P. C. SETHI & ORS.

UNION OF INDIA & ORS. January 17, 1975

[M. H. BEG, V. R. KRISHNA IYER AND P .. K. GOSWAMI, JJ.]

Constitution of India, Art. 16-Civil Service-Ctntral Secretariat Service (Re organisation and Reinforcement) Scheme-Home Ministry circular dated 22nd June, 1949-Whether subsequent direct recruits can supersede tliose who . are absorbed in service earlier-Delay and /aches. . .

Petitioners are Assistants in Grade IV Class II of the Central Secretariat Service. Petitioners were appointed as Assistants during the period 1944-54. The respondent Union of India appointed a large number of persons as Assistants by direct recri.itment and many of those appointed after the petitioners have been confirmed in the grade and have since been promoted to the next higher grade of Section Officer. In 1948, the Government framed a Scheme known as the Central Secretariat Service (Reorganisation & Reinforcement) Scheme. Thereafter instructions for the initial constitution of the Assistants Grade were issued In March, 1949. Thereafter, the Ministry of Home Affairs issued Office Memorandum dated June 22, 1949, dealing with ti:~ qu.estion of seniority. Para 2 of the office memorandum provided that the rule of seniority on the basis of length of service should be takeq as a model in framing the rules of seniority for other Services. The main question to be determined in the present petition is whether the office memorandum of June, 1949 is applicable in determining seniority of the petitioners.· . ' HELD. Office Memorandum of June 22, 1949 is no bar to the Government making separate provision for the mode of constitution and future maintenance of the service of Assistants. The classification made in the instructions cannot be characterised as unreasonable. There is no discrimination amongst equals nor any arbitrary exercise of powers by the Government. In the absee of any statutory rules prior to the Central Secretariat Service Rules 1962 it was open to G, overnment in exerc.ise .of its executive .PO'Yer to issue adinistrative instructio'!s with regard to constitution and reorganisation of the. Service as long as there IS no violation of ArtS. 14 and 16 of the Constitution. The instructions of the Government issued from time to time do not violate any fundamental rights of the petitioners. In the present petition, the Civil List of 1962 has not been challenged as invalid. Only office Memorandum of 1971 is challenged. The said Memoran dum of 1971 is based on the civil list of 1962. The validity of which is not specifically challenged in the petition. There is no infirmity in the Memorandum of 1971 simply because it is not in conformity with the Memorandum of 22-6-1949.

[207H; 208B-EJ

HELD FURTHER : Once the temporary Assistants have been absorbed in the Service after they are found to be eligible in accordance with the instructions their claim for seniority cannot be superseded by the direct recruitment if appointed after the farmer's absorption in the service. It appears that the quota of direct recruitment was not enforced and perhaps for good reasons. Administrative in structions if not carried into effect for obvious and good reasons cannot confer a right upon entrants on later recruitment to supersede the claims of others already absorbed in the service in. accordance with the appropriate and valid instruction.,, Nothing has been brought to our notice which could justify such a wholesale or en bloc discrimination in favour of those who suddenly enter the same Rtade of service by direct recruitment. It could if 11ermitted be violative of Art: 16 of the Constitution. The direct recruits who are appointed after the absorption of the Assistants in conformity with the instructions on tile initial constitution or in the regular temporary establishment. shall rank junior to the ltter. [209B; 0]

HELD FUR.'I'HU : Jn view of the entire circumstances of the case and the hopes held out by the Government from me to time we are not prepared to dismiss the petition on account Qf delay and !aches. [210B]

ORIGINAL JuR1s01cr10N : Writ Petition No. 163 of 1972.

Petition under Art. 32 of the Constitution of India.

S. S. Javali and B. P. Singh, for the petitioners.

M. N. Phadke and R. N. Sachthey, for respondent No. L

P. P. Rao and A. K. Ganguli, for respondent No. 2 & the intl.!rveners.

T. V. S. Narasimhachari, for respondent Nos. 27-32.

The Judgment of the Court was delivered by

GOSWAMI, J.-The petitioners are Assistants in Grade IV (Class II Non-gazetted) of the Central Secretariat Service (briefly the

Servic~) and have been working in the various Ministries of the Ooverr.ment of India. They were appointed as Assistants during tire period

between 1944 and 1954. Their next promotional post is now that of Section Officer (Class II, Gaz.etted). They have raised in this Writ Petition the question of their seniority and challenged the validity of the Office Memodandum of 7th September,.1971, issued by the first Respondent fixing zones for promotion to the grade of Section Officer on the basis or ranks assigned in the Civil List of 1962 for the grade of Assistant on the ground of being in contravention of the Office Memorandum of June 22, 1949, of the Ministry of Home Affairs.

They also challenge the validity of rule 18(1) of the Central Secre tariat Service Rules, 1962 (briefly the Rules) in so far as it is con strued to protect the seniority determined prior to the commencement of the said Rule fa violation of the Office Memorandum of Ju11c 22,

1949. Th~ petitioners allege that the Government havoe not fo:l!owed any consistent principle or rule in regulating the seniority of the Assistants. It: is said the first Respondent prepared lists of ofti<:ers in the Assistant's Grade by different combination of classifications, such as initial constitution, regular temporary establishments, nontest cate gory, first test category, second test category, hard cases category, displaced persons, direct recruits, etc. and effected promotions in utter disregard of the dates of confirmation. The first Respondent appointed a large number of persons as Assistants by direct recruitment and many of those appointed after the petitioners have been confirmed in the grade and have since bee.n promoted to the next higher grade of Section Officer. Acording to the petitioners gla.ring instance of arbitrary action is the assignment of en bloc seniority to persons appointed by direct recruitment in 1956 exceeding 800 in number who have been assigned seniority over all the petitioners appointed as Assistants long prior thereto. Such instances' were there also in 1958 and 1959.

In retrospect, on July 19, 1948, the Government.framed a scheme known as the Central Secretariat Service (Re-organisation and Reinforcement) Scheme (briefly the Scheme). It constituted four grades in the Service, namely, Under Secretary (Grade I), Superintiendent (Grade ID. Assistant Superintendent (Grade III) and Assistant (Grade IV). The Scheme was, owever, not implemented until November 1951. Under para 15 of the Scheme, the authorised 1iermanent strength of the Service will be fixed by the Ministry of Home Affairs with th~ concurrence of the Ministry of Finance. It was recog-

' 1'

P. c. SETHl v, UNlON (Goswami, J.) 2-03

nised therein that "it is essential' from the poin~ of Yiew alike of economy and efficiency , that as large. a proportion as possible of the members of the Service should be recruited on a permanent basis. A flexible system of fixation of Authorised Permanent Strength will therefore be followed. . . . should be revised once in every three years". It is also mentioned in the same paragraph that "if as a result of any such triennial refixation, the Authorised Permanent Strength is reduced,. effect should given to such reduction by equivalent reduction in the following triennium of the rate of direct recruitment to the Service and' :Promotions from grade to grade .... ". It is also particularly men-·

tioned in the said paragraph that "the rights of members appointed to the Service on a permanent basis will not be prejudiced by any revision of permanent strength, effected subsequent to such appointment".

Under Paragraph 19 of the Scheme, after the Authorised Permanent Strength of the Service is determined, the initial coustltution of the Service will be undertaken, and, inter alia, appointments to Grade IV will be completed within thirty months. Under para 25 of the: Scheme, the mode of constitution of Grade IV is as follows :-

"Assistants who have already been appointed on a permanent basis and are not appointed . to a higher grade in the Service as reorganised will be appointed permanently to Grade IV first. The remaining vacancies in Grade IV will be filled by persons who are 'qualified' in terms of the Ministry of Home Affairs bffice Memorandum No. ~3/20/48-NGS, dated the 25th May, 1948. A'.s contemplated in that Memorandum two tests will be held by the Federal Public Servi~ Commission in which the temporary 'qualifiables' as defin"d therein will be enabled to qualify for permanent absorption in Grade IV. In the first of two ests only qualifiable tempcrary Assistants will be allowed to appear. H \Jl'.OUld then be considered with reference to the number of vacancies to be filled as well as the number of qualifiable candidates remain ing whether, and if so Jo what extent, the. second test should be thown open partialy to the outsiders also". .

Paragraph 26 in Part V of the Scheme dealing with future maintenance of the Service, provitles, i111er alia, for the recruitment as follows:-

"Permanent vacancies in the Authorised Permanent Strength of this Grade will be filled in two ways. One out of every 4 vacancies will be filled, Ministry-wise, by promotion from the Ministerial Grades below the rank of Assistant. The remaining 3 vacancies will be poofod for the Central Secretariat as a whole and filled from among the successful candidates at the competitive Ministerial Services Examination held by the Federal Public Service Commission, The qualifications for admission to this examination will continue to be graduates in the age-groups 20-22 with relaxation of age limit for the Scheduled Castes".

/ \

SUP~EME COURT REPORTS

[197 5} 3 S.C:.R0

With regard to promotion it is stated in the said paragraph as follows:-

"Assistants who have completed 5 years' but not more than 1 O y1ars' service in_ their grade will be eligible for promotion by selection based strictly on the result of .a limited competitive test held among Assistants of that erv1ce group to the rank of Assstant Superintendent, prov1dd that no Assistant will be allowed rnore than three consecutive chances to compete in this test. _Those Assistants who are not. so promoted will also be eligible in due course for promotion based on seniority, subject to the rejection. of the unfit,. to vacancies in the Grade of Assistant Supermtendent which would. be reserved for being filled by such promotion".

Under para 31 of the Scheme, leave, pension and other con4_itions of service will be as applicable at present to all offi(ferS of Central Services, Class I or II, as the case may be. -

After the publication of the Scheme, the Ministry of Home Affairs -on.October 25, 1948, circulated an explanatory memorandum explaining the nature and purpose of the Service. The Central Secretariat is pithily described therein as ''the workshop of policy" which helps the Government to make and revise policies and to create, maintain and direct the organs which execute the policies. The Assistants, we are concerned with, are -the fifth layer at the lowest rung of the Secretariat Department and are engaged on case work as distinguished from clerks and typist~ employed on routine work in a separate lower service.

It was pointed out that there was a phenomenal expansion in the Service as would be reflected from the figures, for example, of Assistants in 1939 at 493 which rqse upto 2306 in 1948. This is said: to have affected the quality of the Service which includes a large nu1mber of staff employed on a temporary basis. In 1948 itself the , entire number of 2306 Assistants, except 95, were temporary employees. It was further mentioned in the explanatory note that "reinforcement is not required at the lowest level, viz., the Assistants' Grade. Here what is necessary is the weeding out of the poor quality material and the improvement of _efficiency of the rest through a permanent tenure and better training and guidance".

Then in S'equence came the instructions for the initial constitution of the Assistap.ts' Grade of the Service on March 1, 1949. These ins~ tructions gov1!med the manner in which the sanctioned permanent strength of the grade of Assistants would be filled by existing perma~ nent Assistants and from various categories of existing temporary employees.

The scheme of the Instructions contains these broad features : ( 1) All existing permanent Assistants who are not appointed to higher grades in the Service will forllll pa.rt of the permanent strength of the Service.

f I

p, c. SETHI v. UNION (Goswami, J.) 205

(2) The remaining number of permanent vacancies in the Grade will be divided among three categories, namely, (i) The Non Test Category, (ii) The First Test Category and (iii) The Second Test Category.

A particular specified number of vacancies will be allotted to the Non Test Category and the remaining vacancies will be divided among the First Tesi Category and the Second Test Category in the ratio 2 : 1.

There is also reservation of a specific number of vacancies for allotment to Displaced Government servants. There are five categories of employees which are included in the Non Test Category and for them there will be two separate lists, ijamely, (a) for Displaced Government servants and (b) for others. Both the lists will be drawn up ranking the employees in order of seniority according to their length of service. The employees who are included in these lists will be eligible for permanent appointments in accordance with their position in the lists upto the respective quotas prescribed for them. I.t will, therefore, appear that although there may be a large number of employees included in the lists of Non Test Category, all may not be absorbed in the permanent vacancies but only these in order of St)niority in the lists upto the sanctioned strength of the vacancies in the Non Test Category.

Next comes those Assistants who are eligible to be considered for permanent. appointment to the vacancies reserved for the First Test Category by qualifying at the first test to be held by the Federal Pub!ic Service Commission. Here again on the results of the fiirst test candidates in order of merit upto the number of vacancies allotted to this category will be confirmed in the grade. That is to say, although there may be a large number of temporary Assistants who may have qualified at the first .test, only the candidates in order of merit upto their quota in this category will l;>e confirmed. Similarly there will also be a &cond Test Category which will .include candidates who have qualified in the test but only these candidates in the order of merit upto .the number of vacancies allotted to this Category will be confinned.

The inter se seniority of the .confirmed employees it). the Non Test Category, The First Test Category and The Second Test Category will' be according to their !ength of sec; e.

Paragraph 8 of the instructions which deals with seniority of Assistants in. Grade IV as newly cQnstituted, which is even quoted in G . the Office Memorandum of June 22, 1949, provides in substance as: follows:-

All existing permanent Assistants who were confirmed in their posts prior to October 22, 1948, will be arranged in the first instance Ministry-wise in accordance with the rules in force then. They will be senior to all others confirmed thereafter in vacancies arising upto October 22, 1950. Those who ar~ confirmed after 1943 in vacancies arising upto October 22, 1950, will be arra11ged in a single list for all Ministries and their seniot:'ity inter se will be detennined orr

the basis of their length of continuous service temporary or permanent in the grade of Assistant or in an equivalent grade.

After the sanctioned strength of the permanent establishment has

ben filled up as set out earlier, the :remaining persons in the Non Test, flrst Test and Second Test Categories, because of lack of sanctioned strength in the various categories, could not be absorbed will form a regular temporary establisment (R.T.E.). There will be a s'.ngle seniority list for such R.T.E. and seniority will be determined on the basis of the length of contin\10us service. The sanctioned strength of the service upto Oqtober ~. 1950, will be filled as above. Thereafter a proportion of future permanent vacancies will be filled by appointments, based upon seniority from the list of members of the R.T.E.

The next stage is reached when instructions for the constitution and maintenance of the regular temporary establishment of Asshtants were issued on August 26, 1952. The R.T.E. as initiallv constituted is as follows :-- ·

A list (List A) arranged in order of seniority as Assistants shall be prepared of all existing Assistants that is those holding Posts of Assistant as on July 1, 1952 and not confirmed in Grade IV and of others specifically mentioned in sub-para (2) (i) of para 3 of the instructions. These left over from the two Non Test lists mentioned eadier are entered in one list (List B) in accordance with seniority with some weightage for Displaced Government servants. The lists of persons who have qualified m the First and the Second Test Categories but not confirmed in the service are ref :rred to as Lists C and D respectively. For the first time a rotation system is introducf:d as

per sub-para ( S) of these instructions in so f11r as appointments ti:> the R.T.E. shall now be made one from each lillt in serial order from the top of each Ii1it until 1200 persons are chosen. There is, however, an overall reservation of 12i% for Scheduled Castes and 5% for 'Schedulel:i Tribes. Persons who are neither ermanent members of 'Grade IV nor members of the R.T.E. of Assistants are referred to as "Ex-cadre" As1sistants. Under para 4 of these instructions the !fat of R.T.E. prepare.d in accordance with para 3(5) shall be the Gradat'.on List of the R.T.E. at its initial constitution. Para 6 provides that the per 800$ appofoted to the R.T .E. at its initial CC'lnstitution shall be senior to these appointed later. The Ja"er shaU rank inter se in the order of their appointment to the R.T.E. in accordance with para 5 ( 4) of the instructions. Para 9 provides that all permanent vacancies in Grade IV not filled by direct recruienent on the results of competitive examination held by the Umon Public Service Commission shall be filled from the R.T.E. in the order of the Gradation List subject to certain 1proviso, the first one being that not lss than one-fourth of the vacancies 1; hall be reserved for petmanent Clerks.

Then in the wake of these instructions came the Ministrv of Home Affairs' Office Memorandum of June 22, 1949, dealing with th~ 1mbjiect of "seniority of the displaced Government servants who have been absorbed temporarily in service under the Central Government".

J>aragraph 2 of the said Office Memorandum may be set out :

P. c. SETHI \/, UNION (Goswami, /.) 207

"The question of seniority of Assistants in the Secretariat was recently examined very carefully in consultation with all the Ministries and the Federal Public Service Commission and the decisions reached are incorporated jn para 2 of the Instructions far the initial constitution of the grade of Assistants .... "

B This paragraph 8 which is mentioned is the orie which is quoted earlier from the Instructions of March 1,.1949, which was expressiy intended for the initial constitution of the Assistant's Grade of the Central Secretariat Services. The principle which was adumbrated in the . Office Memorandum of June 22, 1949, is the same as has been earlier

mentioned in paragraph s of the Instructions of March 1949.

In paragraph. 11 .of the counter-affidavit of the Deputy Secretary to the Government of India, Department of Personnel, Cabinet Secretariat, it is stated as follows :-

"I say that the statement that persons who were appointed Jong after the petitioners' appointment as Assistants have been further promoted in supersession of the claims of the petitioners is a statement made shorn of its context. That criticism would have been valid if with regard to the Assistants of the Central Secretariat Service the Office Memorandum of 1949 was applicable under which length of service was the

crierion in the matter of determining seniority ... " with reference to Annexure 'B' to the writ petition I am advised to submit that if the 1949 or 1959 Office Memorandum were applicable to the petitioners' case, then Annexure 'B' would be valid and this respondent would have 110 reply thereto but, unfortunately, for the petitioner, they being governed by different principles as regards seniority and at any rate they being hot governed by 1948 or 1959 Office Memoranaum, it is only. a futile exercise to find out what would have been their seniority in the Civil List of 1962 and 1949 Office Memorandum applied to them".

It may be noted that Annexure 'B' to the Petition is a statement showing the order "of seniority had it been based on length of service as Assistant. ·

The principal question that arises for consideration in this case is whether the Office Memorandum of June 22, 1949, is applicable in G determining seniority of the petitioners. Para 2 of the Office Memo- . randum as quoted above clearly shows that paragraph 8 which contnins th~ rule of seniority being length of' continuous service was in terms applicable to the initial cons(itution of the grade of Assistants.

The said rule of seni-0r1ty should be taken as "the medal in framing the rules of seniority for other services". This w-0uld go to demonstrate that the Office Memorandum of June 22, 1949, is no bar ta the H Government in making separate prO'Visions for the mode of onstitu

tion 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 bal~ length of continuous

service irrespective of other considerations then the service was sought to be reorganised and reinforced. As noticed earlier the service had to be reconstituted and the temporary Assistants properly observed keeping in view the question of quality and efficiency as well as at the same where regard being ha9. to, accommodate as large number as possible for gradual absorption. In doing so we are unable to hold. that the Government has violated the _provisions of articles 14 or 16 of the Constitution. The clas:sification under the instructions 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 efficiency in the Service. There is no discrimination whatsoever amongst the equals as such nor any arbitrary exerc:ise of power by the Government. In absence of any statutory rules prior to the Central Secretariat Rules 1962 it was open to the Government in exercise of its executive power to issue administrative instructions with regard to constitution and reorganisation of the Service as long as there is no violation of article 14 orarticle 16 of the Constitution. Subje, ct to what is observed hereafter, as held above we do not find that the instructions of the Government made from time to time violated any fundamental rights of the petitioners. We should also observe that the various Office Memorandum and instruc1ions including the Civil list of 1962 have not been challenged as invalid with the solitary exception of the Office Memorandum of 1971 ( Annexure I). This Office Memorandum again is based on the Civil List of 1962 the validity of which is not specifically challenged in this

Petition. We, therefore, do not find any infirmity in the Office Me morendum of 1971 (Annexure I), simply because it is not in conformity with the Office Memorandum of June 22, 1949. Besides, it is stated ii11 the countet-.affidavit of the Deputy Secretary (page 176 of the record) that "the Office Memorandum of 1971 is no longer operative .. , " We have seen that the rule of length of continuous servk~ has been adopted in the case of different categories reconstituted in

p the Service in accordance with the administrative instructions of the Horne Ministry issued after consultation with the Union Public .Service Commission, The grievance that the said Office Memorandum should have been applied to all the temporary employees without the req11drement of their being eligible in accordance with other instructions is without any foundation and cannot be upheld. A regular set of separate instructions governed the Service the existence of wch cannot be explained if th(l Office Memorandum of June L2, 1949, alone were

applicable, de hors the!ie other instruction.~. . , .. a It is further contended that rule 18 of the Rules is invalid in . so far as it protectl1 the seniority of _the Assistants already observed vioiating the rule of continuous length of servfoe amongst the entire gmup as a whole. This argument is untenable as the rule of continuous length of service cannot be invoked unl(!ss the temporary Assistants are

absorbed in the Service in accordance with the instructions which are valid. The entirn group of temporary Assistants canno~ claim senio:rity by the rule of length of continuous service without prior c.omplia:nce with the conditions ld down under the instructions. Rule 18 is, the:re-

P., c. Sl!THI v. UNION (Goswami,}.) 209

fore not violative of article 14 or article 16 of the Consti.tutiol\ on the

scor~ of giving effect to the' earlier or other instructi011s which are not lound to be othe.rwise objectionable.

That leaves one more question to be resolved, that is, with refe . rence to the direct recruits. Once the temporary Assistants have been nbsorbed in the service after they are found to be ~Hgible in accordance with the instructions their claim for seniority can11llt be superseded by the direct recruits if appointed after the farmer's absorption in the Service. This conclusion is based on the following factors :-

Although the Scheme was made in July 1948 it was not enforced until November 1951. Even then there. was no direct recruitment until 1956. The reasons for delaying direct recruitment can be foumi from a perusal of paragraph 1 S of the 1948 Scheme itself, that "it is essential from the point of view alike of economy and efficiency tha~ as large a proportion is possible of the members of the service should be recruited on a permanent basis ..... If the Authorised permanent strength is reduced, effect should be given to such reduction by equivalent reduction in the following triennium of the rate of direc~ recruitment to the Service ... " It was, therefore, not the intention of the scheme to prejudice the seniority of the Assistants after their absorption in the Service nor such an intention was evident in the. explanatory memorandum annexed to the Office Memorandum of October 25, 1948. In para 11 of the latter Memorandum it is unambiguously stated the "reinforcement is not required at the lowest level, namely, the Assistants' Grade. Here what is necessary is the weeding out of the poor quality material . and the improvement of efficiency of the re_st through permanent tenure and better training and guidances. This is also clear from the instructions for the constitution and maintenance of the regular .temporary establishment of Assistants dated August 26, 1968. Para 9 thereof provides that "all permanent vacancies in Grade IV not filled by direct recruitment on the results of Competitive Examination, held by the Union Public Service Commission shall be filled from the Regular Temporary Establishment in the order of Gazetted List" subject lo certain provisions with which we are not concerned.

It appears the quota, if any, of direct recruitment was not enforced and perhaps for good reasons as noted above;- the policy of the Government being different.

Administrative instructions, if not carried into effect for obvious and good reasons, cannot .:onfer a right upon entrants on later recruitment to enforce the same to supersede the claims of others already absorbed in the Service in accordance with the _appropriate and valid instructions._ Nothing was broug!1t to our notice which could justify such a wholesale or en bloc discrimination in favour of those who suddenly enter the same grade of service by direct rec:ruitment. It would, if permitted, be violative of article 16 of the Constitution which should never be overlooked in such cases.

We are, therefore, clearly of opinion that the direct ; ccruits who were appointed after the absorption of the Assistants, in conformity with the instructions of the initial constitution or in regular temporary 15-L379 Sup. CI/75

SUPREME COURT REPORT~ [1975] 3 s.c.R.

1i:stablishment shall ranlc junior to the latt1r. We, th@refore, direct that the seniority of such Assistants shall be adjusted and the seniority list corrected accordingly. This will, J?owever, not affect the cases of these Assistants who are already promoted and confirmed in a higher 1rank

prior to the date of this petition.

The learned counsel for the respondents strenuously contended 1that the petition may dismissed on account of delay and laches. Jn view of the entire circl)mstances of the case and the hopes held out by 1the Government from time to time we are not prepared to acced1~ to this submission.

The petitioners also sought to take advantage of what they describeji as admission in Government's affidavits filed in connection with certain earlier proceedings of similar nature and other admissions in Parliament on behalf of the Government. We, are, however, unable to hold that such admissions, if any, which are mere expression Of opinion limited to the context and also being rather vague hopes, not specific assurances, are binding on the Government to create an estoppel.

In the view we have tilken the case is distinguishable from Union of India and Ors. v. M. Ravi Varma and Ors. etc.(1) principally relied upon by the petitioners.

In the result the petition is partly allowed only to the extent that the Assistants who have been absorbed in the Service in conformity 1vith the instructions will rank senior to the direct recruits appointed 111fter such absorption. The seniority list shall be adjusted and correc:ted accordingly. This direction will, however, not affect those Assistants who have already been promoted and confirmed m a higher rank p.rior to the date of this petition. In the circumstances of the case we leave the parties to bear their own costs.

P.H.P.

Petition allowed in part.

I. [1972] 2 S.C.R. 992;