LexAMRIT LAL BERRY versus COLLECTOR OF CENTRAL EXCISE, NEW DELHI & ORS.
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AMRIT LAL BERRY v. COLLECTOR OF CENTRAL EXCISE, NEW DELHI & ORS. December 10, 1974 [M. H. BEG, v. R. KRISHNA IYER AND P. K. GoswAM1, JJ.] Constitution of India 1950-Arts. 14, 16, 32 and 226-Fai/ure ro opp/JI a rule-Wherher Justified invoking powers under Art. 32-Petition under Art. 32 m11st contain avmnents in full....:.Petitioner to satisfy the Court how hts f1111dll- mental right was infringed-Inordinate delay-Effect of-Distinction bttW•!tn a petition urukr Art. 32 and 226-Beneflt of law declared by the Court to be given to others in like, circumstances withdut the need to go to Court -- Demand for j1l,stice and it.r refusal must precede a petition for mandaltllll. The Ministry of Home Mairs by a memorandum dated 22-& 1949 laid down that the seniority of government se1vants should be determined by 1tbe date of their appointment and not the date c>f their confirmaion. Jn the 6enfori- ty list issued in 1958 by the Excise Department the appellant was given bis due pla.ce. Tu: rule was altered in the Department by offi::e memorandum dat· ed 22-12·1959 by which seniority was determined from the date of confirma- tion. On 22-7··1972 an office memorandnm was issl!ed after the judgment of this' Court in Ravi Varma's case. It was alleged that this memorandum was based on a wrong interpretation of the law laid down by this Court because while determining the seniority of the petitioner according to the 1949 rule. it did not award consequential benefits to which he was entitled had the 1949 memo- randum been followed. Representations to the Government impugning 1he seniority list having failed the petitioner has filed a petition under. article 32 of the Comtitution. I It was contended on behalf of the respondent that tile petitions were barred by the principl~s of I aches and acquiescence. and that the assertions in the petitions did not conlain necessary averments to establish violations of funda- mental righl'S. Dismissing the petitions, HELD·. ( l) The petitions rest on the assumption that all that neeu to "be asserted was violation of some rule contained in an office memorandum. There is no doubt that the office memorandum dated 22-7-1972 was issued ·in corn;e- quence of the decision of this Court in Ravi Varma'a case to meet the situa· tion created by it in the context of previous offioe memorandum on !he sulb- ject. If the 1972 memorandum had· been correctly interpreted and applied the law laid down by this Court. had lbeen correctly applied there was no need to proceed further .with the consideration of the petitions: [96SE-F} · (2)(a) A mere failure to apply a rule which ought to have been applic~ may not, by itself, justify an invocation of the powers of this Court under 1111. 32 of the Constitution. In order to succeed in a petition under art. 32 of tile Constitution the petitioner has to disclose how his fundamental right has bel•n infringed by a p~rticular rule or decision or its application. The impoct of tl1e rule or decision upon the facts of each petitioner's fundamental right has to be clearly brought c>ut. [971 BJ (b) Wliere a petitioner alleges that .he had been denied equality of oppor- tunity for service. during the cou.rsi: of his employment as a government ser· vant, it is incumbent upon him to disclose not only the rule said to be infringed but also how this opportunity was unjustifiably denied on each particulu oct'asion. [971 C1 A B c D E F G (c) The equa~ity of opportunity in a matter relating to employment implies equal treatment to persons similarly situated or in the same category as the H petitioner. It postulate!l equality of conditions under which a number of persoo! belonginr to the same category compete for the same opportunities and a just and competing claims. It does not exclude justifiable discrimination. [971 DJ competing claims. It does not exclude justifiable discrimination. [971 Dl A B c D E F G H A. L. BERRY V. COLLECTOR CENTRAL EXCISE (Beg, /.) 901 (d) In so far as memorandum of 1972 does not direct reconsideratio!I of cases of all those persons who have actually missed confirmation or who were not considered at all for promotion at the time when they ought to have been considered, it fails ta give due and complete effect to what was decided by tbis Court ill Ravi Vanna's case. [970 F} ( e) As regards the contention of the petitioner that he was not given a senior grade, neither the office memorandum of 194
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