Constitution of India Article 309-Proviso-Power of government to frame rules of inter se seniority of persons borrowed from different sources-Explained.

Procedure-Delay of eight year's in filing writ petition-Petitioner seeking redress for alleged infringement of fundamental right-High Court, if could not dismiss on grounds of laches.

To man the various posts in the newly established Bombay Rationing Organisation (BRO) the State Government sanctioned a skelton staff. In addition to the sanctioned staff, the existing staff of the erstwhile adhoc organisation of Controller of Foodgrains (CFD) were taken into the BRO. Since it was considered necessary to have experienced staff for manning higher posts in the new Organisation the Government borrowed the services of experienced hands from other departments. Since, as work expanded, it was found that the number of persons brought on deputation to fill up all the new posts in the BRO were not enough, some persons were directly recruited into the BRO.

In 1968 the State Government issued, under the proviso to. Article 309 of the Constitution, the Bombay Rationing Organisation (Fixation of Seniority) Rules, 1968. laying down the principles to be applied for the fixation of seniority of persons working in the BRO. The rules were given retrospective effect from the date of the Government, resolution sanctioning the skelton-staff for introduction of statutory rationing T

Rule 4(a) provided that seniority of a released government servant and a merged government servant in the cadre of senior clerk etc., as also à person' who was initially appointed as a clerk etc. in the Bombay Rationing Organisation and subsequently promoted to the said cadre shall be determined with reference to the dates which shall be fixed after deducting two years from the length of continuous service.

Clause (c) of this rule provided that seniority of government servants in the cadre of senior clerks fixed on the basis of rules (a) and (b) of this rule shall be merged and refixed with reference to the dates from which their seniority is determined according to the principles in rules 4(a) and (b).

The proviso to rule 7 provided that where there is a clash of principles contained in the government resolution with the seniority Inter se in the former department shall prevail.

Based on the principles laid down in 1968 Rules the Controller of Ration- ing had drawn up a gradation list of Rationing Inspectors, Senior Clerks and Deputy Accountants working in the BRO as on April 1, 1968. The list was exhibited on the notice board of the head office of BRO, regional offices and Rationing Offices and was communicated to the individual members of the staff.

A final gradation list was thereafter drawn up as on April 1, 1968. Some- time later on April 9, 1973 another provisional gradation list as on April 1, 1972 was drawn up and published as before.

Since at that time there were many employees who were temporarily recruited pending allotment of candidates selected by the State Public Service Commission rules were relaxed and their appointments were regularised subject to the condition that seniority of such non P.S.C. candidates on whom the benefit of continuance of service was conferred was to be fixed only with reference to the date of issue of the resolution, as a result of which candidates selected by the Public Service Commission already working in the various departments were treated as seniors in relation to the non P.S.C. persons covered by the resolution.

A provisional gradation list as on April 1, 1974 was published following the seniority principles laid down by the BRO in 1968 and those laid down in the resolution concerning non P.S.C. candidates.

In January 1976, respondents 1 to 22 who were directly recruited in the former CFD but subsequently absorbed in the BRO challenged in a writ petition the validity of the two gradation lists contending that in preparing these lists the normal rule of fixation of seniority according to the date of appointment to the post was given a go-by and that while fixing seniority unequals had been treated as equals in that the service rendered in the clerical cadre had been reckoned and equated with the service rendered in the Rationing Inspectors' cadre.

The respondents raised a preliminary objection that the petition was barred by laches because though the gradation list had been circulated to all concerned in 1968 itself no objection had been raised and no effective steps had been taken by the petitioners to challenge the validity of the principles laid down in the government resolution and that after a lapse of 8 years it was not open to them to raise the challenge against the gradation list and try to unsettle a settled principle; (2) in view of the fact that persons from various departments had been recruited, it was necessary to evolve some fair and reasonable principles for the fixation of inter se seniority of the integrated personnel in the different categories.

A single Judge of the High Court struck down clauses (a) and (c) of rule 4 and the proviso to rule 7 of the government Order dated March 22, 1968 as being violative of Articles 14 and 16 of the Constitution and directed the State Government to prepare fresh lists of seniority without taking into consideration the provisions struck down by him. On the question of laches the Single Judge held that the law did not lay down any obligation on the Court to refuse to grant relief merely because there was a lapse of time but that since the cause of action arose and the challenge was based on infringement of Articles 14 and 16 of the Constitution, the Court could not shut out the petitioners on the ground of laches because such a course would amount to condoning the invalid rules.