical context of the U. P.

service of Engineers there is no difference because recmitment of even temporary engineers requires consultation with the Public Service Commission, undergoing physical fitness tests, probation and BALESHWAR DASS V. U. P. STATE 451 departmental tests. The temporary appointees,. whose appointments have received the approval of the Public Service Commission and wha have run out the two years of probation must be deemed to be appointed in a substantive capacity. [465 D-E] It is not correct to say that. when Engineers are appointed to ten;iporary posts but after fulfilling all the tests for regular appointment they are not appointed in a substantive capacity.

It was conceded by the State in its counter· affidavit that all the persons appointed to the service who are not already in the permanent employment of the Irrigation Department shall be placed on probation for four ·years (since reduced to two years), which means that persons who were not permanently appointed but only temporarily appointed are also placed on probation and officers are not put on probation unless they are on their way to membership in the Service on completion of probation. That is to say although they are temporary appoiiitees, if their probation was completed and other formalities fulfilled, they become members of the service. Merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary . conditions for regular appointment such as probation and consultation with the Public Service Commission. [466 A-DJ Rule 23 is the relevant rule when a question of seniority arises.

The order of appointment in a substantive capacity is the significant starting point for reckoning seniority. The appointment in a substantive capacity need not necessarily be to a permanent post. It is sufficient even if it is to a tempornry post of long duration. [467 E-G] An appointee to a permanent post acquires certain rights which one who fills a temporary. post cannot claim. Nevertheless, when the post is· not purely temporary or ad hoc or of short duration or of an adventitious nature, the holder of such temporary post cannot be degraded to the position of one, who, by accident of circumstance or for a fugitive tenure occupies the temporary post for a fleeting term. [468 FJ A person is said to hold a post in a substantive capacity when he holds it for an indefinite period, especially of long duration in contradistinction to a person who holds it for a definite or a temporary period or holds it on probation subject to confirmation.

If the appointment is to a post and the capacity in whicl\ the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity. [469 D-E] OVIL APPELLATE JURISDI! CTION: Civil Appeal Nos. 1317-1318 of 1976. ..... ,, Appeals by Special Leave from the Judgment and Order, dated 13-9-1973 of the Allahabad High Court in Civil Misc. Writ Petition Nos. 2719/69 & 4034/69. AND WRIT PETITION Nos. 864/79 and 251/80 (Under Article 32 of the Constitution) R. K. Garg, V. J. Francis; D. K. Garg and Sunil Kumar Jain for the Appellants in CA No. 1317/76 and Peti1tioner in WP 251/80. K. K. Singhvi, Anil Kumar Gupta, Brij Bhushan, Virendra Singh, N. P. Mahendra, A. M. Tripathi and S. S. Khanduja for the _... _ Appellant in CA 1318/76. Yogeshwar Prasad, Ashok K.

Srivastava and Mrs. R. ani Chhabra for the Petitioners in WP No. 864/79. D. V. Patel, Anil Kumar Gupta, Brij Bhushan, Virendra Singh, N. P. Mahendra and A. M. Tripathi for ihe Intervener in CA No. 1317 /76. G. N. Dikist and 0. P. Rana for Respondent No. 1 in both the appeals. -.. Shanti Bhushan and M. C. Bha'! ldai:e for the Respondents Nos. 2-3 in CA No. 1317 /76 & R-21 in CA No. 1318/76. S. Markandaya and U. P. Singh for R. 9 in CA No. 1318/76. The Judgment of the Court was delivered by KRISHNA IYER, J. -This case illustrates the thesis that unlimited jurisdiction under Art. 136 self-defeatingly attracts unlimited litigation which, in turn, clogs up and slows · down to zero-speed the flow of ultimate decisions, what with the lengthy orality and legal nicety of lawyers' advocacy.

This bunch of appeals, affecting thie fortunes of a large numbeir of engineers, is evidence of the flood of 'service' litigation whlch overwhelms the courts, paralyses public offices and demands of our pyramidal Justice System basic changes, jurisdictional and processual. The perennial problems of Service Jrnstice, which currently crowd the dockets of the higher courts, save in cases of basic breaches of the fundamental law, may well be made over to expert bodies·,. high-powered and final but presided over by top judicial personnel. Service Jurispru- . dence is a specialised branch best administered by Special tribunals, not routinely under Art. 226. We do not pontificate but share thoughts. We arei concer:ned mainly with the competitive claims to seniority mainly as between three groups of engiilleers belonging to the U. P.

Service of Engineers (Irrigation Branch) - Graduate engineers directly recruited by the Public Service Com:mission by competitive examination, graduate engineers once appointed in BALESHWAR DASS v. U. P. STATE (Krishna Iyer, . /. ) 4 53 numbers but later absorbed after consultation with the Public Com~ · mission and diploma-holders later promoted as Assistant Engineers. Brushing aside the hoary history of the Service when the· British were hardly concerned with the development of India's natural · resources, we may start the story with the lJ. P. Public Works Department of which the Irrigation Wing was a part, the other branch being Buildings and Roads. Later on, separate departments for Buildii. ngs an\d Roads and for Irri,gation were formed in 1946 as a developmental imperative of the State. Recruitment to the Service-we are here concerned only with the Irrigation Department ~was governed by vintage Rules framed under s. 96B of the Govt.

of India Act, 1919, which had a confused course, and that factor i. e. lack of comprehensive structural engineering of the Engineering Service Rules-is largely responsible for frequent group clashes among the broad brotherhood of engineers whose whole-hearted service, now distracted by litigation, is needed for national reconstruction. But national dedication, so vital to poverty eradication, is subject to one rider in our socieiy viz. charity begins at home. And so, for their own justice oriented survival, the groups are fighting in courts while the demands of developmental justice to the people need their presence in: the couniryside. There were, to begin with, Class I and Class II officers, but in 1948, the two were fused into one, viz. the U. P. Service of Engin. eers (Junior and Senior Scales). The Service came into being but fresh rules of recruitment were not made. Thus, a Service was born but then the rules regulating recruitment, conditions and classifications were unbor'n.

So, Government relied on the old Rules of 1936 for these purposes with some G. 0. or other issued under pressure of exigencies. The past projected into the present with ad hoc changes-a process which, not being scientific nor systematic, was bound to produce injustice, as it has, in this Service. The dialectics of Justice to Public Services lead to conflicts between the thesi1s (the old conditions) and anti-thesis (the new expectations until a synthesis realist equilibrium without discrimination) is reached by enlightened governmental policy-making. Had Rules for the Service, i'n tune with the Constitution and the updated facts of life been made by Government, iinstead of flirting with the past and improving for the present, things would have boon different. Court litigation is not designed for the end, but judges caamot but make-do with what fossil Service Rules with engrafted mutations survive. To dig into the past is our lot in this case.

We do not blame Government for failure to make a whole scheme of post-COllltstitution Rules of Service, pre-occupied as it may well be with other priorities. The struggle beitwer;m the various groups is for seniority, in some cases even for retention of regular appointment. The State· had prepared a list of seniority first in December 1965. This list was attacked as bad in law and the High Court by its judgment of October 1967 in Civil Misc. Writ No. 4416 of 1966 ordered: "The petition, therefore, succeeds and is allowed. The respondents are directed not to give effect or act in virtue of the seniority list announced on December 30, 1965. They are further dire f a temporary or a permanent post. We have two, perhaps three, types of direct recruits. The first is the vanishing species of Roorkee University 'engineer students'. They were directly appointed but on a temporary footing.

Massive appointments were made of other degree-holders· as Assistant Engineers on a temporary footing to meet the massive developmental requirements. No one can imagine that the guaranteed posts to the brilliant Roorkee boys was temporary only or that the large number of graduates were being lured into employment for long-term engineering requirements on a fleeting footing for a few months! Surely, Government wanted to recruit them on a regular basis but hesitated to appoint them to per• manent posts as such because budgetary provisions, creation of permanent posts by assessment of the total requirements and the like were not instant jobs but needed more time. The Plan was to take these degreeholders on a regular lasting basis but to make them permanent after study of the situation. Permanency carries with it other rights than mere seniority and promotion. Pen:n. anent posts and temporary posts are, in ordinary officialese, sharply different but in the historical context .

of the evolving U. P. Service of Engineers 'thin partition do their bounds divide'. The recruitment of even temporary engineers under source (iii) of r. 5 requires consultation with the Public Service Commission. Likewise r. 14 requires for all the three types of direct recruits, temporary included: physical fitness tests. 14. No person shall be appointed as- a member of the service unless he is in good mental and bodily health and free 'from any physical defect lik'ely to interfere with the efficient performance of his duties as a member of the service. Before a candidate is finally approved for appointment to the service under the provisions of rules 5(i), 5(ii) or 5(iii) he shall be required to pass an examination by a Medical Board at his own expenses and shall pay a fee of Rs. 16 for such examination. Probation, tests and confirmation are laid down under rr. 17 to 19 for "all persons appointed to the service".

We delve into these details to drive home the propinquity in status of permanent and temporary engineers in the special conspectus of facts here. We see no reason to hold that when engineers are appointed to temporary posts but after fulfilment of all the tests for regular appoint- l l ments, including consultation with the Public Service Commission, they are not appointments in a substantive capacity. In Service terminology, 4~6 ·perhaps, eye-brows may be raised when we say so, but then, we must remember that the State itself in its counter-affidavit has construed + r. 17 of the Rules as providing "that all persons appointed to the Service who are not already in the permanent employment of the Irrigation Department shall be placed on probation for four years" (since reduced to two years).

This means that persons who are not permanently appointed but only temporarily appointed are also placed on probation and officers are not put on probation unless they are on their way to membership in the Service on completion of probation. That is to say, although they are temporary appointees, if their probation is completed and other formalities fulfilled, they become members of the Service. It follows that merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission etc. From this stand of the State Government it follows that the temporary appointees, whose appointments have received the approval of the Public Service Commission and who have run out the two years of probation, must be deemed to be appointed in a substantive capacity. The only advantage for permanent appointees, i. e.

Assistant Engineers who have been appointed to vacancies in the permanent cadre is what belongs to permanent public servants under various rules in different areas of official life. We are not interested in the arithmatics given in the affidavits and counter-affidavits regarding the permanent vacancies in the various categories designated as A, B and C. What we focus on is the set of principles which must regulate the service available for computation of seniority. In paragraph 22 of the State's counter affidavit the breakup of the vacancies available in the various years to the various categories has been set out. Their accuracy has not been shown to by,,. -1'" . wrong and we may, perhaps, proceed on the correctness of those figures,- \ It is also made clear by the State that many officers belonging to the \ ;class of temporary Assistant Engineers were directly recruited before 'C . . October 1958 and some of them were promoted as tempora1y Assistant \'. ;!

Engineers from the Subordinate Engineers Service. "These officers had >-been approved for temporary appointment by the Public Service Com· _ mission before 1958". Likewise, for the other years, particulars have been furnished. The Government has also clearly undertaken that the competitive seniority as between direct recruits and the temporary appointees who have been regularised may have to be taken up later on. The State's affidavit asserts : "It is also correct that in the appointment order it was mentioned that seniority inter se and on the list of permanent Assistant Engineer of the officers will be determined later on. " We do not consider it right or necessary to fix the seniority vis-a· vis the date of appointment of the various parties, as' that is the admi· nistrative function of Government. Nor do we think we should interfere with the order of the High'court setting aside the seniority list of 1969.

A fresh list has anyway to be prepared but the more meaningful judicial exercise is to lay down the correct principles and guidelines, ·free from discriminatory infirmities and fairly in keeping with the extant Service Rules. The Rules are, we make it clear, those made in 1936 under the Government of India Act, 1919 and continued by force of Art. 313 of the Constitution. Changes wrought by orders and instructions such as the 1961 Memorandum cannot over-ride the Rules themselves but will operate subject to them in case of inconsistency. Even an Administration of Inaction Unlimited must remember that a systematic set of Service Rules is vital not only in fulfilment of its constitutional obligation under the proviso to Art. 309 but also to keep the mqrale and to promote contentment among the Civil Services by eliminating the 'inglorious uncertainties' about career prospects which cut at the root of planned Jiving.

So we hope that, what with two expert commi~ee reports slumbering in rthe Secretariat cells, Government will frame rules, tuned to the finer notes of Art. 16 and other mandates and in consonance with the realities obtaining in this and sister service8, after hearing affected sides as a stroke of £airplay and without being file-logged for long. We hold that r. 23 is the relevant mariner's compass when a question of seniority arises. Deducing therefrom we . get the· further guideline that the order of appointment in a substantive "-)... capacity is the significant starting point for reckoning seniority. ·-. Substantive capacity is a flexible expression which cannot be frozen '\· by current officialese, ;nor by the conditions that obtained in the remote · · past when the rule was framed. On the contrary, its meaning must · be consistent with Art. 16 and must avoid the pitfalls of arbitrariness and irrational injustice.

So viewed, we hold that the appointment need not necessarily be to a permanent post. It is sufficient even if it is to ~""' '} temporary post of long duration. In a Department which had perma- ·1ent posts and temporary posts of a quasi-permanent nature, there is l! lOt• much to distinguish. the quality of service as between the two. 1 •f'atwardhan's case( ) and Chauhan's case(2) have primarily or in passing l:larified the equal value of officiating service. ,' .. (I) S. B. Patwardhan & Ors. etc. etc. v. State of Maharashtra & Ors. , [1977] 3 o~GR'. 775w 793-794-795, 796. (2) N. K. Chauhan & Ors. v. State of Gujarat & Ors. , [1977] 1 SCR 1037 at p. '·)057. ) In Patwardhan's case, Chandrachud, J. observed in the course of the discussion "There is no universal rule, either that a cadre cannot ~onsist of both permanent and temporary employees or that it must consist of both.

" Later, the learned Judge observed in the same strain: The fact that the permanent strength of the cadre was determined on the basis of permanent posts at any given time, as for example when the Bombay Government passed resolutions on March 22, 1937 and April 13, 1945 cannot detract, from the posi· lion that even temporary posts of Deputy Engineers were treated as additions, though temporary, to Class IV cadre. The Court, in that case, also held that confirmation cannot be the rnle touchstone of seniority as that will be indefensible : Confirmation is one of the inglorious uncertainties of govern· . ment ·service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as District Judge years after he was confirmed as a Judge of the High Court.

It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. It shows that confirma'. tion does not have -io conforn1 to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government. In Chauhan's case this Court observed : "Seniority, normally, is measured by length of continuous -. ,.. officiating service-the actual is easily accepted as the legal. " Of course, an appointee to a permanent post acquires certain rights which one who fills a temporary post cannot claim. Nevertheless, when the post is not purely temporary or ad hoc or of short duration ·or of ·an adventitious nature, the holder of such temporary post cannot be degraded to the position of one who by accident of circumstance · or for a fugitive tenure occupies the temporary post for a fleeting term.

We must make this distinction not only to be truthful to the facts of • Service life but also to do justice to those who have otherwise rendered long and satisfactory work in the Irrigation Department. In sh:irt. while we do make a distinction between permanent and . temporary· posts, when we come to· the dimension of mere seniority, we whittle down the difference considerably. A post of short duration, say of a few months, is different from another which is terminologically tempo~ rary but is kept on for ten or more years under the head 'temporary' for budgetary or other technical reasons. Those who are . appointed and hold temporary posts of the latter category are also members of A. the Service provi:. ed they have been a·ppointed substantively to that temporary post. .. ,r. What, in :1. :ontext, is a substantive capacity vis-a-vis an appointment to a post?

In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part · or constituent or relating to what is essenial". ('} We may describe a capacity as substantive if it has "independent existence" or is of :·consi- . __," derable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when ' a post is vacant, however designated in officialese, the capacity iri. which ~ the person holds the post has to be ascertained by the State. Substan· C. tive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post.

To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite ~riod especially of long duration in contra · 0 ·:">l distinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation. Once we understand 'substantive capacity' in the above sense, we may be able to rationalise the situation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Co=ission has been consulted and has approved, if the tests prescribed have been taken and passed, if proba- • tion has been prescribed and has been approved, one may well say that the post was held by ~he incumbent in a subst3ntive capacity. Government will ascertain from this angle whether. thecapacity in F' which posts have been held was substantive or temporary.

If it is uot, the further point to notice is as to whether the appointment~ are regular and not in violation of any rule,·whether the Public Service Commis· ~ion's approval has . been obtai~ed and whether probation. medical fitnes<J etc. , are complete. Once these formalities are complete, the incumbents can be taken as holding posts in substantive· capacities and the entire ~ • officiating service can be considered for seniority. For other purposes ... they may remain temporary. It may well be that another interpretation may make r. 23 vnlnerable. If a public servant serves for a decade with distinction in a post known to be not a casual vacancy but a regular post, exp,rimentally or otherwise kept as temporary under the timehonoured classification, can it be that his long officiation turns to ashe's like a Dead Sea fruit because of a label and his counterpart equal in all I"~ (I) Black's Legal Dictionary, ~th Etln. p. 1597. ·~ -..... -:--- .

- -- ·•· functional 'respects but with ten: years less of service steals a march over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations and limitations. We take the view that the G. 0. of December 1961, in so far as it fixes the proportion of permanent vacancies to be filled from the various sources, has statutory force being under r. 6. So much so, the various groups can claim permanency only in terms of that proportion, although not being bolder of a permanent post neither debars membership of the Service nor earning the benefit of officiating service for purposes of seniority. The normal rule consiste_nt with equity is that officiating service, even before confirmation in service ·has relevancy to seniority if eventually no infirmities in the way of confirmation exist. We see nothing in the scheme of the Rules contrary to that principle.

Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not ·have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes, have been regularised and are fit to be absorbed into permanent posts as and when they are vacant. We, therefore, direct that a seniority list be prepared in the light of the principles laid down by us. It is not for the court to find out how many among the temporary Assistant Engineers are eligible for permanency; how many have cleared all the requirements regarding regular appointments even in temporary vacancies-in short, how many must be deemed to have been appointed in a substantive vacancy though temporary. That will be worked but by the State in the light of what we have laid down.

We do not agree with the High Court in the~ partly misleading reasoning it has adopted, but do concur in the conclusion that the seniority list deserves to be set aside. We do . so in partial allowance of the appeals and dismiss the writ petitions. Parties will be 'heard' by Government through written or oral r~presentations as it chooses, when it prepares a seniority list but the principles we have put down shall govern. The parties will bear their costs throughout. Appeals partly allowed. Petitions dismissed.