Supreme Court of India
S.S. MOGHE & ORS.versusUNION OF INDIA & ORS.
- Citation
- 1981 INSC 116
- Decided
- 8 May 1981
- Disposal
- Dismissed
- Bench
- Y V CHANDRACHUD
Holding
The Court held that the petition was barred by undue delay, the promotions and the Service Rules are within the government’s lawful competence and do not violate Articles 14, 16 or Article 26(7)(iii), and the seniority list is valid unless a specific defect is demonstrated.
Summary
The petitioners, who were directly recruited on a temporary basis to the Aviation Research Centre (ARC) between 1965‑71, challenged the legality of promotions granted to deputation officers (respondents 8‑67) from 1968‑75, the constitutionality of the Aviation Research Centre (Technical) Service Rules, 1976 (Rules 6‑8, 12), and the seniority list dated 6 November 1978, alleging violations of Articles 14, 16, 32 and 309 of the Constitution and Article 26(7)(iii) of the Civil Service Regulations. The Court held that the petition was filed after an inordinate delay, which barred any relief concerning the earlier promotions; that the government’s power to fill posts in a temporary organisation and to prescribe the sources of personnel for a newly created service is within its competence and the impugned rules are not arbitrary or violative of equality provisions; that Article 26(7)(iii) does not apply to the absorption of deputationists; and that the seniority list is valid, subject to correction if any specific defect is shown. Consequently, the writ petition was dismissed.
Issues considered
- Whether the petitioners’ delay in filing the writ petition bars relief under Article 32
- Whether the promotions given to deputation officers between 1968‑1975 were illegal and violative of Articles 14 and 16
- Whether Rules 6‑8 and 12 of the Aviation Research Centre (Technical) Service Rules, 1976 are arbitrary, involve excessive delegation, or violate constitutional equality provisions
- Whether Article 26(7)(iii) of the Civil Service Regulations applies to the absorption of deputationists into the new service
- Whether the seniority list dated 6 November 1978 is invalid
- Whether the President may prescribe methods of filling vacancies under Article 309
Legislation cited
- Civil Service Regulationss. Article 26(7)(iii)
- Constitution of Indias. Article 14, s. Article 16, s. Article 309, s. Article 32
Subjects
promotionseniorityservice rulesequalityArticle 14Article 16Article 32Aviation Research Centredeputationadministrative lawexcessive delegationnatural justicedelaywrit petition
Judgment
875
S.S. MOGHE & ORS. A
v.
UNION OF INDIA & ORS.
May 8, 1981
B
[Y.V. CHANDRACHUD, C.J., A.P. SEN AND
V. BALAKRISHNA ERADI, JJ.]
Constitution of India 1950, Articles 14, 16, 32 and 309.
Petitioners in 1979 assailing validity of promotion given to respondents between
1968 and 1975-No valid explanation for delay in filing petition-Denial of relief. c
No regular cadre and hierarchy of posts-No rules laying down modes of
appointment/promotion to posts-Government whether competent to fill posts by
securing services of suitable persons.
Constitution of a new service-Method of appointment to various posts-
President whether competent to prescribe the methods by which vacancies in the D
different categories are to be filled.
Aviation Research Centre (Technical) Service Rules, 1976, Rules, 6. 7, 8
and 12-Va/idity of.
Civil Service Regulations, Article 26(7)(iii)-lnitia/ constitution of service-
Absorption of deputationists-Whether appointment by transfer.
E
The Aviation Research Centre was a temporary and ad hoc Organisation
set up in 1962 for carrying out the work of collecting intelligence by the use of
highly sophisticated techniques. For manning this Task Force, persons with
experience in the specialised nature of the work were taken on deputation basis
from different sources, such as the Intelligence Bureau, the Departments of
Defence Science, Wireless Planning 'and Coordination, the Directorate-General
of Civil Aviation and the Police Cadres of different States and they were grouped F
together to form the ARC. To supplement the man power some persons were
also directly recurited to the Organisation on a purely ad hoc basis. The ARC
Organisation was initially treated as an extension of the Intelligence Bureau. In
February 1965, it was brought under the control of the Director-General of
Security. The administrative control over the Organisation which was originally
vested in the Ministry of Exterml Affairs and later with the Prime Minister's
Secretariat was transferred to the Cabinet Secretariat in 1965. The sanction for G
continuance of the temporary Organisation was accorded by the Government
from year to year till the year 1971 when a decision was taken by the Government
to make the ARC a permanent Department. The finalisation of the principles to
be adopted for constitution of the new permanent Department took considerable
time and it was only on April 26, 1976 that the President of India promulgated
the Aviation Research Centre (Technical) Service Rules 1976 providing for the H
constitution of a new service the Aviation Research Centre (Technical) Service.
876 SUPREME COURT REPORTS (1981] 3 S.C.R.
A Rule 6 of the said Rules dealt with the initial constitution of the new ARC
permanent Service and provided that all persons holding, as on the appoint-
ed day, any one of the categories of posts specified in rule 4, whether in a
permanent or tempoarary or officiating capacity or on deputation basis, shall be
eligible for appointment to the service at the initial constitution thereof. Rule 7
laid down the principles to be applied for fixation, of seniority of those appointed
to the various posts at the time of its initial constitution, while Rule 8 dealt with
B the filling up of vacancies in various grades remaining unfilled immediately after
the initial constitution of the service and all vacancies that may subsequently
arise in the Department. Rule 12 provided that in regard to matters not specifi-
cally covered by the rules or by order issued by the Government, the members of
the service shall be governed by general rules, regulations and orders· applicable
to persons belonging to the corresponding Central Civil Service.
c The petitioners, who were persons recruited directly to the ARC Organisa-
tion during the period between 1965 and 1971 challenged in their writ petition,
the validity of the promotion given to respondent nos. 8 to 67 from the year 1968
onwards officers whose services were borrowed on deputation. They contended
that the deputationists were occupying the posts in the Department. only on
an ad hoc basis and such ad hoc appointees who were having the benefit of lien
in their parent departments and were getting promotions in those departments
D had no claim whatever to seniority or promotions in the borrowing department
viz. A.R.C. They also assailed the Aviation Research Centre {Technical)
Service Rules as cantering arbitrary powers on the controlling authority to equate
the ad hoc service rendered by the deputationists in the ARC with the regular
service rendered by persons like the petitioners who had been directly recruited
to the Department on a regular basis which resulted in permanently blocking all
the future chances of the petitioners in matters of promotion and other service
E benefits. The rules were highly arbitrary and infringed Articles 14 and 16 of
the Constitution since it was based on illegal treatment of unequals as equals by
equating persons functioning on a mere ad hoc basis with those holding posts
in the Organisation on a regular basis. Rule 6(2) confered arbitrary and unfet-
tered powers on the Screening Cammi ttee and suffered from the vice of excessive
delegation. Rule 7 in so far as it empowered the Department to reckon the
s~niority of the deputationists by giving them the benefit of the ad hoc service
F rendered by them in the ARC as well as the prior service put in by them in their
parent departments was arbitrary. Rule 8(1) enabled the deputationists to con·
solidate the illegal advantage gained by them at the initial constitution by further
promotions/appointments to still higher posts in the ARC, and by specifying the
method of recruitment to the various posts in the Service and fixing a quota as
between the vacancies to be filled up by promotions and those to be fill,ed up by
direct recruitment/deputation or re-employment in Schedule II of the rules, the
deputationists have been treated on a par with regular departmental personnel
G and this involved a clear violation of Articles 14 and 16 of the Constitution. It
was further contended that the positiOn of the deputationists being that of persons
permanently transferred from the parent departments to the ARC, under Article
26 of the Civil Service Regulations, such persons appointed by transfer shall
be ranked below all the direct recruits as well as the promotees already function-
ing in the Department and the seniority list dated November 6, 1978 having been
H drawn up in contravention of the aforesaid principle laid down in Article 26,
the said list should be declared to be illegal and void.
S.S. MOGHE V. UNION OF INDIA 877
The case of the petitioners was resisted by respondent No. 1, who contended A
that the appointments made by direct recruitment were merely temporary
and ad hoc in character. While the deputationists were persons with rich
experience and Jong years of service, the direct recruits were inexperienced
and new to the job. The delay in promulgation of the rules was due to the fact
that because of the special features of the Department and the sensitive nature
of the functions to be discharged by it, various circumstances and factors had to
be taken into account before the draft rules were finally cleared by the several B
Ministries concerned. There is no principle of Jaw prohibiting the absorption
in a newly constituted Department of persons who are functioning on deputa-
tion in a temporary Organisation which was later constituted into a permanent
service. The Service Rules extend equal treatment to all categories of employees
who were in position on the crucial date viz., April 26, 1976 in the matter of
absorption as well as determination of seniority at the intitial constitution, irres-
pective of whether they were direct recruits or deputationists. The Screening
Committee prepared the seniority list of the persons found suttable for absorption
G
in accordance with the provisions contained in Rule 6(2) read with Rule 7. The
Rules cannot be said to be arbitrary or violative of the principles of equality
enshrined in Articles 14 and 16.
Dismissing the writ petition,
HELD: l(i) A party seeking the intervention and aid of this Court under
D
Article 32 of the Constitution for enforcement of his fundamental rights, should
exercise due diligence and approach this Court within a reasonable time after the
cause of action arises and if there has been undue delay or !aches on his part,
this .Court has the undoubted discretion to deny him relief. [900 H-901 A]
(ii) The challenge raised by the petitioners against the validity of the pro- E
motions given to respondent nos. 8 to 67 during the period between 1968 and
1975 is liable to be rejected on the preliminary ground that it is most highly
belated. Thero is no valid explanation from the petitioners as to why they did
not approach this Court within a reasonable time after those promotions were
made. This writ petition has been filed only in the year 1979 and after such a
Jong lapse of time the petitioners cannot be permitted to assail before this
Court the promotionr that were effected during the years 1968 to 1975. [900F-G) F
(iii) There is also no satisfactory explanation from the petitioners as to
why no action at all was taken to challenge the validity of the promotions
given to respondents nos. 8 to 67 for a period of nearly seven years subsequent
to the judgment of the High Court in 1972. [901 Fl
Rabindra Nath Bose and Ors. v. Union of India and Ors. [1970) 2 S.C.R. 697 G
referred to.
2. So long as there was no regular cadre and hierarchy of posts and no
rules laying down the mode of appointmont/pro:notioa to '.those posts, it was
perfectly open to the Govern:nent to fill up the po3ts by)ecuring the] services of
persons who in its opinion were by virtue of their experience ·iand qualifications, H
best suited for being entrusted with the spocialised kinds. of functions attached
to the various posts. [902 E]
878 SUPREME COURT REPORTS [1981 J 3 S.C.R.
A In the instant case the petitioners had been appointed as ACIOs·H only on
a temporary and ad hoc basis. Such appointments did not confer on them any
rights even to the posts of DFOs. It had also been categorically made clear to
them in the letters containing the offers of appointmenr that such appointments
will not confer on them any right to be permanently. absorbed in the post if and
when it was made permanent. There was also not even any executive order or
administrative instruction declaring the post of DFO as the feeder category for
B appointment to the higher posts. The petitioners, therefore, had no legal
right or claim for being appointed by promotion to the higher posts of ACI0-1
(FO), ATO, etc. (902 F-G]
3(i) When a new service is proposed to be constituted by the Government,
it is fully within the competence of the Government to decide as a matter of
policy the sources from which the personnel required for manning the service are
c to be drawn. (903 Fl
(ii) It is in the exercise of the said power, that provision has been made by
sub-rule (I) of Rule 6, that all the persons who, as on the appointed day, were
already working in the ARC Organisation on a temporary and ad hoc basis and
had thereby acquired valuable experience in the specialised kinds of work would
be eligible for appointment to the new service at the stage of its inititial constitu-
n tion. Equal opportunity was given to all to get permanently appointed in the
new ARC (Technical) Service subject to their being found fit by the Screening
Committee under sub-rule (2) of Rule 6. The provision cannot be said to be
violative of Articles 14 and 16. (903 G, 904 A]
4(i) The provision for Constitution of a Screening Committee for adjudging
the suitability of the persons in the field of eligibility for permanent appointment
E to the service is absolutely reasonable. [904 DJ
(ii) The power conferred on the controlling authority to issue general or
special instructions to a Screening Committee is really in the nature of a safeguard
for ensuring that the rules relating to the initial constitution of the service were
applied fairly and justly. The controlling authority is the "Secretary Department
of Cabinet Affairs". When supervisory powers are entrusted to such a high and
F responsible official, it is reasonable to assume that they will be exercised fairly
and judiciously and not arbitrarily. The contention that the provisions of sub-
rule (2) of Rule 6 suffer from the vice of arbitrariness or excessive delegation
therefore, fails. (904 E]
5(i) When recruitment to the new Service was being made from two differ-
ent classes of sources, it was necessary for the Government to evolve a fair
G and reasonable principle for regulating the inter se seniority of the personnel
appointed to a new Department. What has been done under Rule 6 is to give
credit to the full length of continuous service put in by all the appointees in the
concerned grade, whether such service was rendered in the temporary ARC
Organisation or in other departments of the Government. The criterion
applied, namely the quantum of previous experience possessed by the appointees
H measured in terms of the length of continuous service put in by them in the
concerned or equivalent grade is perfectly relevant to the purpose underlying the
framing of the rule. The principle laid down in rule 6(2) for determination of
S.S. MOGHE v. UNION OF INDIA 879
inter se seniority was quite reasonable and fair and did not involve any arbitrary A
or unfair discrimination against the petitioners. (905 C-E]
In the instant case while the petitioners had no substantive lien in respect
of or title to any post in any department, the deputationists were having a lien
on the posts held by them in their parent departments. The petitioners, there-
fore, formed a different class consisting of persons who were virtually being
recruited for the first time into regular Government service, as distinct from
respondents 8 to 67 who had been holding posts in their parent departments for
8
several years on regular basis who formed a separate class. (905 BJ
6. The provisions contained in Rule 7 that the seniority of persons
appointed on permanent basis in each grade at the initial constitution of the
service shall be in the order in which they are shown in the relevant list
prepared by the Screening Committee in accordance with the provisions of Rule
6 was upheld as perfectly valid and constitutional. [905 F-G] c
7. At the time of constituting a new service and laying down the mode of
appointment to the various posts it is fully within the powe1 s of the President
of India to prescribe the methods by which vacancies arising in the different
categories of posts in the department should be filled up. In the instant case this
is precisely what has been done by Rule 8 and the provisions of Schedule II.
(906 Bl D.
8. The draft rules were prepared by the Directorate of ARC and sub-
mitted to the Government in 1972 itself but on a detailed scrutiny being made
it was found that the said draft required substantial modification in several
respects. Revised rules were, therefore, drafted and submitted to the Govern-
ment late in 1974. The time taken in finalising the rules was due to the fact that
intei:isive examination of all the relevant aspects had to be done by the various E
concerned Ministries before the draft rules could be finally approved and issued.
The plea of ma/a fides put forward by the petitioners is not €stablished.
[906 H-907 BJ
9. Article 26(7)(iii) of the Civil Services Regulations applies to cases
"where a person is appointed by transfer in accordance with a provision in the
recruitment rules providing for such transfer in the event of non-availability of
candidates by direct recruitment or promotion". The absorption of the erstwhile F
deputationists in the ARC (Technical) Service at the time of its initial constitu-
tion was not by such transfer. The provisions of Article 26(7)(iii) are, therefore,
not attracted. [909 F-G)
10. The provisions of Rule 6(3) and Rule 7 will be strictly conformed, to
both in letter as well as in spirit, by respondents nos. 1 to 7. In case it is found
on examination that the ranking assigned to any of the petitioners in the G
impugned seniority list dated· November 6, 1978 is not consistent with the
principles laid down _in the aforementioned rule, necessary action should be
immediately taken to rectify the said defect. If the promotional chances of any
of the petitioners have been adversely affected by reason of any defect in the
seniority list, such !promotions should also be reviewed after following the
requisite procedure. The petitioners may bring to the notice of the first respon- H
dent specific instances, if any, of deviation from the principles enunciated in Rule
6(3) and Rule 7 resulting in incorrect assignment of seniority and rank by sub-
880 SUPREME COURT REPORTS [1981] 3 S.C.R.
milting representations. Such representations, if received, will be duly examined
A and appropriate orders passed thereon as expeditiously as possible. [910 F-911 A]
ORIGINAL JURISDICTION: Writ Petition No. 119 of 1979.
(Under Article 32 of the Constitution of India)
B V.M. Tarkunde, G.L. Sanghi, Mrs. Jayashree Wad, G.D. Gupta
and Miss Anita for the Petitioners.
K. Parasaran, Solicitor General and Miss. A. Subhashini for
Respondents 1-2 and 4·7.
c Dr. Y.S. Chita/e, A.T.M. Sampath and P.N. Ramalingam for
the other appearing Respondents.
The Judgment of the Court was delivered by
BALAKRISHNA ERADI, J. In this petition filed under Article 32]
D of the Constitution, the petitioners-31 in number-who are all
officers serving in the Aviation Research Centrej(for short, the 'ARC')
have challenged the constitutionality of Rules 6 to 8 of the "Aviation
Research ·Centre (Technical) Service Rules, 1976" issued by the
President of India under the proviso to Article 309 of the
Constitution, as also the legality and validity. of the "absorption"
of respondents Nos. 8 to 67 in the said Department pursuant to I-
E
the impugned Rules. There is a further prayer in the writ petition to
declare the Seniority List dated November 6, 1978 (Annexure 'G')
published by the the Department as illegal, unconstitutional and
void. Yet another relief claimed by the petitioners is that all the
promotions granted to respondents Nos: 8 to 67 in the ARC service
F from 1968 till 1978 should be declared by this Court as illegal and
void, and that a writ of mandamus or any other appropriate writ,
order or direction should be issued to respondents Nos. 1 to 7 the
Union of India, the C'lbinet Secretary, the Director of Department of
Personnel, the Director General of Security, the Director of ARC
and the Adviser (Technical), A.R.C., respectively-to constitute the
G ARC afresh in accordance with law and to rearrange the seniority in
the Service in conformity with law.
The petitioners' case is that shortly after the formation of the
ARC in 1963 the petitioners were directly recruited to the said
department on a regular basis during the period between 1963 and
H
1966 in the category of Assistant Central Intelligence Officers Grade-
n, (whic\l has since been redesignated as Deputy Field Officers (Tech.)
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 881
(for short DFO) under the impugned Rules while respondents A
Nos. 8 to 67 are officers whose services have been borrowed on
deputation to the ARC from some departments of Central
Government and from the Police Cadre of State Governments.
The petitioners contend that by virtue of their regular appoin-
tments in the ARC, they were, as of right, entitled to be
promoted to the higher posts of Assistant Central Intelligence B
Officer, Grade-I-now called the Field Officer (Tech.)-Deputy
Central Intelligence Officer (Tecb.)/Assistant Technical Officer subject
only to the right of the Department to supersede those found
unsuitable for such promotions. However, instead of promoting
the petitioners to the vacancies that arose in such higher categories c
of posts, the Department filled up those vacancies by granting promo-
• tions to the deputationists, thereby illegally denying to the petitioners
the opportunities legitimately due to them for promotion in the
Department. It is contended by the petitioners that the deputa-
tionists were occupying the posts in the Department only on ad hoc
basis and such ad hoc appointees who were having the benefit of lien D
in their parent departments and were getting promotions in those
departments had no claim whatever to seniority or promotions in
the borrowing Department, namely, the ARC. On this basis the
petitioners have raised a ...... challenge in this writ petition against
the legality of the various promotions given to respondents Nos. 8
to 67 in the year 1968 and thereafter.
E
A draft combined seniority list of Assistant Central Intelligence·
Officers Grade-II (Tech.) working in the ARC was publi~hed in
March 1971 (Annexure 'A'), wherein the officers on deputation as
well as those who are directly recruited in the ARC had all been in-
cluded and the seniority of the deputationists had been fixed by taking
into account the total length of service put in by them in the rank
F
of ACIO in their parent departments as well as in the ARC.
According to the petitioners, the said list had been prepared in
violation of the principle that the same period of service of a Govern-
ment servant cannot be legally considered twice over for service
benefits in two Departments, namely, the parent department and the
borrowing department. G
A Writ Petition-Civil Writ Petition No. 1020 of 1971-was
filed in the Delhi High Court by three of the present petitioners
complaining against the promotions given to the deputationists and
challenging the validity of the combined seniority list published by H
the Department in 1971. During the pendency of that writ petition
the impugned seniority list of 1971 was substituted by two separate
882 SUPREME COURT REPORTS (1981] 3 S.C.R.
A lists-one consisting of the direct recruits and the other consisting of
deputationists. Thereupon. the writ petition before the Delhi High
Court was got amended by the petitioners therein by incorporating
objections against the new seniority lists published by the Depart-
ment. When the case came up for hearing, counsel appearing
on behalf of the Union oflndia submitted before the High Court
B that statutory rules governing the Service were then under prepara-
tion, that the arrangements till then made were all purely on ad hoc
basis and the whole question will eventually be finalised after the
rules were framed. In the light of the said submission, the High Court
dismissed that writ petition observing that since no rules governing
the Service had been framed and the appointments in question had
c all been made on purely ad hoc basis, the petitioners did not have
at that point of time any legitimate grievance and the writ petition •
was, therefore, premature. It is submitted by the petitioners that,
contrary to the assurance given to the Delhi High Court, the
Department did not take early action for framing the rules but
instead continued to confer on the deputatiOnists the benefit of further
D illegal promotions and it was only after all the higher posts were
filled by promoting deputationists that the Department ultimately
promulgated the impugned statutory Service Rules on April 26,
1976. Strong reliance has been placed by the petitioners on Office
Memorandum dated December 22, 1959 issued by the Ministry of
Home Affairs (Annexure 'C') laying down certain general principles
E for determining seniority of various categories of persons employed
in Central Services. According to the petitioners, in the absence of
statutory rules governing the conditions of· service of personnel in
the ARC, the principles laid down in the aforesaid Office Memoran-
dum were applicable to the said Department. It is urged that
under clause (viii) of the said Office Memorandum, it was incumbent
F on the authorities to replace all the deputationists who, according
to the petitioners, were holding the posts in the Department only
on ad hoc basis, by persons approved for regular appointment by
direct recruitment, and until the deputationists were so replaced the
deputationists had to be placed en bloc below person directly recuit-
ed to the grade. The petitioners have sought to derive support from
G Annexure 'D' which is a letter dated October 15, 1971 addressed by
the Department of Personnel, Cabinet Secretariat to the Director
General of Security, wherein it is pointed out that persons appointed
to a grade on deputation basis are appointed for a specific period,
after the expiry of which they are required to revert back to their
H parent departments and since the said deputationists do not have any
locus stand; in the borrowing departments, they are not entitled to
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 883
promotions/confirmations in the borrowing departments. The A
letter proceeds to state that the question of fixation of their inter se
seniority of such deputationists vis-a-vis other categories of officers
of a particular grade by preparing a combined seniority list does
not, therefore, arise. However, it was also added in the next para-
graph of the letter that though deputationists are not entitled to
promotion to a higher grade, yet they can be considered for B
appointment on deputation to the higher grades, if the Recruitment
Rules of the higher grade provide for appointment on deputation
basis, and in the absence of the Recruitment Rules, it is for the
appointing authority to decide whether a person already serving as
a deputationist in the lower grade should be considered for appoint-
ment on deputation to the higher po>ts. According to the petitioners, c
on the basis of the principle enunciated in this letter, perso1s serving
on deputation in the ARC should all have been repatriated to their
parent departments as soon as direct recruits became available in
sufficient number and the action taken by the Department in filling
up the vacancies in the higher categories, namely, ACIOs Grade I
(Field Officers) and Assistant Technical Officers by granting promo- D
tions to respondents Nos. 8 to 67 was totally illegal. The petitioners
have alleged that some of the deputationists were holding posts in
their parent departments which were inferior in rank in comparison
with the posts of DFOs. It is contended by the petitioners that the
grant of such promotions to the deputationists amounted to confer-
ment of double benefits on them since they were simultaneously E
earning promotions in their parent departments. Some of the
petitioners who had joined the ARC in 1963 as DFOs became
eligible for promotions in 1968 by completing the five years' qualify-
ing period, but instead of promoting them to the category of Field
Officers, the Department filled up the vacancies which became
available in 1968 and subsequent years by promoting some of the F
respondents who were only deputationists. The petitioners contend
that the deputationists were serving in the A RC only on ad hoc basis
and hence they were not eligible under the terms of the Memoran-
dum dated December 27, 1959 (Annexure 'C') for the grant of any
promotions in the borrowing department. It is alleged that while
eF.ccting such irregular promotions, the petitioners were not even G
• co:'.sidered and they were illegally denied the opportunity of compet-
ing with the respondents for promotions to the posts of Field
Officers. In 1975, a further injustice is said to have been done to
the petitioners when twenty of the deputationists functioning as
Field Officers were promoted as Assistant Technical Officers (for H
short, ATOs). Writ-petitioners Nos. I and 4 made representations
884 SUPREME COURT REPORTS (1981) 3 S.C.R.
A complaining against those promotions, but those representations
were rejected by the Director, ARC by his Memorandum dated
September 8, 1975 (Annexure 'E'). On December 1, 1975, seven
more deputationists were promoted as ATOs. The petitioners have
raised the plea that the aforesaid promotions of the deputationists
were illegal and discriminatory since the Department had fixed
B an arbitrary date, namely, December 1972 for computing the
qualifying period of three years for eligibility to be considered
for promotions. It was only after most of the posts in the
higher categories of ATOs and FOs had come to be occupied by
the deputationists as a consequence of such irregular promotions
c that the impugned Rules were promulgated by the President of I1:dia
on April 26, 1976. Through the said Rules, the Department has
purported to absorb all the deputationists/respondents Nos. 8 to 67
in the ARC Service as TOs/ ATOs/FOs and thereby legalised all the
illegal promotions granted to those deputationists. This, according
to the petitioners, has been done with the ma/a fide intention of
giving favoured treatment to a deputationist at the expense
D of the direct recruits like the petitioners. The petitioners have
put forward the contention that the impugned Rules are arbitrary
and discriminatory and are violative of Articles 14 and 16 of the
Constitution. It is their further plea that the wholesale absorption
of the drputationists is a colourable and unconstitutional exercise
of power and the impugned Rules in so far as they provide for such
E absorption are in the nature of a fraud on the powers conferred on
the President by the proviso to Article 309 of the Constitution. The
petitioners point out that even after the constitution of the Service
•
by the impugned Rules, no seniority list was published for more
than two years, but promotions to the posts of FOs were, in the
meantime, granted to several of the deputationists. It is contended
F by the petitioners that Rule 6 of the impugned Rules confers
arbitrary powers on the controlling authority to equate the ad hoc
service rendered by the deputationists in the ARC with the 'regular'
service rendered ·by persons like petitioners who had been directly
recruited to the Department on a regular basis and this has resulted
in permanently blocking all the future chances of the petitioners in
G matters of promotion and other servicelbenefits. According to the
petitioners the "initial constitution" of the Service purported to be
brought about under the Rules is itself highly arbitrary and it
infringes Articles 14 and 16 of the Constitution since it is based on
illegal treatment of unequals as equals by equating persons function-
H ing on a mere ad hoc basis with those holding posts in be Organisa-
tion on a regular basis. Another ground of attack put forward by
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 885
the petitioners is that Rule 6(2) confers arbitrary and unfettered A
powers on the Screening Committee and hence it suffers from the
vice of excessive delegation. It is also urged that the said sub-rule is
unconstitutional because it enables the controlling authority to retain
to itself an arbitrary power to control the decision-making of the
Screening Committee by means of "general or special instructions '
thereby rendering it impossible for the Screening Committee to B
function in an independent and objective manner. According to
the petitioners, Rule 6(2) enables the controlling authority to impose
its will and whims on the Screening Committee. The petitioners
~-
allege that the controlling authority had imposed its favoured
treatment to deputationists and displayed a discriminatory attitude
against the regular departmental personnel like the petitioners c
by treating the ad hoc service of the deputationists in the ARC
as regular service and absorbing them in the posts or grades
to which they have been granted illegal promotions. The
petitioners have urged that Rule 6(2) in so far as it vaguely uses the
words "continuous . appointment in the grade" has vested an
arbitrary power in the Department to take into consideration the D
ad hoc service rendered by the deputationists in grades to which
they have no right in law and hence the said provision is highly
arbitrary and violative of Article 14 of the Constitution. Alterna-
tively, it is submitted by the petitioners that the aforesaid words
"continuous appointment in the grade" should be reasonably cons-
trued to mean "continuous appointment on regular basis in the E
grade" in which event alone the rule can be regarded as free from
the vice of arbitrariness. Rule 6(6) has also been attacked by the
petitioners as infringing Articles 14 and 16 of the Constitution on
the ground that it enables the Screening Committee to discriminate
against the direct recruits by treating them on a par with the
deputationists. It is contended by the petitioners that the said sub-
F
rule confers power on the Screening Committee to absorb such of
the deputationists in a lower grade who were found to be unsuitable
for absorption in a higher grade and thereby completely blocks the
chances of persons like the petitioners to get promotions into such
lower grades despite their being found suitable for such promotions.
Another point raised by the petitioners is that it was incumbent on
G
• the Screening Committee before it took its final decision regarding
the absorption of personnel in the various grades to give an
opportunity to the petitioners to represent their case, and inasmuch
as this procedure was not followed, the decisions taken by the
H
Screening Committee were in clear violation of the principles of
natural justice. The petitioners have also voiced a grievance that
886 SUPREME COURT REPORTS [1981] 3 S.C.R.
A even though the Screening Committee had prepared a list of the
officers whom it had decided to absorb in the various grades, the
Department did not disclose the contents of the said list to personnel
working in the ARC but kept the matter secret.
Reiterating their contention that the promotions given to
B respondents Nos. 8 to 67 during the period from 1968 to 1978 were
all illegal on the ground that these promotions had been made
without considering the cases of the petitioners, the petitioners have
put forward further plea that the publication of the impugned
Seniority List was deliberately delayed by the Department till
November 6, 1978, with intent to favour the deputationists, some
c of whom were promoted as ATOs on November 5, 1978. On this
basis, it is contended that the action taken by the Department in
publishing the Seniority List dated November 6, 1978 was ma/a fide.
Another argument advanced by the petitioners is that Rule 7
in so far as it empowers the Department to reckon the seniority of
the deputationists by giving them the benefit of the ad hoc service
D
rendered by them in the ARC as well as the prior service put in by
them in their parent departments is arbitrary. The petitioners con-
tend that this deviation from the principle uniformly followed for
fixing the seniority in all other departments of the Government of
India namely those laid down in the Home M nistry's Office Memo-
E randum dated December 22, 1959 was wholly unjustified and. as a
result thereof the direct recruits in the ARC are subjected to
a differential treatment resulting in gross prejudice to them with-
out there being any rational basis for separate classification. There
is also an allegation that in fixing the seniority of personnel as per
the impugned gradation list dated November 6, 1978, even service
F rendered by the deputationists in non-comparable and lower ranks
has been wrongly taken into account. Rule 8(1) has beea attacked
by the petitioners as empowering the controlling authority to enable
the deputationists to consolidate the illegal advantage gained by
them at the intial constitution by further promotio.1s/appointmeats
to stiII higher posts in the ARC. It is pointed out by the petitioners
G that while specifying the method of recruitment to the various posts
in the Service and fixing a quota as between the vacancies to be
filled up by promotions and those to be filled up by direct recruit-
ment/deputation or re-employment in Schedule II of the rules the
deputationists have been treated on a par with regular departmental
personnel, and this involves a clear violation of Articles 14 and 16
of the Constitution.
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 887
Lastly, it is contended that even if it is to be assumed that the A
decision taken by respondents 1 to 7 to retain the deputationists in
the Department at the time of the intial constitution of the ARC
was valid, the position of the deputationists would, in law, be only
that of persons permanently transferred from the parent departments
to the ARC and under Article 26 of the Civil Service Regulations,
such persons appointed by transfer shall be ranked below all the B
direct recruits as well as the promotees already functioning in the
Department. The petitioners contend that since the Seniority List
dated November 26, 1978 has been drawn up in contravention of the
aforesaid principle laid down in article 26, the said list should be
declared to be illegal and void.
Detailed counter-affidavits have been filed on behalf of respon-
c
dent No. 1 and respondents Nos. 13 to 16, 22, 25, 28 and
31. In the counter-affidavit filed on behalf of respondent No. 1, by
the Deputy Secretary, Cabinet Secretariat, it is stated that the
Aviati on Research Centre was initially set up as a Sensitive Security
Organisation in the year 1963 on a purely temporary basis by way of
D
an extension of the Intelligence Bureau. In Feburary !965, the ARC,
along with two other schemes, was brought under the control of the
Director General of Security. The Department was continued by the
Government on temporary basis from year to year till 1971 when
the Government, after reviewing all the relevant factors, took a
decision to make the ARC permanent. The administrative control
E
over the ARC was originally vested in the Ministry of External
+ Affairs and later with the Prime Minister's Secretariat till 1965 when
it was transferred to the Cabinet Secretariat. The re were no Recruit-
ment and Carde Rules for the ARC during the period when the
Department was functioning on a temporary and purely experimental
basis and a number of officers, including respondents Nos. 8 to 67, F
were taken on deputation from other Central and State Government
Departments to man the various posts in the Organisation. Some
persons, like the petitioners, were also directly recruited as ACIOs-II
on a purely temporary and ad hoc basis against temporary posts in
the ARC. The contention of the petitioners that they were regularly
recruited as DFOs in the ARC is denied by the Government- G
respondents. It is submitted in the counter-affidavit of respondent
No. 1 that the appointments given to the petitioners were
merely '"ad hoc )n character and this had been clearly specified
in the Memos issued to them containing the offer of appointment
that the appointments were temporary and would not confer H
on them any right for permanant appointment if and when the
posts were made permanent. It is stated that the Memos issued
•
888 SUPREME COURT REPORTS [1981] 3 S.C.R.
A · to all the petitioners were on identical terms and a specimen copy of
the Memo issued to the petitioners has been appended to the counter
affidavit of respondent No. 1, as Annexure 'R-1 '. The further sub-
mission made in the counter-affidavit of the first respondent is that
in the ARC there was no regular cadre nor any Reruitment Rules
prior to 1976 and as and when posts in the various categories in the
B grades were sanctioned, they were filled up by getting suitable hands
with the requisite qualifications and some experience from other
departments on deputation~and some vacancies were also filled up by
direct recruitment.
c Briefly sketching the history of the formation of the ARC, the
first respondent has stated that the ARC Organisation was set up in
the wake of Chinese aggression that took place in the winter of 1962
and its primary role was to collect intelligence by employing the most
modern highly sophisticated techniques and to furnish it to other
Agencies like the Special Frontier Force and the Special Security
Bureau which were in need of such intelligence in order to give better
D
protection to our borders against external aggression. For manning
such an Organisation, it was absolutely essential to secure the services
of persons possessing the requisite experience, technological skill,
special attitude and ability. Initially, therefore, the various posts in
the ARC Organisation, which was started on a mere experimental
basis, were filled up by taking on deputation officers from the intelli-
E
gence Bureau and other departments which had the expertise in
related fields, such as, the Department of Defence Science, Wireless
Planning and Coordination and Directorate General of Civil Aviation.
With the gradual expansion in the activities of the ARC, it was
found that the aforesaid Departments could not supply on deputa-
tion basis enough hands for meeting the needs of ARC and hence, the
F direct recruitments from the open market bad also to be made. How-
ever, all the appointments made by direct recruitment were merely
temporary and ad hoc in character. While the deputationists were
persons with rich experience and long years of service, the direct rec-
ruits were inexperienced and new to the job. In the circumstances, the
higher posts of FOs, ATOs and Assistant Directors had to be filled
G up by ad hoc appointments from amongst the deputationists who by
virtue of their long experience in the particular . type of work were
considered suitable for those posts. As and when direct recruits
gained adequate experience, several of them were also given ad hoc
appointments to such higher posts. It is further averred in the counter
H affidavit that in making such appointments to the higher posts, only
considerations of public interest and maintenance of efficiency in the
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 889
•
functioning of the Department had weighed with the appointing A
authority. The allegation put forward by the petitioners that the direct
recruits were discriminated against has been denied by the first respond-
ent as totally unfounded, and it is stated that all such appointments to
the various technical posts in the higher categories of FOS, ATOS and
Assistant Directors were made by the Department on the recommenda-
tions of the duly constituted DPCs/Selection Committees. Some of B
the deputationists were also appointed to the higher post when they
got promotions to the corresponding ranks in their parent departments.
The Department treated both the direct recruits as well as the depu-
tationists as ad hoc apponintees in the ARC with equal rights, and
equal weightage was given to both categories of employees in respect of
.. length of service in a given grade irrespective of whether or not it was c
rendered wholly in ARC. As regards the petitioners' contentions based
on the MHA Memorandum dated December 22, 1959, it is pointed out
in the counter-affidavit that the general principles laid down therein .
had no application in the matter of filling up of temporary posts in a
temporary department. Stress -is laid in the counter-affidavit on the
fact that simultaneously with the constitution of the ARC as a regular D
department, the ARC (Technical) Service Rules, 1976 were promul·
gated by the Government and it has been submitted that the
principles laid down in the aforesaid Memorandum did not get
attracted to the new service inasmuch as it is clearly specified in the
Memo itself that the principles enunciated therein will not be appli-
cable for such Services and posts for which seperate principles have E
+
been already issued or may be issued there.lfter by the Government,
The allegation of the petitioners that they had not been considered
for promotion at the time when the vacancies in the categories of
DFOs were filled up during the year 1968 to 1975 has been denied
by the first respondent and it is averred in the counter-affidavit that
the direct recruits were given promotions in the higper posts when
F
they were foun,d suitable by' the DPC for ad hoc promotions to the
grades of FOs (Tech.), etc. Reliance is placed by the first respondent
on the observations made by the Delhi High Court in its judgment
in Civil Writ Petition No. 1020 of 1971, filed by three of the present
petitioners, that no discrimination could be said to have been made
against the direct recruits either in drawing up the seniority list of
G
1971 or in the action taken by the authorities to filling up some of
the higher posts by appointing deputationists. Though a decision
was taken by the Government in 1971 to make the ARC a permanent
department, and steps to frame rules were also immediately initiated,
the draft rules could be . finalised after intensive examination by
H
various concerned Ministeries only by April 1976 when the Rules were
890 SUPREME COURT REPORTS (1981] 3 S.C.R.
A promulgated. The allegation made by the petitioners that the pro-
mulgation of the rules was deliberately delayed in order to confer an
undue advantage on the deputationists who were granted promotions
to the higher grades in the meantime, has been categorically denied
by the first respondent in its counter-affidavit. The delay in promul-
gation of the rules was due to the fact that because of the soecial
B features of the Department and the sensitive nature of the fun~tions
to be discharged by it, various circumstances and factors had to be
taken into account before the draft rules were finally cleared by the
several Ministries concerned.
The first respondent has stated in the counter-affidavit that equal
c treatment had been meted out to the direct recruits and the deputa-
tionists in the matter of promotion/appointment from the grade of
ACI0-1 to that of ATO. The allegation of the petitioners that the
DPC had fixed the crucial date for eligibility for promotion
from the category of ACIO-I to the grade of ATO in an arbitrary
manner so as to exclude the petitioners from consideration, has
D been denied by the first respondent and it is averred that the
crucial date was determined by the DPC on each occasion by taking
into consideration the number of vacancies likely to be available for
promotion/selection and the number of persons who could
reasonably be considered for such pr0motions/selection. It is pointed
out by the first respondent that when deputationists were selected by
E the DPC, they were 'appointed' to the higher posts on deputation
and it was not a process of promotion as wrongly. contended by the
petitioners.
ln reply to the challenge made by the petitioners against Rule 6
of the impugned Rules which provides for the initial constitution of the
new service to be known as the Aviation Resc!arch Centre (Technical)
F
Service it is submitted by the first respondent that there is no principle
of law prohibiting the absorption in a newly constituted Department
of persons who are functioning on deputation in a temporary Organi-
sation which was later constituted into a permanent service. It is also
submitted by the first respondent that the provision in the impugned
rules for absorption of the deputationists in the ARC (Technical)
G
Service was made in public interest since it was found that the·
continued retention of the deputationists who possessed valuable •
experience and had long association with the Organisation was
absolutely necessary for the efficient functioning of the Department.
The first respondent states that the impugned rules extend equal
H
treatment t0 all catego~ies of employees who were in position on the
crucial date, namely, April 26, 1976, in the matter of absorption as
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 891
well as determination of seniority at the initial constitution, irrespec- A
tive of whether they were direct recruits or deputationists. Since
the direct recruits were all occupying the posts in the ARC only
on a purely ad hoc basis, they had no legal right to be appointed
in the new Department and merely by reason of their temporary
appointments as ACIO-II (Tech.) in the ARC Organisation they could
not automatically become members of the new ARC (Technical) B
Service which was constituted for the first time with effect from
April 26, 1976. All persons working in the ARC in various tem-
porary posts as on April 26, 1976, were given the option to express
their willingness or otherwise to be absorbed in the new Department.
The petitioners as well as the direct recruits were treated alike in the
matter of the assessment of their suitability for absorption by the c
• . Screening Committee and on being found suitable, they were absorbed·
either in the same posts which they were occupying immediately prior
to April 26, 1976 or in a lower post, subject to availability of perman-
ent posts. The Screening Committee prepared the seniority list of the
persons found suitable for absorption in accordance with the provisions
contained in Rule 6 (2) read with Rule 7 of the impugned Rules. D
The counter-affidavit of the first respondent goes on to state that
the seniority list published on November 6, 1978 had been pre-
pared strictly in accordance with the provisions of the impugned Rules,
the names of the officers having been arranged with reference to the
dates of their continuous appointment to the concerned grade. Pointing
out that the benefit of the ad hoc service rendered in a particular grade E
has been given not only to the former deputationists but also to the
direct recruits in the matter of determining their inter se seniority in
the grade of FOs, it is submitted by the first respondent that there
is no merit in the petitioner's contention that the seniority list of
November 6, 1978 has been prepared in a discriminatory manner so
as to violate Article 16 of the Constitution. The first respondent F
has further submitted that the charge ·of discrimination has been
made by the petitioners on the basis of an erroneons assumption
that the petitioners were in regular service in the ARC prior to the
promulgation of the impugned Rules and that hence they had .a
superior claim for promotion to a higher post in comparison with
the deputationists. The petitioners had been appointed/promoted to G
various grades in the ARC only on ad hoc basis prior to April, 26
1979 and the benefit of such ad hoc service rendered by them had
been given to the petitioners in the same way and to the same extent
as service rendered by the former deputationists on deputation.
The first respondent, therefore, submits that the provisions of Rule 6
H
892 SUPREME COURT REPORTS (1981) 3 S.C.R.
A cannot be said to be 'arbitrary or violative' of the principle of
equality enshrined in Articles 14 and 16 of the Constitution.
Repelling the contention of the petitioners that the principle
for fixation of seniority laid down in the impugned Rules is illegal for
the reason that it is inconsistent with the guidelines and general
B principles for determination of seniority in the Central Services
enunciated in MHA Memorandum dated December 22, 1959
(Annexure 'C') the first respondent has submitted in the counter-
affidavit that there is no substance in this plea since it has been
specifically stated in the Memorandum (Annexure 'C') itself that the
principles contained therein will not apply to "such services ·and posts T
> -
c for which separate principles have already been issued or may be
rereafter issued by Government". The allegation made by the •
petitioners that the framing of the rules and the constitution of the
ARC (Technical) Service was deliberately delayed with a view to give
u1:due advantage to the deputationists has been denied by the
first respondent as baseless and untrue. Prior to 1971, there were
D no permaPent.! posts at all in the ARC because the Department was
temporary and all the temporary posts were being sanctioned on a
year to year basis. Action to frame the rules was initiated
shortly after the decision was taken in 1971 to make the ARC a
permanent Department. The first set of draft rules was prepared
and submitted to Government in 1972. Since it was found to be
E defective in certain aspects, a revised draft was prepared in 1974.
Since the whole matter had to be subjected to extensive and intensive
examination by various Ministries taking into account all relevant +
factors, the finally approved rules could be promulgated only in
April 1976.
F The first respondent has submitted that Rule 6 of the impugned
Rules provides equal treatment to all the officers in position in the
ARC on the crucial date in the matter of absorption and determination
of inter se seniority at the time of intitial constitution of the service.
The service rendered by the former deputationists in various grades
prior to their absorption in the ARC could not be ignored, as their
G services were required by the Department in public interest.
It is pointed out that if the contention of the petitioners that only
persons who are regularly appointed in the ARC could be absorbed
in the service is to be accepted, then none of the petitioners could
have been permanently appointed in the ARC (Technical) Service,
H as the appointments held by the petitioners prior to the constitution
of the ARC Service in 1976 were purely temporary and ad hoc in
character.
S.S. MOGHE v. UNION OF INDIA (B:ilakrishna Eradi, J.) 893
The further plea put forward by the petitioners that Rule 6(2) A
of the impugned Rules suffers from the vice of excessive delegation
of power has been stoutly denied by the first respondent. The
Screening Committee was required to act within the frame-work of
the scheme of absorption envisaged in the Rules and the Committee
had followed proper guidelines which had been approved by the
controlling authority, namely, the Secretary, Department of Cabinet B
Affairs, Cabinet Secretariat. The provision enabling the controlling
auth0rity to issue general instructions was incorporated in the rules
for the purpose of ensuring that the rules relating to the initial
constitution of the service were applied uniformly and judiciously.
The contention put forward by the petitioners that the said provision
renders the functioning of the Screening Committee nugatory, is c
refuted by the first respondent as being devoid of any merit. The
allegation made by the petitioners that the deputationists were given
illegal promotions from time to time has also been denied in the
first respondent's counter-affidavit as totally baseless. It is admitted
that during the period when the ARC was functioning as a tem-
porary Department, some of the deputationists who were initially D
appointed as ACIO-II (Tech.) were subsequently appointed to
higher posts on deputation basis but the first respondent submits
that there could be no valid objection to such appointments, as
they had all been made in the public interest and in accordance with
the general instructions-on the subject. Referring to the provisions
contained in Rule 6(3) of the impugned Rules regarding the exercise E
of option by officers willing to be absorbed on permanent basis in
the ARC, it is submitted in the counter-affidavit that the said provi-
sion was equally applicable ·to direct recruits as well as the erstwhile
deputationists. Since the temporary appointments of the direct
recruits in the post of ACIO-II (Tech.) did not confer on them any
right of confirmation and the ARC (Technical) Service was F
altogether a new service, the first respondent states that the petition-
ers were rightly asked to exercise their option in terms of Rule 6(3).
Dealing with the attack levelled by the petitioners against the
validity of Rule 6(6), it is pointed out in the counter-affidavit that
the spirit and content of the rule is that persons who were holding
higher posts on the crucial date and were considered suitable for G
permanent appointment in the said posts but could not be appointed
substantively to such posts for want of vacancies, may be given
permanent posts in the ower grade. It is pointed out in the counter-
afliidavit that the said rule was applicable to direct recruits as well
as to the deputationists and that, as a matter of fact, some of the H
petitioners got the benefit of this rule inasmuch as they were
894 SUPREME COURT REPORTS [1981] 3 S.C.R.
A appointed substantively in the grade of DFO(T) with effect from
April 26, 1976, while they are holding posts of FO(T) on the said
date. The charge of discrimination levelled by the petitioners is,
therefore, denied by the first respondent as being devoid of any
foundation.
With reference to the grievance put forward by the petitioners
B
that they were denied an opportunity to represent their case before
the Screening Committee, it is submitted by the first respondent
that under the scheme of the impugned Rules, the Screening Com-
mittee was not expected to entertain any representations from any
quarter and, in fact, no representations were received. The Com- , .
T
c mittee had acted strictly in accordance with the provisions contained
in the Rules in determining the suitability of the persons concerned
for absorption in the new Department and the principles of natural
justice have no applicability in such a context. The allegation of
ma/a fides put forward by the petitioners has been stoutly denied
by the first respondent. After the seniority list was prepared by
D the Screening Committee in accordance with the provisions contain-
ed in Rule 6(2) read with Rule 7 of the impugned Rules, certain
formalities had to be gone through before orders regarding sub·
stantive appointments of the officers to the various grades could be
issued. It was only . after the issue of substantive appointment
orders to persons who had opted for absorption into the service,
that the Department could publish the seniority list. The formalities
aforementioned included obtaining the options from all the
employees, getting the approval of the parent departments of the +
erstwhile deputationists for their permanent absorption in the ARC
Service, medical examination of employees, etc. It was on account
of the delay involved for completing the said procedure that the
F seniority list could be finally published only on November 6, 1978.
The counter-affidavit proceeds to state that promotions in the
Department were effected in the meantime strictly on the basis of
' the seriority list of officers recommended for absorption which the
Screening Committee had prepared. It is further pleaded by the
first respondent that no illegality whatever was involved in adopting
G the principle of reckoning the seniority in a par~icular post on the
basis of total length of continuous service put in by the concerned
officers in the particular grade in the ARC or in the equivalent
grade in the parent department. The said rule was framed keeping
in view the special requirements of the new Department. If the
H deputationists had not been given the benefit of the service put in
by them in the equivalent grade in their parent departments, they
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 895
would have all opted for their reversion to their parent departments A
and that would have resulted in:complete dislocation of the func-
tioning in the ARC. The first respondent states that !in formulating
or applying the seniority rule there has not been any arbitrary dis-
. crimination as between direct recruits and deputationists and hence
neither the rules nor the seniority list can be said to be violative of
Articles 14 and 16 of the Constitution. B
Dealing with the contention put forward by the petitioners on
the basis of article 26 of the Civil Service Regulations, it is sub~
--- ~ ._,..
mitted by the first respondeut that the said article, which deals with
appointments by transfer "in accordance with a provision in the
Recruitment Rules providing for such transfers" had no applicability c
at all in the matter of taking persons on deputation to the ARC
when it was a purely temporary Department which had no Recruit-
ment Rules. The subsequent absorption of such deputationists and-
other categories of employees has been done strictly in accordance
with the provisions contained in the impugned Rules which are
statutory. in origin. In the absence of any Recruitment Rules, D
there was no legal bar whatever preventing the competent authority
from borrowing persons from other departments on deputation basis
to man the various posts in the ARC during the period prior to
the introduction of the impugned Rules with effect from April 26,
1976. The former deputationists had occupied a larger percentage
of the higher posts during the aforesaid period because they E
had put in more years of service in different grades and had
much greater experience in carrying out the functions which were
of a highly specialised nature when compared to the direct recruits
whose induction in the ARC started only from 1965.
On the basis of the aforesaid averments cont11ined in his F
counter-affidavit, the first respondent has submitted that the petition-
ers are not entitled to any relief in this writ petition and that the
petition should be dismissed.
In the separate counter-affidavit filed on bd1alf of respondents
13, 16, 22 etc., they have put forward more or less the same con- G
tentions in defence of the writ petition as have been taken by the
first respondent.
From the averments contained in counter·affidavit of the first
respondent and the documents produced before us, it is seen that U
the Aviation Research Centre was a temporary and ad hoc Organisa-
tion set up late in 1962, on an emergency basis, when the country
896 SUPREME COURT REPORTS [1981] 3 s.c.R.
A was threatened with the Chinese agression for carrying out the
work of collecting intelligence by the use of highly sophisticated
techniques. For manning this Task Force, persons with experience
in the specialised nature of the work were taken on deputation
basis from different sources, such as the Intelligence Bureau, the
Departments of Defence Science, Wireless Panning and Coordina-
B tion, the Directorate General of Civil Aviation and the Police
of different States and they were grouped together to form the ARC.
Subsequently, to supplement the man power, some persons were also
directly recruited to the Organisation on a purely ad hoc basis. The ,-
ARC Organisation was initially treated as an extension of the intelli- T
gence Bureau. In February 1965, it was brought under the control
c of the Director General of Security. The administrative control
over the Organisation which was originally vested in the Ministry of
External Affairs and later with the Prime Minister's Secretariat was
transferred to the Cabinet Secretariat in 1965. The sanction for
continuance of the temporary Organisation was accorded by the
Government from year to year till the year 1971 when decision was
D taken by the Government to make the ARC a permanent Depart-
ment. But, the finalisation of the principles to be adopted for
constitution of the new permanent Department took considerable
time and it was only on April 26, 1976 that the President of India
promulagated the Aviation Research Centre (Technical) Service
Rules providing for the constitution 0f a new service to be known
-E as Aviation Research Centre (Technical) Service and laying down
the principles regulating the method of recruitment to the various
posts in the said Service. Till 1976, there was no regularly consti-
tuted cadre of posts in the temporary ARC Organisation and there
were also no rules or even executive orders laying down any princi-
F ples regulating the method of appointment to the various posts in
the Organisation.
Clause 6 of the impugned Rules deals with the initial ·cons-
titution of the new ARC permanent Service. That clause is in the
following terms :
G
"6. Initial Constitution-
(1) All persons holding, as on the appointed day, any one
of the categories of posts specified in rule 4, whether
in a permanent or temporary or off.ciating capacity
or on deputation basis, shall be eligible for appoint-
ment to the service at the initialconstitution thereof.
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 897
(2) The controlling authority shall constitute a Screening A
Committee in respect of each grade for adjudging the
suitability of persons, who, being eligible to be appoint-
ed to the service under sub-rule (I) were serving in any
grade immediately before the initial constitution of the
cadre for permanent appointment therein and every
committee so constituted shall, subject to such general B
or special instructions as the controlling authority may
give and after following such procedure as the com-
mittee may deem fit, prepare lists of persons considered
suitable for such appointment in each grade with the
-~--i
names of such persons arranged in the order of
seniority based on the date of continuous appointment c
• in the grade in which they are to be absorbed or in an
equivalent grade;
Provided that if the controlling authority deems it
necessary so to do, the same committee may be cons-
tituted to function in relation to two or more grades.
D
(3) An intimation shall be sent to every person considered
suitable for appointment on a permanent basis to a
post in any grade giving him an opportunity to
express, within thirty days of the receipt of intimation
by him his willingness to be so appointed on a perma-
nent basis and the option once exercised shall be final. E
(4) Persons who are willing to be appointed on a perma-
nent basis shall be so appointed in the order of
seniority against permanent posts available as on the
appointed day.
F
(5) Notwithstanding anything contained in sub·rules (2)
to (4), every person holding, as on the appointed day,
a permanent post in any one of the categories specifi-
ed in rule 4 in the Aviation Research Centre shall,
without prejudice to his being considered for appoint-
ment to a permanent post in the higher grade or to G
his continuance in such higher grade in officiating or
temporary capacity, be absorbed in his respective sub-
stantive grade against the· permanent posts available
as on the appointed day.
H
(6) The Screening Committee may recommend for per-
manent appointment in a lower grade any person who
898 SUPREME COlTRT REPORTS (1981] 3 S.C.R,
A is serving in a higher grade irrespective of whether he
is deputationist or a direct recruit and every appoint-
ment made on such recommendation shall be without
prejudice to his continuing to serve in the higher
grade.
B (7) Persons holding posts, as on the appointed day, in
any grade of the service who are not found suitable
for permanent appointment under sub-rules (2) to (6),
may be continued in posts in the same grade of the
service in a temporary or officiating capacity as the
case may be." 'T }
c Rule 7 lays down the principles to be applied for fixation of seniority
of those appointed to the various posts in the ARC at the time of
its initial constitution. That rule reads :
"7. Seniority of persons appointed on permanent basis in
each grade at the initial constitution of the service
D shall be in the order in which they are shown in the
relevant list prepared in accordance with provisions of
rule 6."
The next rule under challenge by the petitioners is Rule 8 which
deals with the topic of filling up of vacancies in various grades
remaining unfilled immediately after the initial constitution of the
service and all vacancies that may subsequently arise in the
Department. That rule is in the following terms :
"8. Maintenance-
F (!) Subject to the initial Constitution of the various grades
in the service, every post remaining unfilled and
every vacancy that may arise thereafter shall be
filled in accordance with the provisions contained in
Schedule II, by appointment on promotion, deputation/
transfer, re-employment after retirement or direct
G recruitment as the case may be.
(2) For a period not exceeding three years from the date of
commencement of these rules, notwithstanding the
limits specified in column 7 of Schedule II, the con-
H trolling authority may, if it considers it necessary so
to do, exceed the percentage specified for filling up of
vacancies by deputation and decrease the percentage
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 899
prescribed for filling up of vacancies by promotion, A
direct recruitment of re-employment after retirement,
as it may deem fit."
The only other rule which requires to be referred to for the purpose
of the present case is Rule 12 which states that "in regard to matters
not specifically covered by these rules or by orders issued by the B
Government, members of the service shall be governed by general
rules, regulations and orders applicable to persons belonging to the
corresponding Central Civil Service".
The petitioners are some amongst the persons recruited
directly to the ARC Organisation during the period between 1965
and 1971. The basic premise on which the petitioners have rested their
c
challenge against the validity of the promotions given to respondents
Nos. 8 to 67 from the year 1968 onwards as well as of the provisions
contained in the impugned Rules is that they (petitioners) had all
been regularly appointed to the ARC at the time of their initial
appointment itself and that by virtue of.such regular appointments,
D
they had acquired vested rights for seniority, promotions etc.. in
the said Organisation. As already noticed, during the period
between 1965 and 1971, the ARC Organisation was a purely
temporary one, the continuance of which, on an experimental basis,
was being sanctioned from year to year. There was no regular
cadre of i: osts in the Organisation nor was there any set of rules
regulating the method of appointment to the various posts that had
E
created on a mere temporary and ad hoc basis.
Annexure 'R'-1• produced along with the first respondent's
counter-affidavit is a copy of the Jetter issued by the Directorate
General of Security to one of the petitioners, communicating the
offer of appointment to the temporary post of ACI0-11 (Tech.).
F
It was on the basis of the acceptance of that offer by the said
petitioner that he was appointed in the Department of ARC. It
is stated in the counter-affidavit of the first respondent that the
appointments of all the remaining writ-petitioners to the cadre of
ACI0-11 (DFO) were made on identical terms and this averment
G
has not been controverted by the petitioners. It is expressly
recited in Ex. R-1 that what was being offered thereunder
was a temporary appointment to a temporary post and that
the perm anent appointment of the person concerned to the
post, if and when the post was made permanent, would depend H
upon various factors governing permanent appointment in such posts
in force at the time, and that the temporary appointment will not
900 SUPREME COURT REPORTS (1981) 3 S.C.R.
A confer on him the title of permanency from the date the post is
converted. It is further stipulated in the letter that the appointment
was liable to be terminated at any time by a notice given by either
side, namely, the appointee or the appointing authority without
assigning any reason. There is also a further condition that the
services of the appointee were liable to be terminated within a
B period of six months from the date of his appointment without any
notice and without any reason being assigned. Since the petitioners
are shown to have been appointed to the cadre of ACIO-II on the
aforementioned conditions, it is difficult to see how they can success-
fully contend that they had been regularly appointed to the ARC .
with effect from the dates of their initial recruitment. They were hold-
c ing merely ad hoc appointments which did not confer on them any ..
entitlement for permanent absorption in the posts if and when the
posts were made permanent. The basic premise on which the
petitioners have sought to build up their case of arbitrariness and
discriminations, namely, that the petitioners had all been initially
recruited directly to the ARC on a regular basis while the deputa-
D tionists were holding posts only on ad hoc basis, is thus seen to be
contrary to facts. The correct position which obtained as on the date
of the promulgation of the impugned Rules was that the petitioners
as well as the deputationists were all working in the temporary ARC
·Organisation only on a purely ad hoc basis. It is against this factual
background that we have to examine the contentions put forward by
E the petitioners in support of the challenge levelled by them against
the impugned Rules as well as against the seniority list of 1968 and
the various promotions given to respondents Nos. 8 to 67.
At this stage, it will be convenient to first dispose of the
contentions urged by the petitioners, against the validity of the
F promotions given to respondents Nos. 8 to 67 during the period
between 1968 and 1975. In our opinion, the challenge raised by the
petitioners against those promotions is liable to be rejected on
the preliminary ground that it is most highly belated. No valid
explanation is forthcoming from the petitioners as to why they did
not approach this Court within a reasonable time after those
G promotions were made, in case they really did feel aggrieved by the
said action of the Department. This writ petition has been filed
only in the year 1979, and after such a long lapse of time the
petitioners cannot be permitted to assail before this Court the
promotions that were effected during the years 1968 to 1975.
A party seeking the intervention and aid of this Court under Article
32 of the Constitution for enforcement of his fundamental rights,
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 901
should exercise due diligence and approach this Court within a A
reasonable· time after the cause of action arises and if there has been
undue delay or !aches on his part, this Court has the undoubted
discretion to deny him relief. [See Rabindra Nath Bose & Ors v.
Union of India & Ors.(1)]
In this case before us, many of the impugned promotions had
been effected during the year 1968-69 onwards. Three of the present B
petitioners had challenged the validity of some of the promotions
granted to various deputationists as well as the ranking given to
them in a seniority list of ARC personnel published in 1971 by
filing Civil Writ Petition No. 1020 of 1971 in the Delhi High Court.
Though the High Court by its judgment dated April 7, 1972 dismissed
that writ petition on the ground that it was premature inasmuch as c.
it had been submitted before it by the counsel for the Union of India
that all the existing arrangements in the ARC were purely ad hoc
and that service rules would be framed shortly, the High Court has
recorded clear findings in the judgment that the principle adopted for
the preparation of the combined seniority list of 1971 could not be
said to have violated Articles 14 to 16 of the Constitution and that D
it had not been shown by the writ-petitoners in that case that the
impugned promotions had been effected in violation of any "statutory
rules, constitutional or statutory limitations or even administrative
instructions".
If the petitioners were dissatisfied with the aforementioned E
findings entered by the Delhi High Court, one should have expected
them to approach this Court at least soon after that decision was
rendered by that High Court in April 1972-we are not suggesting
·-----· that the findings of the High Court operate as res judicta against the
petitioners in these proceedings. There is no satisfactory explanation
forthcoming from the petitioners as to why no action at all was taken F
by them to challenge the validity of the impugned promotions given
to respondents Nos. 8 to 67 from 1968 onwards for a p.eriod of
nearly seven years subsequent to the aforesaid pronouncement by the
Delhi High Court.
G
Quite apart from what has been stated above on the aspect of
'!aches', on the merits also we do not find any substance in the con-
tentions urged by the petitioners against the legality of the promo-
tions granted to respondents Nos. 8 to 67 during the period between
1968 and 1975. At that time, as already, noticed, the ARC was a H
(!) [1970] 2 S.C.R. 697.
902 SUPREME COURT REPORTS [1981] 3 S.C.R.
A purely temporary Organisation which was being continued on a
year to year basis. There was no regular cadre of posts in the said
Organisation, nor were there any rules governing the mode of recruit-
ment etc. All the appointments made in the Organisation, whether
of direct recruits like the petitioners or of deputationists like res-
pondents Nos. 8 to 67, had been made only on an ad hoc basis.
B Since there was no regularly constituted service, the principles con-
tained in the Office Memorandum dated December 22, 1959 issued
by the Ministry of Home Affairs (Annexure 'C'), on which strong
reliance was placed by the petitioners, could have no application at
-'T-'
all to the temporary ARC Organisation. It is clear from a reading
c
of the said Memorandum (Annexure 'C') that its provisions will get
attracted only in relation to Government servants appointed to the
..
Central Services.
During the period aforementioned, the ARC was just a Task
Force set up on an ad hoc and experimental basis for the purpose
D of carrying out certain functions of a highly specialised and sensitive
nature. Quite naturally, the personnel required for manning the
Organisation had to be picked and grouped together in the manner
best suited to effectuate the object and purpose underlying the crea-
tion of the Organisation. So long as there was no regular cadre
and hierarchy of posts and no rules laying down the mode of appoint-
E ment/promotion to those posts it was perfectly open to the Govern-
ment to fill up the posts by securing the services of persons who, in
its opinion, were, by virtue of their experience and qualifications,
best suited for being entrusted with the specialised kinds of functions
attached to the various posts. We have already seen that the peti-
tioners had been appointed as ACIOs-II (DFOs) only on a temporary
F and ad hoc basis. Such appointments did not confer on them any
rights even to the posts of DFOs. It had also been categorically
made clear to them in the letters containing the offers of appoint-
ment that such appointments will not confer on them any right to
the permanently absorbed in the post if and when it was made per-
manent. There was also not even any executive order or adminis-
G trative instruction declaring the post of DFO as the feeder category
for appointment to the higher posts. In such circumstances, it has
to be held that the petitioners had no legal right or claim for being
appointed by promotion to the higher posts of ACI0-1 (FO), ATO,
etc.
It has been averred in the counter-affidavit that as and when
vacancies arose in the higher posts of FO, ATO, etc, in the tern-
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 903
porary ARC Organisation in the early years after its formation, A
deputationists who, by virtue of their greater experience in the par-
ticular type of specialised work, were considered suitable for
carrying out the duties attached to those posts on deputation basis
to the category of FO, ATO, etc. Subsequently, after the direct
recruits had gained sufficient experience, sonie of them who were
found suitable, were also appointed as ACIOs-1, ATOs, etc. No B
illegality of any kind was involved in the action so· taken by the
concerned authorities to fill up the vacancies in the higher posts by
ad hoc appointments of persons possessing the requisite ability and
experience. We have, therefore, no hesitation to reject the conten-
tion put forward by the petitioners that the promotions granted to
respondents Nos. 8 to 67 during the period between 1968 and 1975 c
were illegal and violative of Articles 14 and 16 of the Cons-
titution.
We shall now proceed to deal with the challenge raised by the
petitioners against the provisions contained in the impugned rules.
It is under Rule 3 of the Rules that the Aviation Research Centre D
(Technical) Service was constituted for the first time. The com-
position of the service has been described in Rule 4, wherein the
designations, classifications and scales of pay of the various posts
included in the Service have been set out. Rule 6 provides for the
initial constitution of the Service. The petitioners have challenged
the validity of sub-rule (1) of this Rule which declares that all
E
persons holding, as on the appointed day, any one of the categories
of posts specified in Rule 4, whether in a permanent or temporary
or officiating capacity or on deputation basis, shall be eligible for
apointment to the service at the initial constitution thereof. When
a new service is proposed to be constituted by the Government, it
is fully within the competence of the Government to decide as a
F
matter of policy the sources from which the personnel required for
manning the Service are to be drawn. It is in the exercise of the
said power vested in the Government, that provision has been made
by sub-rule (I) that all the persons who, as on the appointed day
were already working in the ARC Organisation on a temporary and
ad hoc basis and had thereby acquired valuable experience in the
G
specialised kinds of work would be eligible for appointment to the
• new service at the stage of its initial constitution. The writ-peti-
tioners as well as the deputationists, namely, respondents Nos. 8
to 67 were all functioning in the temporary ARC Organisation on an
H
ad hoc basis. Equal opportunity was given to all of them by sub-
rule (I) of Rule 6 to get permanently appointed in the new ARC
904 SUPREME COURT REPORTS [1981] 3 S.C.R.
A (Technical) Service subject to their being found fit by the Screening
Committee referred to in the sub-rule (2). We fail to see how the
said provision can be said to be violative of Articles 14 and 16
of the Constitution. The attack levelled by the petitioners against
sub-rule (1) of Rule 6 is thus manifestly devoid of merit.
B The next contention urged by the petitioners is that sub-rule '•
(2) of Rule 6 confers arbitrary and uncanalised powers on the
Screening Committee and is hence violative of the principles of
equality of opportunity enshrined in Article 16 of the Constitution.
Another point urged is that the said sub-rule in so far as it provides
G that the Screening Committee should discharge its functions subject
to such general or special instructions as the controlling authority
may give, confers an arbitrary and unlimited power on the controlling
authority and enables the controlling authority to impose its will
and whims on the Screening Committee. We see no force in either
of the aforesaid contentions. The provision for constitutfon of a
Screening Committee for adjudging the suitability of the persons in
D the field of eligibility for permanent appointment to the service is
absolutely reasonable. The power conferred on the controlling
authority to issue general or special instructions to a Screening
Committee is really in the nature of a safeguard for ensuring that
the rules relating to the initial constitution of the service were
applied fairly and justly. The 'controlling authority' is the
E "Secretary, Department of Cabinet Affairs". When supervisory
powers are entrusted to such a high and responsible official, it is
reasonable to assume that they will be exercised fairly and judiciously
and not arbitrarily. We are, therefore, unable to uphold the con-
tention of the petitioners that the provisions of sub-rule (2) of Rule
6 suffer from the vice of the arbitrariness or excessive delegation.
F
The petitioners have also attacked the provisions contained in
sub-Rule (2) of Rule 6 enjoining the Screening Committee to arrange
the names of persons considered suitable for appointment in each
grade in the order of seniority based on the date of continuous
appointment in the grade in which they were absorbed or in an
G equivalent grade. We have already found that the basic assumption on
which the petitioners have founded the attack against this provision,
namely, that the petitioners were all holding regular appointments
as DFOs in the ARC Organisation from the dates of their initial
recruitment and that the deputationists (respondents Nos. 8 to 67)
H were functioning in their respective posts only on an ad hoc basis is
incorrect and fallacious. As on the date of the promulgation of the
rules and the initial constitution of the ARC. (Technical) Service,
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 905
petitioners as well as respondents Nos. 8 to 67 were all holding the A
various posts in the ARC Organisation only on a temporary and
ad hoc basis. While the petitioners had no substantive lien in
respect of or title to any post in any department, the deputationists
were having a lien on the posts held by them in their parent depart-
ments. The petitioners, therefore, formed a different class consisting
of persons who were virtually being recruited for the first time into B
regular Government service, as distinct from the respondents 8 to
67 who had been holding posts in their parent departments for
several years on the regular basis who formed a separate class.
When recruitment to the new Service was being made from two
different classes of sources, it was necessary for the Government to
evolve a fair and reasonable principle for regulating the inter se
c
seniority of the personnel appointed to a new Department. What
has been done under Rule 6 is to give credit to the full length of
continuous service put in by all the appointees in the concerned
grade, whether such service was rendered in the temp:irar y A RC
Organisation or in other departments of the G1vernment. The
D
criterion applied, namely the quantum of previous experience
possessed by the appointees measured in terms of the length of
continuous service put in by them in the concerned or equivale.1t
grade is perfectly relevant to the purpose underlying the framing of
the rule. In our opinion, the aforesaid principle laid down ir1 rule
6(2) for determination of inter se seniority was quite reasonable and
E
fair and it did not involve any arbitrary or unfair discrimination
against the petitioners. The attack levelled by the petitio:ier> aJain>t
the said provision contained in sub-rule (2) will, therefore, stand
repelled.
In the light of what we have stated above, the prov1s10n con- F
tained in rule 7 that the seniority of persons appointed on perma-
nent basis in each grade at the initial constitution of the service
shall be in the order in which they are shown in the relevant list
prepared by the Screening Committee in accordance with provisions
_, of Rule 6 has also to be upheld as perfectly valid and constitutional.
'-,.. G
We see no substance at all in the challenge raised by the
petitioners against Rule 8 of the impugned rules and the provisions
of Schedule II. Under the said rule, the appointing authority is
empowered to fill up every post remaining unfilled immediately after H
the initial constitution of the various grades in the service as well as
906 SUPREME COURT REPORTS (1981] 3 S.C.R.
A every vacancy that subsequently arises by making appointments on
promotion, deputation/transfer, re-employment after retirement or
direct recruitment, in accordance with the provisions contained in
Schedule II. At the time of constituting a new service and
laying down the mode of appointment to the various posts,
it was fully within the powers of the President of India to
B prescribe the methods by which vacancies arising in the different
categories of posts in the department should be filled up and this is
prescisely what has been done as per rule 8 and the provisions of
Schedule II. The petitioners have not been able to make out that
the provisions of Rule 8 and Schedule II are tainted by illegality
of any kind.
c
..
•The next point urged by the petitioners is that the Screening
Committee had acted in violation of the principles of natural justice
in. as much as it had not afforded to the petitioners an opportunity
to make their representations before the Committee. The function
D entrusted to the Committee was to adjudge the suitability of
person who were holding posts in the different grades in the
temporary ARC Organisation for permanent appointment in the
newely constituted ARC (Technical) Service on the basis of the
records relating to their past performance in ARC Organisation,
etc. We do not see how the principles of natural justice can get
E attracted in such a context. The law does not cast any obligation
on a Committee discharging such a function to invite representations
from the persons in the eligible categories and consider those represen-
tations while adjudging their suitability for appointment into the new
service. Hence we do not find any substance in the argument
advanced on behalf of the petitioners that there was a violation of
F principles of natural justice by the Screening Committee.
The petitioners have put forward a further plea that the promul-
gation of the impugned rules was deliberately delayed till April 1976
with a view to confer an unfair advantage on the deputationists,
several of whom were granted promotions to higher posts during the
G period between 1971 when the decision to make the department
permanent was taken and April 26, 1976 when the impugned rules
were finally issued. We find it stated in the counter-affidavit filed on
behalf of the first respondent that the draft rules were prepared by
the Directorate of ARC and submitted to the Government in 1972
H itself, but, on a detailed scrutiny being made, it was found that the
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 907
said draft required substantial modification in several respects. A
Revised rules were, therefore, drafted and submitted to the govern-
ment late in 1974. The first respodent has submitted that the time
taken in finalisillg the rules was due to the fact that intensive exami-
nation of all the relevant aspects had to be done by various concerned
Ministries before the draft rules could be finally approved and issued.
We are inclined to accept the explanation offered by the first respon- B
dent for the delay in promulgation of the Rules, and we hold that
the plea of ma/a fides put forward by the petitioners is not established.
'-•.........-- All the promotions given to the deputationists as well as to the
direct recruits during the period between 1968 and 1976 had been
effected only on a purely ad hoc basis. Even though temporary in
c
character, those promotions had been made only on the basis of the
recommendations made by the Departmental Promotion Committee
which had effected the selections by applying uniform and
relevant considerations, such as length of service in the lower
grade and over-all experience and performance. It · is stated D
in the counter-affidavit that, while making -such promotions for
appointments to higher posts, no deputationists with' lesser years
of service vis-a-vis direct recruits had been given ad hoc
apponitment to any higher post. The first respondent has
submitted that in making the promotions aforementioned, the auhto-
rities concerned were actuated only by considerations of the best E·
interests of the department and the maintenance of a higher standard
of efficiency in its function and there was no intention whatever to
confer any ad vantage to the deputationists or to discriminate against
the direct recruits. We do not find any ground for not accepting as
correct and true the aforesaid submissions made on behalf of the
first respondent. Accordingly we hold that in granting promotions F
to the deputationists during the period between 1971 and 1975
respondents 1 to 5 were not actuated by any intention to confer
an unfair advantage on the deputationists.
Another argument advanced on behalf of the petitioners was
that at the time of their initial appointment in the ARC, they had G
been given high expectations regarding their promotional prospects
from the post of DFO, and that by bringing in large number of
deputationists and fitting them into the higher posts, the Government
had illegally gone back on the promise held out to the petitioners.
We see no merit in this contention. As already noticed, in the letters H
908 SUPREME COURT REPORTS ( 1981] 3 S,C.R,
A sent to the petitioners offering appointment to the category of ACI0-
11 (DFO), it had been made abundantly clear that their appointments
would be purely temporary and ad hoc in nature and would not
confer on them any claim for permanent absorption even in the post
of DFO. No subsquent representation is shown to have been made
to the petitioners by the Department at any time prior to 1976 hold-
B ing out any prospects of Department permanent absorption in service
or promotions to higher grades. The petitioners continued to
function in the ARC Organisation only on ad hoc basis till the rules
were promulgated and they were absorbed into the new ARC
(Technical) Service at the stage of its initial constitution on the basis
of the provisions contained in Rules 3 and 6. It is significant to
c note in this context that it was only after the petitioners had seen the
impugned rules and had gained full knowledge of the provisions
contained therein relating to absorption and seniority in the depart-
ment, that they opted for absorption in the service in accordance
with those rules and it was on the basis of the options so exercised
by them that they were appointed in the new constituted service.
D
The petitioners have also put forward a case that despite the
provision contained in rule 6 (3) there was, as a matter of fact, no
adjudgment of the suitability of the various officers by the Screening
Committee and, instead, there was a wholesale absorption of all the
personnel in the posts which they were holding in the ARC Organisa-
E tion as on April 26, 1976. This allegation has been strongly refuted
in the counter-affidavit filed by the first respondent wherein it has
been stated that the Screening Committee has examined individually
the cases of all the concerned officers before deciding about their
suitability for permanent absorption in the service and prepared
ranked lists strictly in accordance with the principle laid down in
F Rule 6 (2). TJ-,e learned Solicitor General, appearing on behalf of
the Union of India, submitted before us that the files containing the
minutes of the meetings of the Screening Committee and the ranked
select lists prepared by the Committee for the different gr~des were
available with him in Court and he offered to place them before us
for our perusal. In the circumstances, we see no reason not to
G accept as correct the aforesaid averments contained in the counter- _
affidavit of the first respondent. It then follows that this contention
of the petitioners has also to fail.
Another point urged on behalf of the petitioners was that
H some of the deputationists were not holding in their parent depart-
S.S. MOGHE v. UNION OF INDIA (Balakrishna Eradi, J.) 909
ments posts equivalent in rank to those in which they were appointed A
on deputation in the ARC Organisation and such persons should
not have been subsequently absorbed in the new ARC Service Jn
those higher categories. We are unable to uphold this contention.
At the time when the ARC was a mere temporary Organisation
without any recruitment rules the posts in that Organisation could
be filleq up by appointing suitable hands possessing the requisite B
specialised skill and experience drawn from any source irrespect of
whatever was the position occupied by such appointees in their
parent service, if any. Likewise, at the stage of the initial constitu-
tion of the new ARC (Technical) ~ervice the Government had the
right and full freedom to decide from what all sources the personnel
for the new Department should be drawn and there is no warrant
c
in law for imposing a !imitation that in taking persons from other
departments the field of choice should be restricted to persons
holding any particular ranks in those other departments. The
relevant consideration for appointment of personnel in a department
of this nature has. necessarily to be the suitability of the person
concerned for the specialised type of the work for adjudging which
D
the experience and expertise that he possesses in carrying out such
functions would be the most relevant criterion. Once appointments
are made to the various grades in the new service the inter se seniority
of the persons appointed in each category or grade is to be fixed
under Rule 6 on the basis of the total length of service 'in the parti-
E
cular or equivalent Grade and this, in our opinion, is a perfectly
reasonable principle.
The argument advanced by the petitioners that the semonty
of the deputationists who have been absorbed into the ARC
(Technical) Service is governed by the provisions of Article 26 (7) F
(iii) of the Civil Service Regulations is wholly devoid of merit.
Article 26 (7) (iii) applies to cases "where a person is appointed by
transfer in accordance with a provision in the recruitment rules
providing for such transfer in the event of non-availability of
candidates by direct recruitment or promotion". The absorption of
the erstwhile deputationists in the ARC (Technical) Servic~ at the G
time of its initial constitution was not by such transfer and hence
• the provisions of Article 26 (7) (iii) are not attracted .
We do not also see any merit in the argument put forward on H
behalf of the petitioners that sub-rule (6) of Rule 6 of the impugned
910 SUPREME COURT REFORTS [1981] 3 s.c.R,
A Rules enables the Screening Committee to absorb in a lower grade
such of the deputationists who were found unsuitable to be absorbed
in the higher posts which they were holding as on April 26, 1976.
Firstly, this is not a provision applicable only to the erstwhile
deputationists. On the other hand, the sub-rule itself makes it very clear
that its provisions apply equally to all the persons who are eligible
B for absorption in the service under sub-rule (1) irrespective of whether
they are deputationists or direct recruits. Sub-rule (6) comes into
operation when a person in the eligible category holding a post in
a higher grade ()n the appointed day, who has been found suitable
for permanent appointment in such higher grade cannot, however,
be absorbed in the said grade on account of non-availability 0' a
c vacancy therein. What the sub-rule lays oown is that in such
eventuality the Screening Committee may recommend such a person
for permanent appointment in a lower grade and thereby retain his
services in the new Department. We fail to see how this provision
can be said to infringe any of the fund amen ta! rights of the
petitioners.
D
Lastly, it was contended on behalf of the petitioners that in
preparing the impugned seniority list dated November 6, 1978, the
principles laid down in Rule 6 (3) and Rule 7 have not been correctly
observed, and that by reason of the deviation from those principles,
the promotional prospects of some of the petitioners have been
E adversely affected. No concrete instance of any such deviation from
the principles set out in Rule 6 (3) and Rule 7 has been brought to
our notice. All the same, we think it necessary to observe that this
Court exi:ects that the provisions of Rule 6 (3) and Rule 7 will be
strictly conformed to, both ,in letter as well as in spirit, by respon-
dents Nos. I to 7, and that in case it is found on examination that
F the ranking assigned to any of the petitioners in the impugned
seniority list dated November 6, 1978 is not consistent with the
principles laid down in the aforementioned rule, necessary action
should be immediately taken to rectify the said defect, and if the
promotional chances of any of the petitioners have been adversely
affected by reason of such defect in the seniority list, such promo-
G tions should also be reviewed after following the requisite procedure.
We direct that the petitioners may bring to the notice of the first
respondent specific instances, if any, of deviation from the principles •
enunciated in Rule 6 (3) and Rule 7 resulting in incorrect assignment
a- of seniority and rank to them by submitting representations before
the first respondent within a period of six weeks from today. In
S.S. MOGHE v. UNION OF INDIA (B;i/akrishna Eradi, J.) 911
case any such representations are received, they will be duly examined A
by the first respondent and appropriate orders will be passed thereon
in the manner indicated above as expeditiously as possible.
Subject to the above observations and directions, we dismiss
this writ petition. The parties will bear their respective costs.
8
N.V.K. Petition dismissed
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