Case: Amrit Lal Berry Vs. Collector Of Central Excise, New Delhi &amp; Ors

of salary as a result of an alleged wrong preparation of a seniority list in 1961. The memorandum or 1972 attempts to satisfy the grievance of the petitioners to the extent that it is reasonably possible, consistently with the equitable rights of others, that the principle of length of service laid down in the 1949 memorandum should govern the cases of those appointed prior to 1959.27. We think that the 1972 memorandum may be fairly interpreted to mean that (a) the 1949 memorandum will apply to all cases covered by it till the 1959 memorandum came into effect; (b) that those who were, in good faith and in the regular course, confirmed and/or promoted regularly though by an honest mis-application of the 1959 memorandum will not be disturbed even if they be junior to the claimants under the 1949 memorandum; (c) that in future, for vacancies and quotas, as earlier explained, those with longer service, as contemplated by the 1949 memorandum, will be considered for confirmation and promotion; and (d) that in the subsequent career of those who stand to benefit by the 1959 memorandum, that factor will be reckoned in their favour when further opportunities for promotion arise, so that they may not suffer for ever from the mis-construction of the memorandum made by the Excise Department. It will be for the Department to consider what consequential benefits can be given as a result of reconsideration of a case.28. Lastly, it was urged that the fixation of 4-1-1972 as the date after which all confirmations and promotions made would be revised in order to conform to the seniority determined by length of service of persons appointed prior to 22-12-1959 was arbitrary. Reliance was placed upon D. R. Nim v. Union of India, (1967) 2 SCR 325 = (AIR 1967 SC 1301 ) where a date fixed for the application of a particular rule was held to be arbitrary. In reply it was submitted that 4-1-1972 was the date on which this Court delivered judgment in Ravi Vermas case (1972) 2 SCR 992 = (AIR 1972 SC 670 ) (supra) making it finally clear and definite to the Central Excise Department what the correct interpretation of memorandum of 1959 was, and, therefore, the date had not been chosen altogether arbitrarily. A perusal of the memorandum of 1972 Shows that the date 4-1-72 was only chosen for giving the retrospective effect to whatever may be the actions taken on a wrong view of the law after this date. In other words, it means that promotions and confirmations made after 4-1-1972 would, in any case, be reopened. The provisions of the memorandum, which are not very clear as to what will happen in decisions taken before 4-1-1972 by the Excise Department, have been now interpreted by us so that they may be construed in a manner consistent with the apparent objects of the memorandum. The result seems to be that the seniority of all unconfirmed persons is to be determined in accordance with the law as declared by this Court on 4-1-1972; but, as regards persons who had already been bona fide confirmed or promoted before 4-1-1972, no undoing of what had already been done in their favour would be possible. Nevertheless, it was laid down there that the cases of those who had failed to be either considered for confirmation or promotion merely because of the failure to apply the length of service rule for determining seniority, would not suffer but will be reconsidered now subject to existence of vacancies in the grade for confirmation, or in the promotion quota.29. We are not quashing any part of the memorandum of 1972 as we do not so interpret it as to make it possible for the Central Excise Department to violate Article 16 (1) of the Constitution by resorting to it. We take its meaning to be -and, so construed, it will be constitutional -that the declaration of law by this Court on 4-1-1972 will affect all cases in which the principles of 1949 memorandum can still be applied despite any confirmations wrongly made between 1959 and 4-1-1972. It appears to us that, in cases of promotions wrongly made between 1959 and 4-1-1972, the position, despite the clarification attempted by us, is still left rather vague. As no question of the seniority of a person actually promoted before 4-1-1972 as against that of a person promoted after 4-1-1972 is before us on the footing that both belong to the class of promotees whose seniority, inter se, should be determined by the total lengths of their services, we refrain from pronouncing upon such questions. We hope that a just and reasonable rule for determining such questions of seniority, on a principle of length of service combined with merit, will be evolved by the Excise Department itself to prevent complaints of injustice and future litigation. It is for the Central Excise Department itself to make appropriate rules. It is only when such rules violate or have been so used as to violate the fundamental rights of any group of persons employed by the State that this Court can interfere. In such cases, we see no objection to the filing of writ petitions in representative capacities by aggrieved persons after taking necessary steps under Order 1, Rule 8. Civil Procedure Code, the application of which to proceedings under either Article 226 or 32 of the Constitution does not appear to us to be barred by any provision.30. It is difficult to understand why statutory provisions, on the lines on which provisions have been made for superior services and rules under such provisions are not made to ensure that nothing except just considerations, such as merit tested by performance and integrity revealed by the service records or other reasonable tests as well as length of service, can count in making confirmations or promotions. The petitioners have, however, failed to establish that just and reasonable considerations did not prevail in any particular instance brought to our notice.31.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. It is true that assertions in each of the two petitions are of a very general character the petitions seem to rest on the assumption that all that need be asserted is the violation of some rule contained in an office memorandum which governed the rights of the petitioners in the past. There is no doubt that the office memorandum of 22-7-1972 was issued, in consequence of the decision of this Court in Ravi Varmas case (1972) 2 SCR 992   = (AIR 1972 SO 670) (supra) dated 4-1-1972, to meet the situation created by it in the context of previous office memoranda on the subject. If the 1972 memorandum correctly interprets and applies the law laid down by this Court there would be no need to proceed further with the consideration of the petitions before us. This memorandum itself gives the history of previous relevant office memoranda and the need for their displacement by new instructions due to the decision of this Court in Ravi Varmas case.Keeping in view the objectives of the revised instructions contained in the O. M. of 22-12-1959, the Ministry of Home Affairs (now department of personnel) have all along held that while persons appointed prior seniority already fixed under the then existing orders,59, permanent employees of a grade, including those confirmed in that grade prior to 22 12-1959, will rank en bloc senior to non-permanent employees of that grade, irrespective of the fact whether such non-permanent employees were appointed to the grade before, on, or after 22-12-1959. Amongst permanent employees confirmed in the grade prior to 22-12-1959 their relative seniority already fixed according to the then existing orders would be maintained and they will rank senior to those confirmed in that grade after 22-12-1959.Amongst those confirmed after 2-12-1959, the relative seniority will be according to the order of confirmation. Similarly, amongst non-permanent employees of a grade, the relative seniority of those appointed prior to 22-12-1959 will be on the basis of the then existing orders, but they will rank en bloc senior to those appointed to that grade after 22-12-1959, but not yet confirmed in the grade.As this Court had, in Ravi Varmas case (1972) 2 SCR 992   = (AIR 1972 SC 670  ) (supra) set out the provisions of the memoranda of 22-6-1949 and 22-12-1959 in extenso, it is not necessary for us to reproduce their contents. We will only indicate the conclusions which emerged from their consideration in Ravi Varmas case. This Court had, after pointing out that the principles contained in the office memorandum of 22-6-1949, although intended originally to meet the situation created by the partition of India and the need to absorb the influx of a large number of new Central Government servants, whose seniority had to be determined, were more generally applied to all Central Government servants, proceeded to hold that the provisions of the memorandum of 1959 specifically stated that they were prospective and did not affect cases which were governed by the earlier office memorandum. The effect of the provisions of the office memorandum of 22-12-1959 was held to be that the new principle "could not apt ply to the persons appointed to the various Central Services before the date of that memorandum". It was also observed there that this Court had, even in Mervyn Continho v. Collector of Customs, Bombay, (1966) 3 SCR 600   = (AIR 1967 SC 52  ) held that the new principle of seniority, contained in memorandum of 22-12-1959, was not to apply retrospectively. In fact, the so-called new principle of 1959 was a restoration of a principle applied before the memorandum of 1949 issued to meet a special and unprecedented situation created by the influx of a large number of Government servants as a result of the partition of India. It may be observed here that the validity of the so-called "new" principles of 1959 memorandum is not assailed before us on the ground that they, standing by themselves violate Article 16 (1) of the Constitution. Ravi Varmas case (1972) 2 SCR 992   = (AIR 1972 SC 670  ) (supra) was decided on the assumption that the whole memorandum of 1959 was valid but had been misinterpreted and misapplied.In the cases before us, the fundamental rights alleged to be violated could only be the general ones embraced by Article 16 (1) of the Constitution which reads:"There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under thea petitioner alleges that he has been denied equality of opportunity for service, during the course of his employment as a Government servant, it is incumbent upon him to disclose not only the rule said to be infringed but also how this opportunity was unjustifiably denied on each particular occasion. The equality of opportunity in a matter relating to employment implies equal treatment to persons similarly situated or in the same category as the petitioner. It postulates equality of conditions under which a number of persons belonging to the same category compete for the same opportunities and a just and impartial application of uniform and legally valid standards in deciding upon competing claims. It does not exclude justifiable discrimination.Even if we were to assume, as the petitioner would like us to do, that a disregard of seniority determined solely by length of service was the only reason for his failure to get the senior grade in 1961, there is yet another hurdle before the petitioner which was not shown to be present in Ravi Varmas case (1972) 2 SCR 992   = (AIR 1972 SC 670  ) (supra), and, therefore, not considered or adjudicated upon in that case. There, no objection based on delay in applying to the Court was taken presumably because it could not be taken.But, a number of promotions having taken place between 1959 and the filing ofs petition in 1971, those who were so promoted and had been satisfactorily discharging, for considerable periods before the filing of the petition, their duties in a higher grade would acquire new claims and qualifications, by lapse of time and due discharge of their new functions so that they could not, unless relief had been sought speedily against their allegedly illegal confirmations and promotions, be equitably equated with the petitioner. The inequality in the equitable balance brought into being by a petitioners own laches and acquiescence cannot be overlooked when considering a claim to enforce the fundamental right to equal treatment. To treat unequals equally would also violate that right. Although, it may not be possible for the State or its agents to plead an estoppel against a claim to the fundamental right to equal treatment, yet, if a petitioner has been so remiss or negligent as to approach the Court for relief after an inordinate and un-explained delay, he certainly jeopardises his claims as it may become inequitable, with circumstances altered by lapse of tune and other facts, to enforce a fundamental right to the detriment of similar claims of innocent third persons.It is true thatAmrit Lal Berryhad amended his petition so as to make it appear that a fresh cause of action accrued in his favour on 22-7-1972 when the office memorandum set out in full above was issued during the pendency of his Writ Petition, and the Writ Petition of K. N. Kapur and others, purports to be directed against the office memorandum of 1972 and consequential instructions. Nevertheless, when we examine the contents of that office memorandum and the substance of the petitions before us, it becomes abundantly clear that what was being really sought by the petitioners was the setting aside of a number of confirmations and promotions which had taken place long before the Writ Petitions were filed without even making necessary assertions to indicate precisely the occasions on which allegedly illegal confirmations and promotions took place and of which person or persons exactly on each occasion. As we have pointed out above, at least those who had been promoted could, after a lapse of a number of years in their new posts, be regarded equitably as persons in a new and separate class.20.It is true thatthe concerned Central Excise Department officials would have known the correct legal position if they had cared to study the decision of this Court in (1966) 3 SCR 600   = (AIR 1967 SC 52  ) (supra) which was pronounced on 14-2-1966. There, this Court had pointed out, inter alia, that the memorandum of 1959 did not apply any new principles retrospectively. That was primarily a case on the validity of the rotational system which was alleged to he struck by the principles of Articles 14 and 16 (1) of the Constitution. Even if the opposite parties had missed the significance of an observation in that case that the principles introduced by 1959 memorandum were not to be applied retrospectively on the terms of that memorandum itself, yet, Government servants who could benefit by this observation - probably they have an organisation to keep a watch over and protect their interests - ought to have also realised the meaning of this pronouncement long ago. They could have raised the question in a Writ Petition in a representative capacity so that a general order could have been obtained to govern all similar cases. They need not have waited for the pronouncement of the law by this Court on4-1-1972 in Ravi Varmas case(1972) 2 SCR 992   = (AIR 1972 SC 670  ) (supra). But, whatever may be the consequences to parties affected by slumbering over their rights, we think that the Central Excise Department must be presumed to know the law as declared by this Court in Mervyn Continuos case (supra) in 1966. We find its lethargy in waiting until 1972 to make any attempt to rectify its errors far from commendable.It is submitted by the learned Counsel for the Excise Department that the real grievance of the petitioners is that they have not been awarded consequential benefits such as promotions and arrears of salary as a result of an alleged wrong preparation of a seniority list in 1961. The memorandum or 1972 attempts to satisfy the grievance of the petitioners to the extent that it is reasonably possible, consistently with the equitable rights of others, that the principle of length of service laid down in the 1949 memorandum should govern the cases of those appointed prior to 1959.We think that the 1972 memorandum may be fairly interpreted to mean that (a) the 1949 memorandum will apply to all cases covered by it till the 1959 memorandum came into effect; (b) that those who were, in good faith and in the regular course, confirmed and/or promoted regularly though by an honest mis-application of the 1959 memorandum will not be disturbed even if they be junior to the claimants under the 1949 memorandum; (c) that in future, for vacancies and quotas, as earlier explained, those with longer service, as contemplated by the 1949 memorandum, will be considered for confirmation and promotion; and (d) that in the subsequent career of those who stand to benefit by the 1959 memorandum, that factor will be reckoned in their favour when further opportunities for promotion arise, so that they may not suffer for ever from the mis-construction of the memorandum made by the Excise Department. It will be for the Department to consider what consequential benefits can be given as a result of reconsideration of a case.28.We are not quashing any part of the memorandum of 1972 as we do not so interpret it as to make it possible for the Central Excise Department to violate Article 16 (1) of the Constitution by resorting to it. We take its meaning to be -and, so construed, it will be constitutional -that the declaration of law by this Court on 4-1-1972 will affect all cases in which the principles of 1949 memorandum can still be applied despite any confirmations wrongly made between 1959 and 4-1-1972. It appears to us that, in cases of promotions wrongly made between 1959 and 4-1-1972, the position, despite the clarification attempted by us, is still left rather vague. As no question of the seniority of a person actually promoted before 4-1-1972 as against that of a person promoted after 4-1-1972 is before us on the footing that both belong to the class of promotees whose seniority, inter se, should be determined by the total lengths of their services, we refrain from pronouncing upon such questions. We hope that a just and reasonable rule for determining such questions of seniority, on a principle of length of service combined with merit, will be evolved by the Excise Department itself to prevent complaints of injustice and future litigation. It is for the Central Excise Department itself to make appropriate rules. It is only when such rules violate or have been so used as to violate the fundamental rights of any group of persons employed by the State that this Court can interfere. In such cases, we see no objection to the filing of writ petitions in representative capacities by aggrieved persons after taking necessary steps under Order 1, Rule 8. Civil Procedure Code, the application of which to proceedings under either Article 226 or 32 of the Constitution does not appear to us to be barred by any provision.It is difficult to understand why statutory provisions, on the lines on which provisions have been made for superior services and rules under such provisions are not made to ensure that nothing except just considerations, such as merit tested by performance and integrity revealed by the service records or other reasonable tests as well as length of service, can count in making confirmations or promotions. The petitioners have, however, failed to establish that just and reasonable considerations did not prevail in any particular instance brought to ourextract from the order shows that, although, the petitioner is a B. A. and strewn as appointed onand, Narinder Singh, the Inspector next in order of seniority, who was only a Matriculate, appointed subsequently onwas confirmed retrospectively53, that is to say, two years earlier than the petitioner. There is, however, a difference in age shown between the two inasmuch as the date of birth of the petitioner is given aswhereas that of Narinder Singh is shown asthese promoted Inspectors are the 77 persons impleaded as respondents 5 to 81 in the petition before us. Out of these, only twelve, with their places shown as lower than the petitioners number 204 in the list prepared before 1959, were specifically mentioned in the list of allegedly illegal promotions ofs petition to this Court