No 1889 Of 1978
Under Article 32 of the Constitution of India A Subba Rao for the Petitioners
283 Govind Das CV Subba Rao GD Gupta and JP Sharma in person for the Respondents
The Judgment of the Court was delivered by KHALID J
The petitioners six in number are working in the Ministry of Defence Department of Production
They joined their service on different dates ranging from 1963 to 1969
The 1st 2nd 3rd and 5th petitioners joined service as Senior Technical Assistant while 4th and 6th petitioners joined as Technical Assistant
The 1st and 2nd petitioners are now working as Senior Technical Officer officiating 3rd and 4th petitioners are working as Technical Officer officiating and 5th  6th are working as Junior Technical Officer
None of the petitioner have been confirmed in their respective posts to which they have been promoted
The first respondent is the Secretary to the Government Ministry of Defence and the second respondent Director Directorate of Production and Inspection Naval
The appointment and promotion of persons like the peti tioners were governed by the department of Defence Produc tion Directorate of Production and Inspection Naval Group A and Group B Technical Post Recruitment Rules 1976 for short the Rules 
Prior to these rules they were governed by the Rules framed in 1965 and revised in 1972
The grievance of the petitioner is that the Rules dis criminate between them and the direct recruits that their seniority is not taken into consideration while the seniori ty list is prepared and that the direct recruits are given seniority over them undeservedly by virtue of the operation of the method of recruitment contained in the rules
The petitioners complain that the list so prepared is purely arbitrary and ignores their length of service
They made representations to the first respondent complaining against the injustice done to them and for redressal of their griev ances
There were no favourable orders
Hence this writ petition
The prayer in the petition is for a mandamus declaring the rules and the seniority list dated 2571977 391977 and 791977 prepared according to rules as bad as viola tive of Articles 14  16
In the counter affidavit filed by the respondents two pre liminary 284 objections were taken 1 that the joint petition filed by the petitioners is not maintainable inasmuch as it involves determination of different questions of facts based on separate caused of action and 2 that the petitioners have not arrayed as respondents all the officers who would be adversely affected by any order to be passed by this Court
The rules in question are justified on the ground that they were validly passed
It is stated that the offending clause cannot be faulted as violative of Article 14 and Article 16 of the Constitution
The rules were framed in consultation with the Department of Personnel and Administrative Reforms Cabinet Secretariat in the light of the past experience
It is stated that the rules far from causing any discrimina tion seek to fix rationally i inter seniority ii quotas for recruitment and iii norms whereby the cases of all senior persons are to be considered
The preparation of the offending lists is justified on the plea that the prin ciple of fixing seniority on the basis of length of service and dates of confirmation is not an inflexible rule and that it is possible in law that a direct recruit who is appointed later in point of time is senior to a promotee because of the working out of the quota rule
The Counter Affidavit continues with the usual plea that in certain given cases seniority based on length of service can be ignored
Before dealing with the merits of this case we will dispose of the preliminary objections
We are not impressed with the preliminary objections
The petitioners have clear ly given the details about the dates of appointment promo tion etc
The dates do differ
But nothing prevents this court from modulating the relief and giving directions to the respondents to re consider the offending lists with reference to each of the petitioners in the light of what follows
The second objection has been met by the petitioners by impleading those who will be affected as respondent Nos 3 to 8 as per orders of this Court dated 1181983
The method of recruitment under challenge is contained in columns 10 and 11 of the schedule to the rules which is given below Method of recruitment In case of recruitment whether by direct by promotiondeputation recruitment or by transfer grades from promotion or by which promotiondeputation 285 deputationtransfer transfer to be made
and percentage of the vacancies to be filled by various methods
10 11 Senior Technical Officer Promotion i 50 by promotion Technical Officer with failing which by 5 years service in the direct recruitment grade rendered after appointment thereto on ii 50 by direct recruitment a regular basis iii Failing i and ii provided that if an officer above by re employ is considered for promotion ment
in accordance with the provisions of these Rules all persons senior to him iv Failing iii above in that grade shall also be by promotion
considered notwithstanding that they may not have rendered the prescribed number of years of regular service in that grade
Technical Officers Promotion i 50 by promotion Junior Technical Officer with failing which by 3 years service in the grade direct recruitment
rendered after appointment thereto on a regular basis ii 50 by direct recruit Provided that if an Officer ment is considered for promotion in accordance with the iii Failing i and provisions of these rules ii above by all persons senior to him re employment in that grade shall also be considered notwithstanding 286 iv Failing iii by that they may not have ren promotion dered the prescribed number of years of regular service in that grade
Note All eligible candidates have to qualify in a written departmental examination of a degree standard
Re employment       
The manner in which the above provision works to the detriment of the promotees is as follows
A person who is working as a Senior Technical Officer must have a minimum service of five years in that grade for promotion to the higher post
A direct recruit who joins service much later and who does not have the requisite five years service will be placed above him for promotion
The posts to be filled in by direct recruitment are kept vacant and as and when recruitment is made the names of direct recruits are inserted at the places reserved for them regardless of the fact that there are many others who had put in more years of service than they
This method works an additional hardship to the promotees in that they will not be confirmed though the required probation period has been completed by them only to allow the direct recruits to complete their period of probation
The combined operation of clause 10 and 11 according to the petitioner causes a double damage to them and the direct recruits consequently have double advantage
Annexure C  to the writ petition is the seniority list relating to the Senior Technical Officers
In this list places 4 6 8 10 12 and 14 are kept vacant
These places will be filled in when direct recruits come
They will steal a march over those who have entered service earlier
The latter will be pushed down in the list
We do not think it necessary to refer to the various decisions rendered by this Court on this question
In the case of A Janardhana vs Union of India and others   OP Singla and Anr
vs Union of India and others  and in GS Lamba  Ors
vs Union of India  Ors
  length of service 287 was given due importance in dealing with promotions and seniority
In the case of Narender Chadha vs Union of India  to which one of us was a party it was held that to treat continuous officiation of one officer as temporary would be arbitrary and violative of Articles 14 and 16 In GK Dudani and Ors
SD Sharma and Ors
  a three Judge Bench of this Court Madon J speaking for the Bench approved the settled principle noted above
The promotees come into service not by any fortuitous circumstances but they form an integral part of the regular cadre entitled to all benefits by the length of their service
The learned counsel for the respondent found it diffi cult to justify the validity of the rules and the lists in the light of the various decisions of this Court which have consistently leaned in favour of the promotees based on their length of service and seniority in cases where there was inordinate delay in making direct recruitment
He tried to justify the inequity saying that the new rules have tried to rectify it
We are not satisfied with this explanation since that is little consolation to the petitioners
We are of the view that the grievance of the petitioners is justi fied in law
The rules enabling the authorities to fill in vacancies for direct recruits as and when recruitment is made and thereby destroying the chances of promotion to those who are already in service cannot but be viewed with disfavour
If the authorities want to adhere to the rules strictly all that is necessary is to be prompt in making the direct recruitment
Delay in making appointments by direct recruitment should not visit the promotees with adverse consequences denying them the benefit of their service
The learned counsel for the respondent Nos 1 and 2 made a fervent plea that being a sensitive department relief may be granted to the petitioners by way of monetary compen sation and requested us to desist from upsetting the list
We cannot accede to this request
The petitioners had sought stay of operation of the list
This Court by its order dated 491978 declined to grant stay but ordered any action taken in the matter in regard to the grievances of the petitioners in this case will be subject to the final result of this writ petition
 In our Judgment the petitioners are entitled to suc ceed
We allow this writ petition and direct the authorities to re draw the senority list dated 2571977 391977 and 791977 appended as Anne 288 xures C  D  and E  the writ petition and prepare the list afresh giving the petitioners the positions they would have been entitled to but for the offending portions of clauses 10 and 11 in the schedule to the rules
There will be no order as to costs
MLA Petition allowed


Summary:
The petitioners who are working in the Ministry of Defence Department of Production challenged the validity of The Defence Production Directorate of Production and Inspection Naval Group A and Group B Technical Post Re cruitment Rules 1976 on the grounds i that the Rules discriminate between promotees and direct recruits ii that their seniority is not taken into consideration while the seniority list is prepared and that the direct recruits are given seniority over them undeservedly by virtue of the operation of the method of recruitment contained in the rules iii that the seniority lists dated 25777 3977 and 7977 prepared according to rules are purely arbitrary and ignore their length of service
On the other hand counsel for the respondents contended that the principle of fixing seniority on the basis of length of service and dates of confirmation is not an inflexible rule and it is possi ble in law that a direct recruit who is appointed later in point of time is senior to a promotee because of the working out of the quota rule and that in certain given cases seniority based on length of service can be ignored
Allowing the writ petition this Court HELD 11 The grievance of the petitioners is justified in law
The rules enabling the authorities to fill in vacan cies for direct recruits as and when recruitment is made and thereby destroying the chance of promotion to those who are already in service cannot but be viewed with 282 disfavour
If the authorities want to adhere to the rules strictly all that is necessary is to be prompt in making the direct recruitment
287D E 12 The respondents are directed to redraw the senority lists dated 25777 3977 and 7977 appended as Annexures C D and E to the writ petition and prepare the list afresh giving the petitioners the positions they would have been entitled to but for the offending portions of clauses 10 and 11 in the Schedule to the Rules
1287H 288A B 2
The manner in which the provision contained in col umns 10 and 11 of the Schedule to the Rules works to the detriment of the promotees is as follows
The person who is working as a Senior Technical Officer must have a minimum service of five years in that grade for promotion to the higher post
A direct recruit who joins service much later and who does not have the requisite five years service will be placed above him for promotion
The posts to be filled in by direct recruitment are kept vacant and as when recruit ment is made the names of direct recruits are inserted at the places reserved for them regardless of the fact that there are many others who had put in more years of service than they
This method works an additional hardship to the promotees in that they will not be confirmed though the required probation period has been completed by them only to allow the direct recruits to complete their period of probation
The combined operation of clause 10 and 11 of the Schedule to the Rules causes a double damage to the peti tioners the promotees and the direct recruits consequently have double advantage
286C F 3
Delay in making appointments by direct recruitment should not visit the promotees with adverse consequences denying them the benefit of their service
287E A Janardhana vs Union of India  Ors   OP Singla and Anr
vs Union of India and others   GS Lamba  Ors
vs Union of India  Ors
  Narender Chadha vs Union of India  and GK Dudani and Ors
vs SD Sharma and Ors   relied upon