AMRIT LAL BERRY K N KAPUR Vs. COLLECTOR OF CENTRAL EXCISE NEW DELHI:COLLECTOR OF CENTRAL EXCISE CENTRAL REVENUE

JUDGEMENT

(1.) Amrit Lal Berry in Writ Petition No. 463 of 1971 and K. N. Kapur and 14 others in Writ Petition No. 2004 of 1973 have applied to this Court under Article 32 of the Constitution of India. They complain of violation of Article 16 of the Constitution on the ground that they were illegally discriminated against by the respondents inasmuch as they were confirmed and then not promoted when they ought to have been. They assert that if, according to the applicable rule, they had been assigned their correct places in the seniority lists, as laid down in the Office Memorandum dated 22-6-1949, prepared by the Ministry of Home Affairs, they would have been duly promoted. Each of them, on similar facts, relies upon the law laid down by this Court, in Union of India v. M. Ravi Varma, (1972) 2 SCR 992 . Assertions in the petition of Amrit Lal Berry illustrate the nature of the cases of all the petitioners. We will indicate the cases of the parties before we take up the questions of law arising for consideration and decision by us here.

(2.) Amrit Lay Berry was appointed Inspector in the central Excise Collectorate at Delhi, by orders dated 22-11-1948, and, on 4-12-1948, was posted at Ferozepur. On 22-6-1949, the Ministry of Home Affairs issued a Memorandum containing the principle that the seniority of existing Government servants will be determined by the date of their appointment and not from the date of their confirmation. The petitioner asserts that, in accordance with this principle, he was correctly assigned his seniority in the list issued in 1958 after the petitioner had been confirmed in a permanent post under an order dated 5-5-1956 with effect from 1-7-1955. An extract from the order shows that, although, the petitioner is a B. A. and strewn as appointed on 15-12-1948, and, Narinder Singh, the Inspector next in order of seniority, who was only a Matriculate, appointed subsequently on 7-2-1949, was confirmed retrospectively with effect from 1-7-1953, that is to say, two years earlier than the petitioner. There is, however, a difference in age shown between the two inasmuch as the date of birth of the petitioner is given as 5-4-1925 whereas that of Narinder Singh is shown as 24-7-1911. The petitioner points out that, despite these different dates of confirmation of Inspectors, so that juniors were sometimes confirmed earlier, they retained their senioritis in accordance with the Office Memorandum of 22-6-49 which made the length of service the only material consideration for purposes of seniority. But, after the Office Memorandum dated 22-12-59, the rule applied was altered in the Excise Department New seniority lists were prepared in which senioritis were determined from the dates of confirmation. The result was that Government servants, who ought to have been placed below the petitioner have been, it is asserted, promoted as Superintendents of Central Excise in the years 1970 to 1971. The petitioner gave a list of twelve juniors who have been so promoted because, according to him, the impugned seniority list of 1-7-l967 illegally put them above the petitioner. The petitioner also complained that, owing to the illegally prepared seniority list, he had been given the grade of a Senior Inspector only on 8-12-1967 and not with effect from 21-3-1961 as it ought to have been done. The petitioner complains of the allegedly illegal confirmations, going as far back as 1955, and illegal seniority lists prepared after 22-11-1959. He has annexed copies of representations dated 6-3-1965, and 13-8-1971, to which, according to him, no replies were given. The petitioner, therefore, came to this Court seeking relief against what he describes as the impugned list which, according to paragraph 8 of his petition is dated 1-7-1967 (Annexure 7 to his petition), and to allegedly illegal promotions of juniors without setting out the names or dates of promotions of all those so promoted. Presumably, these promoted Inspectors are the 77 persons impleaded as respondents 5 to 81 in the petition before us. Out of these, only twelve, with their places shown as lower than the petitioner's number 204 in the list prepared before 1959, were specifically mentioned in the list of allegedly illegal promotions of 1970-71. Amrit Lal Berry's petition to this Court was filed on 9-12-1971.

(3.) By an application dated 9-3-1973 Amrit Lal Berry sought an amendment of his Writ Petition asking this Court to quash the Office Memorandum dated 29-7-1972 on the ground that it does not interpret correctly the judgment of this Court in Ravi Varma's case (supra) delivered on 4-1-1972. The petitioner contends that office Memorandum, dated 22-7-1972, was based on a wrong interpretation of the law laid down by this Court inasmuch as, while determining the seniority of the petitioner according to the 1949 rule, it does not award consequential benefits which would have been reaped by the petitioner in the past, if the seniority rule, laid down in the 1949 memorandum, had been followed in the past.