ition No 156 of 1972
Under article 32 of the Constitution of India
SS Javali A K Srivastava and BP Singh for the petitioner
GL Sanghi SP Mital and Girish Chandra for respond ents Nos
land3
B Datta for respondent No 194
The Judgment of the Court was delivered by BEG CJ
This is a petition under Article 32 of the Constitution praying for a writ of certiorari or a writ of Mandamus or any other appropriate writ order or direction for the enforcement of the fundamental rights of the peti tioners under Article 14 and 16 of the Constitution
The petitioners have been working as Upper Division Clerks and pray for the quashing of a list issued with Office Memoran dum dated 721972 for making promotions to the next grade of Assistants on which the names of respondents 4 to 203 appear but not those of the petitioners
They claim that the principles of seniority contained in the Ministry of Home Affairs OM dated 2261949 as interpreted by this Court in UNION OF INDIA vs
M RAVI VERMA  ORS
ETC1 had not been applied to them
The contention seems to be that the last mentioned decision contained an invariable mechani cal rule of seniority applicable to all classes of services so that nothing beyond length of service in a particular grade could determine seniority
It was alleged that the impugned list was formulated in an arbitrary fashion
Hence the petitioners complain of violation of Articles 14 and 16 of the Constitution
In paragraph 6 of the petition it was stated that even persons appointed nine or ten years after the petitioners had been promoted as long ago as 1969 to the grade of As sistants to which the petitioners put forward their own claims
It was also stated that a large number of persons have superseded the petitioners but a few names only have been mentioned from amongst them
The whole case of the petitioners thus rests on the submission that nothing beyond length of service must determine the place on the list for promotion to the grade of Assistants
The petitioners allege a common cause of action inasmuch as the impugned list of 1721972 affects all of them
They claim that all of them should have been governed by the principles contained in 1  666 the Memorandum of 2261949
This Memorandum Annexure C  to the petition shows that it was only directory laying down a general rule of seniority which was presumably sub ject to other exceptional factors which could also be taken into account
Hence an alleged violation of the rule of seniority according to length of service was not decisive even according to this Memorandum
The counter affidavit filed by Shri PL Gupta Deputy Secretary to the Government of India gives the long history of a scheme which culminated in the promulgation of the statutory rules framed under Article 309 of the Constitu tion of India called the Central Secretariat Clerical Serv ice Rules 1962 by the President of India
It shows that the scheme of 1949 was given a final shape by the Cabinet in 1954
and became effective from 151954
Under the scheme as finally framed it was provided that those offi cers who were otherwise eligible for confirmation in the services at the initial constitution should also pass a typewriting test to be held by the Union Public Service Comntission within a period of two years from 1 5 1956
It appears that the confirmation of the initial constitution of the service was delayed until 1958
Some of the rather ambitious assertions of the petition ers suggest that their case is that they had been appointed to an Upper Division grade on a regular basis so that their seniority must date back to their date of promotion
This suggestion was controverted by the respondents who alleged that the petitioners had been only allowed to continue provisionally on a temporary basis in the grade of Upper Division of Clerks
It was stated in the counter affida vit that as typing test had to be passed within two years of 1st of May 1958 those who did not come within this class came in the class of the petitioners who were serving on an ad hoc or temporary basis
Hence it was submitted that those who had passed the typewriting test within two years of the fixed date belong to another cate gory altogether
The respondents
therefore submit that there has been no contravention of Articles 14 and 15
Serious grounds of objection to the petitioner s case are three fold firstly that there was a reasonable crite rion for the difference made between the cases of the peti tioners and those placed on the impugned list of 721972 who are above the petitioners because they have passed the prescribed typing test so that Articles 14 and 16 of the Constitution could not be said to have been violated in this case whatever else may have been infringed secondly that the petitioners not having assailed the order of confirma tion of the scheme on 151958
prescribing a reasonable ground for distinction between the class of cases in which typing test had been passed to which the contesting re spondents in the impugned list belong and the class of the petitioners which had not passed this test the petition ers  could not challenge the impugned scheme of 1972 at all thirdly a member of persons had been promoted and put above the petitioners since 1962 acting under the scheme providing the typing test so that there was inordinate delay in filing the petition under Article 32 of the Consti tution on 2441972
667 In their Writ Petition the petitioners have no doubt challenged the validity of rule 17 of the Central Secretariat Clerical Service rules for inconsistency with the Memoranda of 2261949 and 22121959 and alleged that this also constitutes a violation of Articles 14 and 16 of the Constitution
This rule was among rules notified on 28 9 1962
It lays down as follows  17 Seniority1 The relative seniority of members of Service appointed to any Grade before the appointed day shall be regulated by their relative seniority as determined before that day
Provided that if the seniority of any such officer had not been specifically deter mined before the appointed day it shall be as determined by the Department of Personnel in the Cabinet Secretariat
MHA No 6267 CS II dated 201267
Provided further that the seniorty of an officer referred to in the proviso to clause a of rule 2 shall be determined by the Department of Personnel in the Cabinet Secre tariat by taking into account the continuous length of regular service rendered before the appointment day by such officer in the grade of lower Division or in any higher grade in the offices of the Central Government
2 All permanent officers included in the initial constitution of a Grade under rule 7 shall rank senior to all persons substan tively appointed to that Grade with effect from a date after the appointed day and all temporary officers included in the initial constitution of a Grade under that rule shall rank senior to all temporary officers appoint ed to that Grade after the appointed day
3 Except as provided in sub rules 4 and 5 the seniority of persons appointed to the two grades of the service after the ap pointed day shall be determined in the follow ing manner namely  1
UPPER DIVISION GRADE i Permanent Officers
The seniority inter se of officers substantively appointed to the Grade after the appointed day shall be regulated by the order in which they are so appointed to the Grade
ii Temporary Officers
The seniority inter se of temporary officers appointed to the Grade after the appointed day shall be regulated as follows namely a Persons included in the Select List for a Grade shall rank senior en bloc to those not included in the Select list
668 b The seniority inter se of person includ ed in the Select List shall be in the order in which their names are included in the Select List
c The seniority inter se of persons not included in the Select List shall be regulated by the order in which they are approved for long term appointment to the Grade
Rule 7 provides as follows 7
Initial Constitution of each cadre
The permanent and temporary officers of each Grade in each cadre on the appointed day shall be as determined by the Deptt
of Personnel in the Cabinet Secretariat
 We find that acting under Rule 7 set out above the Government of India had issued an order on 12 11 1962 allot ting permanent and temporary officers of the Upper Division grade to the Central Secretariat Clerical Service
Apparently that allotment also determined the order of seniority
In other words the rule relating to the passing of a typing test had been followed for a long period and had actually been given effect to under the statutory rules in promotions made and lists drawn up
This explains the petitioners  challenge to the validity of Rule 17
We are unable to see how a rule prescribing a typing test is unconnected with the duties of Clerks who desire a promotion to the next grade
We do not find that a dis crimination made on such a ground could violate Articles 14 or 16 of the Constitution whatever also it may be said to violate
It is not necessary for us to hold that a violation of a statutory or other kind of rule in a particu lar case cannot amount to a violation of Articles 14 and 16 of the Constitution
There may also be cases in which a rule made is ultra vires for mreasonableness or on any other ground and should not be deemed to exist
In such a case if the rule is enforced it may on the facts of the partic ular case amount to a violation of Articles 14 and 16 of the Constitution also
The case before us does not appear to be such a case at all
It seems to be covered by what this Court said in PC Sethi  Ors
vs Union of India  Ors
 1 with regard to the Office Memorandum of 2261949 at pp
207 208   the Office Memorandum of June 22 1949 is no bar to the Government in making separate provisions for the mode of constitution and future maintenance of the service of Assistants
There is therefore no obligation under the aforesaid Office Memorandum on the part of the Government to enforce a rule of bald length of continuous service irrespective of other considerations than the service was sought to be reorga nised and reinforced
As noticed earlier the service had to be reconstituted and the tempo rary Assis 1 669 tanks properly observed keeping in view the question of quality and efficiency as well as at the same where regard being had to accom modate as large number as possible to gradual absorption
In doing so we are unable to hold that the Government has violated the provi sions of articles 14 or 16 of the Constitu tion
The Classification under the instruc tion for the constitution of regular temporary establishment in the manner done cannot be characterised as unreasonable in view of the object for which these had to be introduced in reconstituting the service to ensure security of temporary employees assistant with effi ciency in the Service
There is no discrimi nation whatsoever amongst the equals as such nor any arbitrary exercise of power by the Government
 This Court has also explained in Joginder Nath  Ors
vs Union of India  Ors1 and Amrit Lal Berry vs Collector of Central Excise New Delhi  Ors2 the principles on which this Court will interfere under Article 32 of the Constitution for an alleged violation of Articles 14 and 16 of the Constitution
It is also explained there how delay in invoking the jurisdiction of the Court which may create equitable rights of others may give rational grounds for discrimination so that it would cease to be a case of any violation of Articles 14 and 16 at all
We think that the principles laid down in the cases mentioned above apply here
Consequently we dismiss this Writ Petition but in the circumstances of the case the parties will bear their own costs
SR Petition dismissed


Summary:
Under the scheme which culminated in the promulgation of the Central Secretariat Clerical Service Rules 1962 effective from 1 5 1954 it was provided that those offi cers who were otherwise eligible for confirmation in the services at the initial constitution should also pass a typewriting test to be held by the Union Public Service Commission within a period of two years from 1 5 1956
The names of the petitioners who had not passed the typewriting test did not figure in the gradation list dated 7 2 1972 prepared for making promotions to the next grade of Assist ants
The petitioners challenged the orders on several grounds namely i The principle of seniority contained in the Ministry of Home Affairs  OM dated 22 6 1949 as inter preted by this Court in  had not been ap plied to them ii The impugned list was formulated in an arbitrary fashion iii Their seniority must date back to their dates of promotion as Upper Division Clerks and iv Rule 17 of Central Secretariat Clerical Service Rules 1962 being inconsistent with OM dated 22 6 1949 and 22 2 1959 violates Articles 14 and 16 of the Constitution
The re spondent raised three objections to the petitioners  case in their returns namely i There was a reasonable criterion for the difference made between the case of the petitioners and those placed on the impugned list of 7 2 1972 who are above the petitioners because they have passed the pre scribed typewriting test so that Articles 14 and 16 of the Constitution could not be said to have been violated in this case whateverelse may have been infringed ii The peti tioners not having assailed the order of confirmation of the scheme on 1 5 1958 prescribing a reasonable ground for distinction between the class of cases in which typewriting tests have been passed to which the contesting respond ents in the impugned list below and the class of the peti tioners which had not passed the test
the petitioners could not challenge the impugned scheme of 1972 at all iii A number of persons have been promoted and put above the petitioners since 1962 acting under the scheme providing the typewriting test so that there was inordinate delay in filing the petition under article 32 of the Constitution
Dismissing the petition the Court HELD 1 The alleged violation of the rule of seniority according to length of service was not decisive even ac cording to the Ministry of Home Affairs OM dated 22 6 1949
This memorandum shows that it was only directory laying down a general rule of seniority which was presumably subject to other exceptional factors which could also be taken into account
666 A PC Sethi  Ors
vs Union of India  Ors
1975 3 SCR 21 followed
2 A rule prescribing a typing test cannot be said to be unconnected with the duties of clerks who desire a promo tion to the next grade
A discrimination made on such a ground could not violate Articles 14 and 16 of the Constitu tion whateverelse it may be said to violate
668 E 3 A violation of statutory or other kind of rule in a particular case cannot amount to a violation of Articles 14 and 16 of the Constitution
There may also be cases in which a rule made is ultra vires for unreasonableness or 665 an any other ground and should not be deemed to exist
In such_ a case if the rule is enforced it may on the facts of the particular case amount to a violation of Articles 14 and 16 of the Constitution also
The petitioners case is not such a case at all
668 E F 4 The principles laid down by this Court in Joginder Nath and Ors
vs Union of India  Ors
and in Amrit Lal Berry vs Collector of Central Excise   apply to the petitioners case regarding laches on their part
669 C El