R. S. MAKASHI & ORS. v. I. M. MENON & ORS

Citation: [1982] 2 S.C.R. 69

Court: Supreme Court of India

Bench: A.D. KOSHAL, V. BALAKRISHNA ERADI, R.B. MISRA

Case summary

These rules were issued under the proviso to Article 309 of the Constitution and they were given retrospective effect from October 21, 1965 (the date of the Government Resolution sanctioning the skeleton staff for carrying out the preliminary work for introduction of the...

Judgment text

~ ·'·l'. 6~ R. S. MAKASHI & ORS. ,, i l~ • (~ 'I I. M; MENON &·'OR. S. :i. • . ·.... ,. 'Dec~inber 8, l9BI [A. D. KOSHAL, V. J}ALAKRISHNA ERADI AND :;R.. B. : ! \{is~A, JJ. J . . . . · ,;· ,; •• j'-.. ,i-- '\ . ; .... , Constitution of India Article 309-Proviso-Power ofgovernment to frame rules ofinter se seniority ofpersons borrowed from different sources-Exp/ain. ed. - P~ocedure-Defoy of eight /ears ;ii filing' writ petitkm-P;titioner sukin; redress for alleged infringenleiit offqndamental righi_:. Ifigh Court, ifcould 1101 dismiss o'n grounds of! aches. · ~ '~ To man the various posts in the newly ·~stablished :Bombay Rationing Organisation (BRO) the ·State Gove. rnment sanctioned a skelton staff. In addition to the sanctioned staff, the' existia'g' staff of the erstwhile adhoc organisation of Controller of Foodgrains (CFD) were taken into the BRO. Since it was considered necessary to have experienced staff for manning higher posts in the .

new Organisation the Government ·borrowed the· services of experienced bands from .. other departments. Since, as work expanded, it was found that the number of persons brought on deputation to . fill up aJ. I the new ·posts in· the BRO were not enough, some persons were directly recruited into the BRO. In 19. 68 the State . Gm1ernment ·issue kilME cotJkt REPORTS iI982] 2s. c. ~. The proviso to rule 7 provided that where there is a clash of principles contained in the government resolution with the seniority inter se in the former department shall prevail. Based on the principles laid down in 1968 Rules the Controller ofRationing had drawn up a gradation list of Rationing Inspectors, Senior Clerks and Deputy Accountants working in the BRO as on April 1, 1968. 'the list was exhibited on the notice board of the head office of BRO, regional offices and Rationing Offices and was communicated to the individual members of the staff.

A final gradation list was thereafter drawn up as on April I, 1968. Sometime later on April 9, 1973 another provisional gradation list as on April I, 1972 was drawn up and published as before. Siilce at that tim: there were many employees who were temporarily recruited ,pending allotment of candidates selected by the State Public Service - Commission rules were relaxed and their appointmel)ts were regularised subject to the condition that seniority of such non P. S. C. candidates on whom the benefit of continuance of service was conferred was to be fixed only with reference to the date of issue of the resolution, as a result of which candidates selected by the Public Service Commission already working in the varioqs departments were treated as seniors in relation to the non P. S. C. p~rsons covered by the resolution.

A provisional gradation list as on April 1, 1974 was published following the seniority principles laid down by the BRO in 1968 and those laid down iri the resolution concerning non P. S. C. candidates. In January 1976, respondents 1 to 22 who wer~ directly recruited in the former CFD but subsequently absorbed in the BRO challenged in a writ petition the validity of the two gradation lists contending that in preparing these lists the normal rule of fixation of seniority according to the date of appointment to the post was given a go-by and that while fixing seniority unequals had been treated as equals in that the service rendered in the clerical cadre had been reckoned and equated'With the service rendered in the Rationing Inspectors' cadre.

The respondents raised a preliminary objection' that the petition was barred by )aches because though the gradation list had been circulated to all cmwerned In 1968 itself no objection had been raised and no effective steps had been taken by the petitioners to challenge the validity of the principles laid down in the government resolution and that after a lapse of 8 years it was not open to them to raise the challenge against the gradation list and try to unsettle a settled principle; (2) in view of the fact that persons from various departments had been recruited, it was necessary to evolve some fair and reasonable principles for the fixation of inter se seniority of the integrated personnel in the different categories. A single Judge of the High Court struck down cluses (a) and (c) of rule 4 ! Ind the proviso to rule 7 of the government Order dated March 22, 1968 as R. S. MAKASHI V. l. M.

MENON 71 being violative of Articles 14 and 16 of the Constitution and directed the State Government to prepare fresh lists of seniority without taking into consideration the provisions struck down by him. On the question of ! aches the Single Judge held that the law did not Jay down any obligaiion on the Court to refuse to grant relief merely because there was a lapse of time but that since the cause of action arose and the challenge was based on infringement of Articles 14 and 16 of the Constitution, the Court could not shut out the petitioners on the ground cf ! aches because such a course would amount to condoning the invalid rules. The Division Bench dismissed in /:mine the appeal preferred by the res· pondents in the writ petition.

Allowing the appeal, HELD : The High Court was wrong in holding that clauses (a) and (c) Qf rule 4 and the proviso to rule 7 of the government resolution dated March 22, 1968 are violative of Articles 14 and 16 of-the constitution and in directing the State Government to prepare a fresh seniority list without taking into consideration these provisions. [90 B·C] Assuming that the principles for determining the inter se seniority of per· sons appointed in the different categories of the newly constituted BRO laid down in the government resolution of March 22. 1968 were not known to the members of the staff immediately after the resolution was passed by the State Government a Provisional Gradation List of Rationing Inspectors etc. as on ! st -Apr{! , 1968 was drawn up in implementation of these principles on 28th May 1971 and the said list was circulated to all the personnel working in the establishment of the BRO.

Neither after the publication of the provisional gradation list on May 28, 1971 which was followed up by the publication and circularisation of a final gradation list on November 23, 1972, nor even after the gradation list was revised and published on April 9, 1973, did the writ petitioners file any objections against their ranking in those gradation lists, within the time allowed. [90 F-H] Even in the belated representations filed by some of the writ petitioners no objection was raised against the principles for determination of seniority enunciated in the government resolution of 1968, nor was there any protest whatsoever against the provisi. :in made in the resolution for fixation of seniority of released government servants. Nqr again when their representations were· rcj~cted by the government did the petitioners challenge the constitutionality of the rules contained in the impugned resolution. [92 D-E] G- The goverment resolution in regard to the position of non P. S. C.

candi· dates i·is a vis the P. S. C. candidates did not in any way . affect the inter se seniority betw :en the petitioners and the released government servants drafted to the BRO because that resolution was a general order applicable to all the non P. S. C. personnel functioning on a temporary or ad hoc basis in th~ various ff departments of the State Government. (93 E-F] 72 . ·:SUPREME COURT . REPORTS [1982] 2 s. c. R.. There is no substance in the contention of the· petitioners that they stood on a separate and . superior footing for the purpose of seniority in the new organisation. The staff in the new organisation was drawn from four different sources and this inevitably necessitated the formulation of reasonable principles for the determination of int~f'se seni0rity. At the time of formation of· the· BRO the ·petitioners were not holding. any substantive or regular appointments in the CFD which itself was . a mere temporary department. In .

B contrast the deputationists (released government, servants) were regular hands recruited by the Public Service Commision and they were holding posts on a substantive basis in other departments. The principles of equation evolved for determining the inter se seniority could not be regarded as arbitrary or unreasonable viewed· iii the context that the CFO· candidates were merely temporary hands in a temporary department. [IOI E-H] :1 It is not an invariable rule that seniority should be determined only on the basis of the respective dates of appointment to the post and that any depar- ,ture from it would be unreasonable and illegal,. IUs,open to the rule making . authority to take. a note of the relevant circumstances obtaining in relatioll' to each department and determine. objectively the. rqles that should govern the inter se seniority and ranking. Such rules. should be reasonable, just and equitable. [102 F-G] :·'.

'I l Jn the instant case the action of the Qovernmept in determining the inter s~ seniority of derkal personnel under rtil'e 4(a) c'anilot be . said to be in aii~ w~y discr'iminatory dr iliegal. . . . . ' .. • ,' I , ,,- ",1'. •,, . . ' · S. G. iaisinghani v~ Union of . India & Ors , [i967] 2 S. C. R: 703; Bishan Sarup Gupta v. Union of Indid & Ors. , [1975] l S. C. R. 104 at p. 114,. referred to. " · ·· ' · When pe~sntmnef drawrl from different sources were being absorbed and integraten in a new department' it was Jrlmarily for the government to decide as a matter of policy how the equation . of posts should oe' effected, Courts would not interfere with' sucli a decisi~ri unless· it is shown to be unreasonable or unfair. [104 E] · All that the proviso to rule 7 does is to state that in respect to persons drafted into the CFD from· one' in·df' the· 'same'.! Cgovern'ment . department on -deputation basis their inter se se.

niority in the formel"·department should not be disturbed and to that extent a deviation shoultl·be made from the principles laid down in the government resolution: of April l,:1963. This 'proviso contains a just and . wholesome principle commonly applied in such situations and it cannot be said to be arbitrary or unreasonable. The tfigh Court· was in error in striking down the rule as being viblative·,ofArticles Mand 16 bf the Constitution. [105 E-H] ~: ' I r~' b·1. ,. •'' The. object of clause (b) of rule ove, shall be merged and refixed with reference to the dates from which their seniority is determined according to the principles in the rules 4 (a) and 4 (b) above. Illustration:- Suppose there are 7 persons in the cadre of Senior Clerks, Rationing Inspectors, Deputy Accountants. 'A' and 'B' were Supply Inspectors directly recruited in the Bombay Foodgrains Distribution Scheme and were continuosly officiating in those posts from 4th May, 1963 and - 1st May 1963 respectively.

'C' was a Clerk in the former Bombay Foodgrains Distribution Scheme from ! st September 1960. He was promoted as Supply Inspector on 5th May, 1963. 'D' was a Rationing Inspector directly recruited to it from 2nd February, 1966. 'E' was a released Government servent holding the post of Clerk in the former office from 1st August 1960. He was taken up as Senior Clerk from 2nd August, 1967, in the Bombay Rationing Organisation. 'F' was a released Government servant holding the post of a clerk in his former office from 1st February, 1964. He was taken up as Rationing Inspector on ! st August 1967. 'G' was a released Government servant holding the post of a clerk_ in his former office from ! st December 1964. He was taken up as a clerk in Bombay Rationing Organisation subsequently he was promoted as Rationing Inspector from ! st April, 1967. The seniority amongst them will be as under t- Senio- Name Mode Actual date DEEMED rity rank. As Clerk As Sr. Cl. / R. I. /Dy. Acctt. -c 1. 2. 3. 4.

(a) 4. (b) 5. - 1. E Promoted clerk 1. 8. 60 2. 8. 67 1. 3. 62 (released) 2. B Direct S. I. 1. 5. 63 31. 8. 62 3. A -do- 4. 5. 63 31. 8. 62 4. c Promoted Ex. CFD Clerk 1. 9. 60 5. 5. 63 1. 9. 62 5. F Promoted Clerk (released) 1. 2. 64 1. 8. 67 1. 2. 66 6. D Direct Rationing Inspector. 2. 2. 66 2. 2. 66 7. Released Clerk absorbed in Bombay Rationing Area Organisation as Clerk and subsequently promoted as Rationing Inspector. " 1. 12. 64 1. 4. 67 1. 12. 66 However, it was further provided under Rule 7 that "notwithstanding anything rc\ntaine,1 in the foregoing Rules ; k. s. M:AKASHt v. i. M. MENON (Balakrishna Eradi, J. ) 8i (a) In case of Government servants released from one and the same office to join the Bombay Rationing Organisation the seniority inter se in their former office shall not be disturbed ; (b) in case of the merged Government servants, they shall be governed by the principles contained in the Government Resolution, Agriculture and Co-operation Department No.

EST-1060/40002/SIV, dated the 1st April 1963; and (c) in case of - (i) those ·who were recruited directly in the former Bombay Foodgrains Distribution Scheme shall be governed by the principles contained in the Government Resolution No. Agriculture and Cooperation Department No. EST 1060/40002/ SIV dated the 1st April, 1963; (ii) those who were drawn in the Bombay Foodgrains Distribution Scheme from one and the same Government Office/Department shall take their rank according to seniority inter-se in the office/ department from which they were drawn. Provided further where there is a clash of principles contained in the Government Resolution Agriculture and Cooperation Department No. EST 1060/40002/SIV, dated the 1st April, 1963 with the seniority inter-se in the former Department the seniority inter-se in the former Department shall prevail. Illustration :- . , 'A' who started his career as Assistant in Revenue and Forests Department from !

st May 1962 was drawn in Bombay Foodgrains Distribution Scheme on 18th October, 1964 and was taken up as Inspecting Officer, 'B' an Assistant in Revenue and Forests Department working in that cadre continuously from I st May, 1961 was released to join Bombay Rationing Organisation on 22nd August, ,H 1966 as Inspecting Officer. 'C' who started his career as Assistant in General Administration Department from ! st ) 82 stiPREME couRt llEPoRts [1982] 2s. c. :tl. April 1960 was drawn in Bombay Foodgrains Distribution Scheme on 18th May, 1965 as Inspecting Officer. 'D' as Assistant in General Administration Department working in that cadre continuously from 1st May, 1960 was released to join Bombay Rationing Organisation on 1st July 1967 as Inspecting Officer. The seniority of these persons will be fixed as under :- Senio- Name Department Date of Date of Date of rity recruit- joining in joining in rank. ment as Bombay Bombay Asstt.

Food- Rationing in the grains Organipresent Distri- sation - Deptt. bution Scheme. I. 2. 3. 4. 5. 6. I. c. General Admn. Department. 1. 4. 60 18. 5. 65 1. 3. 1966 2. D. General Admn. Department. 1. 5. 60 1. 7. 67 3. B. Revenu & Forests Depart~ ment 1. 5. 61 22. 8. 1966 - 4. A. Revenue & Forests Department 1. 5. 62 18. 10. 64 1. 3. 1966 (Date of ,. merger) By State Government's Resolution dated July 25, 1968, various posts that existed in the former CFD were equated with posts in the BRO in the manner indicated therein. Items 9 to 11 in the Table appended to the said Resolution dealt with the posts of Deputy Chief Supply Inspectors, Supply Inspectors and Senior R. S. MAKASHI v. J. M. MENON (Balakrishna Eradi, J. ) 83 Clerks, respectively in the CPD. All those three categories of posts were equated with the posts of Retioning Inspectors/Senior Clerks in the BRO on Rs.

160-10-220-EB-10·270 despite the fact that in the CFD the pay scale of the post of Deputy Chief Inspector was higher post than that of Supply Inspectors and Senior Clerks and it carried a higher pay scale. By a Resolution dated July 29, 1968, the State Government of Maharashtra promulgated the Recruitment Rules for non-gazetted posts in the establishment of the BRO specifying also the method of appointment to the various posts in the said Organisation. Under these Rules, appointments to the category of Senior Clerks/Rationing Inspectors in the BRO were to be made either by promotion from among Clerks, Clerks-typists, Typists etc. , who had worked as such for not less than two years, or by transfer of General Duty Clerks - from the Secretariat Departments and the Offices of Heads of Departments with not less than two years of service in the cadre.

Obviously, the first of the two alternative methods aforementioned would get attracted only when persons already working in the BRO as Clerks were to be appointed as Senior Clerks/Rationing Inspectors. The other alternative provided was to fill up the vacancy by transfer of Clerks working in the Secretariat Departments or in the Offices of the Heads of Departments who possessed not less than two y~ars of service. · On May 28, 1971, a Gradation List of Rationing Inspectors, Senior Clerks and Deputy Accountants working in the BRO as on April, I, 1968 was published by the Controller of Rationing. It was expressly recited therein that the said List had been drawn up in accordance with the seniority principles enunciated in the Government Resolution dated March 22, 1968.

It was also stated that while preparing the said list, the inter se seniority of the ex-CFD personnel had been kept in tact except in the case of those who had been working in the CPD on deputation from other Departments and Offices in respect of whom the seniority had been fixed according to their position inter se in the respective former Departments and Offices from which they had been drawn on deputation A specific direction was contained in paragraph 3 of the Order that copies of the said order should be exhibited on the Notice Boards in the Head Office of the BRO, all the Regional offices as well as in the Rationing Offices, and the signatures of all the employees working in the respective offices should be taken in a separate copy of the order which should be kept on the record of the respective Offices.

It was further ordered that a report to the effect that the Gradation List had been brought to the notice of all the persons concerned should be forwarded to the Assistant Controller of Rationing, (EST), Head Office in his personal name on or before June 10, 1971. Subsequently, a final Gradation List as on April 1, 1968 was also published with a similar direction for bringing it to the notice of all the persons borne on the establishment of the BRO. Still . later, on April 9, 1973, another provisional Gradation List of Rationing Inspectors, Senior Clerks and Deputy Accountants as on April I, 1972 was published with a like direction that it should be brought to the notice of all the persons borne on their establishment.

-- By Resolution dated March l, 1974, the Government of Maharashtra took note of the fact that during the course of the I) previous few years a number of candidates who had not been selected by the Public Service Commission had come to be recruited temporarily to the posts of Clerks, Typists, Stenographers, Assistants, etc. pending allotment of ca11didates selected by the Public Service Commission, and it was directed that since many of such temporary employees had put in several years of service, they may be retained in Government service without being replaced by candidates selected by the Public Service Commission, provided they fulfilled the following two conditions : "(I) The non-P. S. C. persons concerned should have the . minimum educational qualifications prescribed for the posts to which they were appointed. (2) They were within the age-limits prescribed for appointment to the respective posts held by them at the time of their initial appointment to such posts.

" It was also specified in the Resolution that the benefit of such retention in service would be applicable only to the non-P. S. C. persons, who were recruited in various Government offices prior to January 1, 1971 and were in service on the date of issue of the said order. Further, the Resolution contained a clear stipulation that the seniority of such non-P. S. C. persons on whom the benefit of continuance of service was thereby conferred was to be fixed only with ,:eference ~o t)le 9;it~ of i~suance of the said Resolution, with th1: ll. S. MAKASHI v. I. M. MENON (Balakrishna Eradi, J. ) 85 consequence that P. S. C. selected candidates who were already working in the various Departments or Offices prior to the said date were all to be t1eated as seniors in relation to the non-P. S. C. persons covered by the said Resolution.

On November 18, 1975, a provisional Gradation List of Rationing Inspectors, Senior Clerks and Deputy Accountants of the BRO as on April I, 1974 was published on a combined application of the seniority principles laid down by the BRO in the Rules dated March 22, 1968 and those laid down in the Resolution dated March 1, 1974 concerning the non P. S. C. candidates who were granted the benefit of retention in service under the said Resolution. A similar Gradation List of Assistant Rationing Officers/Junior Accountants of the BRO as on April 1, 1974 was also published by the Controller of Rationing on November 27, 1975. On January 31, 1976, respondents Nos. I to 22 herein who were directly recruited in the former CFD as Supply Inspectors and had been subsequently absorbed in the BRO in the category of Rationing lnspectors/Senior Clerks/Deputy Accountants, filed Writ Petition under Article 226 of the Constitution in the High Court of Bombay · Misc. Petition No.

166/76 - challenging the legality and validity of the aforementioned two Gradation Lists dated November 18, 1975 and November 21, 1975. The main contention put forward by them in the writ petition was that the impugned lists were violative of Articles 14 and 16 of the Constitution, inasmuch as, firstly, the State Government and the Controller had given a go-by to the normal rule of fixation of seniority according to the date of appointment to the post, and secondly, unequals had been treated as equals while fixing the seniority inasmuch as the period of service rendered by the employees in the clerical cadre had been reckoned and equated with the service rendered in the Rationing Inspector's cadre. Another plea taken in the writ petition was that the seniority of the writ petitioners has been made. to depend upon an uncertain factor, namely, the seniority of persons who get promoted to the cadre of Rationing Inspectors/Senior Clerks etc.

, from time to time and this rule which kept the question of seniority of employees in a state of flux for all time to come was grossly arbitrary and unreasonable. Respondents I to 3 in the writ petition were the State of Maharashtra. the Controller of Rationing and the Under Secretary to the Government of Maharashtra, Food & Supply Department, J 86 SUPRBMIJ COURT REPORTS l19 82) 2S. C. R. respectively. One hundre Ollts (1982) 2 S. C. R. (released Government servant) 'with two years' regular service as Clerk in other Government departments has been equated with a Supply Inspector of the CFO and it is. on this basis that the inter se seniority as between the erstwhile CFD personnel and the "released Government servants" appointed to a post of Rationing Inspectors/ Senior Clerks/Deputy Accountants in the BRO is to be reckoned.

In our opinion, the said equation cannot be regarded as arbitrary or unreasonable, especially when it is viewed i~ the context of the factual background that the Supply Inspectors in the CFO were merely temporary hands whose appointments were of a precarious nature and the functions and duties performed by them are not shown to have been substantially different from those discharged by the clerks in other Government departments. The principle laid down in rule 4 (a) that the seniority of "released Government servants" and merged Government servants in the cadres of Senior Clerks, Rationing Inspectors and Deputy Accountants shall be determined with reference to dates which shall be fixed after deducting two years from the date of continuous service whether officiating or permanent rendered by him in the cadre of clerks, typists etc. , appears to our minds to be perfectly just and unexceptionable in the circumstances of the case.

The reasons stated by the learned Single Judge of the High Court for declaring the aforesaid rule to be arbitrary and violative of Article 16 of th. e Constitution do not appeal to us as correct or sound. Almost the entire reasoning of the learned Single Judge is based on an assumption that there is an invariable "normal rule" that seniority should be determined only on the basis of the respective dates of appointmeat to the post and that any departure from the said rule will be prima fade unreasonable and illegal. The said assumption is dev()id of any legal sanction. We are unable to recognise the existence of any such rigid or inflexible rule.

It is open to the rule-making authority to take a note of the relevent circumstances obtaining in relation to each department and determine with objectivity and fairness what rules should govern the inter se seniority and ranking of the personnel working in the concerned departments and the courts will only insist that the rules so formulated should be reasonable, just and equitable. Judged by the said test of reasonableness and fairness, the action taken by the Government in equating the clerical personnel which had rendered two years regular service in other departments with the temporary Supply Inspectors of the CFO and· in directing as per impugned rule 4 (a) that their inter se seniority shall be determined with reference to the length of service calculated on the basis of the said equation cannot be said to be in any • R. S. MAKASHI v. J. M. MBNON (Balakrishna Eradi, J. ) 103 way discriminatory or illegal.

We are unable to accept as correct the view expressed by the learned Single Judge of the High Court that "while fixing the seniority in the higher post, it is not open to take into consideration any service rendered in the lower post and that by itself spells out discrimination. " Firstly, it is not correct to regard the post of a regular clerk in the other departments as lower in grade in relation to that of a Supply Inspector in the CFD. Further, in S. G. Jaisinghani v. Union of India and Ors. ,(1) this Court has pointed out that in the case of recruitment to a service from two different sources and the adjustment of seniority between them a preferential treatment of one source m relation to the other can legitimately be sustained on the basis of a valid clasification, if the differences between the two sources has a reasonable relation to the nature of posts to which the recruitment is made.

ln that case, this Court upheld the provision con- - tained in the seniority rules of che Income-tax Service, whereby a weightage was given to the promotees by providing that three years of outstanding work in Class II will be treated as equivalent to two years of probation in Class I (Grade II) Service. We may also extract, with advantage, the following observations of Palekar, J. , speaking on behalf of· the Constitution Bench, in Bishan Sarup Gupta v. Union of India and Ors. (') : "There is no question in this case of any discrimination being made in a service after officers from the sources have been brought in one cadre· It is true that seniority is a vital element in the matter of promotion but that does not mean that allotment of seniority by rule, relative to recruitment, involves any classification for the purposes of promotion.

Tl1e argument that the promotees and direct recruits became one class immediately on entry and, thereafter, there could be no classification between them does not disclose the correct approach to the problem of fixing inter se seniority between them. When recruits from two sources have come into a service it is essential to fix inter se seniority for a proper integration of the cadre. Therefore, it is really a case of adjustment of seniority between the recruits and does not ar. 10unt to making a classification after their absorption in one service. " (! ) (1967] 2 SCR 703.

<2) (1975j l SCR 104 at p, 114, • A comparison of the pay scales of the Supply Inspectors in CPD with that of Clerks in the other departments shows that though the clerks started with a lower salary, their pay scale reached a much higher level than that of the Supply Inspectors It is also relevant to notice that the next promotion post available to the clerks in other Government departments from where they had gone on deputation to the BRO was that of Assistant or Head Clerk in the Grade of Rs. 200-450 or Rs. 200-300, while the next promotion post of Supply Inspector in the former CPD was that of an Assistant Zonal Officer in the Grade of Rs. 200-300. Further the post of·Assistant' to which the Clerks in other Government departments get a promo· tion has been declared to be equivalent to the post of Assistant Rationing Officer in the BRO which is the post immediately above that of Rationing Inspector in the BRO.

When all these factors are taken into account, it becomes clear that the post of Supply Inspector in the CPD cannot be regarded as a post higher than or superior to that of clerk in the other Government Departments. Hence, we do not find it possible to uphold the view expressed by the learned Single Judge of the High Court that the seniority principle embodied in rule 4{a) treats unequals as equals and that it is, therefore, violative of Articles 14 and 16 of the Constitution. When personnel drawn from different sources are being absorbed and integrated in a new department, it is primarily for the Government or the executive authority concerned to decide as a matter of policy bow the equation of posts should be effected.

The courts will not interfere with such a decision unless it is shown to be arbitrary, unreasonable or unfair, and if no manifest unfairness or unreasonableness is made out, the court will not sit in appeal and examine the propriety or wisdom of the principle of -equation of posts adopted by the Government. In the instant case, we have already indicated our opinion that in equating the post of Supply Inspector in the CPD with that of Clerk with two years regular service in the other Government departments, no arbitrary or unreasonable treatment was involved. C! ause (c) of rule 4 which is the next provision that has been struck down by the High Court merely states that the seniority of Government servants in the cadre of Senior Clerks/Rationing Inspectors/Deputy Accountants shall be refixed in accordance with the principles laid down in clauses (a) and (b) of rule 4. We have re· pelled the challenge against clause (a) of rule 4 and no challenge has tut MAKASltl v. l. M.

MENON (Balakrishna Eradi, i. ) 105 been rais~d by the petitioners before us against clause (b) of the said rule. It must automatically follow that the aforesaid provision contained in clause (c) of rule 4 is perfectly valid and constitu· tional. That takes us on to the proviso to rule 7 which is the only other provision struck down by the High Court. Clause (a) of rule 7 lays down that in the case of Government servants taken into the BRO on release from one and the same office, their seniority inter se in their former office shall be maintained in the BRO. Clause (b) is a similar provision relating to the "merged Government servants" (ex-CFD personnel). Clause (c) of rule 7 lays down that the inter se seniority of persons directly recruited in the former CFD Organisation shall be governed by the principles set out in the Government Resolution dated April l, 1963.

It is further stated in the said clause that in regard to persons who were taken to the CFD from one and the same Government office/department, they shall take their rank according to their inter se seniority in the office/ department from which they were drawn. Thereafter, follows the impugned proviso which lays down that where there is a clash of principles contained in the Government Resolution dated April I, 1963 with the seniority inter se in the former department, the seniority inter se in the former Department shall prevail. The principles for fixation of inter se seniority of personnel working in the CFD had been enunciated by the Government in the Resolution dated April 1, 1963.

What has done under the impugned proviso is only to state that with respect to persons who have been drafted into the CFD Organisation from one and the same Government department on deputation basis, their inter se seniority in the former department shall not be disturbed and that to the said extent a deviation should be made from the principles laid down in the Government Resolution dated April I, 1963. We fail to see how the said direction contained in the impugned proviso for preservation of the inter se seniority of deputationists who have been drawn from one and the same Government department to serve the CFD . •. can be said to be arbitrary or unreasonable. It is a just and wholesome principle commonly applied in such situations where persons ri from other departments are drafted to serve on deputation their ' inter se seniority in the parent department should be respected and preserved during the period of such deputation to the new department.

We, therefore, consider that the High Court was in error in striking down the proviso to rule 7 as being violative of Articles 14 and 16 of the Constitution. It now only remains for us to examine whether there is substance in the contention put forward by the writ petitioners that even if the impugned seniority principles laid down in the Government Resolution dated March 22, 1968 are to be regarded as valid, the seniority lists dated November 18, 1975 and November 27, 1975 have not been drawn up in accordance with those principles. The first point urged before us is that the c~ffect of clause (b) of rule 7 is to make the provisions of clauses (a) and (b) of rule 4 inapplicable to merged government servant& and to direct that the seniority of the merged Government servants should be determined only in accordance with the principles laid down in the Government Resolution dated April 1, 1963. This argument is based on a total misconception of the scope and effect of rule 7 (b).

What that rule provides is only that as between the CFD personnel who have been absorded in the BRO their inter se seniority reckoned on the basis of the principles contained in the Government Resolution dated April 1, 1963 shall be preserved. In other words, the object and purpose of sub-clause (b) is limited to the lJ presesvation and maintenance of the pre-existing inter se seniority as between the CFD personnel even after their absorption in the BRO and the said provision does not in any way hamper the operation of the principles laid down in rule 4 for the fixation of the seniority of all the personnel including the merged Government servants in the respective categories in the BRO. A careful reading of the provision of clause (c) and the illustrations given thereunder makes this position abundantly clear. The aforesaid contention put forward on behalf of the writ petitioners will, therefore, stand rejected.

There is, however, some substance in the grievance put forward on behalf of the writ petitioners that in drawing up the impugned seniority lists in pu_rported application of the principles laid down in clause (a) rule 4, many persons who were juniors to the writ petitioners in the category of Supply Inspectors in the CFD have ranked above the petitioners in the category of Inspectors/ Senior Clerks/Deputy Accountants. There are also instances where persons who were working in the CFD as clerks at the time of the merger and were appointed in the BRO as clerks but have been subsequently promoted in the BRO as Rationing Inspectors/Senior Clerks/Deputy Accountants have been shown in the gradation list as seniors in relation to the writ petitioners despite the fact that the writ petitioners were all along functioning as Supply Inspectors in the CFD by virtue of their having been recruited to the said cate- R. S. MAKASHI V. 1. M. MENON (Ba/akrishna Eradi, J. ) 107 gory in that Organisation.

We do not find anything in rule 4 (a) which warrants such an unfair treatment being meted out to persons like the petitioners who were directly recruited as Supply Inspectors in the CFO. Rule 7 clearly lays down that the operation of clause (a) of rule 4 is subject to the limitation specified therin, namely, that in the case of merged Government servants their inter sc seniority will be preserved in tact. Hence, no pefson who was functioning as a junior in relation to the writ petitioners in the category of Supply Inspectors in the CFO can be assigned seniority or rank above the writ-petitioners in the cadre of Rationing Inspectors/Senior Clerks/Deputy Accountants in the BRO. Similarly, no person who has been taken into the BFO as a clerk from the CFO can under any circumstances be pJaced · above the writ - petitioners in the gradation list of Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO.

It is clear from the averments contained in the counter-affidavit filed on behalf of the State Government that the aforesaid principle has been violated while preparing the two impugned gradation lists dated November 18, 1975 and November 27, 1975. The explanation given in the counter-affidavit for adopting the said course does not appear to us to be acceptable or sound. It was pointed out by the counsel for the respondents (writ petitioners) that Exhibit 'A' produced along with the counter-affidavit of the first 'respondent herein shows that as many as 30 persons, who had joined the BRO as Clerks andwere subsequently promoted as Ratfoning Inspectors, have been shown as seniors in relation to the·writ petitioners in the gradation list dated November 18, 1975.

Similarly, Exhibit 'B' gives the names and particulars of persons who were appointed as supply Inspectors in the CFO subsequent to the appointment of the petitioners, but who have nevertheless been shown in the impugned gradation list as seniors to the writ petitioners in the corresponding cadre in the BRO. We have already made it clear that on a combined reading of rules 4 and 7 of the impugned seniority rules, the inter se seniority of the CFO personnel has to be strictly maintained in tact, and that no person who was junior in the CFD in the category of Supply Inspector can go above his senior in that Organisation after being absorbed in the BRO, and also that no person who has been taken as a clerk in the BRO can go above persons absorbed therein in the category of Rationing Inspectors. In the light of what we have said above, the impugned seniority lists in so far as they have been drawn up in <levitation from the legal position explained abovt; cal! for immediate revision.

We would accordingly direct respondents 23 and 24 (State of Maharashtra and the Controller of Rationing, Bombay) to revise the two impugned seniority lists and refix the ranking assigned to the writ petitioners and others in the light of what we have said in this judgment. In the result, this appeal is allowed and the judgments of the High Court are set aside. The writ petition-Misc. Petition No. 166 of 1976- is allowed only to the limited extent of the aforesaid direction issued to respondents 23 and 24 for revision of the impugned seniority lists and it is dismissed in other respects. The parties will bear their respective costs. - P. B. R. Appeal allowed. . _.......