G.C. Gupta & Ors. Vs. N.K. Pandey & Ors.
EmailAppeal: Civil Appeal No. 1717 of 1981.
Petitioner: G.C. Gupta & Ors.
Respondent: N.K. Pandey & Ors.
Apeal: Civil Appeal No. 1717 of 1981.
Judges: A.P.SEN & B.C. RAY, JJ.
Date of Judgment: Dec 08, 1987
Head Note:
CIVIL SERVICE:
United Provinces of Engineers (Building and Roads Branch) Rules, 1936; Rules 3 (b), 4, 5, 6, 16, 17, 19 and 23 – Constitution of India, 1950; Articles 32 and 226 – Inter se seniority – Determination of – Temporary Assistant Engineers were entitled to the benefit of their seniority from the date from which their services were regularised i.e. from the date they became ‘Members of the Service’ within the meaning of rule 3(b).
PRACTICE AND PROCEDURE:
Claim of re-determination of inter se seniority between direct recruits and promotees- Interference by the High Court with the impugned seniority list after three decades was without proper jurisdiction – An unlimited and perpetual threat of litigation leads to disorder, sense of insecurity and uncertainty.
Held:
(i) In legal matters, some degree of certainty is as valuable a part of justice as perfection. One reason for consistency is that people often regulate their conduct with reference to existing rules, which makes it important for Judges to abide by them. Innovations can be unsettling and lead to a loss of confidence: Dias’ Jurisprudence, 4th edn.p.286. In the present case, the High Court was obviously wrong in proceeding upon the basis that the matter was still res integra. The decision of the earlier Division Bench was arrived at keeping in view all the aspects and it was held that the claim for re-determination of inter-se seniority between direct recruits and promotees could not be agitated after a lapse of 16 years. It is sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, an earlier decision may be overruled if the Court comes to the conclusion that it is manifestly wrong and not upon a mere suggestion that if the matter was res integra, the Court on a later occasion could come to a different conclusions. It cannot be doubted that an unlimited and perpetual threat of litigation leads to disorder, sense of insecurity and uncertainty. May be, there, may have been isolated cases of hardship but there must be some reservation about limitation on the Court’s power in the public interest. Obvious considerations of public policy make it a first importance that the person aggrieved must take action requisite effectively to assert his right to that end so that if the contention can be justified, the Government service may be disturbed as little as possible.(Para 15)
(ii) In view of these considerations, I agree with my learned brother Ray, J. that respondents nos.1-12 were disentitled to any relief under Art.226 of the Constitution due to inordinate delay and laches. If the judgment of the High Court were to be sustained after a lapse of nearly 32 years, it cannot be gainsaid that the entire structure of the administrative set-up of the U.P. Service of Engineers, Buildings & Roads Branch would be upset. We are informed that the four appellants before us by reason of their seniority and record of service, have reached the higher echelons of service. One of them has been the Offg. Engineer-in-Chief i.e. Head of the Public Works Department, Buildings & Roads Branch, and the remaining three are Offg. Chief Engineers. As against this, eleven of the 12 respondents have since retired, leaving only one of them. It is always open to the State Government to reconsider the case of the remaining respondent in the light of the principles settled by this judgment that the temporary Assistant Engineers on absorption were entitled to the benefit of their seniority from the date from which their service were regularised i.e. the date from which they became ‘Members of the Service’ within the meaning of r.3(b) of the Rules. It is still open to the Government to grant him the necessary relief, if he is found suitable for promotion to a higher post, without disturbing the appointment, promotion and confirmation of the appellants, by the creation of supernumerary post.(Para 17)
Cases Reffered:
1. S.G. Jaisinghani v. Union of India & Ors., (1967) 2 SCR 703.
2. Rabindra Nath Bose & Ors. v. Union of India & Ors., (1970) 2 SCR 697.
3. Maloon Lawrence Cecil D’Souza v. Union of India & Ors., (1975) Suppl. SCR 409.
4. N.K. Chauhan v. State of Gujarat, (1977) 1 SCR 1037.
5. S.B. Patwardhan v. State of Maharashtra, (1977) 3 SCR 775.
6. Baleshwar Dass v. State of U.P., (1981) 1 SCR 449.
7. R.S. Makashi & Ors. v. I.M. Menon & Ors., (1982) 2 SCR 69.
8. Ashok Gulati & Ors. v. B.S. Jain & Ors., 1986 Suppl. SCC 597.
9. K.R. Mudgal & Ors. v. R.P. Singh & Ors., (1986) 4 SCC 531.
2. Rabindra Nath Bose & Ors. v. Union of India & Ors., (1970) 2 SCR 697.
3. Maloon Lawrence Cecil D’Souza v. Union of India & Ors., (1975) Suppl. SCR 409.
4. N.K. Chauhan v. State of Gujarat, (1977) 1 SCR 1037.
5. S.B. Patwardhan v. State of Maharashtra, (1977) 3 SCR 775.
6. Baleshwar Dass v. State of U.P., (1981) 1 SCR 449.
7. R.S. Makashi & Ors. v. I.M. Menon & Ors., (1982) 2 SCR 69.
8. Ashok Gulati & Ors. v. B.S. Jain & Ors., 1986 Suppl. SCC 597.
9. K.R. Mudgal & Ors. v. R.P. Singh & Ors., (1986) 4 SCC 531.
JUDGEMENT:
SEN, J.:
1. I have had the benefit of going through the judgment prepared by my learned brother Ray, J. and I agree with the order proposed to be made. In view of the importance of the questions involved, I would however like to add a few words.
2. I have no doubt in my mind that temporary Assistant Engineers were entitled to the benefit of their seniority reckoned according to the date of the order of appointment to the Service in terms of r.23 of the United Provinces Service of Engineers (Buildings & Roads Branch) Rules, 1936, w.e.f. the date of their absorption into the Service by the Government in consultation with the Public Service Commission i.e. from the date from which they became ‘Members of the Service’ within the meaning of r.3(b) of the Rules. I had expressed the same view in ASHOK GULATI & ORS. V. B.S. JAIN & ORS. (1986) Suppl. SCC 597 and I still adhere to it.
3. As a matter of policy, the then Provincial Government by a notification dated August 31, 1942 directed under r.6 of the Rules that from the year 1942-43, two vacancies in the United Provinces Service of Engineers, both in the Buildings and Roads as well as in the Irrigation Department, shall be reserved for two students of Thomson College of Civil Engineering, Roorkee who stood first and second in order of merit in the final examination of the Degree Course of Engineering i.e. to the guaranteed posts. The reserved quota of guaranteed posts was later increased by the Government from two to four posts each year in each of the two Branches. The system of direct recruitment of such Engineer Students to the two guaranteed posts was however discontinued by its notification dated June 22, 1950, w.e.f. the year 1953 i.e. the system of direct recruitment of merit scholars to the guaranteed posts was abolished in respect of the batch of students who joined the Thomson College of Civil Engineering, Roorkee/University of Roorkee from the month of October 1950, i.e. after the inauguration of the Constitution.
4. Again, as a matter of policy, the State Government by an office memorandum dated December 7, 1961 brought about a change in the method of recruitment of Assistant Engineers in the U.P. Service of Engineers, Buildings & Roads Branch. It provided for direct recruitment of such Assistant Engineers by competitive examination through the Public Service Commission from the year 1961. Paragraphs 1 and 2 of the said memorandum read as follows:
“The principles regulating selection for recruitment to permanent and temporary posts of Assistant Engineer in the various State Engineering Services have been under the consideration of Government for some time past and after thorough consideration, the Governor is pleased to order that in future direct recruitment to both permanent and temporary vacancies of Assistant Engineers (Civil, Electric and Mechanical) in the Public Works, Irrigation and Local Self Government Engineering Departments, will be made on the results of competitive examination to be conducted by the Public Service Commission. Candidates possessing technical and other qualifications prescribed in the rules for the United Provinces Service of Engineers in the Departments concerned will be eligible to appear at the examination for that particular service.”
(2). Successful candidates in order of merit will subject to the relevant rules regarding physical fitness and other matters, be appointed directly on probation against vacant parmanent posts and those following will be appointed against temporary posts.”
5. By a G.O. dated April 19, 1950, the State Government settled the principle that persons appointed to the guaranteed posts every year as Engineer Students would take their seniority over persons appointed as temporary Assistant Engineers in that year. A person appointed to a guaranteed post in a particular year however was made junior to all those who were appointed as Assistant Engineers in earlier years, irrespective of whether they were appointed to guaranteed or to non-guaranteed posts. By a subsequent G.O. dated June 22, 1950 the Government intimated the Chief Engineer, Buildings & Roads that Engineer Students who were appointed to the guaranteed posts of temporary Assistant Engineers and working in the Buildings & Roads Branch be absorbed in the existing permanent vacancies or those which might arise in future.
6. Thus, the appellants who were appointed to the guaranteed posts of temporary Assistant Engineers, as reserved for the top students of Thomson College of Civil Engineering, Roorkee/University of Roorkee, constituted a class apart. One D.K. Laroiya who had been appointed as a temporary Assistant Engineer to one of the guaranteed posts in 1945 and confirmed in the year 1949 made a representation dated April 15, 1955 claiming seniority over all the Assistant Engineers appointed to guaranteed or non-guaranteed posts, irrespective of the order of appointment. While this representation was pending, the State Government passed an order dated October 11, 1955 confirming the appellants i.e. holders of guaranteed posts w.e.f. April 1, 1955 in the permanent posts Assistant Engineers, and later on by order dated July 20, 1956 determined their order of seniority. Subsequently, the Government by orders dated November 7, 1956, April 9, 1957 and May 14, 1958 confirmed the temporary Assistant Engineers i.e. persons appointed to non-guaranteed posts as permanent Assistant Engineers, all w.e.f. April 1, 1956. By order dated May 29, 1961 the Government determined the seniority of respondents nos. 1-12 and 39 others referable to the date of their substantive appointment. On a combined reading of the impugned orders dated July 20, 1956 and the subsequent order dated May 29, 1961, the appellants i.e. the directly recruited Engineer Students who had passed out from the Thomson College of Civil Engineering, Roorkee/University of Roorkee in order of merit i.e. to the guaranteed posts, were placed above respondents nos. 1-12 and 39 others i.e. the temporary Assistant Engineers. On the basis of their seniority and in view of their record of service, the appellants had in the meanwhile been promoted as Offg. Executive Engineers in the years 1960 and 1961. Admittedly, respondents nos. 1-12 who later on were promoted as Offg. Executive Engineers never filed any representation qua Executive Engineers and the seniority of the appellants as Executive Engineers remained unchallenged throughout the period of 14 years.
7. It was not till May 4, 1970 i.e. after a lapse of 15 years that respondents nos. 6, 7 and 11 viz. I.P. Gupta, R.C. Mangal and R.K. Mathur filed a petition under Art. 226 of the Constitution in the High Court challenging the impugned order dated October 11, 1955 by which the appellants were confirmed w.e.f. April 1, 1955 and the consequential determination of the inter-se seniority between direct recruits and promotees vide orders dated July 20, 1956 and May 29, 1961 assigning them higher seniority. The writ petition came to be heard by Broome, J. and the learned Judge by his judgment and order dated April 16, 1971 dismissed the writ petition holding that the petitioners were guilty of laches. That judgment of his was upheld in appeal by a Division Bench consisting of R.S. Pathak and H.N. Seth, JJ. by its judgment dated October 26, 1971. The Division Bench following the decision of this Court in RABINDRA NATH BOSE & ORS. VS. UNION OF INDIA & ORS. (1970) 2 SCR 697 held that the learned Single judge was fully justified in holding that no relief could be granted to the petitioners who, without any reasonable explanation, approached the High Court under Art.226 of the Constitution after inordinate delay. It was also observed relying upon the decision of this Court in S.G. JAISINGHANI VS. UNION OF INDIA & ORS. (1967) 2 SCR 703 that it would be highly unjust to deprive the appellants of the rights which had accrued to them as such. The learned Judges firmly repelled the contention that even if the petitioners could not be permitted to question the legality and propriety of the impugned order of confirmation, they were still entitled to claim seniority over the directly recruited Engineer Students as per rules regulating seniority, observing that:
“Since the petitioners cannot be allowed to re-agitate and question the propriety of the confirmation order passed long, time back, it would not be desirable to go into the question of consequential determination of seniority either.”
In the concluding part of the judgment, there is a direction in the following terms:
“However, representations made by the petitioners, as admitted in the counter-affidavit filed on behalf of the State Government, are still pending. The State Government has taken up the stand that these representations have not been decided as writ petitions had been filed by Sri K.C. Agarwal and the petitioners before this Court and the matter because sub-judice. We have no reason to think that after disposal of the petitions the State Government will not decide the representations fairly and in accordance with law. In the circumstances, we are not inclined to examine the correctness of this submission made by the petitioners in this petition.”
If the sentence was read in the context, it meant ‘Left to themselves’ they would not have interfered’. Misconstruing this direction, the State Government afforded an opportunity to the temporary Assistant Engineers to make their representations, if any. Factually, there were no representations pending except the one filed by Laroiya. Eventually, the State Government realised the mistake and by its order dated June 29, 1973 rejected the representation stating that the question of inter-se seniority of Assistant Engineers had been finally settled and could not be reopened.
8. It is somewhat strange that the Division Bench (T.S. Misra and U.S. Srivastava, JJ) by its judgment dated May 6, 1981 should have, after a lapse of nearly 26 years, thought that merely because of the fact that the State Government erroneously invited representations afresh, ‘the matter of inter-se seniority was still alive and not a closed chapter’. Upon that wrongful assumption, the High Court has fallen into an error in directing the issuance of a writ in the nature of certiorari quashing the impugned seniority list and a writ in the nature of mandamus directing the State Government to re-determine the inter-se seniority of Assistant Engineers in the U.P. Service of Engineers, Buildings & Roads Branch, Class II.
9. There can be no doubt whatever that it was not a proper exercise of jurisdiction on the part of the High Court to have interfered with the impugned seniority list after nearly three decades. When wayback in the year 1971 Broome, J. had declined to interfere with the inter-se seniority between the appellants i.e. the direct recruits and respondents nos.1-12 and 39 others i.e. the promotees on a similar petition under Art.226 of the Constitution on the ground of inordinate delay and laches and that judgment of his was upheld by a Division Bench which observed that it would be unjust to deprive the appellants of the rights which had accrued to them as they were entitled to consider that their appointments to the promotional posts would not be set aside after a lapse of so many years, there was no occasion for the later Division Bench to have interfered with the impugned orders and given a direction to the State Government to re-determine the inter-se seniority between the appellants and respondents nos.1-12 and 39 others under r.23 of the Rules afresh, with advertence to the observations made by it.
10. My learned brother Ray, J. has taken immense pain in discerning the principles emerging from all the relevant authorities on the subject, including those of N.K. CHAUHAN VS. STATE OF GUJARAT (1977) 1 SCR 1037, S.B. PATWARDHAN VS. STATE OF MAHARASHTRA (1977) 3 SCR 775 and the subsequent decision in BALESHWAR DASS VS. STATE OF U.P. (1981) 1 SCR 449 and I do not wish to traverse the ground over again except to touch upon certain aspects. The principle deducible from the two well-known decisions of N.K. Chauhan and S.B. Patwardhan is that in the absence of a seniority rule, the promotees within the quota are entitled to the benefit of the period of continuous officiation in reckoning their seniority vis-a-vis direct recruits. The importance of the decision in BALESHWAR DASS’ case lies in the meaningful interpretation of the words ‘substantive capacity’.
11. The question must turn on a proper construction of the unamended r.23 of the Rules which provided:
“23. Seniority in the service shall be determined according to the date of the order of appointment to it, provided that if the order of appointment of two or more candidates bears the same date, their seniority inter-se shall be determined according to the order in which their appointment has been notified.”
It is plain upon the language of r.23 that it does not in terms use the words ‘substantive capacity’ but speaks of ‘the date of order of appointment to it’ i.e. the Service which brings in the concept of ‘substantive capacity’ as those words are used in the definition of the expression ‘Members of the Service’ as contained in r.3(b) of the Rules.
12. In BALESHWAR DASS’ case, the seniority list challenged before the High Court was the one relating to Assistant Engineers belonging to the Irrigation Department prepared in December 1965 under r.23 of the Rules prior to the amendment, but after the issuance of the aforesaid memorandum dated December 7, 1961 by which a new method of recruitment was introduced. The Court referred to Rules for recruitment in particular to rr.5, 6, 17 and 19 as well as the aforesaid office memorandum dated December 7, 1961. The Court in BALESHWAR DASS’ case firmly repelled the contention that the aforesaid office memorandum incorporating a change in the method of recruitment had not statutory force, not being expressed in the name of the Governor, on the ground that it had been published under Government authority, acted upon for two decades when recruitments were made by the Public Service Commission and universally accented as binding. It held that the office memorandum was relatable to a statutory source, namely, rr.5 & 6 of the Rules as ‘filling up the gaps and not flouting the provisions’. It was observed:
“Two vital factors must guide us in this interpretative exercise. If a dated rule of colonial times is to be applied today, that meaning which sustains it as constitutionally valid must be preferred to another which may be appealing, going by officialise or literal sense. We have to regard it as a case of ‘new wine in old bottle’. We must re-interest the rules to comport with Arts. 14 and 16 by constitutionally acceptable construction, not rigid connotation given to expressions in the vintage vocubulary of British Indian days.”
Acting upon the basis that the aforesaid office memorandum dated December 7, 1961 was constitutionally valid, the Court went into the intent and effect of rr.23, 3, 4, 5, 6, 17 and 18 and their impact on r.23 read in the context of the memorandum of 1961 with a view to rationalise the scheme of recruitment, classification, seniority and promotion and held that there was nothing arbitrary in the 1961 memorandum bringing about a change in the method of recruitment by competitive examination through Public Service Commission, and observed:
“(A)lthough in the application, we have to remember the prior Rules and when the two are woven into each other or, rather, when the later 1961 Memorandum is dovertailed to the 1936 Rules the results that may follow will have to ascertained with care and consistently with the ratio of the decisions of this Court in cognate situations.”
Further that:
“(T)he Government decided in 1961 to resort to direct recruitment of Assistant Engineers through competitive examinations held be the Public Service Commission. It was, however, alive to the fact that massive appointments had already been made, in the years gone by, to the posts of Assistant Engineers from among graduates in engineering by direct selection and later approval by the Public Service Commission…..”
13. The importance of the decision in BALESHWAR DASS’ case lies in the meaningful interpretation of the words ‘substantive capacity’. Krishna Iyer, J. affirming the principle in his own charismatic and picturesque language, observed:
“We must emphasise that while temporary and permanent posts have great relevancy in regard to the career of government servants, keeping posts temporary for long, sometimes by annual renewals for several years, and denying the claims of the incumbents on the score that there posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointees are functionally identified. If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights. Not so, if the post is, for certain departmental or like purposes, declared temporary, but it is within the ken of both the government and the appointee that the temporary posts are virtually long-lived. It is irrational to reject the claim of the ‘temporary’ appointee on the nominal score of the terminology of the post. We must also express emphatically that the principle which has received the sanction of this Court’s pronouncements is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. It may be permissible, within limits, for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categoric and do not admit of any ambiguity and cruelly arbitrary cut- off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in two types of posts. While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Art.309, even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of Arts. 14 and 16.”
Adverting to the oft-quoted observations of Chandrachud, CJ in S.B. PATWARDHAN’S case that ‘seniority cannot depend on the inglorious uncertainties of confirmation’ and to his own in N.K. CHAUHAN’S case that ‘seniority, normally, is measured by length of continuous officiating service’ the learned Judge observed that although an appointee to a permanent post acquires certain rights which one who fills temporary post cannot claim, nevertheless, when the post is not purely temporary or ad-hoc or of short duration or of an adventitious nature, the holder of such temporary post cannot be degraded to the position of one who by accident of circumstances, or for a fugitive tenure occupies the temporary post for a fleeting term. The learned Judge while accepting that there was a distinction between permanent and the temporary posts inasmuch as permanency carries with it other rights than more seniority and promotion, brought out the ‘propinquity in status’ of permanent and temporary Assistant Engineers in the special conspectus of the facts before him and found no justification to hold that when Engineers were appointed to temporary posts but after fulfilment of the test for regular appointment, including consultation with the Public Service Commission, they were not appointed in a substantive capacity.
14. The ultimate ratio of the decision in BALESHWAR DASS’ case is best brought out in the words of Krishna Iyer, J. in the following passage:
“Substantive capacity refers to the capacity in which a persons holds the post and not necessarily to the nature or character of the post………A person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation….. Once we understand ‘substantive capacity’ in the above sense, we may be able to rationalise the situation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved,one may well say that the post was held by the incumbent in a substantive capacity.”
It is to be emphasised that the Court in BALESHWAR DASS’ case did not take upon itself the task of determining whether the temporary Assistant Engineers were entitled to have the benefit of their entire period of service in reckoning seniority under r.23 of the Rules, but left it to the Government to ascertain the facts and determine the question in the light of the principles laid down whether the capacity in which the posts had been held was substantive or temporary. The emerging principle is that the temporary Assistant Engineers were entitled to the benefit of their seniority reckoned according to the date of order of appointment to the Service in terms of r.23 of the Rules w.e.f. the date of their absorption into the Service by the Government in consultation with the Public Service Commission i.e. from the date from which they became ‘Members of the Service’ within in meaning of r.3(b) of the Rules.
15. In legal matters, some degree of certainty is as valuable a part of justice as perfection. One reason for consistency is that people often regulate their conduct with reference to existing rules, which makes it important for Judges to abide by them. Innovations can be unsettling and lead to a loss of confidence: Dias’ Jurisprudence, 4th edn.p.286. In the present case, the High Court was obviously wrong in proceeding upon the basis that the matter was still res integra. The decision of the earlier Division Bench was arrived at keeping in view all the aspects and it was held that the claim for re-determination of inter-se seniority between direct recruits and promotees could not be agitated after a lapse of 16 years. It is sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, an earlier decision may be overruled if the Court comes to the conclusion that it is manifestly wrong and not upon a mere suggestion that if the matter was res integra, the Court on a later occasion could come to a different conclusions. It cannot be doubted that an unlimited and perpetual threat of litigation leads to disorder, sense of insecurity and uncertainty. May be, there, may have been isolated cases of hardship but there must be some reservation about limitation on the Court’s power in the public interest. Obvious considerations of public policy make it a first importance that the person aggrieved must take action requisite effectively to assert his right to that end so that if the contention can be justified, the Government service may be disturbed as little as possible.
16. Inordinate delay is not merely a factor for the Court to refuse appropriate relief but also a relevant consideration it be so minded not to unsettle settled things. As observed by Khanna, J. in delivering the judgment of the Court in MALOON LAWRENCE CEICIL D’SOUZA VS. UNION OF INDIA & ORS. (1975) Suppl. SCR 409:
“(B)y and large one of the essential requirements of contentment and efficiency in public service is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects,it should at least be possible to ensure that matters like one’s position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matter should be given a quietus after lapse of some time.”
So also in R.S. MAKASHI & ORS. VS. I.M. MENON & ORS. (1982) 2 SCR 69, Eradi, J. speaking for a three-Judge Bench stated that belated petitions cannot be entertained under Art.32 of the Constitution. See also : K.R. MUDGAL & ORS. VS. R.P. SINGH & ORS. (1986) 4 SCC 531. It would clearly be unjust, as observed by Sikri, J. in RABINDRA NATH BOSE’ case to deprive the appellants of the rights which have accrued to them. As a result of the G.O. of April 19, 1950, although initially the guarantee to the merit scholars who had passed out from the Thomson College of Civil Engineering, Roorkee in order of merit was in regard to appointment to the guaranteed post, but later it was amplified into assuring to the holders of such guaranteed posts like the appellants preference in the matter of permanency and seniority. This necessarily perpetuated some amount of injustice, as brought out in the Report of Lal Committee, to the holders of non-guaranteed posts i.e. the temporary Assistant Engineers, due to permanent appointments having been given to the holders of guaranteed posts i.e. directly recruited Engineer Students in preference to them, though they joined service earlier. There is, however, nothing that can be done for the Court is faced with a fait accompli. At times, the Court is overtaken by the events. As a matter of policy, the Government of the day thought that it would bring greater efficiency and merit to the Service if certain number of posts were kept reserved for the merit scholars graduating from the Thomson College of Civil Engineering, Roorkee, which in those days was the most prestigeous institution of its kinds in the country and was later incorporated into the University of Roorkee. The evidence about relevant consideration which prompted the then Government into taking such a policy decision a long time back may have been lost by passage of time but there is always a presumption that every official act is done in good faith. Although Krishna Iyer, J. in BALESHWAR DASS’ case calls the directly recruited Engineer Students to be a ‘relic of the Imperial days’, nevertheless the system of reservation of posts for the Engineer Students served its own purpose in attracting persons of undoubted talent and outstanding merit to the Service and thereby promoted efficiency, and it has also withstood the test of time.
17. In view of these considerations, I agree with my learned brother Ray, J. that respondents nos.1-12 were disentitled to any relief under Art.226 of the Constitution due to inordinate delay and laches. If the judgment of the High Court were to be sustained after a lapse of nearly 32 years, it cannot be gainsaid that the entire structure of the administrative set-up of the U.P. Service of Engineers, Buildings & Roads Branch would be upset. We are informed that the four appellants before us by reason of their seniority and record of service, have reached the higher echelons of service. One of them has been the Offg. Engineer-in-Chief i.e. Head of the Public Works Department, Buildings & Roads Branch, and the remaining three are Offg. Chief Engineers. As against this, eleven of the 12 respondents have since retired, leaving only one of them. It is always open to the State Government to reconsider the case of the remaining respondent in the light of the principles settled by this judgment that the temporary Assistant Engineers on absorption were entitled to the benefit of their seniority from the date from which their service were regularised i.e. the date from which they became ‘Members of the Service’ within the meaning of r.3(b) of the Rules. It is still open to the Government to grant him the necessary relief, if he is found suitable for promotion to a higher post, without disturbing the appointment, promotion and confirmation of the appellants, by the creation of supernumerary post.
18. I would, for these reasons, allow the appeal and set aside the judgment and order passed by the High Court quashing the seniority list, without any order as to costs.
1. I have had the benefit of going through the judgment prepared by my learned brother Ray, J. and I agree with the order proposed to be made. In view of the importance of the questions involved, I would however like to add a few words.
2. I have no doubt in my mind that temporary Assistant Engineers were entitled to the benefit of their seniority reckoned according to the date of the order of appointment to the Service in terms of r.23 of the United Provinces Service of Engineers (Buildings & Roads Branch) Rules, 1936, w.e.f. the date of their absorption into the Service by the Government in consultation with the Public Service Commission i.e. from the date from which they became ‘Members of the Service’ within the meaning of r.3(b) of the Rules. I had expressed the same view in ASHOK GULATI & ORS. V. B.S. JAIN & ORS. (1986) Suppl. SCC 597 and I still adhere to it.
3. As a matter of policy, the then Provincial Government by a notification dated August 31, 1942 directed under r.6 of the Rules that from the year 1942-43, two vacancies in the United Provinces Service of Engineers, both in the Buildings and Roads as well as in the Irrigation Department, shall be reserved for two students of Thomson College of Civil Engineering, Roorkee who stood first and second in order of merit in the final examination of the Degree Course of Engineering i.e. to the guaranteed posts. The reserved quota of guaranteed posts was later increased by the Government from two to four posts each year in each of the two Branches. The system of direct recruitment of such Engineer Students to the two guaranteed posts was however discontinued by its notification dated June 22, 1950, w.e.f. the year 1953 i.e. the system of direct recruitment of merit scholars to the guaranteed posts was abolished in respect of the batch of students who joined the Thomson College of Civil Engineering, Roorkee/University of Roorkee from the month of October 1950, i.e. after the inauguration of the Constitution.
4. Again, as a matter of policy, the State Government by an office memorandum dated December 7, 1961 brought about a change in the method of recruitment of Assistant Engineers in the U.P. Service of Engineers, Buildings & Roads Branch. It provided for direct recruitment of such Assistant Engineers by competitive examination through the Public Service Commission from the year 1961. Paragraphs 1 and 2 of the said memorandum read as follows:
“The principles regulating selection for recruitment to permanent and temporary posts of Assistant Engineer in the various State Engineering Services have been under the consideration of Government for some time past and after thorough consideration, the Governor is pleased to order that in future direct recruitment to both permanent and temporary vacancies of Assistant Engineers (Civil, Electric and Mechanical) in the Public Works, Irrigation and Local Self Government Engineering Departments, will be made on the results of competitive examination to be conducted by the Public Service Commission. Candidates possessing technical and other qualifications prescribed in the rules for the United Provinces Service of Engineers in the Departments concerned will be eligible to appear at the examination for that particular service.”
(2). Successful candidates in order of merit will subject to the relevant rules regarding physical fitness and other matters, be appointed directly on probation against vacant parmanent posts and those following will be appointed against temporary posts.”
5. By a G.O. dated April 19, 1950, the State Government settled the principle that persons appointed to the guaranteed posts every year as Engineer Students would take their seniority over persons appointed as temporary Assistant Engineers in that year. A person appointed to a guaranteed post in a particular year however was made junior to all those who were appointed as Assistant Engineers in earlier years, irrespective of whether they were appointed to guaranteed or to non-guaranteed posts. By a subsequent G.O. dated June 22, 1950 the Government intimated the Chief Engineer, Buildings & Roads that Engineer Students who were appointed to the guaranteed posts of temporary Assistant Engineers and working in the Buildings & Roads Branch be absorbed in the existing permanent vacancies or those which might arise in future.
6. Thus, the appellants who were appointed to the guaranteed posts of temporary Assistant Engineers, as reserved for the top students of Thomson College of Civil Engineering, Roorkee/University of Roorkee, constituted a class apart. One D.K. Laroiya who had been appointed as a temporary Assistant Engineer to one of the guaranteed posts in 1945 and confirmed in the year 1949 made a representation dated April 15, 1955 claiming seniority over all the Assistant Engineers appointed to guaranteed or non-guaranteed posts, irrespective of the order of appointment. While this representation was pending, the State Government passed an order dated October 11, 1955 confirming the appellants i.e. holders of guaranteed posts w.e.f. April 1, 1955 in the permanent posts Assistant Engineers, and later on by order dated July 20, 1956 determined their order of seniority. Subsequently, the Government by orders dated November 7, 1956, April 9, 1957 and May 14, 1958 confirmed the temporary Assistant Engineers i.e. persons appointed to non-guaranteed posts as permanent Assistant Engineers, all w.e.f. April 1, 1956. By order dated May 29, 1961 the Government determined the seniority of respondents nos. 1-12 and 39 others referable to the date of their substantive appointment. On a combined reading of the impugned orders dated July 20, 1956 and the subsequent order dated May 29, 1961, the appellants i.e. the directly recruited Engineer Students who had passed out from the Thomson College of Civil Engineering, Roorkee/University of Roorkee in order of merit i.e. to the guaranteed posts, were placed above respondents nos. 1-12 and 39 others i.e. the temporary Assistant Engineers. On the basis of their seniority and in view of their record of service, the appellants had in the meanwhile been promoted as Offg. Executive Engineers in the years 1960 and 1961. Admittedly, respondents nos. 1-12 who later on were promoted as Offg. Executive Engineers never filed any representation qua Executive Engineers and the seniority of the appellants as Executive Engineers remained unchallenged throughout the period of 14 years.
7. It was not till May 4, 1970 i.e. after a lapse of 15 years that respondents nos. 6, 7 and 11 viz. I.P. Gupta, R.C. Mangal and R.K. Mathur filed a petition under Art. 226 of the Constitution in the High Court challenging the impugned order dated October 11, 1955 by which the appellants were confirmed w.e.f. April 1, 1955 and the consequential determination of the inter-se seniority between direct recruits and promotees vide orders dated July 20, 1956 and May 29, 1961 assigning them higher seniority. The writ petition came to be heard by Broome, J. and the learned Judge by his judgment and order dated April 16, 1971 dismissed the writ petition holding that the petitioners were guilty of laches. That judgment of his was upheld in appeal by a Division Bench consisting of R.S. Pathak and H.N. Seth, JJ. by its judgment dated October 26, 1971. The Division Bench following the decision of this Court in RABINDRA NATH BOSE & ORS. VS. UNION OF INDIA & ORS. (1970) 2 SCR 697 held that the learned Single judge was fully justified in holding that no relief could be granted to the petitioners who, without any reasonable explanation, approached the High Court under Art.226 of the Constitution after inordinate delay. It was also observed relying upon the decision of this Court in S.G. JAISINGHANI VS. UNION OF INDIA & ORS. (1967) 2 SCR 703 that it would be highly unjust to deprive the appellants of the rights which had accrued to them as such. The learned Judges firmly repelled the contention that even if the petitioners could not be permitted to question the legality and propriety of the impugned order of confirmation, they were still entitled to claim seniority over the directly recruited Engineer Students as per rules regulating seniority, observing that:
“Since the petitioners cannot be allowed to re-agitate and question the propriety of the confirmation order passed long, time back, it would not be desirable to go into the question of consequential determination of seniority either.”
In the concluding part of the judgment, there is a direction in the following terms:
“However, representations made by the petitioners, as admitted in the counter-affidavit filed on behalf of the State Government, are still pending. The State Government has taken up the stand that these representations have not been decided as writ petitions had been filed by Sri K.C. Agarwal and the petitioners before this Court and the matter because sub-judice. We have no reason to think that after disposal of the petitions the State Government will not decide the representations fairly and in accordance with law. In the circumstances, we are not inclined to examine the correctness of this submission made by the petitioners in this petition.”
If the sentence was read in the context, it meant ‘Left to themselves’ they would not have interfered’. Misconstruing this direction, the State Government afforded an opportunity to the temporary Assistant Engineers to make their representations, if any. Factually, there were no representations pending except the one filed by Laroiya. Eventually, the State Government realised the mistake and by its order dated June 29, 1973 rejected the representation stating that the question of inter-se seniority of Assistant Engineers had been finally settled and could not be reopened.
8. It is somewhat strange that the Division Bench (T.S. Misra and U.S. Srivastava, JJ) by its judgment dated May 6, 1981 should have, after a lapse of nearly 26 years, thought that merely because of the fact that the State Government erroneously invited representations afresh, ‘the matter of inter-se seniority was still alive and not a closed chapter’. Upon that wrongful assumption, the High Court has fallen into an error in directing the issuance of a writ in the nature of certiorari quashing the impugned seniority list and a writ in the nature of mandamus directing the State Government to re-determine the inter-se seniority of Assistant Engineers in the U.P. Service of Engineers, Buildings & Roads Branch, Class II.
9. There can be no doubt whatever that it was not a proper exercise of jurisdiction on the part of the High Court to have interfered with the impugned seniority list after nearly three decades. When wayback in the year 1971 Broome, J. had declined to interfere with the inter-se seniority between the appellants i.e. the direct recruits and respondents nos.1-12 and 39 others i.e. the promotees on a similar petition under Art.226 of the Constitution on the ground of inordinate delay and laches and that judgment of his was upheld by a Division Bench which observed that it would be unjust to deprive the appellants of the rights which had accrued to them as they were entitled to consider that their appointments to the promotional posts would not be set aside after a lapse of so many years, there was no occasion for the later Division Bench to have interfered with the impugned orders and given a direction to the State Government to re-determine the inter-se seniority between the appellants and respondents nos.1-12 and 39 others under r.23 of the Rules afresh, with advertence to the observations made by it.
10. My learned brother Ray, J. has taken immense pain in discerning the principles emerging from all the relevant authorities on the subject, including those of N.K. CHAUHAN VS. STATE OF GUJARAT (1977) 1 SCR 1037, S.B. PATWARDHAN VS. STATE OF MAHARASHTRA (1977) 3 SCR 775 and the subsequent decision in BALESHWAR DASS VS. STATE OF U.P. (1981) 1 SCR 449 and I do not wish to traverse the ground over again except to touch upon certain aspects. The principle deducible from the two well-known decisions of N.K. Chauhan and S.B. Patwardhan is that in the absence of a seniority rule, the promotees within the quota are entitled to the benefit of the period of continuous officiation in reckoning their seniority vis-a-vis direct recruits. The importance of the decision in BALESHWAR DASS’ case lies in the meaningful interpretation of the words ‘substantive capacity’.
11. The question must turn on a proper construction of the unamended r.23 of the Rules which provided:
“23. Seniority in the service shall be determined according to the date of the order of appointment to it, provided that if the order of appointment of two or more candidates bears the same date, their seniority inter-se shall be determined according to the order in which their appointment has been notified.”
It is plain upon the language of r.23 that it does not in terms use the words ‘substantive capacity’ but speaks of ‘the date of order of appointment to it’ i.e. the Service which brings in the concept of ‘substantive capacity’ as those words are used in the definition of the expression ‘Members of the Service’ as contained in r.3(b) of the Rules.
12. In BALESHWAR DASS’ case, the seniority list challenged before the High Court was the one relating to Assistant Engineers belonging to the Irrigation Department prepared in December 1965 under r.23 of the Rules prior to the amendment, but after the issuance of the aforesaid memorandum dated December 7, 1961 by which a new method of recruitment was introduced. The Court referred to Rules for recruitment in particular to rr.5, 6, 17 and 19 as well as the aforesaid office memorandum dated December 7, 1961. The Court in BALESHWAR DASS’ case firmly repelled the contention that the aforesaid office memorandum incorporating a change in the method of recruitment had not statutory force, not being expressed in the name of the Governor, on the ground that it had been published under Government authority, acted upon for two decades when recruitments were made by the Public Service Commission and universally accented as binding. It held that the office memorandum was relatable to a statutory source, namely, rr.5 & 6 of the Rules as ‘filling up the gaps and not flouting the provisions’. It was observed:
“Two vital factors must guide us in this interpretative exercise. If a dated rule of colonial times is to be applied today, that meaning which sustains it as constitutionally valid must be preferred to another which may be appealing, going by officialise or literal sense. We have to regard it as a case of ‘new wine in old bottle’. We must re-interest the rules to comport with Arts. 14 and 16 by constitutionally acceptable construction, not rigid connotation given to expressions in the vintage vocubulary of British Indian days.”
Acting upon the basis that the aforesaid office memorandum dated December 7, 1961 was constitutionally valid, the Court went into the intent and effect of rr.23, 3, 4, 5, 6, 17 and 18 and their impact on r.23 read in the context of the memorandum of 1961 with a view to rationalise the scheme of recruitment, classification, seniority and promotion and held that there was nothing arbitrary in the 1961 memorandum bringing about a change in the method of recruitment by competitive examination through Public Service Commission, and observed:
“(A)lthough in the application, we have to remember the prior Rules and when the two are woven into each other or, rather, when the later 1961 Memorandum is dovertailed to the 1936 Rules the results that may follow will have to ascertained with care and consistently with the ratio of the decisions of this Court in cognate situations.”
Further that:
“(T)he Government decided in 1961 to resort to direct recruitment of Assistant Engineers through competitive examinations held be the Public Service Commission. It was, however, alive to the fact that massive appointments had already been made, in the years gone by, to the posts of Assistant Engineers from among graduates in engineering by direct selection and later approval by the Public Service Commission…..”
13. The importance of the decision in BALESHWAR DASS’ case lies in the meaningful interpretation of the words ‘substantive capacity’. Krishna Iyer, J. affirming the principle in his own charismatic and picturesque language, observed:
“We must emphasise that while temporary and permanent posts have great relevancy in regard to the career of government servants, keeping posts temporary for long, sometimes by annual renewals for several years, and denying the claims of the incumbents on the score that there posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointees are functionally identified. If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights. Not so, if the post is, for certain departmental or like purposes, declared temporary, but it is within the ken of both the government and the appointee that the temporary posts are virtually long-lived. It is irrational to reject the claim of the ‘temporary’ appointee on the nominal score of the terminology of the post. We must also express emphatically that the principle which has received the sanction of this Court’s pronouncements is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. It may be permissible, within limits, for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categoric and do not admit of any ambiguity and cruelly arbitrary cut- off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in two types of posts. While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Art.309, even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of Arts. 14 and 16.”
Adverting to the oft-quoted observations of Chandrachud, CJ in S.B. PATWARDHAN’S case that ‘seniority cannot depend on the inglorious uncertainties of confirmation’ and to his own in N.K. CHAUHAN’S case that ‘seniority, normally, is measured by length of continuous officiating service’ the learned Judge observed that although an appointee to a permanent post acquires certain rights which one who fills temporary post cannot claim, nevertheless, when the post is not purely temporary or ad-hoc or of short duration or of an adventitious nature, the holder of such temporary post cannot be degraded to the position of one who by accident of circumstances, or for a fugitive tenure occupies the temporary post for a fleeting term. The learned Judge while accepting that there was a distinction between permanent and the temporary posts inasmuch as permanency carries with it other rights than more seniority and promotion, brought out the ‘propinquity in status’ of permanent and temporary Assistant Engineers in the special conspectus of the facts before him and found no justification to hold that when Engineers were appointed to temporary posts but after fulfilment of the test for regular appointment, including consultation with the Public Service Commission, they were not appointed in a substantive capacity.
14. The ultimate ratio of the decision in BALESHWAR DASS’ case is best brought out in the words of Krishna Iyer, J. in the following passage:
“Substantive capacity refers to the capacity in which a persons holds the post and not necessarily to the nature or character of the post………A person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation….. Once we understand ‘substantive capacity’ in the above sense, we may be able to rationalise the situation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved,one may well say that the post was held by the incumbent in a substantive capacity.”
It is to be emphasised that the Court in BALESHWAR DASS’ case did not take upon itself the task of determining whether the temporary Assistant Engineers were entitled to have the benefit of their entire period of service in reckoning seniority under r.23 of the Rules, but left it to the Government to ascertain the facts and determine the question in the light of the principles laid down whether the capacity in which the posts had been held was substantive or temporary. The emerging principle is that the temporary Assistant Engineers were entitled to the benefit of their seniority reckoned according to the date of order of appointment to the Service in terms of r.23 of the Rules w.e.f. the date of their absorption into the Service by the Government in consultation with the Public Service Commission i.e. from the date from which they became ‘Members of the Service’ within in meaning of r.3(b) of the Rules.
15. In legal matters, some degree of certainty is as valuable a part of justice as perfection. One reason for consistency is that people often regulate their conduct with reference to existing rules, which makes it important for Judges to abide by them. Innovations can be unsettling and lead to a loss of confidence: Dias’ Jurisprudence, 4th edn.p.286. In the present case, the High Court was obviously wrong in proceeding upon the basis that the matter was still res integra. The decision of the earlier Division Bench was arrived at keeping in view all the aspects and it was held that the claim for re-determination of inter-se seniority between direct recruits and promotees could not be agitated after a lapse of 16 years. It is sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, an earlier decision may be overruled if the Court comes to the conclusion that it is manifestly wrong and not upon a mere suggestion that if the matter was res integra, the Court on a later occasion could come to a different conclusions. It cannot be doubted that an unlimited and perpetual threat of litigation leads to disorder, sense of insecurity and uncertainty. May be, there, may have been isolated cases of hardship but there must be some reservation about limitation on the Court’s power in the public interest. Obvious considerations of public policy make it a first importance that the person aggrieved must take action requisite effectively to assert his right to that end so that if the contention can be justified, the Government service may be disturbed as little as possible.
16. Inordinate delay is not merely a factor for the Court to refuse appropriate relief but also a relevant consideration it be so minded not to unsettle settled things. As observed by Khanna, J. in delivering the judgment of the Court in MALOON LAWRENCE CEICIL D’SOUZA VS. UNION OF INDIA & ORS. (1975) Suppl. SCR 409:
“(B)y and large one of the essential requirements of contentment and efficiency in public service is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects,it should at least be possible to ensure that matters like one’s position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matter should be given a quietus after lapse of some time.”
So also in R.S. MAKASHI & ORS. VS. I.M. MENON & ORS. (1982) 2 SCR 69, Eradi, J. speaking for a three-Judge Bench stated that belated petitions cannot be entertained under Art.32 of the Constitution. See also : K.R. MUDGAL & ORS. VS. R.P. SINGH & ORS. (1986) 4 SCC 531. It would clearly be unjust, as observed by Sikri, J. in RABINDRA NATH BOSE’ case to deprive the appellants of the rights which have accrued to them. As a result of the G.O. of April 19, 1950, although initially the guarantee to the merit scholars who had passed out from the Thomson College of Civil Engineering, Roorkee in order of merit was in regard to appointment to the guaranteed post, but later it was amplified into assuring to the holders of such guaranteed posts like the appellants preference in the matter of permanency and seniority. This necessarily perpetuated some amount of injustice, as brought out in the Report of Lal Committee, to the holders of non-guaranteed posts i.e. the temporary Assistant Engineers, due to permanent appointments having been given to the holders of guaranteed posts i.e. directly recruited Engineer Students in preference to them, though they joined service earlier. There is, however, nothing that can be done for the Court is faced with a fait accompli. At times, the Court is overtaken by the events. As a matter of policy, the Government of the day thought that it would bring greater efficiency and merit to the Service if certain number of posts were kept reserved for the merit scholars graduating from the Thomson College of Civil Engineering, Roorkee, which in those days was the most prestigeous institution of its kinds in the country and was later incorporated into the University of Roorkee. The evidence about relevant consideration which prompted the then Government into taking such a policy decision a long time back may have been lost by passage of time but there is always a presumption that every official act is done in good faith. Although Krishna Iyer, J. in BALESHWAR DASS’ case calls the directly recruited Engineer Students to be a ‘relic of the Imperial days’, nevertheless the system of reservation of posts for the Engineer Students served its own purpose in attracting persons of undoubted talent and outstanding merit to the Service and thereby promoted efficiency, and it has also withstood the test of time.
17. In view of these considerations, I agree with my learned brother Ray, J. that respondents nos.1-12 were disentitled to any relief under Art.226 of the Constitution due to inordinate delay and laches. If the judgment of the High Court were to be sustained after a lapse of nearly 32 years, it cannot be gainsaid that the entire structure of the administrative set-up of the U.P. Service of Engineers, Buildings & Roads Branch would be upset. We are informed that the four appellants before us by reason of their seniority and record of service, have reached the higher echelons of service. One of them has been the Offg. Engineer-in-Chief i.e. Head of the Public Works Department, Buildings & Roads Branch, and the remaining three are Offg. Chief Engineers. As against this, eleven of the 12 respondents have since retired, leaving only one of them. It is always open to the State Government to reconsider the case of the remaining respondent in the light of the principles settled by this judgment that the temporary Assistant Engineers on absorption were entitled to the benefit of their seniority from the date from which their service were regularised i.e. the date from which they became ‘Members of the Service’ within the meaning of r.3(b) of the Rules. It is still open to the Government to grant him the necessary relief, if he is found suitable for promotion to a higher post, without disturbing the appointment, promotion and confirmation of the appellants, by the creation of supernumerary post.
18. I would, for these reasons, allow the appeal and set aside the judgment and order passed by the High Court quashing the seniority list, without any order as to costs.
