Rabindra Nath Bose & Ors Vs. Union
of India & Ors  INSC 276 (9 October 1969)
09/10/1969 SIKRI, S.M.
HIDAYATULLAH, M. (CJ) MITTER, G.K.
REDDY, P. JAGANMOHAN
CITATION: 1970 AIR 470 1970 SCR (2) 697 1970
SCC (1) 84
R 1972 SC2060 (9) F 1974 SC 259 (9) F 1974
SC2077 (11) R 1975 SC 511 (10) RF 1975 SC 538 (17,18) F 1976 SC2617 (6) R 1981
SC1495 (23) R 1982 SC 101 (28) APL 1988 SC 268 (29,31) RF 1988 SC 654 (7)
Constitution of India, Arts. 14 and
16-Whether applicable to acts done in pre-Constitution period-Promotion of
Income-tax Officers on the basis of Seniority Rules made in 1952 challenged in
writ petition in 1967--Petition is barred by laches-Confirmed Assistant
Commissioners of Income-tax must not be disturbed by delayed appeal to
In 1943 the Government of India felt it
necessary to reorganise the entire service of Income-tax Officers and to create
a Central 'Service and uniform pay scales for different constituent grades. The
main idea was to create Class I Cadre Officers Service and to make selection to
it from the existing Class II officers. This reorganisation scheme was
formulated in a letter dated 29-9-1944 from the Government of India to all
Commissioners of Income-tax.
According to the scheme the cadre of Income tax
Officers Class I was to consist of Grades I and It and Class II officers were
to be in Grade III. Recruitment to Class I was to be in the first instance in
Grade,II. Recruitment to Grade II was to be from two sources : (a) to the
extent of 80% directly through competitive examination (b) to the extent of 20%
by promotion from Class II. On 26-5-1945 Government framed statutory rules
governing recruitment to the service. The petitioners were recruited-as income
Tax Officers Class I Grade II by competitive examination and the respondents
were recruited to it by promotion in the preConstitution period 1945 to 1950. A
Departmental Promotion Committee met in 1948. Certain Seniority Rules were
framed in September 1949, The Departmental Promotion Committee aforesaid
prepared a Seniority List of Income-tax Officers as on 1-1-50 and circulated it
on 24-1-1950 along with the Seniority Rules which had by then been modified.
Objections to the List-in respect of data only-were invited by 28-21950. In
1951 by new statutory rules the 'quota' of direct recruits was fixed at 662/3%
and that of promotees at 33 1/3%. In 1952 a committee met to finalise the
Seniority List. It also modified the Seniority Rules in that year. A revised
Seniority List was issued in 1953. As a result of the seniorities thus allotted
and by operation of the.Seniority Rules the respondents became senior to the
petitioners in the rank of confirmed Assistant Commissioners of Incometax. The
petitioners made various representations to the Government but without success.
In 1962 one Jaisinghani filed a petition in the High Court under Art. 226 of
the Constitution challenging promotions made in the postConstitution period in
violation of the statutory rules.
The High Court dismissed the petition, In
appeal this Court held the promotions in violation of the ,quota rule' to be
invalid but expressly exempted those promotees who had been confirmed as
Assistant Commissioners of Income-tax from the operation of the Court's order.
Shortly after the decision of this Court in Jaisinghani's case in 1967 the
present petitions were filed under Art. 32 of the Constitution. The petitioners
did not attack the validity of the respondents' appointments but urged that for
the purpose of seniority their appointments should be postdated in conformity
with the 'quota rule' laid down in para 2(d) of the Government letter dated
698 They relied on Arts. 14 and 16 of the
Constitution. The Attorney-General however raised certain preliminary
objections to the petition and contended inter alia that :
(i) all acts which had been challenged in the
petition happened before the advent of the Constitution, and could not be
challenged under Arts. 14 and 16 of the Constitution, (ii) the petition must be
dismissed on the ground of laches;
(iii) the relief claimed would be against the
decision in Jaisinghani's case.
HELD : The petition must be dismissed.
(i) It is settled law that the Constitution
has no retrospective operation. The petitioners therefore could not complain of
breach of Arts. 14 and 16 of the Constitution in respect of acts done before
the Constitution came into force. These acts in the present case were (1)
appointments of respondents to Income-tax Officers Class I Grade II service;
(2) Seniority List as existing on 1-11950; and (3) Seniority Rules of 1949 and
1950 in so far as they had effect up to January 26, 1950. The first seniority
list was prepared as on January 1, 1950, and even if the seniority list was
finally settled after the Constitution came into force, the Rules to be applied
were the Seniority Rules of 1949 and 1950. If the list had been finally settled
on January 1, 1950 clearly no appeal could be made to Arts. 14 and 16. The fact
that the list was prepared after the Constitution came into force would not
enable the petitioners to appeal to Arts. 14 and 16. [711 A-C] Pannalal Binjraj
v. Union of India,  S.C.R. 233, 266, Sri Jagadguru Nari Basava Rajendra
Swami of Govimutt v., Commissioner of Hindu Religious Charitable Endorwments.
Hyderabad,  8 S.C.R. 252,Guru Datta
Sharma v. State of Bihar,  2 S.C.R. 292, applied.
Shanti Sarup v. Union of India, A.I.R. 1955
S.C. 624, distinguished.
(iii) In so far as the attack was based on
the 1952 rules, it must fail on the ground that this petition under Art. 32 of
the Constitution had been brought about 15 years after the 1952 Rules were
promulgated and effect given to them in the Seniority List prepared on August
1, 1953. Even though Art. 32 is a guaranteed right it does not follow that it
was the intention of the Constitution makers that this Court should discard all
principles and grant relief in petitions filed after inodinate delay. It would
be unjust to deprive the respondents of the rights which had accrued to them.
Every 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. [711 E-712 G] M/s. Tilokchand Moti Chand's case, 
S.C. Cases 110 and Laxmanappa Hanumantappa Jamkhandi v. Union of India, 
S.C.R. 769, applied.
(iii) In Jaisinghani's case this Court
observed what the order in that case would not affect Class II Officers who had
been appointed permanently as Assistant Commissioners.
In that case the Court was only considering
the challenge to appointments and promotions made after 1950. In the present
case the Court was being asked to consider the validity of appointments and
promotions made during the period 1945 and 1950. Thus there was all the more
reason in the present case that officers who had become permanent Assistant
Commissioners of Income-tax and who were appointed and promoted to their
original posts during 1945 to 1950 should be left alone. [712 H]
ORIGINAL JURISDICTION : Writ Petition No. 146
699 Petition under Art. 32 of the
Constitution of India for enforcement of the fundamental rights.
S. Mohan Kumaramangalam and R. Gopalakrisnan,
for the petitioners.
Niren De, Attorney-Gereral, N. S. Bindra, R.
N. Sachthey and S. P. Nayar, for respondent No. 1.
C. K. Daphtary, H. K. Puri and B. N. Kirpal,
for respondents Nos. 6 to 10, 30 to 34 and 39.
C. K. Daphtary and P. C. Bhartari, for
respondent No. 11.
G. R. Rajagopal, S. K. Dholakia and Vineet
Kumar, for respondents Nos. 12 to 14 and 1 5 to 24.
A. J. Raja, B. R. Agarwala and Janandra Lal,
for respondent No. 25.
S. S. Javali and M. Veerappa, for respondent
C. K. Daphtary and Mohan Behari Lal, for
respondent No. 29.
Yogeshwar Prasad and S. Bagga, for intervener
H. L. Sibbal, B. P. Maheshwari, A. N. Pareek
and R. K.
Maheshwari, for interveners Nos. 3 to 5.
R. Gopalakrishnan, for interveners Nos. 6 to
The Judgment of the Court was delivered by
Sikri, J. 16 Officers of the Income-tax Department have tiled this petition
under Art. 32 of the Constitution praying for various reliefs on the ground
that their rights under Arts. 14 and 16 have been infringed. They are all
confirmed Assistant Commissioners of the Income tax and respondents 6 to 39 are
also confirmed Assistant Commissioners of Income tax. Respondents 1 to 5 are
the Union of India, Secretary, Ministry of Finance, Central Board of Direct
Taxes, Secretary,, Ministry of Home Affairs, and the Union Public Service
Commission. The practical object of the petition is to gain some seniority so
that they can be promoted as Commissioners of Income tax earlier than the
respondents 6-39. The petitioners were all confirmed as Asstt. Commissioners
;In 1959. Apart from respondents 28, 29 and 30, all other respondents were
confirmed in earlier years. In brief, the case of the petitioners is this : The
Government in breach of the rules governing the service of Income tax officers
Class 1, grade II, appointed respondents 6 to 39. Their initial, appointments
were irregular and illegal being outside the quota prescribed by Government for
regulating recruitment to the service. Not only were they thus illegally
absorbed into service but were also L3Sup. CI./70-4 700 given preferential
treatment in the matter of seniority in Class I Grade II itself and for further
promotion to higher grades by framing rules which were discriminatory and which
made hostile discrimination against Class I direct recruits like the petitioners.
It is urged before us that their case is covered by the principle laid down by
this Court in the case of S. G. Jaisinghani v. Union of India and Ors.(1).
These contentions are controverted by the
respondents. The learned Attorney General further contends that (1) all acts
which have been challenged in this petition happened before the advent of the
Constitution and cannot be challenged under Arts. 14 and 16 of the
Constitution; (2) the petition merits dismissal on the ground that there has
been gross delay in bringing the petition; and (3) the relief which has now
been claimed would be against the decision in Jaisinghani's case(4).
In order to appreciate the above contentions
and the other points raised before us, it is necessary to set out the relevant facts
Before Sept. 29, 1944, when the
re-organisation scheme was launched, the conditions of service and pay-scales
of Income tax officers were different and the method of recruitment was also
different in different Provinces. By letter dated 23-3-43, it was decided that
pending the constitution of Class I and Class II Service of Income tax
officers, the latter of which will include also officers hitherto called Asstt.
Income Tax officers, the existing grade of Asstt.
Income tax officers should be designated as
Income tax officers, Grade II. There was disparity not only in pay but also in
prospects and conditions of service. The Government, therefore, felt it
necessary to reorganise the entire service, and to create a Central service and
uniform pay-scales for different constituent grades. The main idea was to
create Class I cadre officers Service and to make selection to it from the
existing Class II officers. This re-organisation scheme was formulated in a
letter dated 29-9-44 from the Government of India, addressed to all
Commissioners of income tax. The Central Service Class I was to consist of
Commissioners of Income tax-(No. of posts 87 permanent and 1 temporary).
Assistant Commissioners of Income tax-(No. of posts 378-360 permanent and 18
temporary). Income tax officers Grade I : (No. of posts 151-125 permanent and
26 temporary). Income tax officers Grade II :
(No. of posts 183-125 permanent and 63
temporary). Class II was to consist of Income tax officers Grade III : (No. of
posts 83-9 permanent and 74 temporary).
Regarding Income tax officers Grade I Class I
Service it was stated that these officers will be appointed by selection from
(1) (1967] 2 S.C.R. 703.
701 Grade II which will come into being under
the new scheme and till the re-organisation is complete from the existing Grade
I of Income tax officers in Class II Service, Regarding Income tax officers
Grade II (Class I Service)-it was provided that2(d)-"Recruitment to Grade
II will be made partly 'by promotion and partly by direct recruitment. 80 per
cent of the vacancies arising in this Grade will be filled by direct
recruitment via the Indian Audit and Accounts and Allied Services Examination.
The remaining 20 per cent of vacancies will be filled by promotion on the basis
of selection from Grade HI (Class It Service) provided that suitable men up to
the number required are available for appointment. Any surplus vacancies which
cannot be filled by promotion for want of suitable candidates will be added to
the quota of vacancies to be filled by direct recruitment via the Indian Audit
and Accounts etc. Services Examination.
All direct appointment via the Indian Audit
and Accounts and Allied Service Examination to Grade II will, during the period
of the war, be subject to such general orders as have already been or may
hereafter be issued by the Government of India with a view to safeguarding the
interest of 'war service' X X candidates." It is necessary also to set out
Para 3 of the letter which is headed-General'"The new classification (in
so far as it relates to Income tax officers, Grade I and II) indicated in
paragraph I above will apply to officers who are recruited under the new scheme
including those who are selected from the existing Grade I Income-tax officers,
Class II Service. The present Grade I Income tax officers in Class II Service,
who are not thus selected, and the officers who will be appointed to this grade
before the introduction of the new scheme, will remain in Class II service.
This service of Income tax officers will be ultimately abolished as soon as
these officers leave their posts either by substantive promotion to Class I
Service or by retirement or through other causes and the Class II Service will
essentially consist only of Income tax officers, Grade Ill." We may at
this stage consider the question mooted at the Bar whether recruitment to the
Service under the scheme was to be confined only to direct recruitment through
the Examination 702 and promotion from Grade I Class II service. As we read this
scheme, it is quite clear that the intention was not to confine recruitment to
the Service through these sources because from Para 3 'General', which we have
reproduced above, it is quite evident that selections were to be made also from
the existing Grade I Income tax officers Class II Service. This method of
recruitment did not come within Para 2(d) of the Scheme set out above as it was
neither direct recruitment through combined competitive examination nor
promotion from Class II Grade III Service. Therefore, the statement in the
counter-affidavit of Mr. M. G. Thomas, Ministry of Finance, "Recruitment
to Grade II of Class I was to be made Partly by direct recruitment (through the
combined Competitive Examination as also selection from existing Grade I of
Class II Service) and partly by promotion on the basis of selection from Class
II (Grade III) Service", is quite correct. It is further stated that
"80% of the vacancies were to be filled by direct recruitment and the
remaining 20% were to be filled by promotion by selection from Class II (Grade
III) Service." It appears that selection from the existing Grade I of
Class II Service was treated as a form of direct recruitment within the quota
of 80% mentioned above. This constitution of the new Service was by an
executive order and there were no statutory rules governing the Service at this
stage. On 29-9-1944 the Government wrote to the Federil Public Service
Commission to approve of 100 officers considered suitable for selection to the
new Class I Service of Income tax officers (Grade 1). The Government also
requested the Commission to recruit for the Class 1, Grade II Income tax
Service 10 officers on the result of the competitive examination that will be
held in October 1944. Considering that there were 183 posts, permanent and
temporary to be filled in by Income tax officers Grade II, the number was
insignificant. The idea seems to have been to take the officers from existing
grade I of Class II as far as possible as they had experience and the direct recruits
would not be able to cope with the work for some years to come. On 26.5-1945.
the Government framed rules for recruitment to the Income tax officers (Class
1, grade II) service. These were conceded to be statutory rules in
Jaisinghani's case(1). In the opening paragraph, it was stated that these rules
were liable to alteration from year to year. Rules 3 and 4 read as follows
3. The services shall be recruited by the
following methods (i) By competitive examination held in India in accordance
with Part II of these Rules.
(ii) By promotion on the basis of selection
from Grade III (Class It Service) in accordance with Part III of these Rules.
(1) 2 C.R. 70-3.
4. Subject to tile provision of rule 3,
Government shall. determine the method or methods to be employed for the
purpose of filling any particular vacancies, or such vacancies as may require
to be tilled during any particular period, and the number of candidates to be
recruited by each method.
It is clear that this Service had already
been constituted by an Order. It is remarkable that Rule 3 did not mention the
third method of recruitment which was being followed at that time and which it
was intended to follow for some time.
It seems to us that the intention was that
these rules would come into effect fully only when the Service had been
completely re-organized, because otherwise we are unable to understand why the
third method of recruitment which was being followed, was not mentioned. It may
be that at that time sufficient number of men qualified under the other two
categories were, not available. The Government probably interpreted rule 4 to
mean that the recruitment by the methods mentioned in rule 3 was not exclusive,
and under rule 4 the Government could decide whether particular vacancies could
also be filled by selection from the existing Class II grade I service
officers. That this was the understanding both of the Government and the
Federal Public Service Commission, seems to be quite clear from the
correspondence which has been brought to our notice.
On 8th November 1945, the Governments wrote
to the Federal Public Commission that-"In a like manner, it is proposed to
continue promotions to the Grade II of Class I also for the next two or three
years from amongst those who were in service in the pre-existing Class II,
grade, 1, on the date of re-organisation even outside the 20% limit fixed for
such promotion in the orders regarding. Re organisation. The Government feel
that this will not interfere with direct recruitment via the examination. It is
presumed that the Commission will not have any objection to the proposals in
the immediately two preceding paragraphs........... This letter clearly shows
that the Government was recruiting officers to grade II of class I from the pre-existing
class II, grade 1, and they meant to continue this for the next two or three
years. The Federal Public Service Commission replied on 23-5-46 as follows
"With reference to paragraphs 8 and 9 of your letter dated the 8th
November 1945, 1 am to say that the Commission will have no objection if during
the next two or three years the names of a few more officers are put forward
for consideration for promotion to grades 704 I and II in Class I where special
circumstances seem to justify a course. They suggest, however, that this should
be exceptional." We may mention here that respondents 31 to 39 were
appointed as I.T.0s. Class 1, grade II in 1945, respondents II and 25 in 1946,
but the original date of appointment of respondent No. 25 is 1-6-1947. All the
petitioners were either appointed I.T.Os Class I Grade II in 1946 or 1947.
Respondents 6 to 10, 26, 27 and 28 were
appointed in 1947.
On 3-1-1947 the Government forwarded to the
Secretary Federal Public Service Commission the names of officers then
considered suitable for appointment to Class 1, Grades I and II. It was further
stated that there were a large number of temporary posts in each grade and it
may not be fair to limit promotions to the available permanent posts only as
that might result in a large number of temporary men who may 'be eligible for
higher scales of. pay being kept down.
In February 1949, in discussing the draft
scheme for regulating the seniority of Income tax officers, Class I on an
all-India basis, the Government explained that "there are still 51 old
Class II, Grade I officers, who have not yet been selected to Class 1, as
almost a II of them have been found unfit at three successive selections. As
technically they still continue to hold Class I posts and block promotions of
other deserving officers, It is proposed to make a final selection from them
and revert those who are not considered fit for retention in Class I to Class
II, grade III posts. These persons would be considered later for promotion to
Class I posts along with others against the 20% vacancies reserved for
departmental candidates." Thus, it appears that it was in 1949 that it was
decided that final selections were to be made from the remaining Class II grade
I officers by interviewing them to find their fitness for Class I Service.
Although the appointments, according to the
petitioners, were irregular, they do not challenge the validity of the
appointments but what they do challenge is the recognition of the date of
appointments for the purpose of seniority.
In other words, they say that we may treat an
officer having been, appointed as Class 1, grade II, validity but for the
purpose of seniority his appointment should be post-dated to a date when he
would have been appointed had the 'quota rule' mentioned in Para 2(d) of the
Scheme dated 29-9-1944, been fully implemented.
We may at this stage deal with this
particular question. It seems to us that apart from the above limited
concession, we 705 cannot at this time declare that the appointments were invalid
in any respect. Assuming that these appointments were made contrary to
statutory Rules, the petitioners are incompetent to challenge the validity of
these appointments for various reasons. Firstly, these appointments were pre constitution
appointments and they cannot be challenged in a petition under Art. 32 of the
Constitution. Secondly, there has been inordinate delay. A suit to challenge
the validity of the appointment would be hopelessly time-barred, and the
respondents have acquired various Fights since their appointments. Thirdly, in
Jaisinghani's case(1), this Court said that the order in that case" will
not affect such Class II officers who have been appointed permanently as
Assistant Commissioners of Income Tax." We will presently give our reasons
in detail for coming to this conclusion.
To resume the narrative, the petitioners
completed their probationary periods on different dates in 1949 and were
confirmed as I.T.Os Class 1, Grade II in 1949 and 1950, except petitioner No. 9
Shri D. N. Pande, who was confirmed on 22-12-1951. Most of the respondents had
already been confirmed on various dates in 1946, 1947 and 1948.
On 29-4-1949 a meeting of the Departmental
Promotion Committee took place and the Committee agreed that promotions to
Income tax officers Class I Service, of officers recruited in 1944 on the
results of the I.A. & A.S.
and Allied Services examination held in 1943,
and on other bases, should be given effect to from the 1st August 1948.
This decision affected respondents Nos. 12 to
24, 29 and 30.
On 14-6-49 representations were made by
direct recruits including petitioners Nos. 5, 6, 8, 10 and 12 and respondent
No. 28 (Shariff who is a petitioner in W.P. No. 242/67 under Art. 32),
regarding proposed Seniority Rules.
On 9-9-1949 Seniority Rules were framed and a
seniority list of Class 1, Grade II, Income tax officers, as on the 1st Jan.
1950, was drawn up 'and circulated by a letter dated 24-1-1950. It appears that
the seniority rules of 1949 had in the meantime been revised and a copy thereof
was enclosed with the above mentioned letter dated 24-1-1950. It was stated in
this letter that Government was prepared to consider any representation that
they may have to make in regard to the accuracy of the data contained therein,
up to the 28th February 1950, but no representation against the principles for
the determination of seniority will be entertained.
On 18-10-1951, the Government decided on the
recommendations of the U.P.S.C. and in modification of para 2(d) of the Finance
Department (Central Revenues) letter dated 29-91944, that for a period of five
years in the first instance, 66-2/3% of the vacancies in Class T,Grade II,
will, be filled by direct recruit(1)  2 S.C.R. 703.
706 ment via Combined Competitive Examination
and the remaining 33-1/3% by promotion on the basis of selection from Grade III
(Class II service). This order was held to be statutory by this Court in
On 1-1-1952 all the petitioners were promoted
Class 1, Grade 1, and confirmed also as such
on the same date. In February 1952, a committee met for four days to consider
the Rules governing the seniority of Income tax officers, Class 1, Grade II and
representations received against the draft seniority list. They made alterations
in the Seniority rules and in one of these meetings, it was decided :
"As regards the representations made by
some of this batch of direct recruits regarding the date of approval by the
Union Public Service Commission of the 1948 batch of promotees, the position is
that four of them (S. Nos. 67 to 70) were actually promoted on the
recommendations of the Departmental Promotion Committee held on 21-7-48.
Fifteen others (S.
Nos. 72 to 86) were promoted on the
recommendations of the Departmental Promotion Committee held on 29-4-1949, but
the records show that the meeting was originally convened for 6-9-48 and the
agenda etc. had been circulated in advance of this date. The meeting had,
however, to be postponed several times due to the personal inconvenience of the
Members of the U.P.S.C. and of the Central Board of Revenue. In these special
circumstances, it was considered that the proper thing would be to treat the
recommendations of this Departmental Promotion Committee as if it had actually
been held in Sept. 1948. The result is that both batches of promotees of 1948
will remain senior to the direct recruits from the 1945 Examination who joined
in 1946." In the serial Nos. 72-86 mentioned above, exist the names of the
present respondents 12-24 and respondents 29 and 30. It is contended before us
that this decision was arbitrary and not warranted by any rules or principles.
It is further contended that the decision was made in 1952 and therefore it is
liable to be challenged in a petition under Art. 32 of the Constitution.
On the material on record it is not possible
to say that this decision was actually taken in 1952 and not on 29-4-49 or
thereabout when The Departmental Promotion Committee met and the list was
prepared on 24th January 1950. The fact is that the seniority of the
respondents (Srl. Nos. 72 to 86) seems to have been fixed on the basis that the
Departmental Promotion Committee meeting took place on 6-9-1948.
 2 S.C.R. 703.
707 We may here reproduce the relevant
Seniority rules made in 1949, 1950 and 1952 :Rules regulating Seniority of
Class 1, Grade II, Income tax Officers.
Rule I (f), I (i) and I (ii) remain the same
in the three years and read thus (f) The seniority of direct recruits recruited
on the results of the examinations held by the U.P.S.C. in 1944, and subsequent
years shall be reckoned as follows :(i) Direct recruits of an earlier
examination shall rank above those recruited from a subsequent examination.
(ii) The Direct recruits of any one
examination shall rank inter se in accordance with the ranks obtained by them
at that examination.
There was a change in rule (iii), and the
three different versions are reproduced below As on 9-9-1949 :
(iii) The promotees who have been certified
by the Commission in any calendar year shall be senior to all direct recruits
who complete their probation during that year or after and are confirmed with
effect from a date in that year or after.
As on 24-1-1950 :
(iii) The promotees who have been certified
by the Commission in any calendar year shall be senior to all direct recruits
who complete their probation during that year or after and are confirmed with
effect from a date in that year or after.
Provided that a person initially recruited as
Class IT Income tax officer, but subsequently appointed to Class I on the
results of a competitive examination conducted by the Federal Public Service
Commission shall, if he has passed the departmental examination held before his
appointment to Class I Ser vice, be deemed to be a promotee for the purpose of
seniority. As on 5-9-1952 :
(iii) Officers promoted in accordance with
the recommendation of the Departmental Promotion Committee before the next
meeting of the Departmental Promotion Committee shall be senior 708 to all
direct recruits appointed on the results of the examinations held by the Union
Public Service Commission during the Calendar year in which the Departmental
Promotion Committee met and the three previous years.
On 1-8-53, a revised seniority list was
issued. In the meantime, the I.R.S. Association objected to the weightage
principles and suggested changes in it and also desired a revision of the
seniority list to correct the disadvantage due to excess promotions.
Various representations were made by
individual direct recruits as well as the Indian Revenue Service (Income tax)
Association. The case of the Government is that these representations were not
acceptable because in fact there were no excess promotion during the period
In 1955 and 1956, the petitioners were
promoted as Asstt. Commissioners on different dates. Representations continued
to be made in 1954, 1955, 1956, 1958, 1959. Not only were the representations
made but an interview with the Finance Minister also took place in 1960. In
spite of the Government rejecting the representations, fresh representations
continued to be made.
On 25-4-62 Jaisinghani filed a Writ Petition
in the High Court and the High Court delivered its judgment on 11-3-64.
Against this decision Jaisinghani filed an
appeal to this Court. A writ petition was filed by Joshi in the Supreme Court
and this Court delivered its judgment in Jaisinghani's Appeal and Joshi's Writ
Petition on 22-2-67, and the present Writ Petition was filed in July 1967.
It seems to us that there is force in the
preliminary points raised by the Attorney General, and it is not necessary to
decide the various points raised by the petitioners. It is settled law that the
Constitution has no retrospective operation.
In Pannalal Binjrai v. Union of India(1),
Bhagwati J. speaking for the Court says :
"It is settled that Art. 13 of the
Constitution has no retrospective effect and if, therefore, any action was
taken before the commencement of the provisions of any law which was a valid
law at the time when such action was taken, such action cannot be challenged
and the law under which such action was taken cannot be (1) 19571 SC R 33, 266
709 questioned as unconstitutional and void on the score of its infringing, the
fundamental rights enshrined in Part III of the Constitution (See Keshavan
Madhava Menon v. The State of Bombay)." The decision of this Court in
Shanti Sarup v. Union of India and Ors.(1) is distinguishable. In that case the
facts were that the Government of U.P. passed an order purporting to be u/S
3(f), U.P. Industrial Disputes Act. 1947, by which they appointed one of the
partners of the firm as 'authorised controller' of the undertaking. In 1952 the
Union of India passed an order purporting to be made under sec. 3(4), of
Essential Supplies (Temporary Powers) Act, 1946, by which the Central
Government appointed the same person, as an authorised controller under the
provisions of that section and directed him to run the said undertaking to the
exclusion of all the other partners. The petitioner before the court under Art.
32 contended that both the orders were illegal and conflicted with the
fundamental rights of the petitioner under Art. 13(1) of the Constitution. The
Attorney General appearing for the Central Government conceded before the Court
that the impugned orders did not come within the purview of and were not
warranted by the provisions of the Acts,under which they purported to have been
passed. The only point he took was that the petitioner could not come before
the Court tinder Art. 32 of the Constitution inasmuch as there was no
fundamental right in existence when the first order of the U.P. Government was
passed in July 1949 and no fresh act of dispossession had taken place since the
Constitution came into force. This Court repelled the contention observing that
in the first place, the order against which this petition was primarily
directed was the order of the Central Government passed in Oct. 1952 and
whether or not the earlier order of the U.P.
Government was formally withdrawn, it was
this later order upon which the respondent 3 based his right to retain
possession of the properties. Tile order of the Central Government must,
therefore, be deemed to have deprived the petitioner of his property within the
meaning of Art. 31 of the Constitution as construed by this Court. It was
further observed : "But even assuming that the deprivation took place
earlier and at a time when the Constitution had not come into force, the order
effecting the deprivation which (1) A.I.R. 1955 S.C. 624, 710 continued from
day to day must he held to have come into conflict with the fundamental rights
of the petitioner as soon as the Constitution came into force and became void
on and from that date under Art. 13(1) of the Constitution." It is this
passage which is strongly relied on by the learned Counsel for the petitioners.
In our view this passage has no application
to the facts of this case. In a number of subsequent decisions of this Court
the passage has been held to be applicable only to the facts in that case.
In Sri Jagadguru Nari Basava Rajendra Swami
of Gavimutt v. Commissioner of Hindu Religious Charitable Endowments,
Hyderabad,(1) Gajendragadkar C. J. observed thus regarding the aforesaid
passage "With respect, we are not prepared to hold that these observations
were intended to lay down an unqualified proposition of law that even if a
citizen was,' deprived of his fundamental rights by a valid scheme framed under
a valid law at a time when the Constitution was not in force, the mere fact
that such a scheme would continue to operate even after the 26th January 1950,
would expose it to the risk of having to face a challenge under Art.
19. If the broad and unqualified proposition
for which Mr. Sastri contends is accepted as true, then it would virtually make
the material provisions of the Constitution in respect of fundamental rights
retrospective in operation." In Kuru Datta Sharma v. State of Bihar (2)
Shanti Sarup's case(3) was distinguished in the following words "We are
unable to construe these observations as affording, any assistance to the
We have held that the legislation under which
the appellant's rights were extinguished, subject to his claim for compensation,
was a valid law. It would therefore follow that the appellant could have no
rights which could survive the Constitution so as to enable him to invoke the
protection of Part III thereof." (1)  8 S.C.R. 252. (2)  2
(3) A.I.R. 1961 S.C. 624.
711 It seems to us that the petitioners
cannot complain of the breach of Arts. 14 and 16 of the Constitution in respect
of acts done before the Constitution came into force. These acts in this case
were (1) appointments of the respondents to Income Tax officers Class I, Grade
II Service; (2) Seniority List as existing on 1-1-1950; and (3) the Seniority
Rules of 1949 and 1950, in so far as they had effect up to January 26, 1950. It
will be recalled that first seniority list was prepared as on January 1, 1950
and even if the seniority list was finally settled after the Constitution came
into force, the Rules to be applied were the Seniority rules of 1949 and 1950.
In other words, if the list had been finally settled on January 1, 1950, it is
clear that no appeal could be made to Arts. 14 and 16 of the Constitution. The
fact that the List was prepared after the Constitution came into force would
not enable the petitioners to appeal to Arts. 14 and 16. The position is,
however, different in so far as changes were made in the Seniority List as a
result of change in the 1952 Seniority Rules. These changes were
post-constitution and if they are hit by Art. 14 and Art. 16 of the
Constitution, the petitioners would have the right to complain of the breach of
their fundamental rights under these Articles.
But in so far as the attackis based on the
1952 Seniority rules, it must fail on another around. The ground being that
this petition under Art. 32 of the Constitution has been brought about 15 years
after the 1952 Rules were promulgated and effect given to them in the Seniority
List prepared on August 1, 1953. Learned Counsel for the petitioners says that
this Court has no discretion and cannot dismiss the petition under Art. 32 on
the ground that it has been brought after inordinate delay. We are unable to
accept this contention. This Court by majority in M/s.
Tirlokchand Moti Chand's case(1) held that
delay can be fatal in certain circumstances. We may mention that in Laxmanappa
Hanumantappa Jamkhandi v. The Union of India & Anr. (2), Mahajan, C. J.
observed as follows :"From the facts stated above it is plain that the
proceedings taken under the impugned Act XXX of 1947 concluded so far as the
Investigation Commission is concerned in September 1952, more than two years
before this petition was presented in this Court.
The assessment orders under the Income tax
Act itself were made against the petitioner in November 1953.
In these circumstances, we are of the opinion
that he is entitled to no relief under the provisions of Art. 32 of the
Constitution. It was held by this Court in Ramjilal v. Income tax Officer,
Mohindergarh that as (1)  S.C, Cases 110.
(2)  S.C.R. 769 712 there is a special
provision in Art. 265 of the Constitution that no tax shall be levied or
collected except by authority of law, clause (1) of Art. 31 must therefore be
regarded as concerned with deprivation of property otherwise than by the
imposition or collection of tax, and inasmuch as the right conferred by Art.
265 is not a right conferred by Part III of the Constitution, it could not be
enforced under Art. 32. In view of this decision it has to be held that the
petition under Art. 32 is not maintainable in the, situation that has arisen
and that even otherwise in the peculiar circumstances that have arisen, it
would not be just and proper to direct the issue of any of the writs the issue
of which is discretionary with this Court." (emphasis supplied).
The learned Counsel for the petitioners
strongly urges that the decision of this Court in M/s. Tilokchand Motichand's
case(1) needs review. But after carefully considering the matter, we are of the
view that no relief should be given to petitioners who, without any reasonable
explanation, approach this Court under Art. 32 of the Constitution after
inordinate delay. The highest Court in this land has been given Original
Jurisdiction to entertain petitions under Art. 32 of the Constitution. It could
not have been the intention that this Court would go into stale demands after a
lapse of years.
It is said that Art. 32 is itself a
guaranteed right. So it is, but it does not follow from this that it was the
intention of the Constitution makers that this Court should discard all
principles and grant relief in petitions filed after inordinate delay.
We are not anxious to throw out petitions on
this ground, but we must administer justice in accordance with law and
principles of equity, justice and good conscience. It would be unjust to
,deprive the respondents 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. It was on this ground that this Court in-Jaisinghani's case (
2 ) observed that the order in-that case would not affect Class II officers who
have been appointed permanently as Assistant Commissioners. In that case, the
Court was only considering the challenge to appointments and promotions made after
1950. In this case, we are asked to consider the validity of appointments and
promotions made during the periods of 1945 to 1950. If there was adequate
reason in that case to leave out Class II officers, who had been appointed
permanently Assistant Commissioners, there is much more reason in this case
that the officers who are (1)  SC Cases 110.
(2)  2 S.C.R. 703.
713 now permanent Assistant Commissioners of
Income tax and who were appointed and promoted to their original posts during
1945 to 1950, should be left alone.
Learned Counsel for the petitioners, however,
says that there has been no undue delay. He says that the representations were
being received by the Government all the time. But there is a limit to the time
which can be considered reasonable for making representations. If the
Government has turned down one representation, the making of another
representation on similar lines would not enable the petitioners to explain the
delay. Learned Counsel for the petitioners says that the petitioners were under
the impression that the Departmental Promotion Committee had held a meeting in
1948 and not on April 29, 1949, and the real true facts came to be known in
1961, when the Government mentioned these facts in their letter dated December
28, 1961. We are unable to accept this explanation. This fact has been
mentioned in the minutes of the meeting of the Committee which met in Feb. 1952
and we are unable to believe that the petitioners did not come to know all
these facts till 1961. But even assuming that the petitioners came to know all
these facts only in Dec. 1961, even then there has been inordinate delay in
presenting the present petition. The fact that Jaisinghani's case(1) was
pending before the High Court and later in this Court is also, no excuse for
the delay in resenting the present petition. In the result, the petition fails
and is dismissed. There will be no order as to costs.
G.C. Petition dismissed.
(1)  2 S.C.R. 703.