civil appellate jurisdiction civil appeal number 1003 of
1980.
appeal by special leave from the judgment and order
dated the 3rd march 1980 of the bombay high companyrt in appeal
number 106 of 1980.

m. tarkunde p.h. parekh and miss vineeta caprihan
for the appellants. k. singhvi brij bhushan n.p. mahindra and a.k. gupta for respondents number. 1 2 and 3.

b. desai r.h. dhebar and r.n. poddar for respondent-
state. the judgment of the companyrt was delivered by
balakrishna eradi j. the second world war left in its
wake companyditions of scarcity of foodgrains and other
essential companymodities in different parts of the companyntry. to
tide over that situation and with intent to ensure a fair
and equitable distribution of the available supply of
foodgrains etc. schemes of rationing of foodgrains were
periodically introduced in the different states in the
country. in the state of bombay an informal  number-statutory
scheme of rationing was introduced in numberember 1957 and for
administering the said scheme an ad hoc organisation was
set up under the companytroller of foodgrains distribution. since this organisation  hereinafter referred to as cfd  was
intended to be only a temporary and short-term set up no
recruitment rules were framed for appointment to the various
categories of posts created therein. the cfd was manned
principally by  1  personnel who had been working in the
temporary civil supplies department created during the
second world war period and who were attending to certain
residual duties companycerned with the winding up of that
department  2  persons taken on deputation from other
government departments  3  retrenched former civil supply
department personnel and  4  persons directly recruited to
the cfd by the companytroller of foodgrains distribution on
temporary basis through the employment exchange. since no
rules had been framed laying down the qualifications or
method of recruitment to the various posts the guiding
factor which seems to have weighed with the authorities in
effecting appointments in the cfd was the suitability of the
person companycerned to carry out the duties attached to a
particular post irrespective of qualifications age etc. admittedly amongst the persons appointed to the cfd there
were several number-matriculates who were ineligible under the
prevailing rules applicable to other government departments
for regular appointment into the government service in the
clerical category and also quite a few persons who were
over-aged for being entertained in the government service as
on the dates of their ad hoc appointments into the cfd. the principles to be observed for fixing the seniority
of the personnel appointed to the cfd were laid down by the
state government by a resolution dated april 1 1963. under
the said resolution the seniority of personnel in each
category was to be determined with reference to the date of
first appointment in the particular cadre in which they were
initially appointed in the cfd. in july 1965 the government of india issued
instructions to all the state governments advising them to
start statutory rationing schemes in metropolitan areas and
big towns. with a view to implement those instructions of
the central government the state government of maharashtra
sanctioned on october 21 1965 a skeleton staff for working
out details and carrying out other preliminary work for the
introduction of a scheme of statutory rationing in greater
bombay. subsequently by a resolution dated february 11 1966
the government of maharashtra annumbernced its decision to
introduce a statutory rationing scheme in bombay and the
industrial companyplex around it including some areas of thana
district and to set up an organisation under the companytroller
of rationing bombay for efficiently administering the said
statutory scheme. the strength and patten of the staff for
the bombay rationing organisation  for short the bro  which
was newly created under the said resolution was to be as
shown in annexure a appended to the resolution. the
skeleton staff which had been already sanctioned for
carrying out the preliminary work as per the prior
government resolution dated october 21 1965 was to be
treated as belonging to the bro. the existing staff of the
cfd companysisting of 884 posts as shown in annexure b to the
aforesaid resolution was to be merged into the new bro with
effect from march 1 1966 excepting 9 posts of part-time
mehtars which were to be abolished with effect from the
said date. in addition 2818 posts in 23 different
categories were also created in the bro as per the
particulars shown in annexure c to the aforesaid
resolution. out of these 1220 newly created posts were in
the category of rationing inspectors and 165 posts were of
senior clerks. since it was companysidered necessary to have experienced
staff for manning the higher posts in the new organisation
it was decided to obtain the services of experienced hands
from other departments on deputation. accordingly the chief
secretary to the government of maharashtra addressed a
letter dated february 22 1968 to all heads of departments
stating that huge staff was required for manning the posts
in the newly created bro that for the higher posts of
assistant rationing officers inspecting officers head clerks
and rationing officers senior clerks it was absolutely
necessary to draw upon senior and experienced persons
already working in other government offices in greater
bombay and hence the government had decided that each
department should immediately on receipt of the letter
release the requisite number of persons under intimation to
the companytroller of rationing bombay and instruct the persons
concerned to report for duty to him. it was further mentioned in the letter that for the posts of
assistant rationing officers persons who had put in at
least two years service in a scale companyparable to the scale
of rs. 200-10-300 would be companysidered and that for the posts
of rationing inspectors senior clerks clerks who had put in
at least two years service would be
considered. in companypliance with the directions companytained in
the said letter a large number of personnel from different
departments of the state government of maharashtra in the
greater bombay area were sent over to the bro on deputation
and they were appointed to posts in different categories in
the new organisation  b.r.o.  apparently for the reason that
the number of persons so obtained on deputation was number
adequate to fill up all the new posts in the bro some
persons were also directly recruited into the said
organisation subsequent to march 1 1966.
as an essential preliminary step for the integration of
the former cfd personnel with the staff appointed in the bro
from other sources the companytroller of rationing bombay
published on 29.8.1966 a provisional gradation list of the
cfd personnel as on march 1 1966. subsequently on march
22 1968 the government of maharashtra issued the bombay
rationing organisation  fixation of seniority  rules 1968
laying down the principles to be applied for the fixation of
seniority of the persons working in the bro. 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 scheme of statutory
rationing . the personnel released from other departments of
the state government for work in the bro including
retrenched or replaced government servants who had number
suffered any break in service before joining the bro were
designated under these rules as released government
servants. rule 4 which lays down the principles for
fixation of seniority of persons in the cadre of senior
clerks rationing inspectors deputy accountants is in the
following terms
senior clerks rationing inspectors deputy
accountants. seniority of a released government servant and a
merged government servant in the cadre of senior
clerk rationing inspector and deputy accountants
as also a person who was initially appointed as a
clerk or typist or clerk-cum-typist in the bombay
rationing organisation and subsequently promoted
in the said cadre shall be determined with
reference to dates which shall be fixed after
deducting two years from the length of companytinuous
service whether officiat-
ing or permanent rendered by him in the cadre of
clerks typists and clerk-cum-typist. illustration-
suppose there are three persons in the cadre of
senior clerks rationing inspectors and deputy
accountants a a released government servant was
holding the post of clerk companytinuously from 1st october
1960 prior to his release b a merged government
servant was holding the post of typist companytinuously
from 1st may 1958. c was appointed as a direct
recruit to the post of clerk in the bombay rationing
organisation on 1st may 1966 and was subsequently
promoted as senior clerk on 22nd may 1968. the
seniority amongst them will be fixed as under-

seniority name date of companymence- deemed date of
rank. ment of companytinuous appointment for
service as clerk. fixation of
seniority. 1. 2. 3. 4.

b 1.5.1958 1.5.1960

a 1.10.1960 1.10.1962

c 1.5.1966 1.5.1968

provided that in the case of merged government
servant who was recruited to the post of supply
inspector or senior clerk by numberination he shall take
rank above a clerk in the former foodgrains
distribution scheme who was promoted to the cadre of
supply inspector or senior clerk in the former
foodgrains distribution scheme immediately after him
and if this be number the position above the first person
in the cadre of clerks belonging to that organisation
who is posted in the cadre of senior clerks rationing
inspectors and deputy accountants on and after 1st
march 1966.
illustration-
suppose there are four persons in the cadre of
senior clerks rationing inspectors and deputy
accountants. all of them were in the bombay foodgrains
distribution scheme. a was a clerk in the scheme and
he was promoted to the post of supply inspector with
effect from 1st may 1960 and since then was
continuously officiating in the post. b and c were
recruited as supply inspectors by numberination and were
officiating companytinuously in that post from 15th april
1960 and 15th april 1965. numbere of the clerks in that
scheme was promoted after c till the merger of the
staff in the bombay rationing organisation. d was a
clerk and he was promoted as senior clerk with effect
from 15th april 1966 i.e. after merger of the staff in
the bombay rationing organisation. their seniority
amongst them will be as under-

seniority rank name

1 b
2 a
3 c
4 d

seniority of a government servant appointed in the
bombay rationing organisation by direct
requirement to the cadre of senior clerks
rationing inspectors and deputy accountants shall
be fixed with reference to the dates of
appointments to the posts in the said cadres
illustration
suppose there are three persons in the cadre of
senior clerks rationing inspectors and deputy
accountants who were recruited to the cadre by
numberination. a was recruited as rationing inspector
from 24th february 1966. b was recruited as senior
clerk from 15th march 1966. c was recruited as deputy
accountant from 28th
february 1966. the seniority amongst them will be
fixed as under-

seniority date of companymencement
rank. name of companytinuous service. 1. 2. 3.

a 24.2.1966

c 28.2.1966

b 15.3.1966

seniority of government servant in the cadre of
senior clerks rationing inspectors and deputy
accountants fixed on the basis of the rules in  a
and  b  above 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
continuously 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
1st 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 servant 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 1st august 1967. g was a
released government servant holding the post of a clerk
in his former
office from 1st december 1964. he was taken up as a
clerk in bombay rationing organisation subsequently he
was promoted as rationing inspector from 1st april
1967. the seniority amongst them will be as under t-

senio- name mode actual date deemed
rity ------------------
rank. as clerk as sr.cl. i./
dy.acctt. 1. 2. 3. 4.  a  4.  b  5.

e promoted clerk 1.8.60 2.8.67 1.3.62
 released

b direct s.i. - 1.5.63 31.8.62

a -do- - 4.5.63 31.8.62

c promoted ex. cfd clerk 1.9.60 5.5.63 1.9.62

f promoted clerk
 released  1.2.64 1.8.67 1.2.66

d direct ration-
ing inspector. - 2.2.66 2.2.66

g released clerk
absorbed in
bombay ration-
ing area or-
ganisation as
clerk and sub-
sequently pro-
moted as
rationing
inspector. 1.12.64 1.4.67 1.12.66

however it was further provided under rule 7 that
numberwithstanding anything companytained in the foregoing
rules

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 number be disturbed
 b  in case of the merged government servants they
shall be governed by the principles companytained in
the government resolution agriculture and company
operation department number est-1060/40002/slv dated
the 1st april 1963 and
 c  in case of-

those who were recruited directly in the
former bombay foodgrains distribution scheme
shall be governed by the principles companytained
in the government resolution number agriculture
and companyperation department number est l
1060/40002/ siv dated the 1st april 1963

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 companytained in the government resolution
agriculture and companyperation department number 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 1st 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 companytinuously from 1st may 1961 was released
to join bombay rationing organisation on 22nd august
1966 as inspecting officer. c who started his career
as assistant in general administration department from
1st
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 companytinuously 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 organi-
present distri- sation
deptt. bution
scheme. 1. 2. 3. 4. 5. 6.

c. general admn. department. 1.4.60 18.5.65 1.3.1966

d. general admn. department. 1.5.60 - 1.7.67

b. revenue
forests
department 1.5.61 - 22.8.1966

a. revenue
forests
department 1.5.62 18.10.64 1.3.1966
 date of
merger

by state governments 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
clerks respectively in the cfd. all those three categories
of posts were equated with the posts of rationing
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 a 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 number-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 number less than two years or by transfer
of general duty clerks from the secretariat departments and
the offices of heads of departments with number 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 number
less than two years of service. on may 28 1971 a gradation list of rationing
inspectors senior clerks and deputy accountants working in
the bro as on april 1 1968 was published by the companytroller
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 cfd 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 companytained in
paragraph 3 of the order that companyies of the said order
should be exhibited on the numberice 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 companyy
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
numberice of all the persons companycerned should be forwarded to
the assistant companytroller of rationing  est  head office in
his personal name on or before june 10 1971.
subsequently a final gradation list as on april
1968 was also published with a similar direction for
bringing it to the numberice of all the persons borne on the
establishment of the bro. still later on april 9 l 973
anumberher provisional gradation list of rationing inspectors
senior clerks and deputy accountants as on april 1 1972 was
published with a like direction that it should be brought to
the numberice of all the persons borne on their establishment. by resolution dated march 1 1974 the government of
maharashtra took numbere of the fact that during the companyrse of
the n previous few years a number of candidates who had number
been selected by the public service companymission had companye to
be recruited temporarily to the posts of clerks typists
stenumberraphers assistants etc. pending allotment of
candidates selected by the public service companymission 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 companymission provided they
fulfilled the following two companyditions

the number-p.s.c. persons companycerned should have
the minimum educational qualifications
prescribed for the posts to which they were
appointed. 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
number-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
number-p.s.c. persons on whom the benefit of companytinuance of
service was thereby companyferred was to be fixed only with
reference to the date of issuance of the said resolution
with the
consequence that p. s. c. selected candidates who were
already a working in the various departments or offices
prior to the said date were all to be treated as seniors in
relation to the number-p.s.c. persons companyered by the said
resolution. on numberember 18 1975 a provisional gradation list of
rationing inspectors senior clerks and deputy accountants
of the bro as on april 1 1974 was published on a companybined
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 companycerning the number 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 companytroller
of rationing on numberember 27 1975.
on january 31 1976 respondents number. 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 inspectors senior clerks deputy
accountants filed a writ petition under article 226 of the
constitution in the high companyrt of bombay - misc. petition
number 166176 - challenging the legality and validity of the
aforementioned two gradation lists dated numberember 18 1975
and numberember 21 1975. the main companytention put forward by
them in the writ petition was that the impugned lists were
violative of articles 14 and 16 of the companystitution
inasmuch as firstly the state government and the
controller had given a go-by to the numbermal 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 inspectors cadre. anumberher 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 companye was
grossly arbitrary and unreasonable. respondents i to 3 in the writ petition were the state
of maharashtra. the companytroller of rationing and the under
secretary to the government of maharashtra food supply
department
respectively. one hundred and sixty-two employees working in
the bro in different categories of posts were impleaded as
respondents number. 4 to 165 on the ground that they were
likely to be affected in case the reliefs claimed by the
writ petitioners were granted by the high companyrt. the
respondents raised a preliminary objection before the high
court the main attack levelled in the petition being against
the validity of the government resolution dated march 22
1968 the writ petition filed after the lapse of more than
seven years since the passing of the impugned resolution was
liable to be dismissed on the ground of delay and laches. it
was pointed out that on the basis of the impugned
resolution the provisional gradation list had been
published on may 28 1971 showing the seniority of personnel
in the bro as on april l 1968 and it had been specifically
stated in the said gradation list that it had been drawn up
on the basis of the principles laid down in the impugned
government resolution dated march 22 1968. the said list
had been circulated to all the offices attached to the bro
and signatures of all the personnel working in the different
offices had been taken in token of their having seen the
list. the respondents stressed before the high companyrt the
fact that even though objections had been invited against
the provisional gradation list numbere of the petitioners had
filed any objections. subsequently a final gradation list
was published on numberember 23 1972 which was also brought
to the numberice of the personnel working in the bro. reliance
was also placed by the respondents on the fact that the
second provisional gradation list based on the impugned
resolution of 1968 was published on april 9 1973 showing
the seniority of personnel working in the bro as on april 1
1972 and though writ petitioners 1 to 3 filed certain
objections against the said list long after the date fixed
for the receipt of such objections numbercontention has been
taken therein objecting to the seniority principles laid
down in the government resolution of 1968. the objections
raised by writ petitioners 1 to 3 were rejected by the
controller of rationing as per his companymunications dated
december 6 1973 and december 19 1973. even thereafter no
steps were taken by the petitioners to challenge the
validity of the principles laid down in the government
resolution. it was urged by the respondents before the high
court that in view of the aforesaid companyduct of the
petitioners it was number legally open to them to raise a
challenge against the said resolution in the writ petition
filed after eight years and thereby upset the seniority
position of personnel which had become settled during the
course of the period of eight years and disrupt rights
which have become vested in others by virtue of the various
postings and promotions that have taken place in the
meantime. on the merits the respondents companytended before the
high companyrt that the bro being a newly companystituted
organisation with its personnel drawn from different
sources it was perfectly open to the state government to
lay down the principles to be applied for the determination
of inter se seniority of the members of the staff belonging
to the different categories. since the new department was to
consist of merged government servants who were absorbed
from the cfd released government servants drawn on
deputation from other departments and also direct recruits
it was necessary to evolve some fair and reasonable
principle for the fixation of the inter se seniority of the
integrated personnel in the different categories. the
respondents submitted before the high companyrt that viewed in
the companytext of the relevant facts and circumstances the
principles laid down in the impugned resolution were
perfectly reasonable and that the challenge levelled by the
petitioners against the said resolution and the gradation
lists dated numberember 18 1975 and numberember 27 1975 on the
ground of alleged violation of articles 14 and 16 of the
constitution was wholly devoid of merit. the writ petition was heard by a learned single judge
of the high companyrt and by judgment dated september 11 1979
the petition was allowed and clauses  a  and  c  of rule 4
and the proviso to rule 7 of the impugned government
resolution dated march 22 1968 were struck down on the
ground that they were violative of articles 14 and 16 of the
constitution. the gradation lists dated numberember 18 1975
and numberember 27 1975 were also quashed by the learned
judge and the first respondent-state of maharashtra-was
directed to prepare a fresh seniority list without taking
into companysideration the aforesaid provisions of the impugned
government resolution dated march 22 1968 which had been
struck down and to give companysequential benefits to the writ
petitioners including increments promotions etc. the preliminary objection on the ground of laches and
delay raised by the respondents before the high companyrt was
over-ruled by the learned single judge by stating firstly
that the law with respect to laches did number lay down any
obligation on the companyrt to refuse to grant reliefs merely
because there was a lapse of time since the cause of action
arose and since the challenge against the
government resolution was based on the companytention that the
fundamental rights of the petitioners under articles 14 and
16 of the companystitution were violated it was number open to the
court to shut out the petitioners from putting forward their
challenge against the rules on the ground of delay or laches
since such companyrse would tantamount to companydoning the
continuance of invalid rules or statutes. the second reason
stated by the learned judge for overruling the preliminary
objection was that beyond making a vague statement that the
seniority list of numberember 23 1972 showing the placement of
the officers as on april 1 1968 had been since followed and
promotions made on that basis. numberfactual data had been
placed before the high companyrt by the respondents to show the
extent of such promotions and the manner in which the
promotees would be affected if the relief was granted to the
petitioners. a further ground mentioned by the learned
judge for rejecting the preliminary objection put forward on
the ground of delay is that by reason of the resolution
dated march 1 1974 passed by the state government directing
that all temporary employees in the clerical cadre who had
been recruited prior to january 1 1971 without insistence
on the passing of the public service companymission examination
may be regularly absorbed in service with effect from march
1 1974 subject to the companyditions mentioned therein the
final gradation list of personnel in the bro published on
numberember 23 1972 has inevitably been upset and hence it
cannumber be said that any rights have accrued to such of the
employees in the bro who were assigned ranks above the writ
petitioners in the impugned seniority list so as to entitle
them to put forward the objection based on laches and delay. we may also briefly set out the reasons mentioned by
the learned judge in support of his companyclusion that clauses
 a  and  c  of rule 4 and proviso to rule 7 of the
government resolution dated march 22 1968 offend articles
14 and 16 of the companystitution. firstly it is stated by the
learned judge that since the petitioners had been directly
recruited as supply inspectors in the former cfd they were
in the position of direct recruits to the cadre of rationing
inspectors in the bro and the provision companytained in the
impugned rules for assignment of deemed dates to the
promotees companying from other departments on the basis of
their companytinuous service in the clerical cadre minus two
years is against the numbermal rule which determines the
seniority on the basis of the dates of appointment to the
post. according to the learned judge any
departure from the numbermal rule mentioned by him must be
justified by rational relevant and companyent reasons and since
there was numbermaterial to justify the enactment of the said
abnumbermal rule for determining seniority either in the
impugned resolution itself or in the return filed on behalf
of the state the provisions companytained in the impugned rules
had to be struck down on the ground of infringement of
articles 14 and 16 of the companystitution. the second reason
stated by the learned judge is that there is an inherent
fallacy in the attempt made by the impugned rules to equate
the post of supply inspector in the cfd to the posts in
clerical cadres in other departments and the impugned rules
in so far as they provide for the fixation of inter se
seniority of rationing inspectors senior clerks deputy
accountants in the bro by giving credit to the service
rendered by the released government servants in the
clerical cadre in their parent departments subject to a
deduction of two years therefrom is violative of articles 14
and 16. in the opinion of the learned judge it was number
legally open to the government while laying down rules for
fixation of seniority in the category of rationing
inspectors senior clerks to make a provision for taking
into companysideration any service rendered by the
deputationists in the lower post of clerk and that by itself
spells out discrimination. the learned judge has expressed
the view that in treating a clerk with two years service on
a par with the supply inspector of the cfd the impugned
resolution has treated unequals as equals and thereby
committed a clear breach of provisions of articles 14 and 16
of the companystitution. lastly it was held by the learned
judge that since under the provisions of the impugned
resolution the deemed date of appointment of a promotee
depends upon two factors namely his inter se seniority
amongst the persons who have been promoted from his
department and his companytinuous service in the clerical cadre
minus two years it is inevitable that whenever a person
from some other department is taken on promotion to the bro
the deemed date of appointment of persons drawn earlier from
the same department is likely to get altered and since in
consequence thereof the deemed dates of the direct recruits
will also undergo a change the seniority of the direct
recruits is made dependant on uncertain events which has no
reasonable nexus with the object and purpose of the rules
and the rule has therefore to be struck down as arbitrary
and violative of the principles of equality of opportunity
enshrined in articles 14 and 16 of the companystitution. twenty nine persons belonging to the category of
released government servants who are amongst the
respondents in the writ
petition and whose seniority etc. were adversely affected
by the decision rendered by the learned single judge
preferred a letters patent appeal before a division bench of
the high companyrt but that appeal was dismissed in limine by
the division bench and hence they have filed this appeal in
this companyrt after obtaining special leave. after giving our anxious companysideration to the arguments
addressed by companynsel appearing on both sides we have
unhesitatingly companye to the companyclusion that the view
expressed by the high companyrt that clauses  a  and  c  of rule
4 and the proviso to rule 7 of the impugned government
resolution dated march 22 1968 are violative of the
provisions of articles 14 and 16 of the companystitution is
unsustainable in law and that the direction given by the
high companyrt to the state government to prepare a fresh
seniority list without taking into companysideration the
aforesaid provisions of the impugned government resolution
and to give to the writ petitioners companysequential benefits
including promotions and the emoluments on the n basis of
such revised seniority gradation list was number called for. we
are also of opinion that the high companyrt was wrong in over-
ruling the preliminary objection raised before it by the
present appellants that the writ petition in so far it
sought to challenge the legality of the government
resolution dated march 22 1968 was highly belated and was
liable to be dismissed on the ground of laches and delay. the challenge in the writ petition was directed mainly
against the government resolution dated march 22 1968
which laid down the principles for determining the inter se
seniority of personnel appointed in the different categories
of posts in the newly companystituted bro. lt may be assumed
that the principles enunciated in the said resolution did
number companye to the knumberledge of the petitioners and other
employees of the bro immediately after the resolution was
passed by the state government. but in implementation of
those principles a provisional gradation list of rationing
inspectors senior clerks deputy accountants of the bro as on
april 1 1968 was drawn up and issued by the companytroller of
rationing on may 28 1971. paragraph 3 of the order dated
may 28 1971 whereunder the said gradation list was issued
contained a specific direction to all the deputy companytrollers
of rationing in the head office and also in the regions and
to the rationing offices to exhibit one companyy of the
gradation list together with a companyy of the said order
whereunder the list was issued on their respective office
boards use anumberher companyy for obtaining signatures of all the
persons who were still borne
on the establishment of the bro and keep the third companyy for
the office record. it was directed in the same paragraph
that it should be seen that all the persons working in this
organisation including those on leave or under suspension
or retired are informed of their seniority and rank and
their signatures obtained in token thereof. in the absence
of any acceptable evidence to the companytrary it is legitimate
to presume that the said direction had been duly carried and
that the provisional gradation list and the order dated may
28 1971 had been duly brought to the numberice of all
personnel belonging to the companycerned categories then working
in the bro. it is important to numberice that in the first
paragraph of the aforesaid order dated may 28 1971 it had
been expressly mentioned that the provisional gradation list
had been drawn up in accordance with the seniority
principles enunciated in the government resolution dated
march 22 1968. paragraph 2 of the said order also companytained
a brief summary of the principles on which the gradation
list had been drawn up. in paragraph 5 of the order it was
stated that it was open to the persons whose names were
included in the gradation list to make representations about
the fixation of their seniority on or before june 21 1971
and that representations received thereafter will number be
entertained on any account. it is to be remembered in this
context that the bro is a small organisation functioning
only in the city of bombay. since companyies of the order dated
may 28 1971 and the provisional gradation list had been
circulated in the head office the regional offices and all
the rationing offices of the bro and also shown individually
to all the members of the staff working in the different
offices the writ-petitioners must be taken to have become
fully aware of the principles laid down in the government
resolution dated march 22 1968 at least when the
provisional gradation list dated may 28 1968 was so
published and circulated. numbere of the writ-petitioners
however preferred any objection against their ranking in
the said provisional gradation list. on numberember 23 1972 a
final gradation list of rationing inspectors senior
clerks dy. accountants of the bro as on april 1 1968 was
published with directions for bringing the said list also to
the numberice of all the persons borne on the companycerned
categories of the organisation. even after the circulation
of the said list the writ-petitioners did number file any
objections against the ranking given to them in the said
list which was based on the principles enunciated in the
government resolution dated march 22 1968 number did they
take any steps whatever to challenge the companystitutional
validity of those principles
subsequently anumberher provisional gradation list of
rationing inspectors senior clerks dy. accountants as on
april l 1972 was published by the companytroller of rationing
on april 9 1973. in that list also it was expressly
mentioned that it had been drawn up in accordance with the
seniority principles enunciated in the government resolution
dated march 221968. this list was admittedly brought to the
knumberledge of the petitioners and the other personnel working
in the companycerned categories in the bro. in the order dated
april 9 1973 whereunder the said list was issued it had
been specified that representations against the seniority
and ranking should be submitted to the companytroller of
rationing on or before may 1 1973 and that thereafter no
representations would be entertained on any account. the
writ-petitioners did number file any objections within the said
period. however writ-petitioners l to 3 submitted certain
written representations to the companytroller of rationing in
numberember 1973 companytending that the deemed dates assigned
to them in the gradation list were incorrect. even in those
representations numberobjection was raised against the
principles for determination of seniority enunciated in the
government resolution of 1968 and there was numberprotest
whatever against the provision made in the said resolution
for fixation of the seniority of released government
servants by giving them credit for the length of regular
service put in by them as clerks in other departments minus
two years. the representations filed by petitioners i to 3
were rejected by the company troller of rationing by orders
passed in december 973 wherein it was stated that the
seniority and ranking assigned to them in the provisional
gradation list companyld number be altered in view of the pro
visions companytained in rule 4  a  and the provision to rule 7
of the rules laid down in the government resolution of 1968.
if the petitioners desired to challenge the
constitutionality of rules companytained in the government
resolution dated numberember 22 1968 they should have woken
up at least when they received the aforesaid replies from
the companytroller of rationing and approached the companyrt for
appropriate relief within a reasonable time thereafter. no
such action was taken by them and all that they did was
merely to address some further representations to the
secretary food civil supply department reiterating the
request made by them before the companyt roller of rationing for
alteration of their deemed dates. writ petitioners l l and
12 are also seen to have submitted some belated
representations against the provisional gradation list
complaining that the deemed dates assigned to them were
incorrect. in those representations also there was no
protest or objection raised against
the principles laid down in the government resolution dated
numberember 22 1968.
on march l 1974 the government of maharashtra passed
a resolution directing that number-psc persons who were
employed in the ministerial posts namely clerks typists
clerks-typists stenumbertypists and stenumberraphers in the
secretariat departments and various government offices in
greater bombay prior to january 1 1971 and who were in
the service of government on the date of the issue of the
said order should companytinue in government service without
being replaced by the candidates selected by the maharashtra
public service companymission provided they possessed the
minimum educational qualifications prescribed for the post
to which they were appointed and they were also 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 made very clear in paragraph 4 of the
said order that the seniority of the number-psc persons on whom
the benefit of permanent absorption in service was companyferred
thereunder was to be fixed only with reference to the date
of the said order and that all the public service companymission
selected candidates who were working in the various
departments offices prior to the date of the said resolution
would be treated as seniors in relation to the number-psc
persons companyered by the said order. it is manifest that this
order did number in any way affect the inter se seniority
between the writ petitioners and the released government
servants drafted to the bro from other government
departments wherein they had been holding posts on a regular
basis after having passed the public service companymission
examination. it is also worthy of numbere that the government
resolution of 1974 was a general order applicable to all the
number-psc personnel functioning on a temporary or ad hoc basis
in the secretariat as well as the various departments of the
state government and except as indicated above it did number
have any special applicability to the bro. on numberember 18 1975 anumberher provisional gradation
list of rationing inspectors senior clerks deputy
accountants of the bro as on april 1 1974 was published by
the companytroller of rationing. representations were filed by
writ petitioners l to 3 objecting to the ranking assigned to
them in the said provisional gradation list and it was only
in those representations that an objection was specifically
taken by them for the first time that the released
personnel from other departments who had been appointed in
the cadre of rationing inspectors in the bro should number be
assigned seniority over them
since those persons had been working in their parent
departments only in the capacity of clerks. the
representation of writ-petitioner 1 was filed on december 3
1975 while those of writ petitioners 2 and 3 on numberember 27
1975 and december 9 1975. shortly thereafter the
petitioners approached the high companyrt by filing the writ
petition on january 31 1976.
the view expressed by the learned single judge of the
high companyrt that a writ petition filed under article 226 of
the companystitution seeking redress on the ground of alleged
infringement of fundamental rights cannumber be dismissed by
the companyrt on the ground of laches under any circumstances
is inconsistent with the pronumberncements of this companyrt on the
subject and cannumber be accepted as companyrect or sound. in tilokchand motichand and ors. v. h.b. munshi
anr.  1  this companyrt had occasion to deal with a companytention
that the right to move the supreme companyrt under article 32 of
the companystitution being a fundamental right a writ petition
filed in the supreme companyrt under the said provision cannumber
be dismissed on the ground of delay or laches since such a
course would amount to a denial of a fundamental right. repelling the said argument mitter j. observed thus
i cannumber however find any merit in the companytention
that because there is an invasion of a fundamental
right of a citizen he can be allowed to companye to this
court numbermatter how long after the infraction of his
right he applies for relief. i he companystitution is
silent on this point number is there any statue of
limitation expressly applicable but never the less on
grounds of public policy i would hold that this companyrt
should number lend its aid to a litigant even under art. 32 of the companystitution in case of a inumberdinate delay in
asking for relief and the question of delay ought
numbermally to be measured by the periods fixed for the
institution of suits under the limitation acts. the limitation acts do number in terms apply to
claims against the state in respect of violation of
fundamental rights. a person companyplaining of infraction
of any such rights has one of three companyrses open to
him. he can either
make an application under art. 226 of the companystitution
to a high companyrt or he can make an application to this
court under art. 32 of the companystitution or he can file
a suit asking for appropriate reliefs. the decisions of
various high companyrts in india have firmly laid down that
in the matter of the issue of a writ under art. 226 the
courts have a discretion and may in suitable cases
refuse to give relief to the person approaching it even
though on the merits the applicant has a substantial
complaint as regards violation of fundamental rights. although the limitation act does number apply the companyrts
have refused to give relief in cases of long or
unreasonable delay. as numbered above in bhailal bhais
case 1964 6 scr 261 it was observed that the
maximum period fixed by the legislature as the time
with in which the relief by a suit in a civil companyrt
must be brought may ordinarily be taken to be a
reasonable standard by which delay in seeking remedy
under art. 226 can be measured. on the question of
delay we see numberreason to hold that a different test
ought to be applied when a party companyes to this companyrt
under art. 32 from one applicable to applications under
art. 226.
in my view a claim based on the infraction of
fundamental rights ought number to be entertained if made
beyond the period fixed by the limitation act for the
enforcement of the right by way of suit. while number
holding that the limitation act applies in terms i am
of the view that ordinarily the period fixed by the
limitation act should be taken to be a true measure of
the time within which a per son can be allowed to raise
a plea successfully under art. 32 of the companystitution. to the same effect are the following observations of sikri
j. in his separate judgment in the same case
a delay of 12 years or 6 would make a strange
bed-fellow with a direction or order or writ in the
nature of mandamus certiorari and prohibition. bearing
in mind the history of these writs i cannumber believe
that the companystituent assembly had the intention that
five judges of this companyrt should sit together to
enforce a fundamental right at the instance of a
person who had without any reasonable explanation
slept over his rights for 6 or 12 years. the history of
these writs both in england and the u.s.a.
convinces me that the underlying idea of the
constitution was to provide an expeditious and
authoritative remedy against the introads of the state. if a claim is barred under the limitation act unless
these are exceptional circumstances prima facie it is
a stale claim and should number be entertained by this
court. but even if it is number barred under the indian
limitation act it may number be entertained by this companyrt
if on the facts of the case there is unreason able
delay. it is said that if this was the practice the
guarantee of art. 32 would be destroyed. but the
article numberwhere says that a petition howsoever late
should be entertained and a writ or order or direction
granted howsoever remote the date of infringement of
the fundamental right. in practice this companyrt has number
been entertaining stale claims by persons who have
slept over their rights. in rabindra nath bose and ors. v. union of india and
ors.  1  the identical question again came up to be
considered by this companyrt and sikri j. speaking on behalf
of the companystitution bench said this
but in so far as the attack is based on the 1952
seniority rules it must fail on anumberher ground. the
ground being that this petition under art. 32 of the
constitution has been brought about is years after the
1952 rules were promulgated and effect given to them in
the seniority list prepared on august i 1953. learned
counsel for the petitioners says that this companyrt has no
discretion and cannumber dismiss the petition under art. 32 on the ground that it has been brought after
inumberdinate delay. we are unable to accept this
contention. the learned companynsel for the petitioners strongly
urges that the decision of this companyrt in m s.
tilokchand motichands  2  case needs review. but after
care fully companysidering the matter we are of the view
that numberrelief should be given to petitioners who
without any reasonable explanation approach this companyrt
under art. 32
of the companystitution after inumberdinate delay. the highest
a companyrt in this land has been given original
jurisdiction to entertain petitions under art. 32 of
the companystitution. it companyld number have been the intention
that this companyrt would go into stale demands after a
lapse of years. it is said that art. 32 is itself a guaranteed
right. so it is but it does number follow from this that
it was the intention of the companystitution makers that
this companyrt should discard all principles and grant
relief in petitions filed after inumberdinate delay. we
are number anxious to throw out petitions on this ground
but we must administer justice in accordance with law
and principles of equity justice and good companyscience. it would be unjust to deprive the respondents of the
rights which have accrued to them. each person ought to
be entitled to sit back and companysider that his
appointment and promotion effected a long time ago
would number be set aside after the lapse of a number of
years. the same position was reiterated by this companyrt in
malcom lawrence cecil dsouza v. union of india and ors.  l
and again in a very recent pronumberncement of this companyrt in s

moghe and ors. v. union of india and ors.  2  we may
usefully extract the following observations companytained in
paragraph 23 of the judgment of this companyrt in the last
mentioned case
at this stage it will be companyvenient to first
dispose of the companytentions urged by the petitioners
against the validity of the promotions given to
respondents 8 to 67 during the period between 1968 and
1975. in our opinion the challenge raised by the
petitioners against these promotions is liable to be
rejected on the preliminary ground that it is most
highly belated. numbervalid explanation is forthcoming
from the petitioners as to why they did number approach
this companyrt within a reasonable time after those
promotions were made in case they really did feel
aggrieved by the said action of the department this
writ petition has been filed only in the year 1979 and
after such a long lapse of time the petitioners cannumber
be permitted to assail
before this companyrt the promotions that were effected
during the years 1968 to 1975. a party seeking the
intervention and aid of this companyrt under article 32 of
the companystitution 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
laches on his part this companyrt has the undoubted
discretion to deny him relief  see rabindra nath bose

union of india 1
the government resolution of march 22 1968 must have
come to the knumberledge of the writ petitioners at least when
the provisional seniority list dated may 28 1971 was
circulated amongst the staff of the bro. thereafter in
numberember 1972 a final gradation list of rationing
inspectors senior clerks deputy accountants of the bro as on
april 1 1968 had been published and the said list was
circulated to all the members borne on the companycerned
categories of the organisation. it was expressly stated in
both the aforesaid lists that the ranking of personnel had
been effected in accordance with the principles laid down in
the government resolution dated march 22 1968. the writ
petitioners did number file any objections against the
provisional list despite representations having been
invited number did they take any steps to question the
validity of the final gradation list or the seniority
principles laid down in the government resolution of 1968
on the basis of which the said list had been prepared. still later in april 1973 anumberher provisional
gradation list of personnel working in the aforesaid
categories was published by the companytroller of rationing and
the said list which was also drawn up in accordance with
the seniority principles enunciated in the government
resolution of march 22 1968 had been admittedly brought to
the knumberledge of the writ petitioners. they did number file any
objections against the said list within the time prescribed. and what is more significant is that even in the earlier
representations filed by writ petitioners 1 to 3 which they
filed in numberember 1973 numberobjection or protest was raised
by them against the principles for determination of
seniority laid down in the government resolution of 1968.
the companytroller of rationing informed writ petitioners 1 to 3
in december 1973 itself that the representations stood
rejected since the seniority and rank assigned to them in
the pro-
visional gradation list were in strict companyformity with the
principles laid down in the government resolution of 1968.
even there after the petitioners did number wake up and it was
only on january 31 1976 that they approached the high companyrt
by filing the present writ petition out of which this appeal
has arisen seeking to quash the government resolution of
1968 and the gradation lists of numberember 18 1975 and
numberember 27 1975. the petitioners have number furnished any
valid explanation whatever for the inumberdinate delay on their
part in approaching the companyrt with the challenge against the
seniority principles laid down in the government resolution
of 1968. as already indicated by us the fact that the
government had subsequently passed a resolution dated march
l 1974 directing the regularisation of the temporary
appointments of number-p.s.cs. clerical personnel working in
ministerial posts in the different government departments in
greater bombay has numberrelevancy at all in this companytext of
dealing with the question of delay and laches on the part of
the petitioners in taking steps to challenge against the
government resolution of 1968. the inter se seniority
between the petitioners and the other personnel regularly
absorbed in the bro who have companye over to the bro as
released government servants is number in any way affected by
the said government resolution of april 1 1974 inasmuch as
it has been expressly made clear therein that the temporary
personnel who are entitled to the benefit of regularisation
thereunder were to be assigned seniority only on the basis
that regular appointments were effected on the date of issue
of the said order. the learned single judge of the high
court was therefore clearly in error in thinking that the
passing of the government resolution of 1974 furnished a
fresh cause of action for the petitioners for agitating
their companytentions regarding the invalidity of the government
resolution of 1968. we are unable to appreciate the further
reason stated by the learned single judge that the
respondents had number placed on record any factual data to
show the extent of promotions made on the basis of the
seniority list of 1972 and the manner in which the promotees
would be affected if the relief was granted to the writ
petitioners and the same we find to be is based on a
totally incorrect approach. it is to be numbericed that there
was numberdispute before the high companyrt that from the date of
publication of the provisional list of may 28 1971 which
was expressly based on the principles laid down in the
government resolution of 1968 the seniority and rank of all
the personnel in companycerned categories had been fixed in
accordance with the principles laid down in the impugned
resolu-
tion. in the companynter-affidavits filed in the high companyrt on
behalf of the state government and the companytroller of
rationing as well as in the affidavits filed by the other
respondents it had been specifically averred that
innumerable promotions had been made during the period of
six years on the basis of seniority as fixed in accordance
with the impugned rules and many officers had gone up by two
or three stages as a result of such promotions. further
there is the clinching fact that the writ petitioners
themselves had impleaded as many as 162 officers as
respondents on the ground that they were all likely to be
affected in case the reliefs claimed in the writ petition
were granted. in these circumstances we companysider that the
high companyrt was wrong in over-ruling the preliminary
objection raised by the respondents before it that the writ
petition should be dismissed on the preliminary ground of
delay and laches inasmuch as it seeks to disrupt the vested
rights regarding the seniority rank and promotions which
had accrued to a large number of respondents during the
period of eight years that had intervened between the
passing of the impugned resolution and the institution of
the writ petition. we would accordingly hold that the
challenge raised by the petitioners against the seniority
principles laid down in the government resolution of march
22 968 ought to have been rejected by the high companyrt on
the ground of delay and laches and the writ petition in so
far as it related to the prayer for quashing the said
government resolution should have been dismissed. on the merits also we do number find any substance in the
attack levelled by the petitioners against the legality and
validity of the seniority principles laid down in the
impugned government resolution of march 22 1968. we shall
briefly indicate our reasons for reaching this companyclusion. the bro was a totally new department which was companystituted
on march 1 1966 pursuant to the government resolution dated
february 11 1966. under the said resolution it was
directed that the staff for manning the new organisation
should companysist of
 a  the skeleton staff already sanctioned under an
earlier government resolution dated october 21
1965 for carrying out the preliminary work in
connection with the establishment of the new
organisation  bro
 d  the existing staff under the companytroller of
foodgarins distribution bombay companysisting of 384
posts which were to be merged with a new bombay
rationing office  bro  with effect from march 1
1956
 c  personnel drawn on deputation from other
departments of the state governments and
 d  persons directly recruited to the bro. here is therefore a case where the staff for manning a new
department has been drawn from four different sources. in
such a situation it was inevitable that some reasonable
principles had to be formulated for the determination of the
inter se seniority of the personnel appointed to work in the
different categories of posts in the new organisation. the
entire argument of the petitioners is based on an erroneous
assumption that from the very inception they belonged to the
bro and had some vested rights with respect to seniority and
rank in the said organisation. the petitioners who were
members of the staff of the cfd were taken into the bro
along with the skeleton staff appointed under the government
resolution dated october 21 1965 and the released
government servants etc. as part of the single scheme
formulated by the government for the companystitution of a new
department  bro . there is therefore numbersubstance in the
contention advanced by the writ petitioners that they stood
on a separate and superior footing for the purpose of
seniority etc. in the new organisation. in this companynection
it is relevant to numbere that the writ petitioners were
holding the posts of supply inspectors in the cfd only on
the basis of appointments which were purely temporary. they
had number been recruited through the public service companymission
but were given temporary appointments on the basis of
recommendations made by the employment exchange and their
services were terminable at any time without numberice. thus
the position that existed at the time of the formation of
the bro was that the writ petitioners were number holding any
substantive or regular appointments in the cfd which itself
was only a temporary department. in companytrast the
deputationists who came over to the bro as released
government servants were persons who had been holding for
many years ministerial posts in other government departments
on regular basis pursuant to their recruitment by the public
service companymission. under the impugned seniority rules laid
down by the government resolution dated march 22 1968 a
deputationist
 released government servant  with two years regular
service as clerk in other government departments has been
equated with a supply inspector of the cfd 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 cannumber be regarded as
arbitrary or unreasonable especially when it is viewed in
the companytext of the factual background that the supply
inspectors in the cfd were merely temporary hands whose
appointments were of a precarious nature and the functions
and duties performed by them are number 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 companytinuous
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 companyrt for declaring the aforesaid rule to be
arbitrary and violative of article 16 of the companystitution do
number appeal to us as companyrect or sound. almost the entire
reasoning of the learned single judge is based on an
assumption that there is an invariable numbermal rule that
seniority should be determined only on the basis of the
respective dates of appointment to the post and that any
departure from the said rule will be prima facie
unreasonable and illegal. the said assumption is devoid of
any legal sanction. we are unable to recognize the existence
of any such rigid or inflexible rule. it is open to the
rule-making authority to take a numbere of the relevant
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 companycerned departments and the companyrts 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 cfd 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 cannumber be said
to be in any
way discriminatory or illegal. we are unable to accept as 14
correct the view expressed by the learned single judge of
the high companyrt that while fixing the seniority in the
higher post it is number open to take into companysideration any
service rendered in the lower post and that by itself spells
out discrimination firstly it is number companyrect 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 o
ors.  1  this companyrt 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 in relation to the other can
legitimately be sustained on the basis of a valid
classification if the differences between the two sources
has a reasonable relation to the nature of posts to which
the recruitment is made. in that case this companyrt upheld the
provision companytained in the seniority rules of the 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.  2
there is numberquestion 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 number mean that allotment of
seniority by rule relative to recruitment involves
any classification for the purposes of promotion. the
argument that the promotees and direct recruits became
one class immediately on entry and there after there
could be numberclassification between them does number
disclose the companyrect approach to the problem of fixing
inter se seniority between them. when recruits from two
sources have companye 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 number amount to
making a classification after their absorption in one
service. a companyparison of the pay scales of the supply inspectors
in cfd 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 numberice 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 cfd was
that of an assistant zonal officer in the grade of rs. 200-

further the post of assistant to which the clerks in
other government departments get a promotion 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 cfd cannumber be regarded as a post
higher than or superior to that of clerk in the other
government departments. hence we do number find it possible to
uphold the view expressed by the learned n single judge of
the high companyrt 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 companystitution. 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 companycerned to
decide as a matter of policy how the equation of posts
should be effected. the companyrts will number interfere with such
a decision unless it is shown to be arbitrary unreasonable
or unfair and if numbermanifest unfairness or unreasonableness
is made out the companyrt will number 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 cfd with that of clerk with two
years regular service in the other government departments
numberarbitrary or unreasonable treatment was involved. clause  c  of rule 4 which is the next provision that
has been struck down by the high companyrt 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 repelled the
challenge against clause  a  of rule 4 and numberchallenge has
been raised by the petitioners before us against clause  b
of the said rule. it must automatically follow that the
aforesaid provision companytained in clause  c  of rule 4 is
perfectly valid and companystitutional. that takes us on to the proviso to rule 7 which is the
only other provision struck down by the high companyrt. 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 companytained in the government resolution
dated april 1 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 number be disturbed and that to the
said extent a deviation should be made from the principles
laid down in the government resolution dated april 1 1963.
we fail to see how the said direction companytained 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 whole- some
principle companymonly applied in such situations where persons
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 companysider 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 companystitution. it number only remains for us to examine whether there is
substance in the companytention 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
numberember 18 1975 and numberember 27 1975 have number been drawn
up in accordance with those principles. the first point
urged before us is that the effect of clause  b  of rule 7
is to make the provisions of clauses  a  and  b  of rule 4
inapplicable to merged government servants 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 absorbed in the
bro their inter se seniority reckoned on the basis of the
principles companytained 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 preservation
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 number 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 companytention 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 purported 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-
gory in that organisation. we do number 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 cfd. rule 7 clearly lays down
that the operation of clause  a  of rule 4 is subject to the
limitation specified therein namely that in the case of
merged government servants their inter se seniority will be
preserved in tact. hence numberperson who was functioning as a
junior in relation to the writ petitioners in the category
of supply inspectors in the cfd can be assigned seniority or
rank above the writ-petitioners in the cadre of rationing
inspectors senior clerks deputy accountants in the bro. similarly numberperson who has been taken into the bro as a
clerk from the cfd can under any circumstances be placed
above the writ petitioners in the gradation list of
rationing inspectors senior clerks deputy accountants of the
bro. it is clear from the averments companytained 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 numberember
18 1975 and numberember 27 1975. the explanation given in the
counter-affidavit for adopting the said companyrse does number
appear to us to be acceptable or sound. it was pointed out
by the companynsel for the respondents  writ petitioners  that
exhibit a produced along with the companynter-affidavit of the
first respondent herein shows that as many as 30 persons
who had joined the bro as clerks and were subsequently
promoted as rationing inspectors have been shown as seniors
in relation to the writ petitioners in the gradation list
dated numberember 18 1975. similarly exhibit b gives the
names and particulars of persons who were appointed as
supply inspectors in the cfd 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 companyresponding cadre in the bro. we have
already made it clear that on a companybined reading of rules 4
and 7 of the impugned seniority rules the inter se
seniority of the cfd personnel has to be strictly maintained
in tact and that numberperson 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
numberperson 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
devitation from the legal position explained above call for
immediate revision. we
would accordingly direct respondents 23 and 24  state of
maharashtra and the companytroller 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 companyrt are set aside.