Judgment K.B.N SINGH and UDAY SINHA JJ. 1. In this writ application, the petitioner, a senior officer of the Indian Administrative Service, has prayed for quashing the order of the Government of India, assigning to the petitioner 196l as the year of allotment on his promotion to the Indian Administrative Service. The impugned order has been conveyed in a letter dated the 1st September, 1969, of the Deputy Secretary to the Government of Bihar in the Appointment Department (Annexure 11). 2. The petitioner was appointed in the Executive Branch of the Bihar Civil Service on the 17th September, 1941. On the 11th February, 1947, he was substantively appointed as Sub-divisional Officer, and later appointed as Under Secretary to the Government of Bihar in the Development Deptt. The petitioner claims to have officiated as the Deputy Secretary to the Government of Bihar during the period from the 24th October, 1950, to the 31st July, 1951. In October, 1952, the petitioner was appointed Deputy Registrar, Co-operative Societies, South Bihar Range, with headquarters at Patna (Annexure 1), which post he joined on the 9th August, 1952, and which is a cadre post under the Indian Administrative Service. The petitioner has alleged that in 1954 he was the seniormost member of the Bihar Civil Service and that his name was at the top of the State cadre and as such he was the first person entitled to promotion from the Bihar Civil Service to the Indian Administrative Service as and when the same became due. It may be stated here that the assertion of the petitioner as to his seniority has been denied on behalf of the State of Bihar. 3. The petitioners case is that on the 18th October, 1954, the President of India sanctioned the creation of a temporary post of an officer on special duty in the Ministry of External Affairs, and by the same notification, appointed the petitioner in the pay scale of Rs. 800-1800/-, the senior time scale pay of the Indian Foreign Service, besides dearness allowance (Annexure 2). By notification dated the 19th January, 1955 (Annexure 3), the pay of the petitioner was fixed at Rs. 950/- per month in the aforesaid scale. 800-1800/-, the senior time scale pay of the Indian Foreign Service, besides dearness allowance (Annexure 2). By notification dated the 19th January, 1955 (Annexure 3), the pay of the petitioner was fixed at Rs. 950/- per month in the aforesaid scale. The petitioners contention is that this post is in the senior scale of the Indian Foreign Service and is accordingly equivalent to senior post in the Indian Administrative Service, namely, of the rank of an Additional District Magistrate. By an order dated the 3rd September, 1955 (Annexure 4) the petitioner was appointed as Attache in the office of the Deputy High Commissioner of India in Pakistan at Dacca, with effect from the 5th August 1955. By a subsequent communication dated the 1st March, 1956 (Annexure 5), the post of the Attache, held by the petitioner, was upgraded to that of the First Secretary in the scale of Rs.800-1800/- and the petitioners pay was refixed at Rs. 950/- with retrospective effect, from the date he joined the post of Attache. The petitioners case is that thereafter he was successively posted as the First Secretary to the Embassy of India at Tehran, Bankok and Ankara by successive orders made on the 16th July, 1959 the 17th February, 1963, and the 5th September, 1965, and the intervening periods between his relinquishment of charge at one place and assumption of charge at another, were sought to be covered by creating a post of an officer on Special Duty, in the senior scale of the Indian Foreign Service, and appointing him from time to time as such. On the 16th October, 1969, the petitioner was appointed as the Deputy Director, Indian Co-operation Mission at Kathmandu in Nepal with the sanction of the President (Annexure 6), and on the 8th January, 1970, the order appointing the petitioner as an officer on Special Duty in the Ministry, as Deputy Director in the Indian Co-operation Mission, Nepal, with effect from the afternoon of the 15th December, 1969, was notified (Annexure 7). The petitioner has averred that this post held by him in Nepal is equal to that of the First Secretary to an Embassy, which post he is holding. 4. The petitioner has averred that this post held by him in Nepal is equal to that of the First Secretary to an Embassy, which post he is holding. 4. The petitioners grievance is that as he was on deputation in the Indian Foreign Service, due to misconception of law, the petitioners case for promotion to the Indian Administrative Service was not considered for a long time, and his juniors were promoted, ignoring the superior claim of the petitioner and it was only on the 6th June, 1966, that the petitioner was promoted to the Indian Administrative Service and confirmed in that Service with effect from the 6th June, 1967 (Annexure 8). The. petitioner was assigned the year 1961 as the year of allotment without according the benefit of his continuous appointment in the senior Post of the Indian Foreign Service from the 30th October, 1954, onwards. It was only on the 30th August, 1960, that the petitioner was given paper promotion as an Additional District Magistrate, by the State Government. 5. The petitioner on the 17th July, 1969, filed a representation for refixing his seniority in the Indian Administrative Service (Annexure 10), which was rejected by the Government of India, and communicated to him per Annexure 11 as already stated. The reasons for fixing 1961 as the year of allotment were also communicated in another letter dated the 1st September, 1969, (Annexure 11/A). The petitioner has averred that even thereafter, he made several representations to the Ministry and contacted the concerned officers personally and through the Indian Embassy, Nepal, but. received no response from either the Ministry of Home Affairs or the Ministry of External Affairs. He has averred that due to his absence from the country, he could not join his colleagues Shree S. A. F. Abbas, etc., in the case before this Court, the decision of which is reported in AIR 1970 Pat 397 = (1970 Lab IC 1518) (SB), and which has been substantially affirmed by the Supreme Court in the case of Ram Prakash Khanna V/s. S. A. F. Abbas ( AIR 1972 SC 2350 ) = (1972 Lab IC 1031). After the legal position was clarified, by the Supreme Court, the petitioner made a final representation to the Government of India on the 24th January, 1972 (Annexure 12), and sent several reminders, which the respondents refused even to acknowledge. After the legal position was clarified, by the Supreme Court, the petitioner made a final representation to the Government of India on the 24th January, 1972 (Annexure 12), and sent several reminders, which the respondents refused even to acknowledge. Thereafter on the 9th September, 1972, the petitioner gave final notice to both Government of India and the Government of Bihar (Annexure 12/A), and thereafter, filed this writ application on the 25th September, 1972. 6. A counter-affidavit has been filed on behalf of the Union of India, refuting the claim of the petitioner, followed by a reply on behalf of the petitioner. The State of Bihar, though appeared, has filed no counter-affidavit. So, really the tussle is between the petitioner and the Government of India. 7. Mr. B. C. Ghose, learned counsel appearing on behalf of the petitioner, has urged that at the time when the petitioner was appointed to the Indian Foreign Service, in the superior grade, neither the various Rules nor the Regulations of the Indian Administrative Service were applicable to the case of the petitioner. Both the Indian Administrative Service and the Indian Foreign Service being Services constituted under the All India Services Act, 1951 they were equivalent Services. In absence of any Rule under Article 309 of the Constitution of India or under All India Services Act, 1951, to the contrary, equivalence must be accepted and must govern the petitioners condition of service on reversion to the Indian Administrative Service. The period during which the petitioner was holding posts in the Selection Grade of Class I Service in the Indian Foreign Service could not be ignored in computing the length of the petitioners service in the Indian Administrative Service and the petitioner must get full benefit of foreign service. The alternative submission of Mr. Ghose is that, assuming, though not conceding, that the petitioners selection has to be made in terms of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, then the various Select Lists prepared under the said Regulations, prior to the inclusion of his name in the Select List, have to be knocked down on account of non-consideration of his case. 8. 8. Learned Standing Counsel appearing on behalf of the Union of India, on the other hand, contended that the petitioner never officiated in a cadre post or ex-cadre post prior to his actual appointment to the Service on the 6th June, 1966, save as Deputy Registrar, Co-operative Societies, in 1952, which is a cadre post, and the various posts held by him under the Central Government will not give the petitioner any right and will not be taken into account in giving him any advantage in computing his seniority on promotion to the Indian Administrative Service. 9. To appreciate the rival contentions of the learned Counsel for the parties, it will be useful to quote the reasons given by the Ministry of Home Affairs for not allowing the advantage of the petitioners service in the senior posts in the Ministry of External Affairs, as contained in Annexure 11/A: "Shri Sarkar did not officiate in any cadre or ex-cadre post under the State Government prior to his shifting to the Ministry of External Affairs. Under Explanation 2 below Rule 3 (3) (b) of the I. A. S. (Regulation of Seniority) Rules, 1954, as it stood before amendment on 17th April, 1967, the officiation of a promoted officer in an equivalent post under the Central Government, while his junior officiated in a cadre and ex-cadre equivalent post under the State Government would be protected to the extent that the same benefit is admissible to his immediate junior. The immediate junior of Shri Sarkar in the I. A. S. Select List of Bihar was Shri Verma, who also did not officiate in any cadre or ex-cadre post under the State Government. The immediate junior to Shri Verma was Shri B. Prasad, who officiated in the cadre posts from 18th April, 1966. As such, Shri Sarkars services from 18th April, 1966, only can be counted for purposes of fixing his seniority in the I. A. S. cadre of Bihar and accordingly he was allotted to the year 1961. The Government of Bihar were informed of this decision in this Ministrys letter of even number dated the 18th August, 1969. As such, Shri Sarkars services from 18th April, 1966, only can be counted for purposes of fixing his seniority in the I. A. S. cadre of Bihar and accordingly he was allotted to the year 1961. The Government of Bihar were informed of this decision in this Ministrys letter of even number dated the 18th August, 1969. In the circumstances, the services rendered by Shri Sarkar in the ex-cadre posts in the Ministry of External Affairs cannot be taken into account for purposes of fixing his seniority in the I. A. S. cadre of Bihar." From the aforesaid letter, it is apparent that by virtue of the Second Explanation to Rule 3 (3) (b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 (hereinafter referred to as the Seniority Rules), the continuous officiation of Shree Bhuwaneshwar Prasad, who officiated in the cadre post from the 18th April, 1966, was given to the petitioner and the services rendered by the petitioner in the ex-cadre posts under the Ministry of External Affairs were not taken into account in fixing his seniority in the Indian Administrative Service Cadre. 10. It will not be necessary to refer to the history of the Indian Administrative Service or the various Rules and Regulations made in relation thereto, which have been noticed in various decisions of the Supreme Court, particularly, in the case of R. P. Khanna V/s. S. A F. Abbas, AIR 1972 SC 2350 = (1972 Lab IC 1031). 10. It will not be necessary to refer to the history of the Indian Administrative Service or the various Rules and Regulations made in relation thereto, which have been noticed in various decisions of the Supreme Court, particularly, in the case of R. P. Khanna V/s. S. A F. Abbas, AIR 1972 SC 2350 = (1972 Lab IC 1031). Suffice it to refer to Rule 3 (3) (a) and (b) of the Seniority Rules, on the basis of which the seniority of a promotee is fixed, as it stood before its amendment on the 17th April, 1967, which is relevant for our consideration: "(3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be (a) where the officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held: (b) where the officer is appointed to the Service by promotion in accordance with sub-rule (1) of Rule 8 of the Recruitment Rules, the year of allotment of the junior most among the officers recruited to the Service in accordance with Rule 7 of those rules who officiated continuously in a senior post from date earlier than the date of commencement of such officiation by the former: Provided that the year of allotment of an officer appointed to the Service in accordance with sub-rule (1) of Rule 8 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service in accordance with Rule 7 of those Rules so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned: Provided further that an officer appointed to the Service after the commencement of these rules in accordance with sub-rule (1) of Rule 8 of the Recruitment Rules shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the select List prepared in accordance with the requirements of the Indian Administrative Service (Appointment by Promotion) Regulations framed under sub-rule (1) of Rule 8 of the Recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission. "Explanation 1 An officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that date to the date of his confirmation in the senior grade he continues to hold without any break or reversion a senior post otherwise than as a purely temporary or local arrangement: Explanation 2 An officer shall be treated as having officiated in a senior post during any period in respect of which the State Government concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post or any other exceptional circumstance." Under Rule 3 (3) (b) of the Seniority Rules a promotee could be given advantage of continuous officiation on a senior post in matters of counting his seniority and assignment of the year of allotment. Under clause (b) of sub-rule (3) of Rule 3 of the Seniority Rules, the year of allotment of the junior most direct recruit, who officiated continuously in a senior post, has to be assigned to the latter. We are not concerned in the instant case with the first proviso. The second proviso cuts down the period of officiation under clause (b) and the first proviso to that period only which has been approved by the Central Government in consultation with the Union Public Service Commission against a post declared by the State Government equivalent to a senior post under Rule 2 (g) of the Seniority Rules. Officiation in a senior post is one of the indispensable ingredients for the application of Rule 3 (3) (b) of the Seniority Rules. "Senior post" has been defined under Rule 2 (g) before amendment, as follows: " Senior post means a post included under Item I of each schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955, framed under sub-rule (1) of Rule 4 of the Indian Administrative Service (Cadre) Rules, 1954, or any post declared equivalent thereto by the State Government concerned." "Cadre post" means any post specified as such in the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955, made under sub-rule (1) of Rule 4 of the Indian Administrative Service (Cadre) Rules, 1954. It sets out the strength and composition of each cadre in relation to different States in the schedule thereto, including the State of Bihar. It sets out the strength and composition of each cadre in relation to different States in the schedule thereto, including the State of Bihar. Amongst other things, it consists of the senior posts under the State of Bihar as also under the Central Government. 11. From the aforesaid discussions, it is apparent that during his deputation to the foreign service under the Ministry of External Affairs, the petitioner was not holding any senior post in the Bihar Cadre, nor any declaration that the post held by the petitioner was equivalent to a senior post could be made within the framework of the seniority Rules and the Fixation of Cadre Strength Regulations by the State Government. As a matter of fact, this is the stand taken by the State of Bihar in its comments on the representations of the petitioner, Shree S. K. Verma, and Shree B. Prasad (Writ Petitioner in Civil Writ Jurisdiction Case No. 357 of 1974 (Pat), which also is being disposed of today), as is apparent from the letter dated the 22nd December, 1972, (Annexure 14 to the other writ application), which the learned Counsel for the petitioner has prayed to take into account. It is thus manifest that neither the State of Bihar nor the Government of India (as appears from Annexure 11/A quoted above) is prepared to take into consideration the ex-cadre posts held by the petitioner in the Ministry of, External Affairs, e.g., the posts of Special Officer, and First Secretary in different Embassies, for the purpose of fixing his seniority in the Indian Administrative Service. The petitioners averment in paragraph 7 of the writ application about the post of Special officer being in the time scale of Indian Foreign Service, is not denied by the Central Government in its counter-affidavit (paragraph 7): What is denied is that it is not equivalent to a senior post of a District Magistrate or in the Indian Administrative Service. In the words of his Lordship, K. Ayyar, J., "The impressive set of posts occupied by the petitioner do credit to his claim" (vide Anil Kumar V/s. State of Assam, AIR 1975 SC 1061 = (1975 Lab IC 658)). In the words of his Lordship, K. Ayyar, J., "The impressive set of posts occupied by the petitioner do credit to his claim" (vide Anil Kumar V/s. State of Assam, AIR 1975 SC 1061 = (1975 Lab IC 658)). But, on account of the lacuna in the Rules and the Regulations, neither the State nor the Central Government is prepared to take into account the period during which he was on deputation as an officer on Special Duty in the Ministry of External Affairs in the senior scale of pay and was posted as the First Secretary in the Deputy High Commissioners office at Dacca, and thereafter in other Embassies. I may incidentally mention that under the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961 the post of the First Secretary has been shown to be a cadre post under the Indian Foreign Service. Sub-Rule 2 (1) of the said Rules defines cadre post to mean a cadre in the Service and includes a temporary post, which means a temporary addition to the cadre. 12. Mr. Ghose has also not been able to point out any provision either under the Act, Rules or Regulations, that the Indian Foreign Service and the Indian Administrative Service are equivalent Services and the benefit of the period of officiation against a senior post under the Indian Foreign Service must be given to the petitioner on the basis of equivalence of the services on reversion of the petitioner to the Indian Administrative Service. The Central Government in paragraph 10 of the counter-affidavit has denied that the posts held by the petitioner in the Ministry of External Affairs were equivalent to a senior post of District Magistrate or any other senior post in the Indian Administrative Service. The petitioner was on deputation in the Ministry of External Affairs and does not seem to have been absorbed in the Indian Foreign Service. Therefore, the question of reversion of the petitioner from the Indian Foreign Service really does not arise. It is, therefore, manifest that however just the claim of the petitioner may be, his remedy does not lie in a court of law, but with the Government of India, who may take such remedial measures to do justice in the case of the petitioner as it may deem fit and proper. It is, therefore, manifest that however just the claim of the petitioner may be, his remedy does not lie in a court of law, but with the Government of India, who may take such remedial measures to do justice in the case of the petitioner as it may deem fit and proper. It may be mentioned here that the seniority of Shree Bhuwaneshwar Prasad, another senior officer of the Indian Administrative Service, may have to be revised as a result of the decision in Civil Writ Jurisdiction Case No. 357 of 1974 (Pat). The petitioner, admittedly, is senior to Shree Bhuwaneshwar Prasad. In the event of revision of the seniority and year of allotment of Shree Bhuwaneshwar Prasad, the question of revising the seniority of the petitioner also may arise, even on the basis of the principle followed by the Central Government as stated in Annexure 11/A. 13. Coming to the alternative submission of Mr. Ghose that the various Select Lists prepared before the inclusion of the petitioners name should be scrapped, as on account of his being in foreign service his name was not considered by the Selection Committee constituted under Regulation 3 of the Promotion Regulations. The Central Government, in Paragraph B (2) of the counter-affidavit, has denied this assertion of the petitioner. It is stated that the petitioners case was considered for inclusion in the Select List and he was not found fit to be included in Select List prior to the year 1962. Mr.Ghoses contention is that the petitioner was being bypassed by the Selection Committee on the basis of the records of his service with the State Government up to the year 1954, and the records of the services rendered by him in the External Affairs Ministry were not placed before the Selection Committee, and, therefore, the earlier Select Lists, should be scrapped. No foundation has been laid in the writ application for substantiating this submission of the learned Counsel nor it is possible to scrap the Select Lists prepared over years, in which the petitioners name was not included. The relief claimed is too vague and general, to be allowed. 14. Some of the technical pleas raised by Mr. A. K. Sinha, learned Standing Counsel for the Central Government may now be disposed of. Mr. The relief claimed is too vague and general, to be allowed. 14. Some of the technical pleas raised by Mr. A. K. Sinha, learned Standing Counsel for the Central Government may now be disposed of. Mr. Sinha has submitted that the petitioners representation was rejected on the 20th September, 1969, and he filed this writ application in September, 1972, and, therefore, the writ application should be dismissed on the ground of inordinate delay. The petitioner has averred that he had been making further representations and oral prayers in the matter to both the State of Bihar and the Government of India, and as he was posted abroad, he could not join his colleagues. Shree S. A. F. Abbas and others in their writ application (Civil Writ Jurisdiction Case No. 853 of 1968) = (reported in 1970 Lab IC 1518) (Pat) (SB) which was finally decided by the Supreme Court on 22-4-1972 = (reported in 1972 Lab IC 1031) (SC), and the law on the subject settled. Thereafter, on the 24th January, 1972, he filed a fresh representation to the Government of India, through the State Government, for consideration of his case in the light of the decision in the aforesaid case. He has averred that thereafter he gave notice to the Government on the 9th September, 1972, and, then filed the present writ application. These averments of the petitioner have been substantively admitted on behalf of the Government of India in Paragraphs 20 to 25 of its counter-affidavit, and, in view of the lacuna in the law, as pointed out earlier, the repeated representations of the petitioner before the Government of India were not without substance. In view of the fluid state of law on the subject, and the petitioner being away from the country, it must be held that the petitioner has sufficiently explained the delay in filing this writ application. In absence of any element of negligence on the part of the petitioner in moving this Court, I do not think that the case should be dismissed in limine on the ground of delay after its admission. The view I have taken gains support from the decision of the Supreme Court in the case of Joginder Nath v The Union of India, AIR 1975 SC 511 = (1975 Lab IC 347). 15. Mr. The view I have taken gains support from the decision of the Supreme Court in the case of Joginder Nath v The Union of India, AIR 1975 SC 511 = (1975 Lab IC 347). 15. Mr. Sinha has also submitted, in the alternative, that there has been a break in the continuous officiation of the petitioner, even if the posts held by him could be held to be equivalent to senior posts under the Seniority Rules, inasmuch as there were sometime lag between the petitioners joining one post after the other, and, in support of that, the decision in the case of Anil Kumar V/s. The State of Assam, (1975 Lab IC 658) (SC) (supra) was pressed in service. In paragraph 10 of the writ application, the petitioner has averred, as already stated, that the intervening periods between the petitioners relinquishing charge at one place and assuming charge at other were sought to be covered by creating posts of officers on Special Duty in the senior scale of the Indian Foreign Service and appointing him to the posts from time to time. In paragraph 12 of the counter-affidavit, there is no denial of this averment made in the writ application, although the dates of the relinquishment and joining have been mentioned. In this state of pleading, it is difficult to hold that there was any break so as to non-suit the petitioner on the basis of the aforesaid decision, as urged by Mr. Sinha, in the alternative. 16. In view of my aforesaid discussions, the writ application has to be dismissed. It is hoped that the Govt.of India will look into the hardship caused to the petitioner in view of the existing Rules and Regulations and may take such steps in the matter as justice of the case may demand. Under the circumstances of the case, there will be no order as to costs. 17. I agree.