Judgment

BEG, C.J.I. - This is a petition under Art. 32 of the Constitution praying for a writ of certiorari, or a writ of mandamus, or, any other appropriate writ, order or direction for the enforcement of the fundamental rights of the petitioners under Arts. 14 and 16 of the Constitution. The petitioners have been working as Upper Division Clerks and pray for the quashing of a list, issued with Office Memorandum dated 7-2-1972, for making promotions to the next grade of Assistants on which the names of respondents 4 to 203 appear but not those of the petitioners. They claim that the principle of seniority, contained in the Ministry of Home Affairs D. M. dated 22-6-1949, as interpreted by this Court in Union of India v. M. Ravi Verma, (1972) 2 SCR 992 had not been applied to them. The contention seems to be that the last mentioned decision contained an invariable mechanical rule of seniority applicable to all classes of services so that nothing beyond length of service in a particular grade could determine seniority. It was alleged that the impugned list was formulated in an arbitrary fashion. Hence, the petitioners complain of violation of Arts. 14 and 16 of the Constitution.

2. In paragraph 6 of the petition it was stated that even persons appointed nine or ten years after the petitioners had been promoted as long ago as 1969 to the grade of Assistants to which the petitioners put forward their own claims. It was also stated that a large number of persons have superseded the petitioners but a few names only have been mentioned from amongst them. The whole case of the petitioners thus rests on the submission that nothing beyond length of service must determine the place on the list for promotion to the grade of Assistants.

3. The petitioners alleged a common cause of action inasmuch as the impugned list of 7-2-1972 affects all of them. They claim that all of them should have been governed by the principles contained in the Memorandum of 22-6-1949. This Memorandum (Annexure C to the petition) shows that it was only directory laying down a general rule of seniority which was presumably subject to other exceptional factors which could also be taken into account. Hence, an alleged violation of the rule of seniority according to length of service was not decisive even according to this Memorandum.

4. The counter-affidavit filed by Shri P. L. Gupta, Deputy Secretary to the Government of India, gives the long history of a scheme which culminated in the promulgation of the statutory rules framed under Art. 309 of the Constitution of India, called the Central Secretariat Clerical Service Rules. 1962 by the President of India. It shows that the scheme of 1949 was given a final shape by the Cabinet in 1954 and became effective from 1-5-1954. Under the scheme as finally framed, it was provided that those officers who were otherwise eligible for confirmation in the services at the initial constitution should also pass a typewriting test to be held by the Union Public Service Commission within a period of two years from 1-5-1956. It appears that the confirmation of the initial constitution of the service was delayed until 1958.

5. Some of the rather ambiguous assertions of the petitioners suggest that their case is that they had been appointed to an Upper Division grade on a regular basis so that their seniority must date back to their date of promotion. This suggestion was controverted by the respondents who alleged that the petitioners had been only allowed to continue provisionally on a temporary basis in the grade of Upper Division of Clerks. It was stated, in the counter-affidavit, that as typing test had to be passed within two years of 1st of May, 1958, those who did not come within this class came in the class of the petitioners who were serving on an ad hoc or temporary basis. Hence, it was submitted that those who had passed the typewriting test within two years of the fixed date belong to another category altogether. The respondents