Leila Seth, J.:— These letters patent appeals are directed against a judgment of our learned brother Anand, J. dated 12th July, 1976. A writ petition being C.W No. 16 of 1972 was filed by Shri S.K Srivastava against the Union of India and others challenging certain seniority listed and claiming seniority over respondents 3 to 11. The learned Judge observed that ordinarily he would have quashed the selection and appointment of the said respondent as Director but since it was not necessary to do so in order to give relief to the petitioner, he did not quash the selection and appointment. However, he directed the Union of India and the Director General, Geological Survey of India to recast the seniority list in the grad, of Geologist (Sr.) in accordance with his conclusions and consider Shri S.K Srivastava for the post of Director as on 30th July, 1971. Shri Srivastava was to be given the appointment without disturbing, if possible, the existing incumbents, in such a manner, that he would not be prejudiced in the matter of seniority because of the failure to consider him at the appropriate time. On the other hand if it was not possible to accommodate Shri Srivastava without disturbing the existing incumbents, then only such of the existing incumbents should be disturbed as the Departmental Promotion Committee may consider, to be least suited. Though, the existing arrangement was not to be disturbed yet the Union of India and the Director General of the Geological Survey of India were to initiate action for revising the seniority and the selection of Shri Srivastava, within a period of three months of the date of the order. If his appointment was approved then the process was to concluded within a month thereafter. Shri Srivastava, the petitioned was also granted costs.

2. The Union of India and the Director General, Geological Survey of India have filed an appeal against this judgment and order, which is Letters Patent Appeal No. 91 of 1976. The main contestant to Shri Srivastava, Dr. D.K Ray a Director in the Geological Survey of India and respondent No. 3 in the writ petition also filed an appeal against the said judgment and order being Letters Patent Appeal No. 114 of 1976. These two appeals were heard together.

3. Shri Srivastava was appointed as an Assistant Geologist in the Geological Survey of India on 11th July, 1955. He was selected by the Union Public Service Commission as a direct recruit Both he and Dr. D.K Ray were promoted to the next higher post of Geologist (Junior) with effect from 23rd April, 1960 as per the Ministry's letter dated 4th April, 1960. He was selected and promoted to the post of Geologist (Senior) with effect from 1st September, 1962 on the recommendations of the Departmental Promotion Committee. According to him Dr. DK Ray and the other respondents were junior to him in the cadre of Assistant Geologists as well as Geologists (Junior). These persons were promoted to the post of Geologist (Senior) after him and Dr. D.K Ray was so promoted in January, 1967. Recruitment to the post of Geologist (Junior) is from two sources i.e 50 per cent by direct recruitment and 50 per cent by promotion from the post of Assistant Geologists. The relative seniority of the direct recruits and promotees was to be determined ‘according to the rotation of vacancies between direct recruits and promotees.” Dr. D.K Ray and the other respondents appeared in an examination for direct recruitment to the post of Geologist (Junior). They were successful, and were selected by the Union Public Service Commission, whereas Shri Srivastava was not so selected. In consequence thereof they were entitled to improve their seniority in the grade of Geologist (Junior). As a result, in the revised seniority list of May, 1963 and the combined gradation list of 1st November, 1968, Dr. D.K Ray and these respondents were shown as senior to Shri Srivastava, even though by that time he had been promoted as Geologist (Senior) Therefore, when Dr. D.K Ray and the other respondents were promoted as Geologists (Senior) in 1966-1967, the question arose as to their seniority. The Departmental Promotion Committee had considered the question on 21st October, 1965 and felt that when Shri Srivastava had been empanelled for promotion as Geologist (Senior) in 1962. Dr. D.K Ray and other respondents who had already improved their position, but which had not been reflected in the seniority list in the grade of Geologist (Junior) had been placed at a disadvantage. Since Shri Srivastava was junior in the revised seniority list, the committee recommended the assigning of positions to the said officers in the April, 1962 panel. As a result Dr. D.K Ray and the other respondents were, treated as having been promoted as Geologists (Senior) in April, 1962 and assigned a seniority higher than that of Shri Srivastava. On 18th April, 1970 Shri Srivastava, Dr. D.K Ray and the other respondents were simultaneously confirmed as Geologists (Senior) and Dr. D.K Ray and the respondents were granted the benefit of their superior seniority. Shri Srivastava was thereafter, not considered for promotion to the next higher post of Director, in 1971, as he was outside the field of choice. The Departmental Promotion Committee approved Dr. D.K Ray and other respondents for the post of Director in the Geological Survey of India on 30th and 31st July, 1971.

4. Shri Srivastava who had been promoted as Geologist (Senior) earlier contended that he being senior in the seniority list of 1962, his seniority could not be affected in this manner. As he was promoted in 1962 as Geologist (Senior) and the others senior to him in the grade of Geologist (Senior), by virtue either of an improvement in their seniority as Geologist (Junior), or by virtue of the decision of the Departmental Promotion Committee. He, therefore, submitted that his seniority as Geologist (Senior) could not be disturbed by any deemed promotion having retrospective effect. As, he was prejudicially affected, he prayed that the seniority list in the grade of Geologist (Senior) be revised, and a direction be given to the Union of India and the Director General, Geological Survey of India to consider him for the post of Director in accordance with the revised seniority.

5. The Union of India and the Director General, Geological Survey of India did not dispute the fact that Shri Srivastava had been promoted as Geologist (Senior) earlier, but contended that since, the seniority in the grade of Geologist (Junior) was fixed as a result of direct recruitment, the seniority in the grade of Geologist (Senior) had been fixed on a rational basis and on the recommendations of the Departmental Promotion Committee, the officers were deemed to have been Promoted as Geologist (Senior) in April, 1962, It was further contended that the seniority list of April, 1962 on which Shri Srivastava relied, was only a provisional list and as such he was not entitled to any relief to unsettle the seniority assigned as far back as 1965 nor to disturb the promotions made to the post of Director as a result of the July, 1971, D.P.C's approval. It was also submitted that the writ petition should be dismissed on the ground of delay as Shri Srivastava had not filed objections in 1965, nor in 1968 nor taken any step in July, 1971 when Dr. D.K Ray and other respondents were approved for promotion as Directors.

6. Dr. D.K Ray, the only affected officer filed an affidavit. He contended that Shri Srivastava was a temporary employee of the Geological Survery of India till September, 1964 whereas he was declared quasi-permanent with effect from July, 1959 and was confirmed in 1963 in the post of Geologist (Junior) and was senior to Shri Srivastava at all times. He also stated that though Shri Srivastava was promoted to the higher post of Geologist (Senior) in September, 1962 on a temporary basis, he was promoted to the said post in April, 1966 and was confirmed with effect from 30th January, 1969. Shri Srivastava was also confirmed on the same day yet Dr. D.K Ray was given a superior seniority in the notification of 18th April, 1970. He also averred that he had superior academic qualifications, accomplishments and experience and his appointment as Director was justified.

7. Shri Srivastava, in rejoinder, claims that the seniority list of 1968 was never circulated to him, as at the relevant time, he was on deputation in the Department of Airborne Mineral Surveys and Exploration which was a separate department till September, 1970 when it merged with the Geological Survey of India. According to him he came to know of the change only from the confirmation letter of 18th April, 1970 which he received in June, 1970. He then discovered that he was shown at Serial No. 70 in the seniority list and person shown above him were senior to him, except Dr. D.K Ray and the eight respondents. He did not represent against this as there was no threat of supersession by these persons as they had not completed six years of service in the grade and were, therefore, not eligible for being considered for promotion to the next higher post of Director. Therefore, it was only when the Departmental Promotion Committee considered Dr. D.K Ray and the other respondents for the post of Director in July, 1971 that he sent a notice to the Union of India and the Director General of Geological Survey of India in September, 1971 and filed the writ petition in January, 1972.

8. In reply to the affidavit of Dr. D.K Ray, Shri Srivastava stated that he was appointed on a regular basis in accordance with the rules.

9. Dealing with the question of Laches or delay in seeking relief Our learned brother Anand, J. after considering all the facts and circumstances of the case, held that Shri Srivastava, the petitioner has not been guilty of such delay which would defeat his claim. He held that the list had not been circulated to Shri Srivastava and that the revision of seniority in the higher grade of Geologist (Senior) was brought to the notice of Shri Srivastava for the first time in June, 1970. He also held that the nine persons shown senior to Shri Srivastava in the list who had been appointed in 1966-1967 and as a result had not put in six years continuous service in the grade of Geologist (Senior) were not eligible for consideration as Director and, therefore, did not pose a threat to Shri Srivastava. The petitioner had taken steps by making a representation in September, 1971 as soon as Dr. D.K Ray and other respondents were approved for promotion in July, 1971. Since he did not get any relief, he filed the writ petition in January, 1972.

10. Nothing of any substantial nature has been brought to our attention which would lead us to interfere with the finding of the learned Judge on this point. We, therefore, agree that the delay is not fatal to the claim of Shri Srivastava, the petitioner.

11. Mr. Charanjit Talwar, learned counsel for the appellant in Letters Patent Appeal No. 91 of 1976 and Mr. Mazumdar, learned counsel for the appellant in Letters Patent Appeal No. 114 of 1976 made complementary arguments. It is urged that Shri Srivastava was promoted to the senior grade in 1962 on the basis of a provisional seniority list in the junior grade, and since Dr. D.K Ray and the other respondents improved their seniority in the junior grade, it was rational and proper to assign seniority to them consistent with their superior seniority in the lower grade. This was sought to be done on the recommendations of the Departmental Promotion Committee and by a fiction they were treated as if promoted at the same time as Shri Srivastava and assigned the superior seniority.

12. It is the common case of parties that Dr. D.K Ray and other respondents improved their seniority vis-a-vis Shri Srivastava in 1968 in the grade of Geologist (Junior) whereas Shri Srivastava had already been promoted to the higher post of Geologist (Senior) in 1962 in accordance with the rules and the recommendations of the Departmental Promotion Committee in 1962.

13. Mr. Nagaraja, learned counsel for Shri Srivastava contends that seniority in the grade of Geologist (Senior) should not be determined with reference to seniority in the lower grade but with reference to the date of promotion of the incumbent to the senior grade, unless promotions are made at the same time. There is merit in his contention.

14. The whole difficulty in the matter appears to have arisen because Dr. D.K Ray and the other respondents were not incorporated/assigned their correct seniority in the list of 1962, in accordance with the result of the Union Public Service Commission competitive examination of 1961. As such Dr. D.K Ray was not considered for the post of Geologist (Senior) at the relevant time. According to the provisional gradation list of 1st April, 1962, Shri S.K Srivastava was shown at serial No. 39 whereas Dr. D.K Ray was shown at serial No. 150. The Departmental Promotion Committee met on the 16th April, 1962 and the provisional seniority list was placed before them, the quota for the direct recruits not having been filled, and Dr. D.K Ray and others not having been re-assigned their due seniority. It was by a letter of the Ministry dated 25th May, 1962 that Dr. D.K Ray and the respondents were assigned their correct seniority in the vacant positions of the direct recruit quota. As a result their seniority improved and they were placed higher train Sh. Srivastava, the petitioner. But it was only in May 1963 that a revised seniority list was issued mixing promotes and selectees and in 1965 that it was sought to correct the error of 1962.

15. In the affidavit of Shri B.G Nigam, Director, Government of India, Ministry of Steel and Mines, in opposition to the writ petition, it is submitted that the seniority of the nine respondents has been fixed on a rational principle and on the basis of the recommendation of the Departmental Promotion Committee. The relevant portion of the minutes of the meeting held on 21st October, 1965 are as follows:—

“The seniority list of Geologist (Junior) which was provisional when the Departmental Promotion Committee met in April, 1962 has since been finalised and the 9 officers mentioned above have improved their positions in the final seniority list. As some of the officers who are not junior to these officers had been empanelled by the April, 62 Departmental Promotion Committee, this committee recommend that they be now assigned positions in the April, 1962 panel. Having examined the character rolls of the above 9 officers and having graded them as ‘Good’ the Committee recommend that they be assigned positions in the 1962 panel according to their seniority in the finalised seniority list now placed before the Committee”.

16. The Departmental Promotion Committee does not mention any ‘deemed promotion’ but the Deponent uses this expression in the context of the decision of the Committee. He states that ‘respondents 3 to 11 have been deemed to be promoted as Geologist (Senior) in April, 1962 and they were assigned positions higher to that of the petitioner in the April, 1962 panel’.

17. Our learned brother Anand, J. held that the Departmental Promotion Committee was not competent to make retrospective promotions without the aid of any rule which could have justified it. We are in agreement with him, especially as no rule was shown to us. Paragraph 4 of the General Principles and General Principles 4 and 5(i) of the Explanatory Memorandum also are not helpful. It provides that the Selecting Authority should indicate the order on merit at the time of selection and the seniority of the promotees would be in the order in which they were recommended for promotion by such Committee. It further provides that the seniority of persons considered fit for promotion at the same time would be the same as the relative seniority in the lower grade. It is, therefore, apparent that these principles would apply only to selections made at the time and not where persons are selected at different times. Since the selections in this case have been made at different times, these principles do not apply. Shri Srivastava was selected and promoted earlier than Dr. D.K Kay and the respondents, and must get the benefit of longer service and earlier promotion. This cannot be taken away from him without the sanction of law. Therefore, Shri Srivastava is entitled to be restored to his due seniority as Geologist (Senior), and cannot be denied as opportunity to be considered for the post of Director.

18. Since, the post of Director is a selection post, seniority alone is not sufficient to determine that he will be choosen. But seniority is a factor which will determine whether he comes within the zone of consideration. As his seniority has been erroneously dawn graded, he has not come within the field of choice and others junior to him have been considered. In fact Dr. D.K Ray and respondents 3 to 6 (L.P.A No. 91 of 1976) had not only been considered but selected.

19. Further on the relevant date, Dr. D.K Ray and respondents 3 to 6 were not eligible for being considered for the post of Director as they had not completed six years of service on a regular basis in the grade of Geologist (Senior). This was the requirement for the post of a Director as per the Geological Survey of India including Exploration Wing (Class I and Class II Posts) Recruitment Rules, 1967. Their non-eligibility would be a necessary corollary to invalidating the deemed promotion of 1962.

20. As noticed above, Dr. D.K Ray submits that he has superior qualification to Sh. Srivastava and has all along been senior to him and Sh. Srivastava was only appointed on a temporary basis. He contends that it is not a case of retrospective or deemed promotion but a case of regularization or rationalization as everything was in a state of flux (sic) will the merger of the promotees and recruiters. He further, contends, that Sh. Srivastava was unfit to be appointed a Director as subsequently when he had been considered for promotion he had been rejected.

21. The 1962 promotion of Shri Srivastava was not an ad hoc promotion, nor did the Departmental Promotion Committee of 1962 reserve any post for the direct recruits as the seniority list had not been finalized. Had the Departmental Promotion Committee made reservations the problem could have been solved. The action of the Departmental Promotion Committee of 1965 would then have been a case of regularization or rationalization. Further, Dr. D.K Ray did not even challenge the decision of the 1962 Departmental Promotion Committee.

22. The hierarchy of posts in the Geological Survey of India is as follows:—

Geologist Assistant Class III Assistant Geologist Class II Geologist Junior Class I Time scale. Geologist Senior Class I Director a selection grade post, Director General Deputy Director General.

23. The question that is posed is, can seniority for the higher grade be based on the seniority list of the lower cadre? This would depend on the source of recruitment to the two cadres.

24. There are two channels of recruitment to the grade of Geologist (Junior), promotees and recruiters, thus necessitating a rotation system for the determination of seniority. This is not so with regard to the higher grade of Geologist (Senior) where the source is only one, namely, from the grade of Geologist (Junior).

25. It would appear that if the source of recruitment for the higher cadre is only one, the seniority must be based on the basis of the date of appointment in the higher grade. It cannot reflect the seniority of the lower grade. We are fortified in our view by the decisions of the Supreme Court.

26. In Meryyn Continho v. Collector of Customs, Bombay, 1966 (3) S.C.R 600 : (1967 S.L.R 1) the source of recruitment to the posts of principal appraisers was only one, namely, from the grade of appraisers; whereas the source of recruitment to the post of appraisers was 50 per cent promotions and 50 per cent direct recruits on a rotational system. The restoration of seniority of direct recruits in appraisers grade when they were promoted to the principal appraisers grade was held to be clearly erroneous. It was held that where there is only one source of recruitment the normal rule would apply, namely, that a person promoted to a higher grade would get 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 was over. In such a case, it was the continuous appointment in the Higher grade which determined seniority as the source of recruitment was one. The question of reflecting, in the higher grade, the seniority of the grade from which the promotion was made to the higher grade did not arise. Otherwise it would result in a kind of reservation in respect of the two categories of appraisers from which the promotions were made.

27. In S.K Ghosh v. Union of India, A.I.R 1968 S.C 1385 : (1968 S.L.R 741) the Supreme Court observed that once a member of a Class I Service, in time scale, was selected for promotion to the grade of Director and given seniority over another officer selected later, the seniority so determined as a result of selection could not be made dependent on the seniority in the time scale. Thus, even if there was justification in revising the seniority inter se the petitioner and the respondents of Class I Service, that revision of seniority could not, in any way, affect their order of seniority in the grade of Directors to which they were promoted on the basis of selection in accordance with the rules.

28. Here, too, the seniority in the grade of Geologist (Senior) is being sought to be changed, without notice to Shri Srivastava, by the 1965 Departmental Promotion Committee on the basis of the seniority in the grade of Geologist (Junior). This cannot be done.

29. Therefore, neither the so-called deemed promotion of Dr. D.K Ray, and the respondents, with retrospective effect from 1962, nor their superior seniority in the lower grade could dislodge Shri Srivastava in his position in the grade of Geologist (Senior). His down grading was in violation of Article 16 of the Constitution of India.

30. It is true that Shri S.K Srivastava got an undue advantage in September, 1962 when he was promoted, due to the fortuitous circumstances that the list of Geologist (Junior) had not been finalised and the respondents and Dr. D.K Ray not assigned their correct seniority, when the Departmental Promotion Committee met on 16th April, 1962. Though the Ministry's letter dated 25th May, 1962 did assign to them their correct seniority in the vacant positions of the direct recruit quota, this was not taken into consideration when Shri Srivastava was promoted in September, 1962. As a result, Dr. D.K Ray and the respondents were prejudiced due to no fault of theirs. As Shri Srivastava had got an undue advantage in 1962, in the circumstances mentioned above, it was sought to rectify this imbalance in 1965. For the reasons outlined above, we have held that this could not be done, either by way of deemed promotion or by way of reflecting the seniority in the lower grade. As the deemed promotions of 1962 have been held invalid, the necessary corollary is that Dr. D.K Ray and the respondents 3 to 6 (D.P.A No. 91 of 1967) had not completed six years service in the grade of Geologist (Senior) on 30th July, 1971, when they were approved for the post of Director by the Departmental Promotion Committee. They had been promoted to Geologist (Senior) Grade in 1966-1967 and would complete six years in 1972-1973, when they would be eligible for the post of Director. Therefore, the selections and appointments should ordinarily be quashed. Since these problems have arisen as a result of the error of the 1962 Departmental Promotion Committee which gave Shri Srivastava the advantageous position we feel that the ends of justice would be served if all these persons are not unnecessarily disturbed, especially, if in order to give relief to Shri Srivastava, it is not necessary to do so. Two wrongs do not make a right, but often one alleviates the order.

31. We are, therefore, in agreement with our learned brother Anand, J. that Shri Srivastava should be considered for Director's post as on 30th July, 1971 and if found fit adjusted accordingly. If not found fit for that year then he should be considered for subsequent years. The appeals are dismissed but we make no orders as to costs.

32. Appeal dismissed.