Sawant, J.:— By this petition filed under Article 226 of the Constitution the petitioners who are working either as Rationing Inspectors or Assisting Rationing Officers in the Office of the Bombay Rationing Organisation of the first respondent-State are challenging the seniority lists or the gradation lists dated 18-11-1975 and 27-11-1975.
2. In order to appreciate the challenge, it will be necessary to state in brief the relevant facts which have bearing on the cadre of which the gradation lists have been challenged. The Bombay Rationing Organisation which is the present Office had its predecessor known as the Office of the Controller of Foodgrains Distribution (which is for the sake of convenience referred to as C.F.D) which was in existence till 1-3-1966. All the petitioners were directly recruited as Supply Inspectors in C.F.D on various dates between 1964 and 1965. On and from 1-3-1966, statutory rationing was introduced in the State and the present Bombay Rationing Organisation (briefly referred to as B.R.O) was constituted on and from that date. At the time of the constitution of the B.R.O the staff of C.F.D was merged. In B.R.O and the posts of Supply Inspectors were equated with the posts of Rationing Inspectors. There are two relevant resolutions in this respect viz. the resolution dated 11-2-1966 merging-the staff of the former C.F.D into B.R.O and creating posts among others of Rationing Inspectors and the resolution dated 25-7-1968 equating the posts of Supply Inspectors with the posts of Rationing Inspectors with retrospective effect from. 1-3-1966. The Government Resolution dated 11-2-1966 was not on record but has been taken on record by consent of the parties and is marked as Court Ext. 1. The resolution dated 25-7-1968 equating the posts with retrospective effect is Ext. 1 to the affidavit-in-reply filed by Vasudev Keshav Thite for himself and on behalf of 28 other respondents.
3. It appears that when the old C.F.D was constituted, right front the inception in 1957, the staff of the said office was manned by personnel drawn from two sources viz. those who were brought on deputation from other Departments and those who were recruited directly When B.R.O was constituted on and from 1-3-1966 the staff manning B.R.O consisted of three categories viz. (1) persons transferred from other Departments who were called “released Government servants,” (2) erst while staff of C.F.D merged in B.R.O called “merged Government servants” and (3) persons directly recruited in B.R.O itself called “direct recruits.”
4. On 29-8-1966, a provisional gradation list of clerks and Supply Inspectors of the former C.F.D was published which showed the seniority of the staff including the petitioners according to the dates of their appointments to the respective posts. It appears that thereafter the first respondent passed a resolution on 22-3-1968 enunciating rules to be applied for the fixation of seniority of the personnel working in B.R.O and directed that the rules made thereunder should be deemed to have come into effect from 21-10-1965 i.e from a date even prior to the date of merger of C.F.D with B.R.O which took place as stated above on 1-3-1966. This Government Resolution classified the staff of B.R.O into three categories viz. (a “Released Government Servants” meaning thereby those persons released by a department or office for work in the B.R.O including a retrenched or replaced Government servant without break in service before joining the B.R.O, (b) “Merged Government Servants” meaning persons belonging to the former Bombay Foodgrains Distribution Scheme i.e C.F.D merged in B.R.O and (c) “Direct Recruits” meaning persons appointed to a post by nomination in B.R.O including a replaced or retrenched candidate with physical break in service before joining B.R.O The Resolution further defined “equivalent post” as a post in B.R.O which may be declared as equivalent to a post whether permanent or temporary sanctioned for the forcer Bombay Foodgrains Distribution Scheme viz. C.F.D “Comparable post” was defined to mean a post in B.R.O which could the filled in by transfer of an incumbent holding a post in his parent department prior to his joining duties in B.R.O by virtue of the provisions of the recruitment rules for various posts. Since we are concerned in this petition with the strung of seniority of the cadre of Rationing Inspector, the only Rules relevant for our purpose are rules 4 and 7 which enunciate the principles for fixing seniority between the direct recruits and promotees.
5. The combined effect of these two Rules was that while determining the seniority of the former Supply Inspectors i.e the present cadre of Rationing Inspectors, the persons who were initially appointed as Clerks or Typists or Clerks-cum-Typists (hereinafter referred to for the sake of convenience as the Clerical cadre) but subsequently promoted to the cadre of Senior Clerk/Rationing Inspector/Deputy Accountant (hereinafter for the sake of convenience called the cadre of Rationing Inspectors) in B.R.O, the length of service in the Clerical cadre was to be taken into consideration and they were to be given seniority in the cadre of Rationing Inspectors after deducting two years from their service in the Clerical cadre. Secondly, as regards persons coming from the same department, their seniority was to be fixed according to their inter se seniority in the said department. For this purpose deemed dates worked out on the above two principles were to be given to the promotees. Thereafter the seniority of the direct recruits was to be fixed according to whether their dates of actual appointments were prior or subsequent to the said deemed dates of the promotees. The direct recruits were also then to be assigned deemed dates which were to be a day earlier to the deemed date of the promotee next below.
6. It further appears that on this basis, a provisional gradation list was published on 28-5-1971 showing the seniority of the staff as on 1-4-1968 and then a final gradation list as on 1-4-1968 was published on 23-11-1972. Thereafter a second provisional gradation list was published on 9-4-1973 showing the seniority of staff as on 1-4-1972. The first, second and third petitioners preferred representations on 3rd, 8th and 5th November 1973 respectively, making a grievance against the said second gradation list of 9-4-1973, and the Controller of Rationing by his almost identical memoranda dated 6th and 19th December 1973 addressed to the said petitioners intimated to them that the Gradation list showing their seniority as on 1-4-1972 was prepared as per Rules 4(a) and 7(b) of the Rules made under the said Government Resolution dated 22-3-1968. Being dis satisfied with this reply, the first petitioner made a representation to the Secretary, Food and Supply Department on 20-12-1973. It also further appears that some more representations were made by some other petitioners in January, February and March 1974 on the same lines through proper channel. To these representations, the representating petitioners received identical replies from the Assistant Controller off Rationing which stated that their representations had been referred to the Government and the petitioners would be informed of the Government orders when received.
7. In the meanwhile, the first respondent passed another resolution dated 1-3-1974 whereby those persons who were recruited prior to 1-1-197 and who had not passed their Public Service Commission Examination were exempted from passing the said examination, and it was directed that they should be continued in service without being replaced by candidates who had passed the P.S.C Examination, and their seniority vis-a-vis those who had passed the P.S.C Examination should he fixed with reference to 1-3-1974 i.e the date of the passing of the said resolution. It was further directed that inter se seniority of the non P.S.C persons should be determined according to their length of service in their respective posts, those passing the P.S.C Examination prior to 1-3-1974 being placed above the non P.S.C personnel.
8. Thereafter on 18-11-1975 a provisional Gradation list was published showing the seniority of the Rationing Inspector's cadre as on 1-4-1974-and on 27-11-1975 a provisional Gradation List of Assistant Rationing Officers and Junior Accountants which were the posts higher to the posts of Rationing Inspector's cadre was published showing their seniority as on 1-4-1974. It is these lists which are challenged in the present petition.
9. To complete the narration of the facts leading to the petition it may be mentioned that the Section Officer, Government of Maharashtra Food and Civil Supplies Department, by his letter dated 22-11-1975 received by the three petitioners on 13-12-1975 replied to their representations referred to earlier stating therein that the representations were duly considered by the Government and the Controller of Rationing had been requested to take note of the points made in their representations while drawing up the revised gradation list. It was then added that they were free to make any further representation after the revised gradation list was finalised and published. It is stated in this Court by Mr. Tijerwala on behalf of the first respondent State that the revised gradation list which was to be published by the Controller of Rationing after taking info consideration the representations of the said three petitioners was the one which was published on 18-11-1975 to which a reference has already been made. Against this list of 18-11-1975, the first and second petitioners submitted their representations. Since they received no reply to the same, the present petition was filed on 31-1-1976.
10. By this petition, the petitioners have attacked the revised gradation list of 18-11-1975 and consequently of 27-11-1975 which is that of the next promotional or higher post, on the ground that the seniority of the petitioners fixed as per the said lists is in violation of the provisions of Articles 14 and 16 of the Constitution inasmuch as firstly, it has given a go by to the normal rule of fixation of seniority according to the date of appointment in the post and secondly because, while fixing the seniority unequals have been treated as equals in that the period of service rendered by the respondent-employees in their Clerical Cadre has been reckoned and equated with the service rendered in the Rationing Inspector's cadre. It is also contended on their behalf that their seniority has been made to depend upon an uncertain factor viz. the seniority of the promotees from time to time which kept their seniority in flux for all time to come.
11. In reply to these contentions, on behalf of the respondents four contentions were raised, three of them in the nature of preliminary objections and one on merits. The preliminary objections were that the petitioners were guilty of laches; that there was a mis-joinder of parties and causes of action and also a non-joinder of parties; and thirdly that the petition raised disputed questions of fact. On merits, it was contended that the two sets of posts viz. the posts in the Clerical cadre and those in the Rationing Inspector's cadre were almost equal in rank and status and therefore, there were no violation of the petitioners' fundamental rights under Articles 14 and 16 of the Constitution. In the same vein it was argued that assuming that there was some difference between the two cadres, a sufficient allowance was made for the same by deducting two years' service from the total service in the Clerical cadre. It was also further contended that in view of the fact that B.R.O came to be manned by staff drawn from three different sources, some adjustment for determining the inter se seniority among the three categories had to be worked out and the formula in the form of the said resolution of 22-3-1968 which was worked out could not be said to be violative of the petitioners' alleged rights in the circumstances of the case.
12. I will first deal with the preliminary objections raised on behalf of the respondents, with regard to the first preliminary objection viz. laches, there is no doubt that what the petitioners are to-day seeking to attack is mainly the Government Resolution dated 22-3-1968 which has enunciated the rules for determining the seniority of the personnel in B.R.O so far as it affects them as direct recruits to the posts of Supply Inspectors in C.F.D vis-a-vis those who were promotees from the Clerical cadre. It is also true that it is on the basis of this resolution of 1968 that a provisional gradation list was published on 28-5-1971 showing the seniority as on 1-4-1968 which was subsequently finalised on 23-11-1972. It is also further true that second provisional gradation list based on the very same resolution of 1968 was published on 9-4-1973 showing, seniority as on 1-4-1972 and the petitioners objected to this second provisional gradation list and had not preferred their objections either to the provisional gradation list published on 28-5-1971 or the final gradation list published on 23-11-1972 as on 1-4-1968. It is because the petitioners did not make any representations either against the resolution of 1968 or against the provisional gradation list of 28-5-1971 or the final gradation list of 23-11-1972 that it is contended on behalf of the respondents that the petitioners are guilty of laches. This contention ignores certain salient facts and also the law on the point. There is nothing on record to show that the resolution of 22-3-1968 was ever circulated to the members of the staff therefore it is not possible to hold that the petitioners were aware of this resolution when it was made. That is precisely the contention of the petitioners. Secondly, although the provisional list published on 28-5-1971 and the final gradation list published on 23-11-1972 showing the seniority as on 1-4-1963 referred to the said resolution of 22-3-1968, a copy of which it was alleged was circulated with the said gradation list, admittedly, as far as the petitioners were concerned the said lists showed only the dates of appointments of the petitioners as Supply Inspectors and did not show their deemed dates of appointments on the basis of the said resolution. It may be mentioned here that the language of the resolution of 1968 is so clumsy that it has taken a good deal of argument on both sides to make sense out of the various provisions made in the said resolution as to the manner in which the seniority of the staff was to be fixed. For laymen like the petitioners, a mere reading of the said resolution would not have made any sense unless the effect of the said resolution as understood by the authorities was actually worked out by them and shown on paper. This was done for the first time when in the provisional gradation list published on 9-4-1973, the deemed dates of appointments were assigned to the petitioners, on the basis of the said resolution. It is only when the Petitioners noticed that their deemed dates were other than the dates of appointments which were shown in the earlier two lists that they realised that the effect of the resolution of 1968 was to affect their seniority adversely vis-a-vis the promotees from the clerical cadre. It is not disputed that the petitioners made a series of representations after this provisional gradation list of 9-4-1973 was published. Indeed, there is no grievance on behalf of the respondents that there were any laches on the part of the petitioners after the gradation list of 9-4-1973 was published. What was however further pointed out on their behalf in this connection was that in both the lists of 28-5-1971 and 23-11-1972 the petitioners were shown at particular serial number. Although their deemed dates of appointments were not shown against them, the actual dates of appointments and the deemed dates of persons in the clerical cadre were shown and the petitioners were shown below the persons from the clerical cadre who were given deemed dates prior to the dates of appointments of the petitioners. It is therefore contended that it was possible for the petitioners to take note of the said discrepancy and make a representation at that very stage. There is no doubt that this argument on the face of it looks plausible. However it must be noted that both these lists mentioned in their last columns of remarks that the seniority of the respective personnel was fixed according to their inter se seniority in the parent department or the C.F.D as the case may be. In view of the language of the resolution of 1968, the absence of an indication of the petitioners' deemed dates and the said further statements in the remarks column one cannot find much fault with the petitioners if they were unable to understand their exact position although they were shown at a particular serial number in the said lists. I am therefore of the view that taking into consideration this factual position, it will be harsh to fasten the petitioners with the knowledge at that stage that they were in discriminated against by the said lists and the said resolution of 1968. Secondly, the law with regard to laches does not lay down an obligation on the Court to refuse to grant reliefs merely because there is a lapse of time since the cause of action arose. It must further be shown that on account of such lapse of time the rights of some persons have in the meanwhile intervened and if the petitioners are granted the reliefs claimed by them at a distant point of time, it will result in upsetting the intervening rights-Beyond making a vague statement that the seniority list of 23-11-1972 showing gradation as on 1-4-1968 was since followed and promotions made on that basis, the respondents have not placed on record any factual data to show the extent of such promotions and the manner in which the promotees would be affected if the relief was granted to the petitioners. Thirdly, even assuming that the rights of some persons have in the meanwhile intervened which would be affected by the reliefs that might be granted to the petitioners, undoubtedly the first respondent-State has since passed another resolution on 1-3-1974 which, as stated earlier, has exempted all persons belonging to the clerical cadre recruited prior to 1-1-1971 from the requirement of passing the P.S.C Examination and has directed the fixation of their seniority with reference to 1-3-1974. This has inevitably the effect of upsetting the final gradation list published on 23-11-1972 showing the gradation as on 1-4-1968. In other words, today, in view of the said resolution of 1-3-1974, even the said gradation list published on 23-11-1972 will have to be recast. The petitioners have made a grievance in the petition also with regard to the said resolution of 1-3-1974. In the circumstances, it cannot be said that if the reliefs are granted to the petitioners in the present petition, that alone will have the effect of upsetting the gradation list as on 1-4-1968. If this is so, then merely because the petitioners had not approached this Court immediately after the provisional gradation list was published on 28-5-1971 or after the final gradation list was published on 23-11-1972. It cannot be said that any rights have accrued to the respondent-employees or others which would be upset. The rights of all the employees are still in flux since no gradation list of B.R.O has as yet become final. What is more, as stated earlier, the challenge in the petition is directed essentially against the said resolution dated 22-3-1968 which lays down a particular policy or enunciates particular rules for governing seniority. It cannot be gainsaid that the rules promulgated by the said resolution are rules made under Article 309 of the Constitution. The petitioners have attacked the said rules as being violative of their fundamental rights guaranteed under Articles 14 and 16 of the Constitution. To shut out the petitioners from a challenge to the said rules on the ground of laches is to condone the continuance of invalid rules or statute on the ground that the challenge to the same is delayed. This course is not open to the Court particularly when it is a breach of the fundamental rights which is complained of. For all these reasons I am of the view that this preliminary objection should not be entertained.
13. As regards the second preliminary objection viz. the mis-joinder of parties and of the causes of Paction, and the non-joinder of parties, the grievance is that some persons who were not necessary parties have been joined as respondents and no relief has been claimed against them and if the petitioners succeed they are not going to be affected by the result. In this connection it may be pointed out that the petitioners have joined 162 employees as respondents who according to them will be affected by the reliefs that may be granted in the petition. The said employees have been joined on the basis of the list published on 9-4-1973. Assuming that some of these respondents are not necessary parties, they being even otherwise senior to the petitioners and therefore would not be affected in any manner by the grant of reliefs in this petition, it is difficult to understand as to how the petition becomes non-maintainable on that account. Secondly, when it is the rule or policy which has been challenged it is not possible to envisage precisely the exact ramifications of the rule. Therefore by way of abundant precaution if some persons have been joined as parties who might ultimately be found to be unaffected that will not non-suit the petitioners. As regards the non-joinder of parties, respondents have not been able to pin point as to who were the other parties necessary to the petition. They have only made a vague allegation that in case the petitioners get a relief in this petition, it might affect seniority of a large number of persons who are not joined as parties in the petition. Further, as the petition stands today, it appears that the petitioners have taken care to join all those employees as respondents who have been shown above them in the seniority list and who according to them ought to be below them if the relevant provisions of the resolution of 22-3-1968 are struck down. It must also not be forgotten in this connection that as pointed out earlier, in view of the resolution dated 1-3-1974 the seniority of all the persons even as on 1-4-1968 has been affected and in view of the said second resolution the seniority of the staff as on 1-4-1968 is yet to be worked out and therefore it is not possible for the petitioners to know today as to how many persons will be affected when a fresh seniority list as on 1-4-1968 is prepared on the basis of the resolution of 22-3-1968 read with the resolution of 1-3-1974. Lastly, as pointed out at the inception, what in essence has been challenged in the present petition are the rules enunciated in the said resolution of 22-3-1968. The State Government which has passed the resolution is a party before the Court. Hence a relief in the nature of striking down the invalid part of the said resolution can always be grained in this petition and it will not be fatal to the maintenance of the petition that some employees who might be affected by the striking down of the illegal provisions of the said resolution have not been joined as parties to the petition. For all these reasons, I am of the view that the preliminary objection relating to the mis-joinder of parties and of causes of action, and of non-joinder of parties is not sustainable.
14. As regards the last preliminary objection viz. that the petition raises disputed questions of fact, I am afraid that Mr. Soochak appearing for respondent No. 5 and 28 others, who raised the said objection was not in a position to make good the said point. He only vaguely alleged that the disputed questions to be resolved would be with regard to the factors determining the equation between the clerical cadre on the one hand and the cadre of Supply Inspectors on the other. I do not see how this issue can be made a disputed question of fact. The question whether the two cadres are equivalent or not can be decided on the basis of the admitted facts on record and it will require no investigation into any controversial evidence. It is for this reason that I do not see any substance in this preliminary objection either.
15. Coming now to the merits of the case, it is first necessary to refer to the Government resolution dated 22-3-1968. This resolution as stated earlier sought to lay down principles for the fixation of Seniority of the persons working in B.R.O The rules enunciated in the said resolution were to come into effect retrospectively from 21-10-1965. The resolution classified the employees in B.R.O in three categories as stated earlier viz. (a) “Released Government Servants”, (b) “Merged Government Servants” and (c) “Direct Recruits”.
16. Rules 4 and 7 of the resolution, which are the rules challenged in the petition with their accompanying illustrations which are as follows:
“4. Seniority of persons in the cadre of senior Clerks/Rationing Inspectors/Deputy Accountants
(a) Seniority of a released Government Servant and a Merged Government Servant in the cadres of senior Clerk, Rationing Inspectors and Deputy Accountants, as also a person who was initially appointed as a clerk, or Typist or Clerk-cum-Typist in the Bombay Rationing Organisation and subsequently promoted in the said cadre shall be determined with reference to dates which shall be fixed after deducting two years from the length of continuous service, whether officiating or permanent rendered by him in the cadre of Clerks Typists, and Clerk cum-Typist.
Illustration:—
Suppose there are three persons in the cadre of Senior Clerks/Rationing Inspectors and Deputy Accountants. ‘A’ a release Government servant was holding the post of clerk continuously from 1st October, 1960 prior to his release. ‘B’ a merged Government servant was holding the post of typist continuously from 1st May, 1958. ‘C’ was appointed as a direct recruit to the post of clerk in the Bombay Rationing Organisation on 1st May, 1966 and was subsequently promoted as Senior Clerk on 22nd May, 1968. The seniority amongst them will be fixed as under:—
Seniority rank
Name
Date of commencement of continuous service as clerk
Deemed date of appointment for fixation of seniority
1
2
3
4
1.
B
1-5-1958
1-5-1960
2.
A
1-10-1960
1-10-1962
3.
C
1-5-1966
1-5-1968
Provided that in the case of a merged Government servant who was recruited to the post of Supply Inspector or Senior Clerk, by nomination, he shall take rank above a clerk of the former Foodgrains Distribution Scheme who was promoted to the cadre of Supply Inspector or Senior Clerk, in the former Foodgrains Distribution Scheme immediately, after him and if this be not the position, above the first person in the cadre of clerks belonging to that organisation who is posted in the cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants on and after 1st March, 1966.
Illustration:—
Suppose there are four persons in the cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants All of them were in the Bombay Foodgrains Distribution Scheme. ‘A’ was a clerk in the Scheme and he was promoted to the post of Supply Inspector with effect from 1st May, 1960 and since then was continuously officiating in the post. ‘B’ and ‘C’ were recruited as Supply Inspectors by nomination and were officiating continuously in that post from 15th April 1960 and 15th April 1965. None of the Clerks in that scheme was promoted after ‘C’ till the merger of the staff in the Bombay Rationing Organisation. ‘D’ was a Clerk and he was promoted as Senior Clerk with effect from 15th April, 1966 i.e after merger of the staff in the Bombay Rationing Organisation. Their seniority amongst them will be as under:—
Seniority rank
Name
1.
B.
2.
A.
3.
C.
4.
D.
(b) Seniority of a Government servant appointed in the Bombay Rationing Organisation by direct recruitment to the cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants shall be fixed with reference to the dates of appointments to the posts in the said cadres:
Illustration:—
Suppose there are three persons in the cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants who were recruited to the cadre by nomination. ‘A’ was recruited is Rationing Inspector from 24th February, 1966. ‘B’ was recruited as Senior Clerk from 15th March, 1966. ‘C’ was recruited as Deputy Accountant from 28th February, 1966. The seniority amongst them will be fixed as under:—
Seniority rank
Name
Date of commencement of continuous service
1
2
3
1
A
24-2-1966
2
C
28-2-1966
3
B
15-3-1966
(c) Seniority of Government servant in the cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants fixed on the basis of the rules in (a) and (b) above, shall be merged and refixed with reference to the dates from which their seniority is determined according to the principles in the rules 4(a) and 4(b) above.
Illustration:—
Suppose there are 7 persons in the cadre of Senior Clerks, Rationing Inspectors, Deputy Accountants. ‘A’ and ‘B’ were Supply Inspectors directly recruited in the Bombay Foodgrains Distribution Scheme and were continuously officiating in those posts from 4th May, 1963 and 1st May, 1963 respectively. ‘C’ was a clerk in the former Bombay Foodgrains Distribution Scheme from 1st September, 1960 He was promoted as Supply Inspector on 5th May, 1963. ‘D’ was a Rationing Inspector directly recruited to it from 2nd February, 1966. ‘E’ was a released Government servant holding the post of Clerk in the former office from 1st August, 1960. He was taken up as Senior Clerk from 2nd August, 1917, in the Bombay Rationing Organisation. ‘F’ was a released Government servant holding the post of a clerk in his former office from 1st February, 1964. He was taken upas Rationing Inspector on 1st August, 1967 ‘G’ was a released Government servant holding the post of a clerk in his former office from 1st December, 1964. He was taken up as a clerk in Bombay Rationing Organisation. Subsequently he was promoted as Rationing Inspector from 1st April, 1967. The seniority amongst them will be as under:—
Seniority clerk
Name
Mode
Actual date
Deemed
As clerk
As Sr. Cl.
R.I/Dy. Acctt.
1
2
3
4(a)
4(b)
5
1.
E
Promoted clerk (released).
1-8-60
2-3-67
1-8-62
2.
B
Direct S.I
—
1-5-63
31-8-62
3.
A
Direct S.I
—
4-5-63
31-8-62
4.
C
Promoted Ex. CFD Clerk.
1-9-60
5-5-63
1-9-62
5.
F
Promoted clerk (released).
1-2-64
1-8-67
1-2-66
6.
D
Direct Rationing Inspector.
—
2-2-66
2-2-66
7.
G
Released Clerk absorbed in Bombay Rationing Area Organisation as Clerk and sub-sequently promoted as Rationing Inspector.
1-12-64
1-4-67
1-12-66
“7. Notwithstanding anything contained in the foregoing Rules.
(a) in case of Government servants released from one and the same office to join the Bombay Rationing Organisation the seniority inter se in their former office shall not be disturbed;
(b) in case of the merged Government servants, they shall be governed by the principles contained in the Government Resolution, Agriculture and Co-operation Department No. EST. 1060/40002.SIV, dated the 1st April, 1963; and
(c) in case of—
(i) those who were recruited directly in the Bombay Foodgrains Distribution Scheme, shall be governed by the principles contained in the Government Resolution No. Agriculture and Co-operation Department No. EST. 1060/40002.SIV dated the 1st April, 1963;
(ii) those who were drawn in the Bombay Foodgrains Distribution Scheme from one and the same Government office/Department shall take their rank according to seniority inter se in the office/department from which they were drawn:
Provided further where there is a clash of principles contained in the Government Resolution, Agriculture and Co-operation Department No. EST. 1060/40002.SIV, dated the 1st April, 1963 with the seniority inter se in the former Department shall prevail.
Illustration:—
‘A’ who started his career as Assistant in Revenue and Forests Department from 1st May, 1962 was drawn in Bombay Foodgrains Distribution Scheme on 18th October, 1964 and was taken up as Inspecting Officer. ‘B’ an Assistant in Revenue and Forests Department working in that cadre continuously from 1st May, 1961 was released to join Bombay Rationing Organisation on 22nd August, 1966 as Inspecting Officer. ‘C’ who started his career as Assistant in General Administration Department from 1st April, 1960 was drawn in Bombay Foodgrains Distribution Scheme on 18th May, 1965 as Inspecting Officer. ‘D’ an Assistant in General Administration Department working in that cadre continuously from 1st May, 1960 was released to join Bombay Rationing Organisation on 1st July, 1969 as Inspecting Officer. The seniority of these persons will be fixed as under:—
Seniority rank.
Name
Department
Date of recruitment as Asstt. in the parent Deptt.
Date of joining in Bombay Foodgrains Distribution Scheme
Date of joining in Bombay Rationing Organisation
1
2
3
4
5
6
1.
C
General Administration Department.
1-4-60
18-5-65
1-3-1966
2.
D
General Administration Department.
1-5-60
—
1-7-1967
3.
B
Revenue & Forests Department.
1-5-61
—
22-8-1966
4.
A
Revenue & Forests Department.
1-5-62
18-10-64
1-3-1966 (Date of Merger).
17. The net result of the aforesaid rules contained in the said resolution may be summarised as follows:—(a) The rules give deemed dates of seniority to those belonging to the clerical cadre in the higher cadre of Senior Clerks/Rationing Inspectors/Deputy Accountants by allowing the entire service in the clerical cadre minus two years to be calculated for the purpose, (b). The inter se seniority of the persons belonging to the same Department is fixed on the basis of their seniority in their respective Departments and (c) the seniority of direct recruits to the cadre of Senior Clerks/Rationing Inspectors/Deputy Accountants is fixed on she basis of the seniority of the promotees from the Clerical cadre fixed as per (a) and (b) above. For this purpose, as stated earlier, deemed dates are worked out as per (a) and (b), and assigned to the promotees. Thereafter the seniority of the direct recruits is fixed according to whether the dates of their actual appointments are prior or subsequent to the deemed dates of the promotees. The direct recruits are then given deemed dates which are a day prior to the deemed dates of the promotees next below. In other words, the seniority of direct recruits depends upon the inter se seniority of the promotees whose seniority is worked out as in (a) and (b) above and it fluctuates as the seniority of the promotees keeps fluctuating.
18. It will be necessary to note at this stage itself that as far the petitioners are concerned, the position of their seniority which is worked out as above is made still worse after the Government Resolution of 1-3-1974 which in effect lays down as stated earlier, that those candidates who were in service prior to 1-1-1971 and who had not passed their P.S.C Examination are exempted from passing the P.S.C Examination and those who had passed the P.S.C Examination are to be placed above those who had not passed the P.S.C Examination This means that to the promotees from the Clerical cadre who were entitled to be shown above the petitioners on the basis of their inter se seniority calculated as above, some more persons viz. those who had not passed their P.S.C Examination would now be added, thereby lowering down still further the position of the petitioners in the seniority list. This is the net result of both the said resolutions read together, although the second resolution of 1-3-1974 has only aggravated further the inequitous consequences of the resolution of 22-3-1968. What is therefore under challenge in essence is the said discriminatory effect of the resolution of 22-3-1968.
19. There is no doubt whatsoever that the effect of the said resolution of 22-3-1968 is to place the petitioners at an inequitably disadvantageous position as against the promotees from the Clerical cadre inasmuch as the petitioners being direct recruits to the cadre of Rationing Inspectors having being directly recruited as Supply Inspectors in the former C.F.D, the promotees appointed to the said post much later are given seniority above the petitioners by giving them the deemed dates of appointment on the basis of their continuous service in the Clerical cadre minus two years and also on the basis of their inter se seniority in their own department. This is against the normal rule which determines seniority on the basis of the dates of appointment to the post. The normal rule is in conformity with the provisions of Articles 14 and 16 of the Constitution and any departure from the same must be justified by rational, relevant and cogent reasons.
20. Neither in the said resolution of 22-3-1968 nor in the return filed on behalf of the State there is any material to justify the enactment of the said abnormal rules for determining seniority.
21. Although it was not disputed on behalf of the State that the posts of former Supply Inspectors were higher in grade and rank than the posts in the Clerical cadres, it was sought to be argued on behalf of the other respondents that persons who were recruited directly as Supply Inspectors in the former C.F.D such as the petitioners were so appointed without any recruitment rules and straight from the Employment Exchange. They were so appointed because of the exigencies of the situation without regard to their age, educational qualifications, etc. It was further argued that the C.F.D was by its very nature a temporary organisation and not a regular and a permanent department of the Government as other departments. Persons who were recruited in the Clerical cadre in the other departments were recruited according to the recruitment rules which laid down qualifications in respect of age, education, etc. These persons had further to pass their P.S.C Examination before they were brought on the regular Clerical cadre. Even in the C.F.D persons belonging to the Clerical cadre had to be brought from such other and permanent departments sometimes against their will and not necessarily in the order of their seniority. Thus they had to forego all their claims to higher promotional posts in their respective departments and join the former C.F.D and the present B.R.O It is to offset the said loss and hardship caused to such employees that the resolution of 1968 was passed whereby the service rendered by persons belonging to the Clerical cadre was given credit to, and the same was sought to be equated with the service of the former Supply Inspectors and the persons belonging to the present Rationing Inspector's cadre. Even while doing so, it was not that the entire period of service in the Clerical cadre was taken into consideration. Firstly it was only the qualifying service which was taken into consideration, meaning thereby the period of service rendered by them after passing the P.S.C Examination. Secondly, even from such service a period of two years was deducted. On the other hand, while fixing the seniority of the former Supply Inspectors like the petitioners, their entire service as Supply Inspectors was taken into consideration. It was therefore urged on behalf of the said respondents that it is not correct to say that the two have been equated. According to the respondents further the two posts were not unequal. In an effort to show that the posts of former Supply Inspectors and the posts belonging to the Clerical cadre were equal, it was pointed out that the post of Supply Inspector was on a lower level than the post of Senior Clerk although it was higher than the post of Clerk. It was further contended that the Clerks were entitled to be promoted as Assistants in their regular or permanent departments. The post of Assistant was comparable to the post of Assistant Rationing Officer which is the next higher promotional post for persons in the cadre of Rationing Inspector. In short, the submission was, in the first instance, the posts in the Clerical cadre and the posts of former Supply Inspectors were equal in rank. Assuming that there was some inequality, a due allowance was made for the same by deducting two years' service from the period of service in the Clerical cadre and equating a person with two years' service in the Clerical cadre with the Supply Inspector. It will therefore be necessary to examine whether the two posts were equal as a matter of fact and if not, whether the device adopted for equating the services in the two posts is rational.
22. As regards the contention that persons appointed to the original cadre of Supply Inspectors in C.F.D were so appointed without any recruitment rules and that the C.F.D was a purely temporary organisation, it is difficult to understand as to how these two factors make any difference to the contention of the petitioners that the post of Supply Inspector was a post higher in rank and grade to the post belonging to the Clerical cadre viz. the Clerks/Typists/Clerks-cum-Typists. The rank, status or the grade of a post does not depend upon whether the same is in a temporary or permanent department or whether a person has been recruited to the post under recruitment rules or not. Many posts are created temporarily and without any recruitment rules, and there are many departments and organisations which spring up to meet the temporary needs. However, these two factors cannot justify the equation of a lower post with a higher post since in deciding the status of the post the said factors have no rational bearing. If this argument were to be accepted, no holds would be barred, and any and every post however low in a permanent department or filled in according to the recruitment rules, can be equated with any and every post to waver high in a temporary department or which is filled in without the recruitment rules. What is material is the status or rank of the post and not the method or manner of filling it or its tenure. The method or tenure may change without a change in the rank, and surely, it cannot be argued that because of the said change, the rank should also change. When a person is appointed to hold a post, he is entitled to all that which goes with it, and no discrimination can be made against him on the ground that there were no qualifications prescribed for holding the same or that the post belonged to a temporary department. I am therefore, unable to appreciate the distinction sought to be made or rather the equation sought to be achieved in the two posts on account of the said two factors.
23. As regards the argument that the post of the Supply Inspector stood on a lower level than the post of Senior Clerk in the ex-C.F.D on the basis of the increments and maximum salary available for the two posts, it ignores the fact that the resolution dated 25-7-1968 which equated the posts, in the ex-C.F.D with the posts in the present B.R.O with retrospective effect from 1-3-1966 (on which date the Ex-C.F.D merged with the present B.R.O) place the posts of Senior Clerks, Rationing Inspectors and Deputy Accountants on the same level, and equated the posts of Supply Inspectors, with the posts of Senior Clerks/Rationing Inspectors/Deputy Accountants Whatever might be the difference between the post of Supply Inspector and that of Senior Clerk in the Ex. C.F.D with regard to their salary scale, the said distinction did not exist thereafter. What is more important to note in this connection is that along with the posts of Supply Inspectors and Senior Clerks, there also existed the posts of Clerks in the Ex. C.F.D The post of Clerk was admittedly a lower post than the posts of both Supply Inspector and Senior Clerk although it appears that whereas the Supply Inspectors' maximum salary was Rs. 190 the maximum salary of both the Senior Clerks and Clerks was Rs. 245. However the distinction between the Rationing Inspectors i.e the former Supply Inspectors, the Senior Clerks and Deputy Accountants on the one hand and the Clerks on the other was maintained even after the merger and their pay scales were admittedly different and higher than that of the Clerk. It is also not correct to judge the similarity between the two posts on the basis of their incremental scales or maximum salary alone. It is well known that different considerations weigh in prescribing pay scales for different posts and merely because one post carries a higher maximum salary or a higher incremental scale than the other it cannot be said that the one is a higher post than the other ignoring the starting salary, the perquisites, the nature of the duties, the status in the hierarchy etc. According to me, therefore, the attempt made to show that the post of Supply Inspector was more or less the same as that of Clerk on the aforesaid basis is futile. Similar is the case with the argument that the promotional post of Assistants which was open to a Clerk in the permanent parent department was comparable to the post of Assistant Rationing Officer which is the promotional post for the Rationing Inspector, and therefore it should be held that the posts of Supply Inspectors and of Clerks were equal in rank. In the first instance, the salary scale of Assistants is Rs. 190-450 and that of Assistant Rationing Officer is Rs. 200-300. Therefore there is a dissimilarity in the pay scales of the two posts. Secondly, it cannot be said that there is a similarity between the conditions for the promotion of a Clerk to the post of Assistant in his parent department and those for the promotion of a Rationing Inspector (i.e former Supply Inspector) to the post of Assistant Rationing Officer in the present B.R.O In the circumstances, there is an inherent fallacy in the attempt to equate the two posts belonging to two different departments and cadres, on this basis. It is for this reason that I am of the view that this basis of equation of the two poses is also not tenable factually or legally. Hence, according to me the attempt made to show that the posts viz. the cost of former Supply Inspectors and the posts in the Clerical cadre were equal in rank, and therefore there was no violation of Articles 14 and 16 of the Constitution in fixing their seniority on the basis of the impugned provisions of the resolution of 22-3-1968 is not bound to succeed. There were no other circumstances pointed out to me to show that for the purpose of seniority the services in the two posts could be placed on the same level.
24. As regards the contention that whereas the entire service as a Supply Inspector has been taken into consideration while fixing the seniority of direct recruit, it is not the whole of the service rendered in the Clerical cadre but the said service minus two years alone is taken into consideration while fixing the seniority of the promotees from that cadre, in the first instance, it must be remembered that while fixing seniority in the higher post it is not open to take into consideration any service rendered in the lower post and that by itself spells out discrimination Secondly, there is no reason given why two years' service was deducted from the service in the Clerical cadre and not less or more. Therefore the basis on which the so-called equalisation is sought to be made itself is highly arbitrary. Thirdly, when a certain factor is taken into consideration for fixing seniority, it must have a reasonable nexus with the purpose sought to be achieved. There is no such nexus established in the present case between service in the lower cadre and the seniority in the higher cadre. It was sought to be contended in this connection that persons who were brought from the other departments were so brought against their will and some of them might have lost chances of their promotion in their parent departments if they were due for such promotions before they were promoted in the present department as Rationing Inspectors. This argument ignores two things viz. the exigencies of service including transfers and deputations to other departments, and the lien that an employee retains on his original post when he is only temporarily transferred or deputed to other departments. No instance has been pointed out in the present case where those who came from the other departments had lost their lien in the said departments. In fact the respondent-State has not disputed the fact that these employees had their lien in the parent department. It further appears that many of them were repatriated to their original department on that basis. That is also the legal effect of the provisions of the Bombay Civil Service Rules 9(31), 18(C), 18-B(6), 20-A and 50(b) read together. That is why, again, in the seniority list those on deputation have been shown as such, including some of the respondents What is more, this argument totally ignores that the benefit of service in the Clerical cadre is given not only to those who came from other departments but also to those who were originally recruited in the Ex. C.F.D and the present B.R.O There is therefore no rational basis for giving credit to the service in the Clerical cadre.
25. It was then faintly sought to be argued that it was only the qualifying service in the Clerical cadre which was taken into consideration. That argument however had to be given up when it was pointed out that the resolution of 1-3-1974 which by one stroke exempted the non P.S.C candidates from appearing for the P.S.C examination, the distinction between qualifying service and non qualifying service no longer existed. This means that persons who were in service in the Clerical cadre on 1-1-1971 and to when the said exemption applies, although they were recruited not according to the recruitment rules, would also get the benefit of their entire service in the Clerical cadre minus of course two years. The resolution of 1-3-1974 therefore exposes the hollowness of the other argument as well viz. the one based on the distinction between persons recruited according to the recruitment rules and those not so recruited.
26. There was no other argument raised or material pointed out on behalf of any of the respondents including the State showing the basis on which the two posts were sought to be equalised for the purpose of laying down the impugned rules of seniority in the cadre of Rationing Inspectors. This being the case it will have to be held that the said resolution in so far as it seeks to treat unequals, is in clear breach of the provisions of Articles 14 and 16 of the Constitution and therefore invalid on that count.
27. There is a breach of Articles 14 and 16 also on account of the fact that the seniority of the petitioners has been made to depend upon an uncertain event which has no reasonable nexus with the object sought to be achieved. As has been pointed out above, one of the consequence of the resolution of 22-3-1968 is that the seniority of the direct recruit is made to depend upon the deemed date that the promotee appointed next after him gets on the basis of the promotees inter se seniority in his department. This means that the direct recruit is given a deemed date of his appointment which is a day earlier to the deemed date of the promotee who is promoted next after his appointment and is placed in the seniority just above him. As has been stated earlier the deemed date of appointment of a promotee depends upon two factors viz. his inter se seniority amongst the persons who have been promoted from his department and his continuous service in the Clerical cadre minus two years. Every time therefore a person from the other department is promoted, if he is senior to the earlier promotee or promotees in the parent department, the deemed dates of the promotees from that department vary and along with vary the deemed dates of the direct recruits. This basis of the variation of the seniority of the direct recruit is on the face of it unrelated, irrelevant and purely accidental and therefore irrational. It has no reasonable nexus with the seniority of the direct recruit. Hence the resolution is bad in law being violative of the petitioners' rights under Articles 14 and 16 of the Constitution on that account also.
28. I may now refer to some of the authorities which were cited at the bar in this connection by Mr. Shetye on behalf of respondent No. 4. The first decision is of the Supreme Court reported in (1974) 4 SCC 335 : A.I.R 1974 S.C 1755 (The General Manager, South Central Railway, Secunderabad v. A.V.R Siddhaati). This is a case which is actually against the respondents inasmuch as it has been in terms held there that there was no reason for making a discrimination between employee and employee while fixing their seniority on the basis of the source of their recruitment. There are some factors which are common between that case and the case in hand. In that case the Indian Railways had organised a Grain Shop for the benefit of its employees. This complex was a temporary one and it was manned by personnel drawn from three different sources viz. (1) temporary employees who had been selected by the Selection Commission and who were initially appointed in permanent Departments and were thereafter transferred to the Grain Shop Department, (2) temporary employees selected by the Selection Board who were straightaway posted in the Grain Shop Department and (3) temporary employees directly recruited by the Deputy General Managers to the Grain Shop Department from the open market. After the Emergency was over it was decided to gradually wind up the Grain Shop Department and absorb its staff in the permanent Departments of the Railways. While fixing their seniority a discrimination was made between the three different categories stated above. The Supreme Court held that the differential treatment given to category (1) for the purpose of fixing seniority rested on a sound rational basis and did not offend Articles 14 and 16 of the Constitution. However, the Court held that there was no rational basis for making distinction between the two latter categories since they had become members of the same class or unit governed by the same conditions of service and they were entitled to be treated alike. The Court therefore struck down the direction given for fixing different seniority of persons belonging to the latter two categories. I am unable to understand as to how this decision in any way helps the respondents for according to me, firstly, the seniority list which was prepared was a seniority list of the persons belonging to the same cadre and not of unequal cadres Secondly, the Court in terms held in this decision that once the persons coming or recruited to the service from two different sources are absorbed into one integrated class with identical service conditions, they cannot be discriminated again with reference to the original source for the purpose of absorption and seniority. Thirdly when the Court upheld the differential treatment given to persons belonging to category (1) as stated above, the Court in terms pointed out that the authorities had made out a case showing that the persons belonging to the first category belonged to a different class altogether and they were not equals with the persons belonging to the latter two categories. Since the special feature of the personnel of the first category was that they had been initially appointed in substantive vacancies in permanent Departments, they did not come to the Grain Shop Department of their own volition or option, but, by transfer or on loan under peremptory orders of their superior Officers. They could not be placed in a worse position or treated differently in the matter of tenure than their colleagues who fortuitously continued in the permanent Departments. It was therefore fair and reasonable that on the abolition of the Grain Shop Department they should be sent back to their permanent Departments, and given credit of their initial service in these Departments for the purpose of permanent absorption and seniority. The Court held that it was clear from the material placed before it that this category of employees was always treated as a distinct unit having a status akin to that of persona on loan or transferees for a period from a permanent Department to a temporary Department. That is certainly not the situation in the present case.
29. Coming now to the second decision, it is reported in (1974) 1 SCC 188 : A.I.R 1974 S.C 246 (State of Gujarat v. C.G Demi). In this case the conflict was between direct recruits and promotees, and a person who was in the Department had instead of waiting for his promotional chance in the queue, applied for higher post as a direct recruit and was selected as such According to the rules under which the seniority of the persons in the higher post was fixed, a promotee was given the benefit, of his officiating service in the post. The benefit was not available, as indeed it could not be, to the direct recruits. However, the said direct recruit had claimed the benefit of his service in the Department because according to him though he was appointed as a direct recruit, prior to his said appointment he was serving in the said Department and that service should be taken into consideration as it was taken into consideration in the case of promotees. The Court negatived this contention and held that the benefit of the Departmental service was available according to the rules only to the promotees and not to the direct recruits. It is for the reason that the Court did not grant the benefit of the earlier Departmental service to the direct recruit. I am unable to understand as to, how this decision in any way helps the respondents in the present case. In the first instance, the rule giving the benefit of the Departmental service existed on the date the direct recruitment was made and the persons who looked forward to the said post were very much aware of the conditions under which they were to be recruited and the manner in which their seniority could be fixed vis-a-vis the promotees Secondly, it was open in that case for the person concerned to avail of the benefit which the rule had given him by awaiting his chance in the promotional queue, rather than jump the same. The person concerned chose the latter. He could not therefore claim the benefit of both viz. that of direct recruitment over the heads of the promotees and also of the benefit of the Departmental service to which the direct recruits from outside were clearly not entitled to. This is precisely why the Supreme Court held against the direct recruit in that case on the question of seniority and the alleged discrimination between him and the promotees.
30. The third decision is reported in (1975) 3 SCC 116 : A.I.R 1974 S.C 1618 (Bishan Sarup Gupta etc. etc. v. Union of India). This was again a case where there was a conflict, between direct recruits and promotees in the Income Tax Office with regard to their promotion to and seniority in the post of first Class Income-tax Officer. As the history of the battle between the promotees and direct recruits there shows the Class I service from the very beginning was constituted by recruitment from two sources, the promotees from Class II service and the direct recruits on a quota system. At first the quota between promotees and direct recruits was 20:80. It was changed to 33⅓: 66⅔ and by the impugned composite rule (viz. recruitment-cum-seniority rule) to 50:50. Prior to the impugned rule, the promotees were given a weightage of 2 to 3 years over the direct recruits for fixing their seniority but the same was done away with by the impugned rule while increasing their quota from 33⅓% to 50% The impugned rule also laid down the rule of seniority on roster basis in the ratio of 1: 1 according to the sequence of promotee first and the direct recruit next and in that order. Both the direct recruits as well as the promotees were aggrieved, the promotees because their weightage was removed and the ratio of seniority was titled against them, and the direct recruits because their quota was reduced from 664⅔% 50%.
31. While dealing with the contentions of the promotees the Court pointed out that the old quota and the seniority rule had broken down because a large number of promotions had to be effected outside the quota to meet the demands of an expanding service, with the result that on 16-1-1959 there were ??? class-I officers who were outside the cadre, and between 1959 and 1962, 214 more officers were promoted after upgrading equal number of posts. A new recruitment and seniority rule was therefore a must, if the composition of the Class-I service was in retain its same old basis viz. that of promotees and direct recruits. The new rule did nothing more than laying down a reasonable basis both of recruitment and seniority taking into consideration the claims of persons from both the sources. The weightage of 2 to 3 years service in fixing seniority given to the promotees was a source of discontent to the direct recruits and that is why the same was removed and the promotees were compensated by increasing their quota of recruitment to 50%.
32. It is therefore difficult to understand how this decision helps the respondents in the present case. Admittedly, the recruitment was on a quota basis which necessitated an equitable rule of seniority between persons from the two sources. In fact while laying down such a rule, the earlier inequitous system of giving 2 to 3 years' seniority to the promotees over the direct recruits was done away with and the Court upheld the same. According to me, therefore, this case far from being applicable to the facts of the present case, to a certain extent goes against the respondents' contentions.
33. The last decision relied upon by Mr. Shetye was a decision of the Division Bench of this Court in Special Civil Applications Nos. 1090 and 1091 of 1972 decided by V.S Deshpande and P.R Mridul, JJ. on 3rd February 1976. This was in fact a reverse case in that the employees who were formerly serving in the Civil Supplies Department were recruited as fresh recruits in various other Departments of the State and it is only for the purposes of their pension and provident fund that they were given the benefits of their earlier service in the Ex-Civil Supplies Department. This benefit was also given at a later date and was not one of the conditions on which they were freshly recruited to the different permanent Departments of the State Government. An attempt was made on behalf of the Ex-Civil Supplies employees to rely upon the decision of the Supreme Court reported in (1974) 4 SCC 335 : A.I.R 1974 S.C 1755 (supra) and claim seniority on the basis of their seniority in the Ex-Civil Supplies Department. This was negatived by the Division Bench by pointing out that the said employees were recruited as fresh recruits to the permanent Departments and therefore they could not claim seniority on the basis of their continuous service in the Ex-Civil Supplies Department. It was also pointed out that there was no similarity between the employees in the case reported in (1974) 4 SCC 335 : A.I.R 1974 S.C 1755 (supra) viz. those who were recruited by the Selection Board in the permanent Department of the Railways and straightaway posted in the Grain Shop Department and the Ex-Civil Supplies employees because in the Supreme Court case the employees right from the beginning were earmarked for a particular Department and the relevant Government Resolution in terms indicated that their seniority was to be counted in the parent Department in which they were initially recruited, from the date of the said resolution. I am there-fore of the view that even this decision far from helping the respondents clearly goes against them since there is nothing in the present case to indicate that the employees who were recruited in the Clerical cadre in the patent Department and who were subsequently brought to the present B.R.O were at all given any such understanding. I am therefore unable to tee any similarity, and the reasons for which this case was relied upon on behalf of the respondents.
34. For all these reasons, I am of the view that there is no merit in the contentions advanced on behalf of the respondents. The result is petitioners succeed in this petition. Clauses (a) and (c) of Rule 4, and proviso to Rule 7 of the said resolution dated 22-3-1968 being violative of the provisions of Articles 14 and 16 of the Constitution are hereby struck down. Consequently, the gradation lists dated 18-11-1975 and 27-11-1975 which are based upon the aforesaid invalid provisions are hereby quashed. The respondent-State is directed to prepare a seniority list without taking into consideration the struck down provisions of the resolution dated 22-3-1968 and to give consequential benefits including promotions and emoluments on the basis of such revised gradation list. The promotions should be worked out on notional basis with retrospective effect and the salary of the petitioners should be fixed as if they had earned all their increments during the intervening period. However, the petitioners may be paid the arrears of salary which is restricted to three years prior to the date of the filing of this petition which is 31st January 1976. The execution and operation of this order is stayed for a period of six months from today at the request of the first respondent-State. During this time, the respondent-State will prepare the gradation list as per the aforesaid decision, in order to give the benefits to the petitioners as ordered hereinabove. The first respondent State will pay the costs which are quantified at Rs. 1,500.
35. The petition as against respondent No. 138 who was not served, is hereby dismissed.
36. Petition allowed.