JUDGMENT
Sathiadev, J.
1. (WA. No. 144 of 1987)-Fourth respondent in W.P. No. 1763 of 1980 is the appellant. The writ petitioner and the three other respondents therein, are the respondents herein. (Ranking of parties as in writ petition).
2. Petitioner filed the writ petition to quash the order of third respondent dated 8.8.1979 in and by which the seniority of the fourth respondent was revised in the comprehensive seniority list of Motor Vehicle Inspectors Grade-I. The impugned order was issued based on the order of Government in G.O.Ms. No. 1890, Home (Transport II) dated 27.7.1979. In the 1972 List, petitioner was ranked as No. 39, and fourth respondent as No. 51. By virtue of the impugned order, he became senior to petitioner by 12 places. Hence, when he filed the writ petition, the learned Judge allowed it on two grounds viz., (1) the seniority assigned by the Tamil Nadu Public Service Commission in the lower category will not be relevant for the next higher category, and (2) the revision of seniority done without opportunity to the affected persons offends principles of natural justice. Aggrieved against this decision, this appeal is preferred by fourth respondent.
3. Along with this writ appeal, WA. No. 2322 of 1987 had also been heard, and it would be dealt with later on. Extensive submissions have been made by respective counsel, and the points taken are dealt with in seriatim.
4. The first point taken is that, the seniority list prepared by Secretary to Transport Commissioner & Ex-officio Joint Transport Commissioner in R. No. C2/63527/65, dated 21.6.1966 is binding upon respondents, and the seniority assigned to petitioner cannot be altered without giving an opportunity to him. The posts of Assistant Motor Vehicles Inspectors and Motor Vehicles Inspectors have been created under Class V of Tamil Nadu General Subordinate Service. The nomenclatures of these two posts were changed as Motor Vehicles Inspectors Grade I and Motor Vehicles Inspectors Grade II. Under Rule 2(a), for the category of Motor Vehicles Inspector Grade I, the appointment is made by promotion from Motor Vehicles Inspectors Grade II, or for special reasons, recruitment by transfer from any other class or service. For the post of Motor Vehicles Inspector Grade II, the appointment is by direct recruitment, or for special reasons, recruitment I by transfer from any other class or service. Rule 2(b) 1 states that promotion to the post of Motor Vehicles Inspector Grade I shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal. Under Rule 3, the appointing authority shall be the Deputy Transport Commissioner provided that in the City of Madras no person shall be appointed by direct recruitment or transferred from the muffasal without the prior concurrence of the Commissioner of Police.
5. The respective service particulars of petitioner and fourth respondent are as follows:
Petitioner 4th Respondent
C.O.ARU-MUGAM G.P. PURUSHO-THAMAN
"Appointed temporarily as M.V.I. Gr II 15.1.1963 14.11.1962
Appointed through T.N.P.S.C. as MVI Gr.II 7.3.1963 7.3.1963
Probation completed 16.5.1965 1968
Promoted to the next post, MVI Gr.I 14.7.1965 17.2.1966 (but reverted to MVI Gr. II for not passing
the Dept. test on 27.10.67 Again promoted on 26.6.69
after passing Dept. test.
Regularised as MVI Gr.I 30.7.1965 9.7.1969"
Fourth respondent claims that he was ranked No. 6 by Tamil Nadu Public Service Commission on being selected for the post of Assistant Motor Vehicles Inspector, which is now redesignated as Motor Vehicles Inspector Grade II. Service Commission published a list of candidates on 17.4.1974 for 1963 batch. This list is not placed before Court, by respondents 1 to 3. Petitioner is also one of the Motor Vehicles Inspectors Grade II selected in 1963. There is an indication as to what was the inter se seniority fixed by the Service Commission for 9 candidates, in the communication dated 1-10-1963 of the Deputy Transport Commissioner in E.O. No. 444 of 1963. It shows that petitioner is ranked as No. 9 as the last of 9 persons, whereas the fourth respondent is ranked as No. 6. Except one Somasundaram, ranked as No. 8, all the others have been regularised from 7-3-1963. Hence, the point taken is that, the seniority which is assigned as between the petitioner and the fourth respondent as in that list, has to be maintained for the post of Motor Vehicles Inspector Grade I as well, irrespective of when they were regularised in the Grade I post. This point would be dealt with later on elaborately, but, for the present purpose of finding out whether E.O. No. 425 of 1966 dated 21.6.1966 deals with regularisation and fixation of seniority; in para 2 therein, it is stated that in the order of seniority in the category of Motor Vehicles Inspectors, petitioner is ranked No. 10 among the 10 persons included therein, and his date of regularisation is 30.7.1965. Under Rule 3, the appointing authority is the Deputy Transport Commissioner. Therefore, this proceedings having been issued by Secretary to Transport Commissioner and ex-officio Joint Transport Commissioner, it is not a seniority list prepared by the appointing authority. Regularising the services of 10 persons listed therein, would not give him a right to fix inter se seniority as between them. By this time, fourth respondent has not been regularised, and that was why his name did not get into the said list. His probation was extended thrice and he was, regularised in Grade I post only on 9.7.1969. Even though he had been ranked higher than that of the petitioner by the Service Commission, it is unfortunate that this communication was not referred to, when the seniority in Grade I post fixed in E.O. No. 473 of 1972 dated 21-6-1972 by Deputy Transport Commissioner, the appointing authority. But what is stated therein is that, the seniority list in Grade I had been ordered by him on 15.2.1964, and that it is being revised. This communication is also not placed before Court. No effort had been made to refer to this proceeding issued by the appointing authority in any of the counter-affidavits filed by respondents 1 to 3. Rather, presently in the counter-affidavit filed by respondents 1 to 3 in W.P. No. 1763 of 1980, in paragraph 4, it is stated:
It is most respectfully submitted that no panel is maintained for promotion from the category of Motor Vehicles Inspector Grade II to the category of Motor Vehicles Inspector Grade I …. The seniority list of the Motor Vehicles Inspectors Grade II lastly revised, is in Proceedings R. No. C2/26806/72 dated 21.6.72….
In paragraph 8, it is stated:
… A comprehensive list of seniority in the cadre of Motor Vehicles Inspector, Grade I was drawn during 1972 by the Department….
This sort of stand taken by respondents 1 to 3 is not correct, because of what is stated in E.O. No. 472/72, dated 21.6.1972. Earlier to 1972 list, a seniority list had been prepared for Grade I, on 15.2.1965. Hence, the proceedings in E.O.No;425/66 dated 21.6.1966 is only a regularisation order for the 10 persons mentioned therein. It is not a seniority list of all the persons in the service. Therefore, petitioner cannot claim that the ranking in the said communication could not be altered at all. When the seniority list was prepared both for the post of Motor Vehicles Inspectors Grade I and Grade II, he had not raised any objection. E.O. No. 472/72 dated 21.6.1972 is a comprehensive seniority list in Grade II, and in which petitioner and fourth respondent had been ranked Nos.13 and 9 respectively, and wherein their date of regularisation is mentioned as 7.3.1963. Petitioner knew that he was the last man in the seniority list drawn by the Commissioner and hence kept quiet. In E.O. No. 472/72 dated 21-6-1972, which is a comprehensive seniority list for Grade I, all the 10 persons, who were included in E.O.425/66 dated 21.6.1966 have been included therein, in the same year. Petitioner was ranked as No. 39 and his services were regularised on 20.7.1965, whereas fourth respondent was ranked as 51 and his date of regularisation was 9.7.1969. It is because of this inter-se seniority fixed based on dates of regularisation dates, fourth respondent preferred an appeal to the Government. Therefore, the proceedings in E.O. No. 425/66 by the Joint Transport Commissioner cannot be treated as seniority list since under Rule 3 he is not the appointing authority. The appointing authority is Deputy Transport Commissioner, who had prepared a seniority list on 15.2.1965, and which had been revised by him in E.O.472/72 dated 21.6.1972, and hence as between proceedings dated 21.6.1966 and 21.6.1972, the later alone will be relevant, but how far the later proceeding suffers from other infirmities, is considered hereunder.
6. The next important point is, whether the seniority in Grade I post could be based on respective dates of regularisation or could be only on the basis of seniority obtaining in Grade II, which in turn is based upon the ranking given by Public Service Commission. Mr. S. Govind Swaminathan, learned Counsel, would rely upon Rule 35(aa), but this rule came to be included by an amendment, only in 1978. Hence, this could not have formed the basis for the preparation of the 1972 seniority list. Special rules nowhere refer to the method of fixation of seniority in Category I post. In the absence of provision made in the Special Rules relating to seniority, it is only the General Rules, which could be looked into. For the purpose of seniority, Rule 35 is the only rule that would apply. Rule 36 is no doubt referred to by the learned Judge, but it only deals with eligibility for promotion. Under Rule 36(b)(1)(i), promotion to a selection post shall be made on ground of merit and ability, seniority being considered where merit and ability are approximately equal. Rule 36(b)(ii) states that all other promotions shall be made in accordance with seniority. Rule 2(b) of Special Rules says that promotion to Grade I post shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal. Hence, there being no special rule enacted to the effect that the seniority in Category I will be with reference to the respective dates of regularisation; and as this provision being confined to eligibility for promotion; as and when a Motor Vehicles Inspector Grade II is considered fit to be promoted on grounds of merit and ability, he would be promoted to the post of Motor Vehicles Inspector Grade I even though his senior is yet to get fit for being regularised. Once his senior later on becomes fit to be regularised i.e., becomes eligible to be promoted, then in the higher category, the senior will be put above him, as was obtaining in the lower category. Hence, the inter se seniority in Grade I will be the same as fixed by Service Commission for Grade II post. The only advantage a meritorious person gets is, to have the privilege of serving earlier than the senior in Grade I post with all the attendant benefits, except seniority. A person by completing his probation earlier, cannot take away the seniority of others as already fixed in Grade II post. When selection is made for Grade I post on merit and ability, in the absence of a special rule framed to the effect that only dates of promotion would be the basis for fixing inter se seniority in Grade I post, the same seniority in Grade II as fitted by Public Service Commission will have to be maintained, because respondents 1 to 3 have taken a clear-cut stand that:
… There is no recorded evidence to prove that the relative merit of the persons included in the list were examined before preparing the seniority list. Thus the seniority list prepared in 1972 suffers from certain technical lapses (vide Page 15 of the file in C. No. 58476/Tr.II/79)
7. Any fixation of seniority other than the ranking given by the Commission would not be valid. Deliberately, for years together, the appointing authority has avoided preparation of seniority list from time to time. How Government could have ever allowed an appointing authority like Deputy Transport Commissioner to avoid his statutory duty of preparing seniority list from time to time is baffling. It is by such lapses committed by Government, it results in unsettled service conditions for Government Servants. Hence, in the instant case, in the background of what has been referred to above, the seniority in Grade I category could be only the same seniority as applicable to Grade II category, and therefore, the comprehensive seniority list prepared in 1972 is contrary to Service Rules. The only benefit a junior in Grade II category derives based on merit and ability, is the advantage of holding the promotional post earlier, and have the attendant benefits thereto. For the purposes of seniority, whenever his senior attains the requisite merit and gets promoted; then he would secure his rightful place in Grade I seniority. There is nothing unusual in such a procedure. In the Secretariat Service, as pointed out at page 9 of Note file produced by respondents 1 to 3, the seniority fixed by the Service Commission is not denied to a Junior Assistant, who qualifies to be promoted to the category of Assistant, after his junior has passed the Departmental Test. Hence, the view taken by the learned. Judge that the seniority fixed by the Service Commission could have no applicability to Grade I, is not correct.
8. It is seen that, not only the fourth respondent but two others being Rathinam Subramaniam and A. Andy also had the benefit of getting their seniority fixed, based on the seniority fixed by the Service Commission. It is unfortunate that, when petitioners in W.P.Nos. 3551 and 6388 of 1983 and 6123 of 1983 have sought for a similar relief to be granted to them as extended to those persons, their petitions were dismissed as time-barred. Hence, it is made out that timely seniority lists have not been prepared from time to time, and that only in 1972 a comprehensive panel had been prepared, and that too it is found that it was not prepared in accordance with the statutory rules.
9. It would be in the interests of the Department to prepare a seniority list based on proper understanding of the Rules. By issue of notice to all the concerned persons, and after hearing their representations, finally a proper list based on correct principles of law, shall be prepared. Some day or other the error existing has to be rectified. If it is done earlier, it is better. It is true that some difficulties will set in, but it is because of the failure of the appointing authority to abide by statutory rules, by taking prompt actions. Government should never hesitate to take stern disciplinary action against a statutory authority, who fails to prepare a panel on time. Rather, the punishment could be more severe than what may be inflicted on Government personnel for other kinds of derelictions. When preparation of panel deals with the prospects of several Government employees, an omission to do his statutory duty by the appointing authority, could never be lightly looked upon. Therefore, instead of giving piecemeal relief to persons, who come for revising the seniority list, it would be all the more better, if the list is got rid of its illegality.
10. Mr. Manivannan, learned Counsel for the petitioner, would then submit that, fourth respondent in filing a petition to Government on 9.1.1979 was guilty of laches, because the seniority list questioned by him was published in 1972. Learned Judge while disposing of W.P. No. 3551 of 1982, etc. had relied upon Rule 37 of the General Rules to hold that the petition given by A. Ramadoss and K. Kolappa Pillai on 22.8.1979, seeking for refixation of seniority as was done to S. Shahul Hameed and the fourth respondent herein, was time-barred. Shahul Hameed gave petitions on 30.11.1978 and 23.12.1978. Fourth respondent gave the petition on 9.1.1979. The other two persons filed writ petitions, and the learned Judge held that, because of Rule 37, the petition was time-barred. Relying upon this view so taken, and on the decisions which are referred to here under; Mr. Manivannan, would state that, Government was in error in granting relief to fourth respondent, as his petition was highly belated. Proviso to Rule 37 states that if the applicant shows sufficient cause for the delay, then the period of six months would not apply. The decisions relied upon by him deal with the aspect of laches, when Article 226 of the Constitution is invoked, and they would have no relevance for appeals filed under Rules. The petition filed on 9.1.1979 does not give any reason for the delay. By pointing out the basic error committed in fixing the seniority, he had pleaded that what had been done has resulted in great injustice to him and would affect his future. Evidently, this had impressed upon the Government to give the relief. It has the suo motu power under Rule 47, for which no time limit is fixed. The said suo motu power could be exercised by an authority on it own coming to know of the injustice done or at the instance of any other authority. It is true that it has been repeatedly pointed out that settled conditions in Services should not be unsettled; but when the illegality committed is pointed out, and if a Government is inclined to set right the matters, then the time limit fixed under Rule 37 cannot stand in the way of suo muto power being exercised irrespective of the affected person himself bringing the matter to the notice of the Appellate Authority. It was much worse on the part of the Appellate Authority to entertain the belated petition of fourth respondent and Sahul Hameed, but to refuse to extend similar treatment to others, who came within seven months thereafter. Therefore, to eschew arbitrariness and in the face of what has been stated above, when necessity exists for bringing into existence a correct panel with proper inter se seniority in Grade I, the objection taken by Mr. Manivannan does not impress this Court.
11. In Rabindranath v. Union of India which deals with the promotion of Income Tax Officers based on Seniority Rules made in 1952, and which was challenged in 1962, it was held that such a petition is barred by laches. It was further held therein:
… It will be unjust to deprive the officers of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.
12. In P.S. Sadasivasamy v. State of Tamil Nadu , it was pointed out that in service matters, the aggrieved party must come to Court within six months or one year, and that long delay could not be countenanced, and that there could be no interference after passage of a certain length of time.
13. In Gian Singh v. P. and H. High Court , in dealing with service matter, in a petition under Article 32 which had been filed after 11 years from the date on which promotion was made, it was held that such inordinate delay could not be overlooked on the ground that petitioner was making successive representations to the Department. Likewise, in Roshan Lal v. International Airport Authority of India , when validity of appointments made in 1975 was challenged in 1978, it was pointed out that it would not be just to reopen the question of legality of appointment after several years.
14. In R.S. Makashi v. I.M. Menon one of the guiding factors to be taken into account would be true measure of the time within which a person can be allowed to raise a plea successfully under Article 32 of the Constitution, though the provisions of the Limitation Act would not apply. If the delay is of such an extent as to disturb the vested right regarding seniority ranking and promotion which had accrued to a large number of persons spread over a considerable period, then a petition filed belatedly could be dismissed for laches.
15. In K.R. Mudgal v. R.P. Singh , when a petition was filed challenging inter-se seniority list after 18 years, it was held that it deserves to be dismissed on grounds of laches, and that a Government servant who is appointed to any post ordinarily, should at least after a period of 3 or 4 years of his appointment, be allowed to attend to the duties attached to his post, peacefully and without any sense of insecurity.
16. Before conclusion, it must be pointed out that petitioner was ranked as the last of the 9 persons selected by the Public Service Commission, whereas fourth respondent/Appellant herein was ranked as No. 6. Therefore, merely because, the probation period of fourth respondent was extended thrice in Grade II post, and by which time petitioner was promoted, fourth respondent/appellant cannot be deprived of the seniority fixed for him by the Public Service Commission, and which alone could be applied for Grade I post as well. Hence, this writ appeal is allowed by granting a declaratory relief that fourth respondent/appellant herein (G.P. Purushothaman) is senior to petitioner 1st respondent herein (C.O. Arumugam) in Motor Vehicles Inspector Grade I Category and which will have to be fixed based on seniority fixed by Public Service Commission in 1963. No costs.
17. WA. No. 2269 of 1987 : This writ appeal is preferred against the order dated 3.12.1987 in W.M.P. No. 14030 of 1987 in W.P. No. 9554 of 1987. W.P. No. 9554 of 1987 was filed by G.P. Purushothaman, the fourth respondent in W.P. No. 1763 of 1980, and the appellant in WA. No. 144 of 1987. The writ petition was filed to quash the order in G.O.Ms. No. 1943, Home (Transport-II) dated 14.8.1987, which revised the seniority in the category of Motor Vehicles Inspector Grade I. This G.O. came to be passed consequent to the decision in W.P. No. 1763 of 1980 in which the order passed by the Joint Transport Commission dated 8.8.1979 was challenged. The order was passed in compliance with the order of the Government in G.O.Ms. No. 1890, Home (Transport II) dated 27.7.1979. By the impugned G.O. in this writ petition, both the G.O.Ms. No. 18 90, Home (Transport II), dated 27.7.1979, and the consequential order dated 8.8.1979 had been cancelled, and therefore, Purushothaman had come before Court claiming that there was no need to cancel G.O.Ms. No. 1890, because what was set aside by the High Court was only the consequential order dated 8.8.1979. He being the beneficiary of the said G.O. and the seniority having been restored to him, he pleaded that the impugned orders have been passed arbitrarily, and without understanding the purport of the judgment of the Court. In so far as other Grade I Motor Vehicle Inspectors are concerned, their rights cannot in this appeal be looked into. Hence, no valid ground exists to cancel G.O.Ms. No. 1890. Pending disposal of the writ petition, Purushothaman sought for stay, and C.O. Arumugham, petitioner in W.P. No. 1763 of 1980 got impleaded and sought for vacating the stay. Learned Judge made the interim stay absolute, and it has resulted in the filing of this writ appeal by C.O. Arumugham.
18. In the context of the decision in WA. No. 144 of 1987, the contentions of C.O. Arumugham cannot be accepted, and hence this writ appeal has to be dismissed. In dealing with the order dated 8.8.1979 in WA. No. 144 of 1987, this Court has already pointed out that, the said G.O. recognising the seniority of Purushothaman over C.O. Arumugham is in order, and hence, G.O.Ms. No. 1943, Home Transport II dated 14.8.1987, and the consequential order are not valid. Hence, this writ appeal is dismissed. No costs.
19. WA. No. 2322 of 1987 : This appeal is preferred by one M.S. Shanmughasundram, the fourth respondent in W.P. No. 9554 of 1987, who was ranked as No. 47 in the 1972 list of Motor Vehicles Inspectors Grade I against the order in W.M.P.NOS. 14030,15262 and 15982 of 1987 dated 26.11.1987. W.P.NOS. 1763 of 1980 and 1351,4745 of 1983, etc., were heard together. He being aggrieved, he filed an application to implead himself, and he was impleaded as fourth respondent in W.P. No. 6388 of 1982. Hence, he had not filed a separate petition to challenge the order dated 8.8.1979 of the Appellate Authority. After W.P. No. 1763 of 1980 was allowed, Arumugham had been placed as No. 3 and himself as No. 13 and Purusthoman as No. 15. As any order to be passed in W.P. No. 9554 of 1987 would affect his rights, he desired to be impleaded, and it was ordered. It is on the common order passed by the learned Judge on 3.12.1987, he has filed this writ appeal against the order, which is assailed in WA. No. 2269 of 1987. Now that WA. No. 144 of 1987 is allowed and WA. No. 2269 of 1987 is dismissed, this appeal is also dismissed on the same points. No costs.