Citation Codes

Equivalent Citations

citation codes

Case Number

W.A. Nos. 106 of 1969, 107, 108, 109, 110 & 111 of 1969

Advocates

For the Appellant: R.M. Seshadri, N. Sivasankaran, Advocates.
For the Respondent: R1, Habibullah Badsha, Standing Counsel, R2, S. Rajagopalan, G. Rajan, R. Balasubramaniam, R6, C. Natarajan, Advocates.

Judges

Mr. Justice Ramakrishnan
Mr. Justice G. Ramanujam

Acts

provisions of Article 311 (2) of the Constitution
Rule 2 73 (b)

See more information ...

Smart Summary

Structured Summary of the Opinion — Writ Appeals under Article 16(1)

Factual and Procedural Background

The appeals arise from orders of Kailasam, J., dismissing W.P. Nos. 3926–3931 of 1967. The writ petitioners were clerks in the Posts and Telegraphs Department who entered service between 1937 and 1940 and later qualified by passing the accountants' examination on various dates (some in 1951, one in 1954 and one in 1957). They began to officiate in the higher grade of accountants on dates in 1958, 1959 and 1961.

Several other officials (respondents 2 to 8 in the writ petitions: Allah Baksh, Ambalavanan, Sambasivam, Denapal, Chinnakutty, Sundararajan and Kuppuswamy) entered service after the petitioners but had passed the accountants examination earlier (three in 1947 and four in 1950). Vacancies in accountant posts were taken up for filling in 1958 and later; promotions at that stage were made according to seniority in the clerical cadre.

The petitioners challenged delay and postponement of their confirmation in the accountant posts and their confirmation after those respondents, despite having officiated earlier. They alleged unfair discrimination and invoked Articles 14 and 16(1) of the Constitution. The first respondent relied on a circular dated 18 December 1959 (Exhibit-A) issued by the Director General, Posts and Telegraphs, which changed the basis for appointment to certain accountant cadres to be "according to the year of passing the Post Office/RMS accountants examination."

The writ petitions were dismissed by Kailasam, J., who held that (a) Article 311(2) did not apply, (b) the revision of seniority by the Director General was an administrative order and (c) refixing seniority by year of passing the examination constituted a valid exception to the rule that seniority should normally follow date of promotion. The petitioners appealed to the court that authored the present opinion.

Legal Issues Presented

Whether the circular dated 18 December 1959, insofar as it refixed seniority on the basis of year of passing the accountants' examination, could validly be applied to officials who had already been promoted and were officiating in the higher grade awaiting confirmation.
Whether retrospective refixing of seniority for officials already officiating in the higher grade on the basis of date of passing the qualifying examination amounts to discriminatory treatment violative of Article 16(1) of the Constitution.
Whether Article 311(2) of the Constitution is engaged by the administrative refixing of seniority by the Director General of Posts and Telegraphs.

Arguments of the Parties

Petitioners' Arguments

The petitioners complained of delay and postponement of their confirmation as accountants and of being confirmed after certain respondents who were promoted later, despite the petitioners having been promoted to officiate earlier.
They argued that this differential treatment and the subsequent refixing of seniority were unfair and discriminatory, violating Articles 14 and 16(1) of the Constitution.

Respondent's (State / Director of Postal Services) Argument

The Director relied on Exhibit-A, the circular of 18 December 1959, which revised the basis of appointment to certain accountant cadres to be "according to the year of passing the Post Office/RMS accountants examination," and provided that officials appointed before the issue of the orders against regular vacancies and awaiting confirmation would continue to officiate but would be confirmed in accordance with the revised seniority rules (i.e., refixed by year of passing the examination).
The first respondent treated the circular as an administrative order altering seniority and contended (as noted by the learned Judge) that such administrative revision did not engage Article 311(2).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mervyn Continho v. Collector of Customs (Supreme Court)	Where the source of recruitment to a higher grade is a single source (promotion), seniority in the higher grade ordinarily follows date of promotion; refixing seniority by some other criterion may deny equality of opportunity (Article 16(1)).	The court relied on this decision to hold that once persons have been promoted and are officiating in the higher grade (and qualified), refixing their seniority by date of passing the qualifying examination is discriminatory and violates Article 16(1).
Aswini Kumar Rath v. Director of Public Instruction (Calcutta High Court)	Once employees have been included into a single grade or unit of employment, government cannot provide differential retrospective treatment between two sections of that unit.	The court cited this authority for the principle that differential retrospective treatment of members of a single cadre is impermissible and supports the petitioners' claim of discriminatory treatment.
Punjab State v. Lekh Raj (Punjab High Court)	Equality of opportunity under Article 16(1) governs post-appointment matters (emoluments, promotion); members of a unified cadre cannot be treated differently on irrelevant grounds.	The court invoked the decision to reinforce that equality under Article 16(1) extends to promotion and related conditions and to support the conclusion that the circular's retrospective operation produced an impermissible distinction.
Roshan Lal v. Union of India	When employees from different sources are integrated into one class/cadre, discrimination between those sources for further promotion is impermissible; once a single rule of promotion exists for the integrated cadre, separate discriminatory rules cannot be introduced.	The court used this principle to emphasize that once persons are in the same cadre and the same promotion rules applied at integration, subsequent differential treatment is invalid; analogous reasoning applied to accountants who were already officiating.
S.K. Ghosh v. Union of India (Supreme Court)	Similar principle that restoration or refixing of seniority by a non-relevant criterion can deny equality of opportunity in promotional cadres where the source of recruitment is a single cadre.	Cited as reinforcing Mervyn Continho: where the source of recruitment to the higher grade is one, seniority should follow promotion date and refixing otherwise is discriminatory.
Yegneswaran (Vegneswaran) v. Director General, Posts and Telegraphs (Mysore High Court)	Interpreted the circular to mean that appointment ranks should follow the sequence of passing the examination when appointments are made at a given point; considered consequences of mixing different groups for seniority and the unsettling effect of retroactive refixing.	The court acknowledged the Mysore High Court's reluctance to adopt a construction producing the consequence that earlier appointees would become junior to later appointees solely because the latter had earlier success in the qualifying examination; the present court agreed in principle with that view and used it to support its outcome.

Court's Reasoning and Analysis

The court's analysis proceeded in the following steps, as reflected in the opinion:

Article 311(2) not engaged: The court agreed with the learned Judge below that an administrative order refixing seniority is not a "punishment" within Article 311(2), and therefore Article 311(2) protections do not apply to this administrative revision.
Distinction between future application and retrospective application to those already promoted: The court accepted that the Director General's circular could validly prescribe a new scheme for fixation of seniority for persons in the clerical grade who had not yet been promoted (i.e., a forward-looking administrative rearrangement of the basis for selection and promotion).
Practical scheme envisaged by the circular: The circular prescribed that appointments be made according to the year of passing the accountants' examination, and within the same year according to seniority in the clerical cadre — effectively a year-wise panel for promotion.
Failure to follow year-wise procedure at time of promotions: The court found that, when the petitioners were promoted, the precise year-wise procedure envisaged by the circular had not been followed; promotions had been made strictly according to seniority in the clerical grade, the then-prevailing practice.
Effect of applying circular retrospectively to those already officiating: The court held that once qualified persons have been promoted and have commenced officiating in the higher grade, they occupy the same position vis-à-vis confirmation and seniority as others promoted later. To alter their seniority later, by reference to date of passing the examination (a criterion that was irrelevant to their already-held officiating status), introduces an invidious and arbitrary distinction.
Constitutional standard applied — Article 16(1): The court applied principles from authorities (including Mervyn Continho and others) to conclude that refixing seniority in the higher grade of persons already promoted and officiating, on the basis of date of passing the qualifying exam, amounts to differential treatment within the same cadre that violates equality of opportunity in matters of appointment and employment under Article 16(1).
Reliance on prior case law and agreement with Mysore High Court to an extent: The court explained that it agreed in principle with the Mysore High Court's reluctance to accept a construction that would allow a person appointed earlier to become junior to someone appointed later solely because of the latter's earlier examination success. The present court's approach, however, framed the correct line as allowing the circular to govern those not yet promoted, but protecting the seniority of those already promoted and officiating.

Holding and Implications

APPEALS ALLOWED.

Direct consequences for the parties:

The appeals were allowed with costs. The court awarded advocate's fees of Rs. 250.
The court held that the impugned circular (18 December 1959) could be validly applied prospectively to clerical staff not yet promoted, but it could not be used to refix the seniority of persons who had already been promoted and were officiating in the higher grade in such a way as to deprive them of seniority and confirmation rights that followed from their promotion. Retrospective refixing of seniority for officials already officiating was held to be discriminatory and violative of Article 16(1).

The opinion does not purport to set out a novel general doctrine beyond applying settled constitutional principles on equality of opportunity; its principal effect is to protect the seniority and confirmation rights of officials who had already commenced officiating in the higher grade when the circular was later applied.

Show full summary ...

T.S. Venkataraman And C.S. Subramanyam And Ors. v. The Director Of Postal Services, Posts And Telegraphs And Ors.

1. These writ appeals are filed against the decision of Kailasam, J., in W.P. Nos. 3926 to 3931 of 1967. The prior facts, so far as they are necessary for a consideration of the matter in controversy in these appeals, can be put down briefly.

2. The writ petitioners entered service in the Posts and Telegraphs Department as clerks on various dates between 1937 and 1940. The post of Accountant carried a higher scale of pay, and it is, therefore, a promotion post from the clerical grade. Rule 273 of the Post and Telegraphs Manual, Volume IV, prescribes for an examination being held in order to obtain a competent class of accountants for post offices." Rule 2 73 (b) lays down that the number of candidates to be selected to appear at the examination will be ten times the number of vacancies minus the number of officials in the ordinary time-scales of pay who have passed the examination but who have not been provided for as accountants or assistant accountants. Rule 273 (e) provides that each candidate will normally be allowed three chances to appear for the examination, but in addition to this, a fourth chance will be allowed provided that the candidate secures at least 35 per cent. marks in the aggregate in the third chance. Rule 276 reads:

Appointments to posts of accountants or assistant accountants in the ordinary time scales of pay carrying a special pay will be made from those officials who have passed the accountants examination according to their seniority in the clerical cadre.

rule 276-a (a) provides that officials on the ordinary clerical time-scales of pay, who have passed the accountants examination, will be eligible for appointment to posts of accountants or assistant accountants in the lower selection grade on 160-10-250 in preference to their seniors in the general gradation list, who have not passed the accountants examination. Such appointments will normally be made in order of seniority, but the appointing authority may, in his discretion, pass over any senior official whom he does not consider fit for such promotion. The petitioners had passed the qualifying examination on different dates. The petitioners in W.P Nos. 3926, 3927, 3929 and 3931 passed in 1951, the petitioner in W.P. No. 3930 in 1954 and the petitioner in W.P. No. 3928 in 1957. They began to officiate in the higher grade of accountants on various dates in 1958, 1959 and 1961. At the time when these people were promoted in the years mentioned above, there were some others, who are respondents 2 to 8 in the writ petitions before Kailasam, J., These seven persons are Allah Baksh, Ambalavanan, Sambasivam, Denapal, Chinnakutty, Sundararajan and Kuppuswamy. They had entered service as clerks later than the petitioners but had passed the accountants examination before the petitioners, three in 1947 and four in 1950. But the vacancies in the accountant posts were apparently taken up for being filled up only in 1958, and in subsequent years. By that time the petitioners also had qualified by passing the examination. It would appear as if the promotions were made at that stage, of all these persons who had become qualified, according to their seniority in the clerical grade. This position is made clear in the following tabular statement.:

3. The complaint of the writ petitioners is primarily against the delay and postponement of their confirmation in the posts of accountants and their confirmation after the confirmation of the respondents even though they were promoted to officiate in the posts earlier than the respondents. They urged that they have been unfairly discriminated against, in the matter, and that such discrimination involved a violation of Articles 14 and 16 (1) of the Constitution.

4. The reason alleged by the first respondent, viz., the Director of Postal Services, Posts and Telegraphs, for making the above distinction is this. It is based upon a circular dated 18th December, 1959, marked as Exhibit-A, issued by the Director General, Posts and Telegraphs, New Delhi.

A reference is invited to rules 276 and 276-a (a) of P and T Manual, Volume IV according to which appointments to the Posts of Time Scale Accountants and L.S.G. Accountants in Post Offices and RMS are made from those officials who have passed the Post Office /RMS accountants examination in the order of their seniority in the clerical cadre. The question of revising the basis for appointment to these posts has been under consideration for some time past and it has now been decided as follows:

...

(d) L.S.G. Accountants.

This is a separate cadre and appointments to this cadre are made on a circle basis. Appointments to these posts will, from the date of issue of these orders, be made according to the year of passing the Post Office/RMS accountants examination. Those qualifying in the same year will be appointed in the order of their seniority in the clerical cadre. These orders will not affect the seniority of officials, who have already been confirmed as L.S.G. Accountants. Officials who were appointed before the issue of these orders against regular vacancies and are awaiting confirmation in their posts will continue to officiate in their posts. They will, however, be confirmed in their turn in accordance with the revised orders. For this purpose the seniority of all officials who have passed Accountants Examination whether officiating or not will be refixed in accordance with present orders.

5. The petitioners are primarily aggrieved against the last part of para. (d) of the above circular (which is underlined by us) because it applies to them. They were officials who were appointed against regular vacancies in accountants posts, and were awaiting confirmation in those posts before the issue of the above Circular 18th December, 1959 except in the case of T.S. Venkataraman petitioner in W.P No. 3926/67 who was promoted in 1961, after the circular was issued, but before the respondents were promoted to this higher grade. Though the revised Circular permitted them to continue to officiate in their posts, they were to be confirmed under the revised Circular, not in accordance with the date of promotion to their posts in the officiating cadre, but in accordance with the date when they passed the qualifying examination.

6. The learned Judge (Kailasam, J.) observed, first of all, and we entirely agree with him, that the persons whose seniority is affected by an order of the above kind by the Director General of Posts and Telegraphs admittedly an administrative order--cannot complain that the provisions of Article 311 (2) of the Constitution are violated. Obviously, the revision of seniority is not one of the punishments visualised in Article 311 (2) of the Constitution. Next, the attention of the learned Judge was drawn to the decision of the Supreme Court in Mervyn Continho v. Collector of Customs , we will refer to the particulars of this decision in some detail later in the judgment. The learned Judge, however, observed that the revision of seniority in the present case on the basis of passing of the examination appeared in his view to be a valid exception to the rule that the seniority should normally be fixed according to the date of promotion to the higher grade. Further, the learned Judge held that the revised rule was more equitable in that a person who had passed the examination earlier and commenced his service in that cadre should be given seniority to the person, though a senior in the clerical grade, who had passed the examination and qualified himself to the higher grade much later. The learned Judge observed that there was no constitutional principle involved in refixing the seniority of the persons already in the higher grade in the above manner. The attention of the learned Judge was drawn by learned Counsel for the petitioners to a decision of the Mysore High Court in Vegneswaran v. Director General, Posts and Telegraphs, New Delhi , which had dealt with the identical circular as in this case. The learned Judge (Kailasam, J.) did not agree with the construction put on the circular dated 18th December, 1959 by the Mysore High Court. Kailasam, J., dismissed the writ petitions. The writ petitioners have come in appeal before us.

7. After a careful consideration of the matter, we are of the opinion that the appeals have to be allowed. We have nothing to say about the validity of the Circular dated 18th December, 1959, so far as it makes a modification of the existing Rules 276 and 276-A, in regard to the persons in the clerical grade, who had not yet been promoted to officiate in permanent vacancies, in the higher grade of accountants. What the Circular prescribed in their cases was that those qualifying in the same year will be appointed in the order of seniority in the clerical cadre. There is a further direction that promotion to the accountants posts will be made according to the year of passing the examination. In other words, if it happens in the course of the scheme of promotion in any particular year that a person who had passed the examination in an earlier year has not been promoted and is awaiting promotion, that person will get preference over those persons who had passed the examination later irrespective of seniority in service. This presupposes a list of persons qualified by the examination being drawn up on a year-war basis, their seniority within a year being fixed in accordance with their seniority in the clerical cadre, and promotion to the higher grade being made, first of all, in accordance with the year of passing the examination and secondly in regard to those who pass the examination in a particular year according to the seniority in the clerical cadre.

8. Unfortunately, this precise and detailed procedure was not followed when the petitioners were promoted on the basis mentioned in the tabular statement above, the promotion being strictly in accordance with their seniority in the clerical grade. The rules which then existed did not provide for a detailed scheme of promotions on year-war basis, persons being grouped according to the year of passing the examination. Though the Rule 273 (b) which we have extracted above provides for a fair estimate of the number of recruits to be selected at each examination, based upon the estimate of vacancies, the rules did not provide as to how to deal with persons who had passed the examination in one year but who could not be promoted immediately, and when by the time the decision is taken to promote these clerks against vacancies other clerks had become qualified by passing the examination in the succeeding years. The prior practice was that the rule that promotion should be in accordance with the seniority in the clerical cadre was strictly applied, to all the persons who had qualified in successive years and remained on the waiting list. The writ petitioners were promoted in this manner and their promotion was made before pro-notion of the respondents, relying on their seniority notwithstanding the fact that the respondents had passed the examination earlier than the petitioners, though they were-junior to the petitioners in the clerical cadre. What the impugned Circular did was to alter the above position by reason of the introduction of a new principle that the year of passing the examination should be the basis for promotion and not the relative seniority in the clerical grade. On the date when the Circular was applied in this manner retrospectively for the petitioners, excepting T.S. Venkataraman, the petitioner in W.P. No. 3926 of 1967, others were already officiating in the higher grade. They were so officiating under the rules which entitled them to confirmation according to the length of service and the seniority in the grade of accountants. It is not alleged by the respondents that this officiating promotion was a purely temporary promotion, which carried with it no right of counting the service for seniority, confirmation etc. The impugned circular has laid it down that the circular would apply to officials appointed before the issue of the order against regular vacancies and are awaiting confirmation in their posts. The petitioners answer to this description. The respondents who were promoted to officiate in the posts on several dates in 1962 and 1963, so far as their position in the cadre of accountants is concerned occupied the same position as the petitioners who had been promoted earlier. They came from a single lower cadre, namely clerks. All of them satisfied, however, the qualification for being accountants, namely pass in the accountants examination. That some of them passed earlier in the examination and some of them passed later in the examination would have no relevancy, so far as the people who had already commenced to officiate in the higher grade are concerned. If, as between the officials who officiate in the higher grade, a distinction were to be made in the matter of confirmation and seniority, on the basis of the date of their passing the examination it will be introducing a totally irrelevant consideration, for the purpose of their confirmation. It would also amount to making an invidious distinction between persons who, so far as the requirements for the higher grade in which they are acting namely the grade of accountants are concerned, are identically situated. Such discrimination, in our opinion, will attract the bar under Article 16 (1) of the Constitution, which provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

9. The principle of invidious distinction violative of Article 16 (1) of the Constitution has been applied by the Supreme Court and the other High Courts in several decisions. In Aswini Kumar Rath v. Director of Public Instruction (1966) 2 L.L.J. 277, the High Court of Calcutta dealt with a situation which is explained by the following reasoning of the Court:

The mere fact that two different cadres are created does not show whether Article 14 or 16 has or has not been violated, but once having included employees into a single grade or unit of employment, it is not permissible for Government to provide a differential treatment between two sections of the same unit with restrospective effect.

The same principle was reiterated by the Punjab High Court in a more recent decision in Punjab State v. Lekh Raj . In that case, there was a separate cadre of Vaidyas and Hakims in the State Service Class III. They were initially appointed in the different states which merged into the Patiala and East Punjab States Union. Subsequently, they were formed into a single cadre on the same conditions and in the same grade with exactly same or similar nature of duties to perform under one and the same designation. But by a subsequent notification, they were differentiated in their pay, the distinction being based upon whether they held a five years' degree or not. The Punjab High Court struck down that distinction observing:

Once this had happened, some members of the unified cadre could not be treated dissimilarly as against others of the same cadre in the matter of their pay and other relevant conditions of service on the ground that some of them possessed higher or better qualifications. It is settled law that the equality of opportunity V guaranteed by Clause (1) of Article 16 of the Constitution does not end with the stage of initial appointment, but would inevitably govern all matters relating to employment including questions of emoluments, chances of promotion etc.

10. In Roshan Lal v. Union of India , we find the following observations at page 1893:

At the time when the petitioner and the direct recruits were appointed to Grade "D", there was one class in Grade "D" formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade "D" were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade "C". To put it differently once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade "C". In the present case, it is not disputed on behalf of the first respondent that before the impugned notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that rule was seniority-cum-suitability, and there was no rule of promotion separately made for application to the direct recruits.

11. We will refer now to the decision of the Supreme Court in Mervyn Continho v. Collector of Customs . The petitioner in that case was an Appraiser in the Customs Department. The system that prevailed for the recruitment to the posts of appraisers was that 50 per cent. was reserved for direct recruitment, while the remaining 50 per cent. was filled up by promotion from subordinates in the Customs Department. The seniority in the cadre of appraisers was determined by a system of rotation, i.e., the list is arranged in such a way that there is one person from the direct recruits and one from the promotees alternatively. The petitioner also contended that in the cadre of Principal Appraisers who are promoted from Appraisers, there was discrimination and violation of equality of opportunity, inasmuch as the same method was followed in the matter of fixation of seniority of principal Appraisers, though in their case, there was only one source of recruitment, i.e., by promotion from the cadre of Appraisers. The Supreme Court rejected the petitioner's claim so far as the seniority of Appraisers inter se was concerned. But the petitioner's grievance in regard to the fixation of seniority inter se as among the Principal Appraisers was upheld, on the ground that it was violative of Article 16 (1) of the Constitution. The Supreme Court observed:

In a case, therefore, where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of refixing in the higher grade the seniority of the grade from which promotion is made to the higher grade. In so far, therefore, as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers' grade when they are promoted to the Principal Appraisers' grade, it is clearly denying equality of opportunity to Appraisers which is the only sources of recruitment to the principal Appraisers' grade.

A Similar Principle is also laid down by the Supreme Court in (S.K. Ghosh v. Union of India ). In the present case, the source of recruitment to the accountants' grade is the clerical grade. It is open to the authorities to fix the seniority, before person are promoted to the accountants' cadre, on the basis of the date of their qualifying by the examination. Once a number of people have been promoted and they had begun to officiate in the higher grade, and all of them are qualified at the time of their promotion to officiate by having passed the examination, it will be discriminatory to ignore the seniority by the length of service, and revert to the date of passing the qualifying examination for that purpose.

12. We will now refer to the decision of the Mysore High Court in Yegneswaran v. Director General P. and T. . As we have done above, the learned Judges of the Mysore High Court understood the term ' according to the year' in the circular to mean that when appointments are made at a given point of time, the appointees should be assigned ranks in the sequence in which the qualifying examination was passed. They also observed that once the promotions are made or the names of those selected are entered in the panel in that Order, obedience to the directive becomes full and complete, and the seniority determined in that way is what holds the field unaffected by promotions or selection of others on the next occasion or the subsequent occasion. They also observed that the directive did not mean that, when persons appointed on more than one occasion in that way have not been confirmed in their posts, all those persons who have not been so confirmed, should be grouped together, and that the seniority in regard to all of them should be determined with reference to sequence in "which the qualifying examination was passed, and that the mixing up of the several groups of appointees for common treatment in the determination of their seniority inter se was not authorised by the Director-General's memo. The learned Judges also referred to the grave consequence which would result, if a different View was adopted. They have referred to this consequence in paragraphs 18 and 19 of their judgment:

The acceptance of the other construction would produce the strange consequence that a person who was appointed as an accountant many years earlier would become junior to one who was appointed many years later on the extremely slender foundation afforded by that junior's earlier success in the qualifying examination. It shifts the importance of the selection or promotion to which the appointee owes his appointment under rule 272-a (it) to success in the qualifying -examination. An interpretation which endows the success in the qualifying examination, which, by itself does not ensure an appointment to the post of an accountant, with an importance which is greater than that which should be attached to the selection or promotion which alone takes the appointee to that post, should not commend itself to us unless the language of the memo. of the Director-General is incapable of any other interpretation. And, we do not think that such is its language.

We feel reluctant to accede to a construction which produces an unreasonable and alarming consequence, such as, the acquisition of seniority by a person who is appointed to the post of an accountant long after someone else had been appointed "to that post, on the basis of his earlier success in the qualifying examination. The regulation of seniority in that way which of course regulates in its turn the right to confirmation, does not have the sufferage of reason, and the constant fear in the mind of an unconfirmed accountant of being overtaken by some one still in the clerical cadre would introduce an element of insecurity and precariousness so detrimental to the growth of an efficient and contented public service.

13. We agree, in principle, with the view expressed above by the learned Judges of the Mysore High Court, though our approach to the question as outlined above is slightly different. The impugned circular can be treated as valid in regard to persons not promoted to the higher grade. But once promotion has been made of qualified persons to the higher grade, whether it be on the basis of seniority in the clerical grade, or on the basis of a year-war list or panel, fixing seniority on the basis of the date of passing the examination, those people who have commenced to officiate in the higher grade should not be discriminated against by a subsequent refixing of seniority on the basis of the date of their passing the qualifying examination. In their case, unless there are other administrative reasons, the date of promotion to the higher grade and the seniority consequent on such promotion should be the rule for confirmation, so as to avoid charges of discriminative treatment falling within the purview of Article 16 (1) of the Constitution.

14. The appeals are allowed with costs. Advocate's fee one set Rs. 250.

T.S. Venkataraman An... v. The Director Of Post...