Civil Appeal Nos
3023 3029 OF 1979
From the Judgment and order dated 146
1979 of the High Court of Gauhati in Civil Rule Nos
509 to 512 of 1973
RF Nariman PH Parekh
MKS Mench and Sanjay Bharthri for the Appellants
Prabir Chaudhary for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
These appeals arise out of the Judgment and order dated 14th June 1979 of the High Court of Gauhati in Assam setting aside the order and notice of demand under the Assam Taxation on Goods carried by Road or Inland Waterways Act hereinafter called the Act but declining to order any refund of the taxes paid
In 1954 Assam Taxation on Goods carried by Road or Inland Waterways Act was first enacted
This Court struck down the Act as ultra vires the Constitution of India
See Atiabari Tea Co Ltd vs The State of Assam  Ors  On 6th of April 1961 a new Act passed received the assent of the President
The High Court again struck down the Act declaring it ultra vires the Constitution on 1863
On 131263 Khyerbar Tea Co Ltd  another vs State of Assam 1964 5 SCR ts 975 in a challenge to the Act under Article 32 of the Constitution this Court held the Act to be intra vires
On 19th December 1966 Judgment was passed in Civil Rule No 190 1965
On Ist April 1968 the appeals preferred by the State of Assam against the 479 High Court order dated 131263 were allowed on the basis of the declaration of the Act to be intra vires the Constitution
Thereafter notices were issued by Superintendent of Taxes Nowgong requiring the appellant under section 72 of the Act to submit returns for the period ending 30661 30961 311261 and 31362
Returns were duly filed
Assessment orders were passed under section 93 of the said Act
On 10th July 1973 the High Court passed judgment in Loong Soong Tea Estate Civil Rule No 1005 of 1969 declaring the assessment as without jurisdiction
It is the case of the appellant petitioner that in view of the above judgment the appellant came to know about the mistake in paying the tax as per assessment order and also that the appellant became entitled to refund of the amount paid
The present Writ Petition was filed in November 1973 before the High Court of Assam
Thereafter in June 1976 the learned Single Judge of the High Court referred the matter to a larger Bench
The Division Bench on June 14 1979 passed judgment setting aside the orders and notices of demand but refused relief of refund claimed by the appellant
Aggrieved thereby the appellant has preferred the present appeals
The appellant petitioner claimed in all these petitions that the assessments were illegal and prayed that directions be given to the respondents to refund the tax collected in pursuance of those orders
The Legislature of Assam passed the Act as mentioned hereinbefore in 1954 called the Assam Taxation on Goods carried by Road and Inland Waterways Act 1954 which purported to levy tax on manufactured tea and jute carried by road and inland waterways
The Act was declared ultra vires the Constitution by this Court in Atiabari case supra on the ground that previous sanction of the President was not taken
Thereafter the Legislature passed the Act which received the assent of the President on 6461
The validity of the Act was also challenged and the High Court declared that Act to be ultra vires on 1st August 1963
Against the judgment and order passed by the High Court the State of Assam and other respondents preferred appeals before this Court
In the meantime Ms Khyerabari Tea Co Ltd challenged the provisions of the Act directly before this Court by filing an application under Article 32 of the Constitution and this Court in its judgment dated 131263 held the Act to be intra vires
Following the aforesaid decision of this Court the appeals filed by the State of Assam and others against the judgment of the High Court were allowed by this Court on the 1st April 1968
It was after this decision that the respondents required the appellant by a notice under section 480 72 of the Act issued on 8768 to submit returns for four periods mentioned hereinbefore
Due to penal consequences mentioned in the said notices in the event of failure to file return and pay the taxes the appellant filed return on July 11 1968 and paid the various taxes
In the judgment under appeal after elaborate discussion the High Court came to the conclusion that when a petitioner approaches the High Court with the sole claim for refund of money by writ of mandamus the same is normally not granted but where the refund is prayed as a consequential relief the same is normally entertained if there is no obstruction or if there be no triable issue like that of limitation which could not be conveniently tried in writ petition
In this case indisputably it appears that tax was collected without the authority of law
Indeed the appellant had to pay the tax in view of the notices which were without jurisdiction
It appears that the assessment was made under section 93 of the Act
Therefore it was with out jurisdiction
In the premises it is manifest that the respondents had no authority to retain the money collected without the authority of law and as such the money was liable to refund
The only question that falls for consideration here is whether in an application under Article 226 of the Constitution the Court should have directed refund
It is the case of the appellant that it was after the judgment in the case of Loong Soong Tea Estate the cause of action arose
That judgment was passed in July 1973
It appears thus that the High Court was in error in coming to the conclusion that it was possible for the appellant to know about the legality of the tax sought to be imposed as early as 1963 when the Act in question was declared ultra vires as mentioned hereinbefore
Thereafter the taxes were paid in 1968
Therefore the claim in November 1973 was belated
We are unable to agree with this conclusion
As mentioned hereinbefore the question that arises in this case is whether the Court should direct refund of the amount in question
Courts have made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc
Normally speaking in a society governed by rule of law taxes should be paid by citizens as soon as they are due in accordance with law
Equally as a corollary of the said statement of law it follows that taxes collected without the authority of law as in this case from a citizen should be refunded because no State has the right to receive or to retain taxes or monies realised from citizens without the authority of 481 In Suganmal vs State of Madhya Pradesh and others AIR 1965 SC 1740 this Court held that the High Courts have power to pass any appropriate order in the exercise of the powers conferred on them under Article 226 of the Constitution
A petition solely praying for the issue of a writ of mandamus directing the State to refund the money alleged to have been illegally collected by the State as tax was not ordinarily maintainable for the simple reason that a claim for such refund can always be made in a suit against the authority which had illegally collected the money as a tax and in such a suit it was open to the State to raise all possible defences to the claim defences which cannot in most cases be appropriately raised and considered in the exercise of writ jurisdiction
It appears that Section 23 of the Act deals with refund
In the facts of this case the case did not come within section 23 of the Act
But in the instant appeal it is clear as the High Court found in our opinion rightly that the claim for refund was a consequential relief
In Tilokchand Motichand  Ors
vs HB Munshi  Anr  claimants in that case contended that they did pay taxes under section 2 14 of the Bombay Sales Tax Act 1953 which was ultra vires on the particular ground on which it was struck down by this Court
On 28th March 1958 the petitioners in that case filed a writ petition in the High Court and contended that section 2 14 of the said Act was ultra vires the powers of the State Legislature and was violative of Articles 191f and 265 of the Constitution
The single Judge of the High Court dismissed the petition on the ground that the petitioners defrauded their customers and so were not entitled to any relief even if there was a violation of fundamental rights
The appellate bench of the High Court dismissed the appeal on the ground that it would not interfere with the discretionary order of the single Judge
Thereafter it appears that on December 24 1958 the Collector attached the properties of the petitioners for recovering the amount as arrears of land revenue and the petitioners paid the amount in instalments between August 1959 and August 1960
On September 29 1967 this Court in Kantilal Babulal vs H C Patel 2 1 STC 174 struck down section 12A4 of the Bombay Sales Tax Act 1946 corresponding to section 214 of the 1953 Act on the ground that it was violative of Article 191f of the Constitution inasmuch as the power conferred by the section was unguided uncanalised and uncontrolled and so was not a reasonable restriction on the fundamental right guaranteed under that Article
On the assumption that section 214 of the 1953 Act was also liable to be struck down on the same ground on February 9 1968 the petitioners therein filed a writ petition under Article 32 of 482 the Constitution claiming a refund of the amount
The petitioners contended that they did not know that the section was ultra vires on the particular ground on which this Court had struck it down and they had paid the amounts under coercion or mistake that the mistake was discovered on September 29 1967 the date of the judgment of this Court and that they were entitled to the refund under section 72 of the 
It was held by the majority that the petition should be dismissed on the ground of laches
Hidayatullah CJ held that Article 32 gave the right to move the Court by appropriate proceedings for enforcement of fundamental rights and the State cannot place any hindrance in the way of an aggrieved person
But once the matter had reached this Court the extent or manner of interference is for this Court to decide
emphasis supplied
The Chief Justice reiterated that this Court had put itself in restraint in the matter of petitions under Article 32
For example this Court reiterated the Chief Justice refrained from acting under the Article if the party had already moved the High Court under Article 226 and if the High Court had exercised its parallel jurisdiction
It was said in such a case the Court would not allow fresh proceedings to be started under Article 32 but would insist on the decision of the High Court being brought before it on appeal
Similarly in inquiring into belated and stale claims this Court should take note of evidence of neglect of the petitioner s own rights for a long time or of the rights of innocent parties which might have emerged by reason of the delay
The Chief Justice emphasised that it was not possible for this Court to lay down any specific period as the ultimate limit of action and each case will have to be considered on its own facts
A petition under Article 32 was neither a suit nor an application to which the applied
Further putting curbs in the way of enforcement of fundamental rights through such legislative action might be questioned under Article 132 for if a short period of limitation was prescribed the fundamental right might be frustrated
Therefore for the matter of relief in each case this Court had to exercise its description from case to case and where there was appearance of an avoidable delay and the delay affected the merits of the claim this Court held the party disentitled to invoke its extraordinary jurisdiction
In the facts of that case the majority Judges found that by his own conduct the petitioner had abandoned his own litigation years ago and the Court would not apply the analogy of the Article in the in cases of mistake of law and give him relief
Bachawat J in a concurring judgment observed that the normal 483 remedy for recovery of money paid to the State under coercion or mistake of law is by suit
The right to move this Court for enforcement of fundamental rights was guaranteed by Article 32 and no period of limitation was prescribed for such a petition
Bachawat J reiterated that the writ issues as a matter of course if a breach of a fundamental right is established but this did not mean that in giving relief under the Article this Court might ignore all laws of procedure
The extraordinary remedies under Articles 32 and 226 of the Constitution said Bachawat J are not intended to enable a claimant to recover monies the recovery of which by suit is barred by limitation
In the absence of any rules of procedure under Article 1451c the Court may adopt any reasonable rule
Bachawat J emphasised that for example the Court will not allow a petitioner to move this Court under Article 32 on a petition containing misleading and inaccurate statements
Similarly the general principles of res judicata were applied where applicable on grounds of public policy
Bachawat J emphasised that where the remedy in a writ application under Article 32 or Article 226 corresponded to a remedy in an ordinary suit and the latter remedy was subject to the bar of a statute of limitation the Court imposed on analogy the same limitation on the summary remedy in the writ jurisdiction even though there was no express statutory bar of limitation on grounds of public policy and on the principle that the laws aid the vigilant and not those who slumber
Mitter J more or less expressed the same view
Sikri J allowed the appeal because he was of the opinion that the petitioners were under a mistake of law the mistake was discovered like all assessees when the Court struck down section 12A4 of the 1946 Act and they came to this Court within six months of that date and hence there was no delay
Hegde J allowed the petition
He was of the opinion that in the facts of that case there was no delay
He observed that mere impression of a party that a provision of law might be ultra vires cannot be equated to knowledge that the provision was invalid
Under Article 113 of the the limitation was the period of three years from the date the right to sue accrues
It may be noted that in the instant case under section 23 of the Act it was provided that the Commissioner shall in the prescribed manner refund to a producer or a dealer any sum paid or realised in excess of the sum due from him under this Act either by case or at the option of the producer or dealer be set off against the sum due from him in 484 respect of any other period
Section 23 applies only in a case where money is paid under the Act
If there is no provision for realisation of the money under the Act the act of payment was ultra vires the money had not been paid under the Act
In that view of the matter section 23 would not apply
The High Court in the instant case after analysing the various decisions came to the conclusion that where a petitioner approached the High Court with the sole prayer of claiming refund of money by writ of mandamus the same was normally not granted but where the refund was prayed as a consequential relief the same was normally entertained if there was no obstruction or if there was no triable issue like that of limitation
We agree that normally in a case where tax or money has been realised without the authority of law the same should be refunded and in an application under Article 226 of the Constitution the Court has power to direct the refund unless there had been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is of such nature for which there is no probable explanation or which will cause any injury either to respondent or any third party
It is true that in some case the period of three years is normally taken as a period beyond which the Court should not grant relief but that is not an inflexible rule
It depends upon the facts of each case
In this case however the High Court refused to grant the relief on the ground that when the section was declared ultra vires originally that was the time when refund should have been claimed
But it appears to us it is only when the Loong Soong case was decided by the High Court in 1973 that the appellant became aware of his crystal right of having the assessment declared ultra vires and in that view of the matter in October 1973 when the judgment was delivered in July 1973 the appellant came to know that there is mistake in paying the tax and the appellant was entitled to refund of the amount paid
That was the time when the appellant came to know of it
Within a month in November 1973 the present petition was filed
There was no unexplained delay
There was no fact indicated to the High Court from which it could be inferred that the appellant had either abandoned his claims or the respondent had changed his position in such a way that granting relief of refund would cause either injury to the respondent or anybody else
On the other hand refunding the amount as a consequence of declaring the assessment to be bad and recovery to be illegal will be in consonance with justice equity and good conscience
We are therefore of the view that the view of the High Court in this matter cannot be sustained
485 Chandra Bhushan  Anr
vs Deputy Director of Consolidation Regional UP  ors
  was a case where this Court observed that the High Court erred in exalting a rule of practice into a rule of limitation and rejecting the petition of the appellant for refund without considering whether the appellant was guilty of laches and undue delay
Shah J delivering the judgment of the Court observed that the primary question in each case is whether the applicant had been guilty of laches or undue delay
Reference may be made in this connection to RL Kapur vs State of Madras  There the question arose about punishing for contempt
The jurisdiction conferred on the High Court under Article 215 of the Constitution to punish for contempt of itself was a special one not arising or derived from the  and therefore not within the purview of the Penal Code
Such a position is also clear from the provisions of the 
The effect of section 5 of that Act was only to widen the scope of the existing jurisdiction of a special kind and not conferring a new jurisdiction
So far as contempt of the High Court itself is concerned as distinguished from that of court subordinate to it the Constitution vested these rights in every High Court and so no Act of a legislature could take away that jurisdiction and confer it afresh by virtue of its own authority
That being the position this Court held that section 25 of the General Clauses Act would not apply
Similarly it appears to us that this was a tax realised in breach of the section the refund being of the money realised without the authority of law
The realisation is bad and there is a concomitant duty to refund the realisation as a corollary of the constitutional inhabitation that should be respected unless it causes injustice or loss in any specific case or violates any specific provision of law
In that view of the matter in the facts of this case we are of the opinion that the money was refundable to the appellant
The appellant had proceeded diligently
There is nothing to indicate that had the appellant been more diligent the appellant could have discovered the constitutional inhibition in 1966
The position is not clear even if there is any triable issue
The position becomes clearer only after the decision in Loong Soong s case as mentioned hereinbefore
Our attention was drawn on behalf of the respondents that under section 16 of the Act an appeal lay in the prescribed manner within thirty days from the date of service of any order of assessment but the 486 challenge to the assessment on the ground that the assessment was bad could not be made in an appeal under the Act because the right to appeal being a creature of the Act if the Act is ultra vires that right would not enure to the benefit of the appellant
In State of Madhya Pradesh vs Bhailal Bhai  ors
  this Court had occasion to consider what was unreasonable delay in moving the court when tax was paid under a mistake
There the respondents were dealers in tobacco in the State of Madhya Bharat
The State had imposed sales tax on the sale of imported tobacco by the respondents
But no such tax was imposed on the sale of indigenous tobacco
The respondents filed writ petitions under Article 226 of the Constitution for the issue of writ of mandamus directing the refund of sales tax collected from them
They contended that the impugned tax was violative under Article 301a of the Constitution and they paid the tax under a mistake of law and the tax so paid was refundable under section 72 of the 
The appellant contended that there was no violation of Article 301 of the Constitution and even if there was such violation the tax came within the special provision under Article 304a of the Constitution and the High Court had no power to direct refund of tax already paid and in any event the High Court should not exercise its discretionary power of issuing a writ of mandamus directing this to be done since there was unreasonable delay in filing the petition
The High Court rejected all the contentions of the appellant and a writ of mandamus was issued as prayed for
It was held that tax was violative under Article 301 of the Constitution
But it was held that even though the tax contravened Article 30 1 of the Constitution it was valid if it came within the saving provisions of Article 304 of the Constitution
Tobacco manufactured or produced in the appellant State similar to the tobacco imported from outside had not been subjected to the tax and therefore the tax was not within the saving provisions of Article 304a of the Constitution
It was reiterated that the tax which had already been paid was so paid under a mistake of law under section 72 of the 
The High Courts had power for the purpose of enforcement of
fundamental rights and statutory rights to grant consequential reliefs by ordering repayment of money realised by the Government without the authority of law
It was reiterated that as a general rule if there has been unreasonable delay the court ought not ordinarily to lend its air to a party by the extraordinary remedy of mandamus
Even if there is no such delay in cases where the opposite party raises a prima facie issue as regards the availability of such relief on the merits on grounds like limitation the Court should ordinarily refuse to issue the writ of 487 mandamus
Though the provisions of the did not as such it was further held apply to the granting of relief under Article 226 the maximum period fixed by the legislature as the time within which relief by a suit in a Civil Court must be claimed may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 could be measured
The Court might consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy
Where the delay is more than that period it will almost always be proper for the court to hold that it is unreasonable
The period of limitation prescribed for recovery of money paid by mistake under the was three years from the date when the mistake was known
In this case knowledge is attributable from the date of the judgment in Loong Soong s case on 10th July 1973 and there being a statement that the appellant came to know of that fact in October 1973 and there being no denial by the averment made on this ground the High Court in our opinion in the instant case was in error in presuming that there was a triable issue on this ground and refusing to grant refund
In Ramachandra Shankar Deodhar  Ors
vs The State of Maharashtra  ors
  in a different context it was observed that laches or existence of alternative remedy may be ground for not granting relief
But in view of the facts of this case it is not necessary to deal with that case in any detail
In A V Venkateswaran Collector of Customs Bombay vs Ramchand Sobhraj Wadhwani and another  this Court held that the High Court was in error in its view that though the respondent had failed to exercise his statutory remedy the fact that it had become time barred at the date of the hearing of the appeal against the order in the petition under Article 226 was a good ground for the Court to exercise its discretion in granting the relief prayed for by the respondent in his petition
Learned counsel drew our attention to Rule 55 of the Act where it was stated that no claim to any refund shall be allowed unless it was made within one year from the date of the original order of assessment or within one year of the final order passed on appeal or revision as the case may be in respect of such assessment
It was contended on behalf of the respondents that here a fixed period of limitation was prescribed and by virtue of Article 226 of the Constitution we should not allow to subvert that rule
This principle in our opinion in view of the fact that the rule was unconstitutional will have no application
488 In Shiv Shanker Dal Mills etc
vs State of Haryana  Ors etc
 1980 l SCR 1170 Krishna Iyer J speaking on behalf of him self as well as on behalf of RS Pathak J as the learned Chief Justice then was and AD Koshal J Observed that where public bodies under colour of public laws recover people s money later discovered to be erroneous levies the dharma of the situation admits of no equivocation
There was no law of limitation especially for public bodies on the virtue of returning what was wrongly recovered to whom it belongs
In our jurisprudence it is not palatable to turn down the prayer for high prerogative writs on the negative plea of alternative remedy since the root principle of law married to justice is ubi jus ibi remedium
His Lordship observed as follows Since the root principle of law married to justice is ubi jus ibi remedium
Long ago Dicey wrote The law ubi jus ibi remedium becomes from this Point of view something more important than a mere tautological proposition
In its bearing upon constitutional law it means that the Englishmen whose labours gradually formed the complicated set of laws and institutions which we call the Constitution fixed their minds far more intently on providing remedies for the enforcement of particular rights or for averting definite wrongs than upon any declarations of the Rights of Man or English men
The Constitution of the United States and the Constitutions of the separate States are embodied in written or printed documents and contain declaration of rights
But the statesmen of America have shown an unrivalled skill in providing means for giving legal security to the rights declared by American Constitutions
The rule of law is as marked a feature of the United States as of England
Another point
In our jurisdiction social justice is a pervasive presence and so save in special situations it is fair to be guided by the strategy of equity by asking those who claim the service of the judicial process to embrace the basic rule of distributive justice while moulding the relief by consenting to restore little sums taken in little transactions from little persons to whom they belong
 489 We are in respectful agreement with this approach
A ln State of Madhya Pradesh and others etc
vs Nandlal Jaiswal and others etc
  this principle was reiterated by Bhagwati CJ that it was well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution was discretionary and the High Court in the exercise of its discretion did not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic
If there was inordinate delay on the part of the petitioner in filing a writ petition and such delay was not satisfactorily explained the High Court might decline to intervene and grant relief in the exercise of its writ jurisdiction
The evolution of this rule of laches or delay was premised upon a number of factors
The High Court did not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it was likely to cause confusion and public inconvenience and bring in its train new injustices
It was emphasised that this rule of laches or delay is not a rigid rule which can be cast in a straitjacket formula
There may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner
But where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between
Ultimately it would be a matter within the discretion of the Court ex hypotheses every discretion must be exercised fairly and justly so as to promote justice and not to defeat it
We are in respectful agreement with this approach also
In this case looked at from one point of view it is only on the delivery of the judgment in Loong Soong s case in 1973 the appellant realised the right to claim the relief of refund as a consequential relief setting aside the assessment and the assessment was set aside by the very order itself in this case
That right has been granted by the High Court the High Court has not refused the setting aside on the ground of delay
It would be inconsistent for the High Court to refuse to grant consequential relief after setting aside the assessment
If the realisation was without the authority of law and that was declined by the High Court by the judgment in this case which claimed also the consequential relief that relief must automatically follow and the High Court was wrong in taking the view that a triable issue of limitation arises in this case
In the absence of any averment to the contrary the averment of the appellant in the petition that they came to know only after the Loong Soong s case must be accepted
The High Court was wrong in 490 contending that they should have been more diligent
After all the discretion must be fair and equitable
In the facts of this case we are of the opinion that the High Court was in error in the approach it took
We therefore set aside the judgment and order of the High Court and direct refund of the tax illegally realised by the respondent
The appeals are allowed
We set aside the judgment and order to the extent that it refused refund of the tax illegally realised
In the facts of this case the parties will pay and bear their own costs
section RANGANATHAN J I agree with the order proposed by my learned brother but would like to add a word of reservation
In view of the judgment of this Court in Superintendent of Taxes vs Onkarmal Nathmal Trust  1975 Supp SCR 365 there can be no doubt that the assessments on the appellants were illegal and that
the taxes demanded on the basis thereof had been collected without the authority of law from the appellants
The appellant s contention is that they had paid the taxes under a mistake of law and are entitled to seek refund thereof
It is difficult to see how the High Court could have allowed the appellant s prayer for quashing the assessments but refused the prayer for the refund of the illegally collected taxes
The appeals have therefore to be allowed
Counsel for the respondents however places strong reliance on the following observations of a Constitution Bench of this Court in State of MP vs Bhailal Bhai  Though the provisions of the do not as such apply to the granting of relief under article 226 the maximum period fixed by the Legislature as the time within which relief by a suit in a Civil Court must be claimed may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under article 226 could be measured XXXX Where the delay is more than that period it will almost always be proper for the Court to hold that it is unreasonable  He also relies on Cawasji  Co vs State and drawn our attention to the decision in Vallabh Glass Works vs Union  where the claim for refund in respect of a period beyond 491 three years was rejected
He contends on the strength of the above decisions that the High Court rightly rejected the appellants  claims for refund
On the other hand it is contended for the appellants that a writ petition seeking refund of taxes collected without the authority of law cannot be rejected on the ground of limitation or delay unless such delay can be said to amount to laches or has caused some irreparable prejudice to the opposite party or some other like forceful reason exists
Counsel refers in this context to Venkateswaran vs Ramchand 1962 1 SCR 75 Chandra Bhushan vs Deputy Director   Tilokchand Motichand vs Munshi  Ramachandra section Deodhar vs State   Joginder Nath vs Union   Shiv shankar Dal Mills vs State   and State of MP vs Nandlal Jaiswal  and contends that these decisions have qualified the observations of Das Gupta J in Bhailal Bhai s case
As pointed out by my learned brother in the present case the appellants  averment that they realised their mistake only when they came to know about the decision in the Loong Soong Tea Estate case in July 1973 stands uncontroverted
There is nothing on record either to show that the appellants had realised their mistake even earlier at about the time when the writ petition in the Loong Soong Tea Estate case was filed or at the time when the earlier decision of 1966 referred in the Loong Soong Tea Estate case judgment was rendered
On this finding of fact the writ petitions filed by the appellants in November 1973 were filed within the period of limitation prescribed in Article 113 read with section 23 of the 
Thus the petitions were within time even by the test enunciated in Bhailal Bhai s case
I think therefore that for the purposes of the present case it is unnecessary to consider the larger question whether the bar of limitation should be considered as fatal to a writ petition as to a suit for recovery or whether it is only a relevant but not conclusive factor that should be taken into account by the court in exercising a discretion
PSS Appeals allowed


Summary:
 Civil Appeal Nos 2049 and 3129 of 1979 were filed in this Court by special leave against the judgment of the High Court in a Writ Petition filed by respondents 6 to 51 of Civil Appeal No 2049 of 1979
One appeal was
by the employees and the other by the State of Bihar etc against the judgment of the High Court above said
There were three different wings of Engineers in the Department of Agriculture viz Irrigation minor Irrigation and River Valley Projects
On January 9 1969 the State Government amalgamated the cadres of engineers and other employees of the Irrigation and the River Valley departments
Engineers and other employees of the minor Irrigation wing were not amalgamated
Later the Directorate of minor Irrigation was made permanent and a distinct and permanent cadre of overseers termed as Junior Engineers was created
191 permanent posts of overseers were sanctioned
Thereafter the minor Irrigation wing was also amalgamated with the other two wings and a combined final gradation list prepared on the basis of the status of the overseers as obtaining on
January 9 1969 was issued
On the Writ Petition of the respondents 6 to 51 above mentioned the High Court quashed the orders contained in the various annexures viz 11111 12 13 131 15 and 16 directed the State Government to prepare a fresh combined gradation list in accordance with the principles laid down by the High Court
Allowing the appeals in part the Court  HELD The three wings though under the administrative control of the Agricultural Department were separate before amalgamation
Permanent posts had been sanctioned in the minor Irrigation wing to 411 which the petitioners before the High Court belonged and they were appointed on permanent basis
When integration takes place and officers in different cadres are merged into one there is bound to be some difficulty in the matter of adjustment
That has occurred in this case
The approach of the High Court has been that if within the cadre earlier confirmation gives seniority why should that basis be not extended to the combined gradation list
That may not be applicable in every situation particularly when there is a merger of cadres and the combined gradation list is proposed
414C DFJ Seniority would ordinarily depend upon the length of service subject of course to the rules holding the field
This view has been taken by this Court in several cases
The High Court recorded a finding that there is no applicable rule in the matter of fixing inter se seniority in a situation of this type
In the absence of rules the more equitable way of preparing the combined gradation list would be to take the total length of service in the common cadre as the basis for determining the inter se seniority The Court does not agree with the High Court that confirmation should be the basis and would substitute it by the length of service test but the Court upholds the direction that in fixing the combined gradation list the inter se seniority of incumbents in their respective departments would not be disturbed
The gradation list as published by the Government has to be modified
The conclusion of the High Court that Annexures 11 111 1213 1311 15 and 16 should be quashed and a fresh combined gradation list has to be published is confirmed
The test for fixing the seniority inter se generally is altered but the direction of inter se seniority in their own departments to be respected is approved
The respondent State directed to prepare and publish the fresh combined gradation list keeping these directions in view
4t4G 4t5C F A Janardhana vs Union of India and Ors  and KS Vora and Ors
vs State of Gujarat and Ors
   referred to