Bishan Sarup Gupta Vs. Union of India
& Ors [1974] INSC 96 (16 April 1974)
PALEKAR, D.G.
PALEKAR, D.G.
RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN
ALAGIRISWAMI, A.
BHAGWATI, P.N.
CITATION: 1974 AIR 1618 1975 SCR (1) 104 1975
SCC (3) 116
CITATOR INFO :
E 1977 SC 251 (34,36,38,39) RF 1977 SC 757
(4,38,40,56) D 1977 SC2051 (41) R 1980 SC 452 (48) RF 1980 SC2056 (73) R 1982
SC 101 (32) F 1982 SC1244 (13) D 1983 SC 769 (22,31,38) R 1984 SC1291 (13,19) E
1984 SC1527 (12) R 1984 SC1595 (24) D 1985 SC1019 (24) RF 1985 SC1558 (26) D
1988 SC 268 (26) RF 1990 SC1106 (8) D 1990 SC1607 (26) E&F 1991 SC 212
(1,2,3)
ACT:
Income-tax Officers (Class I) Service
(Regulation of Seniority Rules 1973--Whether violative of Art. 16 of the
Constitution--if the Rules are just and fair.
HEADNOTE:
The above appeals were disposed of by this
Court on 16-8-72.
The court set aside the seniority list
prepared by the Department on 15-7-68 and save directions as to how the same
was to be prepared. This Court held that the Government's decision to promote a
large number of Income Tax Officers from Class II to Class I infringed the
quota rule which save 66-1/2 of the posts to the direct recruits and 331% of
the posts to the promoters and therefore, the quota rule collapsed and it was
for the Government to devise a just and fair seniority rule as between the
direct recruits and the promoters for being given effect to from 16-1-1959. It
followed from the judgment that the Government will prepare the seniority list
from 1951 to 15-1-1959 in accordance with the quota rule of 1952 r/w the
seniority rule 1(f) (iii).
The seniority list from 16-1-1959 will be
prepared in accordance with the rule to be freshly made by the Government in
that behalf.
Accordingly on February 9, 1973 the President
under the proviso to Art. 309 of the Constitution, made rules called the
Income-tax Officers (Class 1) Service (Regulation of Seniority) Rules 1973,
which were to come into force from 16-1-1959. Rule 3 which provided for
seniority of officers was that seniority among the promoters Inter se shall be
determined In the order of selection for such promotion.
The seniority among the direct recruits inter
se shall be determined by the order of merit in which they are selected and the
relative seniority among the promoters and the direct recruits shall be in the
ratio 1 : 1 and shall be regulated in accordance with a roster maintained for
the purpose etc.
When the present seniority list was prepared
Government had on its hands 73 promotees (Spill-over) who, though appointed
earlier between 1956-1958, had no quota posts for their absorption. Therefore,
the Government had to Prepare a new seniority list not only as regards the
officers who were absorbed in the service before 15-1-1959 but all officers
including these spill-overs, appointed after 15-1-1959. The seniority list from
serial No. 1 to serial No. 485 (who were appointed prior to 15-1-1959) has been
prepared in accordance with the quota system and serial No. 486 to 1717 related
to officers who have to be accommodated from 16-11959 in accordance with the
new Seniority Rule. Since under Rule 3(iii), the promotee must come first, and
then the direct recruit, serial No. 486 went to the promotee and serial No. 487
went to a direct recruit and so on.
The contention of 73 spill-over promotees of
16-1-1959 was that since this Court had directed that they should be absorbed
on a "priority basis", all of them should have been shown in the
Seniority List, as having been appointed on 161-1959 in a block and thereafter
the direct recruits for that year should have been shown.
It was further contended that as the quota
rule expired on 16-1-1959, the promotees must be deemed to have been validly
appointed in accordance with rule 4 of the Income-tax Officers (Class I) Grade
11 Service Recruitment Rules 1945 and since there remained in existence, no
seniority or quota rule determining their seniority vis-a-vis the direct
recruits, their natural seniority of earlier appointment cannot retrospectively
be altered to their detriment, and to do so would be violative of Article 16 of
the Constitution.
Dismissing the petitions and holding that the
new seniority list is the correct seniority list.
105
HELD : (1) It is true that this Court had
directed that the aforesaid 73 promotees should be absorbed on a "priority
basis". That only meant that their position as seniors should not be
prejudiced by any possible claim by later promotees, on the ground that being
recruited outside the quota, they had higher rights than these 73 promotees who
had no posts. It was not intended that these 73 promotees should not be
governed by any seniority rule. They were to be governed by a rule which
covered all those who came or were deemed to have come into the cadre after
15-1-1959.
[109D-E] (2) The new Rules are not violative
of Art. 16 of the Constitution. When the 73 spill-over appointments were made,
there were no allocated posts to which the appointments could have been validly
made. On 16-1-1959, there were no posts earmarked for them, the ordinary
consequence of which would be to revert them to their original class II posts
unless class I posts were regularly found for them. When the quota rule was no
longer in existence there was no possibility of regularizing the appointments.
It is, therefore, clear that the in fir city in the appointments continued on
16-1-1959 and that infirmity could not be overcome except by a new rule. It is
not correct to say that this infirmity disappeared with the disappearance of
the quota rule. The spill-over promotees claim seniority from 16-1-1959 and the
other promotees claim from some date between 1959 and 1962, when they were
promoted, but this claim is untenable because all these officers were told when
promoted that their appointments were on an officiating or ad hoc basis and the
question of their seniority had not been determined. Therefore, they cannot
contend that their dates of appointment in class I will not be altered for the
purposes of determining seniority. There is no question in this case of any
discrimination being made in a service after officers from two sources have
been brought and absorbed in one cadre.
The problem here is of integrating officers
from two sources into one service by adjusting their seniority inter se.
[111G-112B, E; 113A-G; 114B-D; 115A-C] Mervyn
Coutinho & Ors. V. Collector of Customs Bombay & Ors. [1966] (3) SCR
600 Roshan Lal. v. Union of India [1968] 1 S.C.R. 185 and S. M. Pandit &
Ors. v. State of Gujarat A.I.R. 1972 S.C. 252 discussed and distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 2060 of 1971, 67, 139 and 393 of 1972.
From the Judgment and Order dated the 22nd
September, 1970 and 25th March, 1971 of the Delhi High Court at New Delhi in
Civil Writ Nos. 196 and 550 of 1970 respectively and WRIT PETITION No. 287 of
1973.
Under Article 32 of the Constitution of India
for the enforcement of fundamental rights.
V. M. Tarkunde, K. K. Singhvi, Yogeshwar
Prasad, S. K. Bagga and S. Bagga for the appellant (In CA 2060/71).
Niren De, Attorney General of India, F. S.
Nariman, Additional Solicitor General of India R. H. Dhebar. R. M. Mehta and S.
P. Navar for the appellants (In CA 67/72) and for Respondent Nos. 1-3. (In CA
2060/71) and for Respondents Nos. 1-2 (In CA 139/72) and for Respondents Nos.
2-5 (In CA 393/72) and for Respondents Nos.
1-1 (IN WP 287/73).
106 G. L. Sanghi, Bishambar Lal, P. V. Kapur
and S. C. Patel for the appellant (in CA 139/72).
K. K. Singhvi, Yogeshwar Prasad, S. K. Bagga
and S. Bagga for the Appellants (In CA 393/72) and for Respondents Nos.
18, 20, 29, 43, 46. and 58 (In CA 67/72) and
for Respondents Nos. 22, 30, 47, 50 and 62 (In CA 139/72).
M. C. Setalvad, G. L. Sanghi, Bishamber Lal,
P. V. Kapurand S. C. Patel for Respondents Nos. 25, 28, 29, 43, 50, 57 and 74
(In CA 2060/71).
R. K. Garg, S. C. Agarwal and V. J. Francis
for Respondent No. 86 (In CA 2060/71).
S. K. Acharya and Somnath Chatterjee, J. N.
Haldar, B. P.Maheshwari and Suresh Sethi for the Petitioner in (WP 287/73).
Y. S. Desai, G. L. Sanghi, Bishamber Lal, P.
V. Kapur and S. C. Patel for Respondent No. 1 (In CA 67/72).
B. R. Agarwala for Respondent No. 13 (In-CA
67/72) and for Respondent No. 17 (In CA 393/72).
J. R. Nanavati, S. K. Dholakia and R. C.
Bhatia Advocates for Intervener Nos. 1, 4 & 5.
S. K. Bagga and S. Bagga for Intervener No.
2. Intervener No. 3 appeared in person.
The Judgment of the Court was delivered byPALEKAR,
J.-The above appeals were disposed of by this Court on 16-8-1972. The court set
aside the seniority list prepared by the Department on 15-7-1968 and gave
directions as to how the same was to be prepared. The principal point which was
decided in these appeals related to the validity of the quota rule and the
seniority rule in their operation after 15-1-1959. This Court held that on
Government's decision to Promote a large number of Income-tax Officers from
Class 11 to Class 1, the quota rule which gave 66-1/2% of the posts to the
direct recruits and 33-1/2% of the posts to the promoters collapsed and with
the collapse of that quota rule, the sonority rule which gave weighty to the
promotees of 2 to 3 years also broke downThe court observed, "Since the
old seniority rule has ceased to operate by reason of the infringement of the
quota rule it will be for the Government to devise, if necessary in
consultation with the Union Public Service Commission, a just and fair
seniority rule as between the direct recruits and the promotees for being given
effect to from 16-1-1959.
It follows, therefore, that the seniority
list of 15-7 1968 will have to be set aside and the department will have to
prepare a fresh seniority list in the light of the observations made in this
judgment. Broadly sneaking the seniority list from 1951 to 15-1-1959 will be
prepared in accordance with the quota rule of 1951 r/w the seniority rule
1(f)(iii). The seniority list from 107 16-1-1959 will be prepared in accordance
with the rule to be freshly made by the Government in that behalf." It was
further directed as follows :
As already shown, these proceedings before us
arise out of the mandamus issued by this Court in Jaisinghani's case.
The seniority list was prepared by the
Government in pursuance of the mandamus. We have found that the seniority list
is not correct and will have to be prepared afresh in accordance with the
directions and observations made in this judgment. The demand made by the
officers for the implementation of the mandamus is still unfulfilled and it can
be achieved only after the Government files a proper list of seniority. These
proceedings, therefore, will have to be kept pending till such a seniority list
is prepared and filed in court. The respondents namely the Union of India, the
Ministry of Finance and the Central Board of Direct Taxes are, therefore,
directed to prepare a fresh seniority list and file it in court. It will be appreciated
that this dispute regarding seniority is pending before, the court for several
years and it is very essential that it should be resolved without further
delay. We are, therefore, of the view that the respondents charged with the
preparation of the fresh list shall prepare it and file it in court within six
months from the date of this order. After the same is filed, liberty to apply
is given to the parties to the proceedings." Accordingly on February 9,
1973 the President under the proviso to Article 309 of the Constitution made
rules called the Income-tax Officers (Class I) Service (Regulation of
Seniority) Rules, 1973 to come into force from 16-1-1959.
Rule 3 which is referred to hereinafter as
the new seniority rule is as follows "3, Seniority of officers-The
seniority of the Income-tax Officers in the Class I service shall be regulated
as from the date of commencement of these rules in accordance with the
provisions hereinafter contained namely (i) the seniority among the promotees
inter se shall be determined in the order of selection for such promotion and
the officers promoted as a result of any earlier selection shall rank, senior
to those selected as a result of any subsequent selection;
(ii) the seniority among the direct recruits
inter se shall be determined by the order of merit in which they are selected
for such appointment by the Union Public Service Commission and any person
appointed as a result of an earlier selection shall rank senior to all other
persons appointed as a result of any subsequent selection; and (iii) the
relative seniority among the promotees and the direct recruits hall be in the
ratio of 1 : 1 and the same shall be so determined and regulated in accordance
with a roster maintained for the purpose, which shall follow the following
sequence, namely :108 (a) promotee;
(b) direct recruit;
(c) promotee;
(d) direct recruits; and so on." Having
framed the above rule to regulate the seniority of the officers, in
supersession of any other rule which was in force for the time being, the
department prepared the seniority list in accordance with the directions given
in the judgment and filed it in court on February 15, 1973. It is not disputed
that the directions given in the judgment have been followed with regard to the
fixation of seniority till 15-1-1959. It is also not disputed that if the new
seniority rule referred to above is a valid rule, then the rest of the
seniority list which comes down to serial No.
1717 is also correct. The principal objection
is to the validity of the new rule. It is challenged not only as unjust and
unfair but also as violative of the promotees' fundamental right under Article
16 of the Constitution.
It is necessary to recall that in the 1950's
there were several years when the promotees were appointed to posts which were
in excess of their quota. Though the appointments were irregular when made,
they were regularised in later years when posts from their quota became
available for them. But when this Court held on 16-8-1972 that the old quota
Rule had collapsed on 16-1-1959, a new situation arose rendering further
regularization impossible, in the absence of any quota rule allocating the
posts between the direct recruits and the, promotees. Therefore when the
present seniority, list was prepared, Government had on its hands 73 promotees
who, though appointed earlier between 19561958, had no quota posts for their
absorption. On 16-11959 the 73 promotees, who are described as 'spill-overs' on
16-1-1959, as also subsequent promotees had to be absorbed in the service and
this could only be done by a special rule framed in this behalf..
Since it was anticipated that there would be
a spillover like this, the department had been directed that these officers
must be absorbed on a 'priority basis'. The Government, therefore prepared a
new seniority list not only as regards the officers who were absorbed in the
service before 15-1-1959, but all officers, including these spillovers,
appointed after 15-1-1959. The method adopted is simple enough. The seniority
list from serial No. 1 to serial No. 485 relating to the period prior to
16-1-1959 i.e. to say, from 1951 onwards, has been prepared in accordance with
the quota rule r/w the seniority rule which prevailed till then. Serial Nos.
486 to 1717 relate to officers who have to be accommodated from 16-1-1959 in
accordance with the new seniority rule. Since under rule 3(iii) the promotee
must come first and then the direct recruit, serial No. 486 goes to a promotes
and serial No.
487 goes to a direct recruit and so on. All
the promotees who come below serial No. 485 are either out of the 109
spillovers of 16-1-1959 or those who have been appointed by promotion later.
That is how the, new seniority list is prepared. The Government had been
directed to make a new rule. The seniority rule referred to is the new rule.
Its wording is not happy. But by mentioning a ratio of 1 : 1 and directing that
the seniority would be in accordance with the roster maintained in a particular
sequence of promotees and direct recruits, the Government has notionally
allocated the posts bearing even serial numbers to the promotees and odd serial
numbers to the direct recruits. In other words, the new seniority rule not only
permits, the absorption of all promotees from 16-1-1959 into posts allocated to
them but also determines their seniority not only between themselves but also
in relation to the direct recruits appointed from 1959 onwards.
The contention on behalf of the 73 spillover
promotees of 16-1-1959 is that since this Court had directed that they should
be absorbed on a "priority basis", all of them should have been shown
in the seniority list as having been appointed on 16-1-1959 in a block and
thereafter the direct recruits for that year should have been shown. It is true
that this Court had directed that these promotees should be absorbed on a
"priority basis". That only meant that their position as senior
should not be prejudiced by any possible claim by later promotees, on the
ground, that being recruited outside the quota, they had higher rights than
those 73 promotees who had no posts, It was not intended that these 73 should
not be governed by any seniority rule.
They were to be governed by a rule which
covered all those who came or were deemed to have come into the cadre after 15-1-1959.
It was faintly argued that at least 10 out of
these 73 spill-overs should have been accommodated in the period prior to
16-1-1959 on the ground that this would have amounted, in the language of the
judgment, to a "slight deviation" from the quota rule. It is true
that this Court had observed that the Government was entitled between 1956 and
16th January, 1959 to follow the quota rule as a rouogh guideline and that a
slight deviation from the quota would not be material. That observation,
however, applied to a situation when the Government deliberately made an
appointment in a stray post intending it to be allocated to a promotee, in
spite of its being not strictly consistent with the guideline of the quota
rule. That is not the position in the present case. Government went on making
appointments knowing that the promotees had no posts out of their quota and it
only hoped to regularize them when posts were available. Therefore, when the
department was directed to prepare the seniority list from 1956 to January 15,
1959 in accordance with the quota rule of 1951 r/w the seniority Rule I (f)
(iii), the Government could not possibly say that 10 promotees out of these 73
had been. deliberately appointed by it to these posts intending the same to go
to the promotees in spite of their falling outside the quota.
The 10 promotees besides the remaining 63
became spill-overs on 16-1-1959, as they could not be absorbed in any quota
posts available to them till 15-1-1959.
110 it was next contended that as the quota
rule expired on 16-1-1959, the promotees who comprised this spill-over as also
those who were promoted thereafter must be deemed to have been validly
appointed in accordance with rule 4 of the income-tax Officers (Class 1) Grade
if Service Recruitment Rules, 1945, and since there remained in existence no
seniority or quota rule determining their seniority vis-avis. the direct
recruits,' their natural seniority of earlier appointment cannot
retrospectively be altered to their detriment, and to do so would be violative
of Article 16 of the Constitution. That is the principal contention on behalf
of the promotees in this case.
It is necessary to clearly understand the
implications of our decision in which we had held that both the quota rule and
the seniority rule had broken down on 16-1-1959. The cadre from the very
beginning (1945) was a cadre, recruitment to which was prescribed from two
sources. The vacant posts were directed to be allotted to direct recruits and
promotees in a 'particular ratio and seniority was regulated inter se by rules
framed later. Some principle of allocating posts and some principle of
determining relative seniority were inevitable in the context of the
constitution of the cadre, and Government did not and could not have abandoned these
principles in the matter of recruitment.
The quota rule allocated the posts. Between
the two sources and the seniority rule regulated the seniority vis-a-vis the
direct recruits and the promotees. Indeed there was nothing special about it.
In any service where recruitment from several sources, there is bound to be
some method of allocation ,of posts between the several sources coupled with a
rule to determine seniority amongst the candidates recruited from those
sources. In fact a rule for regulating allocation of posts and to determine
seniority amongst the officers in a sine-qua-non of every well-regulated
service to which direct recruits and promotees are appointed. The Government
was fully aware of this binding nature of the principles in the matter of
recruitment and, therefore, when it made promotee appointments knowingly in
excess of the quota available to them, it calculated that these appointments
were liable to be regularized in subsequent years when quota vacancies were
available to the promotees.
That is why when promotee appointments were
made from 1957 onwards, they were made on an officiating basis, and every
promotee was informed that the question as to how his seniority amongst the
officers would ultimately be decided was still under consideration. In the
meantime, however, our decision, which held that both the quota, rule and the
seniority rule had collapsed on 16.1.1959, left a void in which neither
promotees nor direct recruits could identify any posts as having been allocated
to them. The 73 spillover had no allocated posts. We do not mean to say that
there were no posts at all. The point is that these 73 promotees bad no
allocated posts. Since, as already pointed out, the service was constituted on
the principle that vacancies have to be allocated between the two sources and
seniority fixed thereafter, the void created by our decision had necessarily to
be filled right from 16-1-1959 by making a rule which not merely allocated
posts between the direct recruits and the promotees but also ,determined inter
se seniority. As a matter of fact this was envisaged 111 by all parties to this
litigation as is clear from the following passage in para 25 of the judgment
"Several suggestions were made with a view to persuade us that some fair
and just seniority rule may be evolved. One of them was that the quota rule may
still hold the field and that. those who came in by promotion to the upgraded
posts may be ranked lower in seniority to the direct recruit who had finished
his probation in that year. A second suggestion was the one put forward by the
Government in the letter dated 17-2-1960 to the Union Public Service Commission
wherein a package deal was suggested. The seniority rule, as it stood, was to
go and in its place the seniority rule should be that promoted officers in any
calendar year should be senior to the direct recruits appointed that year only.
Having made that concession in favour of the direct recruits in response to
their demand, it was suggested that the quota of departmental promotees should
be raised from 33-1/3 to 50%. In other words, there was a package deal whereby
every year the appointments should be divided equally between direct recruits
and promotees and the promotees being already in the department should be given
seniority over the new direct recruits." Although the parties had made
these suggestions, this Court declined to accept the responsibility and
observed : "We do not think that we shall be justified in expressing our
opinion as to how inter se seniority is to be fixed after 15-1-1959. Since the
old seniority rule has ceased to operate by reason of the infringement of the
quota rule it will be for the Government to devise, if necessary in
consultation with the Union Public Service Commission, a just and fair seniority
rule as between the direct recruits and the promotees for being given effect to
form 16-1-1959." The new seniority rule is the direct outcome of not only
our judgment but also of the very principles on which the service had been
constituted. The new seniority rule, therefore, was a substitute rule very
necessary from the point of view of the constitution of the service for
maintaining its continuity as a well-regulated cadre. When the old quota rule
and the seniority rule broke down on 16-1-1959, their place was taken by the
new rule which while regulating seniority between the promotees and the direct
recruits also nationally allocated alternate posts in accordance with the
roster.
The contention of the promotees is that their
appointments having been liberated from the limitation of the quota rule must
be regarded as validly made under rule 4 of the Recruitment Rules and
consequently the dates of their appointments should be regarded as determining
their seniority vis-a-vis the direct recruits. This submission does not bear
scrutiny. When the 73 spill-over appointments had been made, there were no
allocated posts to which the appointments could have been validly made. On
16-1-1959 there were no posts earmarked for them, the ordinary consequence of which
would be that they would have had to revert to their original class II posts
unless class I posts were regularly found for them. When the quota rule was in
existence, these appointments, though invalid when made, were liable to be
regularised in subsequent years when posts were found for them as a consequence
of the quota rule. But once the quota rule ceased to exist on 16-1-1959, 112
there was no possibility of regularising the appointments unless a new rule was
framed to make such posts available to them. It is, therefore, clear that the,
infirmity in the appointments continued on 16-1-1959 and that infirmity could
not be overcome except by a new rule which made some posts available. It is not
correct to think that this infirmity disappeared with the disappearance of the
quota rule. The disappearance of the quota rule did not automatically
regularise an appointment which was initially invalid. The promotees continued
in the cadre because it was thought by Government that their appointments may
be regularised under the quota rule which, in its opinion, was operative.. The
214 officers also who were promoted from 1959 to 1962 after upgrading an equal
number of class 11 posts could not possibly claim better treatment than the 73
spill-overs who were their seniors. At one time an attempt had been made by the
officers of the department to rationalize these appointments as appointments
'outside the quota'. But that was a misconception. The cadres was one regulated
by rules and there could be no valid appointments outside the quota as shown in
Jaisinghani's case. (See : [1967] (2) S.C.R. 703 at 718). This was soon
realised and hence in an endeavour to maintain the quota ratio the department
decided not to make any promotions in the years 1963, 1965 and 1967 to 1970 so
that the officers who had been already promoted could be absorbed in their
quota. But since this Court held in 1972 that the quota rule had ceased to
exist on 16-11959 it must follow that the appointments were continued
irregularly in the absence of a regularising Rule. The rule now challenged in
just the rule which makes posts available right from 16-1-1959. Apart from the
fact that all the promotees from 16-1-1959 onwards had been appointed on an
officiating or ad hoc basis with notice that the question of their seniority
was still undecided, the appointments carried their own infirmity as irregular
appointments, and hence in the absence of clear allocation of posts, they could
hardly lay claim to any seniority and object that their natural seniority had
undergone an unwarranted change in violation of Article 16.
It is true that this Court held that quota
rule had ceased to exist but that does not mean that having regard to its
constitution, the service could continue to function without a substitute rule
in its place. The constitution of the service required allocation of posts to
direct recruits and promotees. The Government was throughout making appointments
from both sources trying as far as it could to maintain a certain ratio between
the two sources. Such allocation was implicit in the constitution of the
service itself. When Government decided to recruit promotees on a very large
scale on 16-1-1959 it was unconscious of the consequences of its action. Had it
known then, as it does now, that the quota rule would cease to exist it would
have, of necessity; framed a substitute rule for allocating posts between the
two sources because the constitution of the service coupled with its own
decision to continue to recruit from both sources would not have tolerated a
void in the allocation of posts. By framing the new seniority rule, following
the direction of this Court, it is doing no more than what it would have itself
done on 16-1-1959 to preserve continuity in the allocation of posts to the two
sources so that irregularities, if any, in the 113 prior appointments could be
regularised. And since it is.
clear that the new rule must be read as if it
was made on 16-1-1959 in substitution of the old rules, the appointees after
that date e.g. the 214 promotees would be governed by the rule. The 73
spill-over promotees would have at least some excuse for complaint because
their actual appointments had been made prior to 16-1-1959. But, as already
noticed, it is the new seniority rule which saves them from reversion and,
therefore, they are as much bound by it as the promotees appointed after
16-1-1959. The present rule, it may be repeated, is a composite rule which
besides nationally allocating posts between the two sources determines
seniority in accordance with the roster. After all but 73 spill-over promotees
were given available posts _prior to 16-1-1959, the unallocated posts from
serial no.
486 onwards were allocated to promotees and
direct recruits alternately. The spill-over of 73 promotees was thus absorbed
against even serial numbers alternately with the direct recruits who were
allotted odd serial numbers. That is how the whole list of seniority stands
today. In these circumstances we don't see on what grounds the promotees before
us can challenge the new seniority rule as violative of Article 16.
The argument based on Article 16 proceeded on
the assumption that the spill-over promotees of 16-1-1959 and the officers
promoted thereafter were entitled to claim seniority from the date of their
appointment. The spill-over promotees claim 16-1-1959 as the date of
appointment and the other promotees claim some date between 1959 and 1962 when
they were promoted. It is on this assumption that they are entitled to get
these dates as the dates to determine their seniority that the whole submission
under Article 16 is based.
It is necessary to remember, however, in this
connection that all these officers hail been told when promoted that their
appointments were on an officiating or ad hoc basis and the question of their
seniority had not been determined.
It was thereby implied that orders about
seniority could only be passed after the department was in a position to take a
decision with regard to the inter se seniority between the promotees and the
direct recruits. That being the situation of all these officers they could
hardly contend that the dates of appointment will not be altered for the
purposes of determining seniority. Where recruitment is made from one source,
there is some ground for the contention that an officer promoted earlier should
be regarded as senior to an officer recruited later. But other considerations
come in when recruitment is made from several sources and it may become
necessary in the public interest to frame a Rule of seniority to adjust inter
se seniority on a basis other than the normal. In such cases, dates other than
the dates of appointment may determine the seniority inter se. As a matter of
fact, we have found in the case of these Income-tax officers themselves that
since the very beginning when the cadre was constituted the dates of
appointment did not determine seniority. Promotees were given seniority not
only over the direct recruits appointed in that year but also over those who
had been appointed in the two 'previous years. This led to discontent between
the two wings of the Income-tax Service and the Government was seriously
thinking how best to remove it since about 1957.
In 1960 the Government suggested to the Union
Public Service Commission that it would 9-131 Sup-CI/75 114 like to suggest a
package deal by which the ratio of recruitment be increased to 50 : 50 in
favour of the promotees in consideration of which the weightage given to them
in seniority as against direct recruits, may be abolished. The Public Service
Commission did not agree to this and hence the problem remained unsolved. That
was the reason why all promotee appointments had been made on an officiating
basis with a warning that the promotees' seniority in the promoted cadre was
undetermined. The promotees, therefore, were not entitled to assume that their
date of appointment in class I would be the date for counting seniority.
There is no question in this case of any
discrimination being made in a service after officers from two sources have
been brought in one cadre. It is true that seniority is a vital element in the
matter of promotion but that does not mean that allotment of seniority by rule,
relative to circuitment, involves any classification for the purposes of
promotion. The argument that the promotees and direct recruits became one class
immediately on entry and, thereafter, there could be no classification between
them does not disclose the correct approach to the problem of fixing inter se
seniority between them. When recruits from two sources have come into a service
it is essential to fix inter se seniority for a proper integration of the
cadre.
Therefore, it is really a case of adjustment
of seniority between the recruits and does not amount to making a
classification after their absorption in one service. The cases on which
reliance was placed on behalf of the promotees are quite inapplicable. In
Mervyn Coutinho & Ors.
v. Collector of Customs, Bombay & Ors(1)
the point was whether Appraisers promoted to the grade of Principal Appraisers
could be discriminated in the matter of seniority in the grade of Principal
Appraisers on the ground that they had entered the grade of Appraisers as
either promotees or direct recruits. The Customs department sought to carry
their birth marks into the grade of the Principal Appraisers and determine
their seniority accordingly. This Court disallowed it pointing out that once
officers from two sources came into one integrated grade, viz. the grade of
Appraisers, their seniority in the grade of Principal Appraisers was to be
governed by their length of service in that grade, and was not liable to be
altered with reference to their original position in the Appraisers' grade. In
other words, the court held that all the Appraisers lost their birth marks
after they were integrated in the cadre of Appraisers and they could not be
revived after promotion to the higher grade of Principal Appraisers. In the
case before us, in the absence of a rule determining inter se seniority between
the two classes of Income-tax Officers, there is really no integration of the
service which is unavoidably necessary for the purpose of effective
promotions.' One cannot speak of promotions from a cadre unless it is fully
integrated. If promotions are made before it is fully integrated, they can be only
on an ad hoc basis to be reviewed after seniority of the officers is finally
fixed-as has happened in our case. Mervyn Co untinho's case would have been
applicable if, after integration of all these Income-tax Officers in class 1,
their seniority as promoted Assistant Commissioners were again to be altered
with reference to their birth mark as direct recruits and promotees. That
question, however, does not arise in the present case. In Roshan Lal v.(1)
[1966] 3 S.C.R. 600.
115 Union of India,(1) the decision in Marvyn
Coutinho's case referred to, above was relied upon and reaffirmed. The case
does not shed any light on the question with which we are concerned. Similar is
the case in S. M. Pandit and Anr. v.State of Gujarat.(2) In this case
Mamlatdars were recruited from two sources-directly and by promotion. They had
the same designation, same pay scales, same functions and their posts were also
interchangeable. it was, therefore, held that Government could not discriminate
between them in the matter of their further promotion to the post of Deputy
Collector.
As said earlier, the problem before us is not
of making discrimination in the matter of promotion from an integrated service
constituted from two sources. The problem is of integrating two sources in one
service by adjusting seniority inter se. The cases referred to above relate to
the debunking of the established seniority of officers in a cadre in the matter
of promotion.
It was next contended on behalf of the
promotees that this Court had directed that the rule to be framed by the
Government should, be just and fair but in their submission, it was not so. The
promotees contended that having regard to their age at the time of promotion,
their experience, and their diminished chances of promotions to grades higher
than those of the Assistant Commissioners, Govt. ought to have given them due
weightage in the matter of seniority and since this was not done the new
seniority rule was neither just not fair.
When considering this point it must be
clearly understood that this Court is not concerned with Govt.'s policy in
recruiting officers to any service. Government runs the service and if it is
presumed that it knows what is best in the public interest. Government knows
the caliber of candidates available and it is for the Government to determine
how a particular service is to be manned-whether by direct recruits or by
promotees or both and, if by both, what should be the ratio between the two
sources having regard to the age factor, experience and other exigencies of
service. Commissions and Committees appointed by the Government may indeed give
useful advice but ultimately it is for the Government to decide for itself. In
the particular service with which we are concerned, viz. that of class I
Income-tax Officers, Government bad known for many years that there was a lot
of discontent amongst the officers. The promotees were clamoring for a higher
proportion of posts in the cadre while the direct recruits were chafing against
the seniority rule which gave promotees 2 to 3 years' seniority over the direct
recruits. To begin with the promotees had been given only 20% of the vacancies
but that was raised later on to 33-1/3%. the department was fast expanding and
more officers in class I who could immediately take up assessment work were
required. Senior class II officers who had the necessary experience were always
available. On the other hand, class I officers, directly recruited, did not
obtain this experience for about 2 to 3 years. Therefore, though direct recruitment
was made from year to year, the department had to promote more officers from
class If to class 1; and this was the reason why there was a spill-over of 73
promotee officers on 16-11959. In the (1) [1968] 1 S.C.R. 185.
(2) A.I.R. 1972 S.C. 252.
116 course of next 3 years 214 promotees had
to be appointed after upgrading a similar number of posts. Promotion of
officers in such large numbers naturally frightened the direct recruits because
though they were younger in age, they became very much junior to the promotee
officers by reason of the seniority rule and to that extent their promotions to
higher grades had become retarded by the enormous block of nearly 300
promotees. The discontent amongst the direct recruits had been noted by the
Government even as far back as 1957 and the Government's anxiety in this
respect is reflected in the letter No. 24/2/60 Ad. VI dt. 17-2-1960 to the
Union Public Service Commission. In order to allay the discontent in the
service and having regard to the expansion of the-department, Government
suggested that the quota for the promotees should be raised from 33-1/3 % to
50%, on the one hand, and the weightage given to them under the old seniority
rule should be removed, on the other. That letter gives a clear indication of
the thinking of the Ministry in this respect. But unfortunately the suggestion
was not accepted by the U.P.S.C. then and the whole problem was allowed to
drift.
In the next place, we have to remember that
it would be wrong to pronounce adversely upon the new seniority rule merely
because of its impact on the fortunes of any particular individual officer. Nor
will it be correct to point that an individual officer 'A' would have fared
better if the old quota rule and weightage rule had been restored.
One thing that the section of promotees, who
are now before us, cannot possibly ignore is that they had all been promoted at
a time when there were no posts earmarked for them. Secondly, being promoted in
very large numbers in a brief period from 1959 to 1962, they made further
recruitment by promotion impossible in the years-1963, 1965, 1967 to 1970
because those who were promoted had to wait for their absorption under the
quota rule for several succeeding years. We don't want to suggest that when
these promotions were made on a mass scale, merit took the second place, but it
cannot be ignored that those class 11 officers who, on merit, would have been
normally considered for selection in 1963, 1965, and 1967 to 1970 could not be
so considered because of the backlog of these unabsorbed promotees.
In the counter-affidavit filed by Mr. Mehra,
Deputy Secretary to the Government, Ministry of Finance, dated August 31, 1973,
the department has given a detailed account as to how, in pursuance of the
direction of the court to frame a rule, it proceeded to frame the rule after
consulting all interests and concerned authorities. The Government came to the
conclusion on a just assessment of the situation that there could be only 4
alternatives before it which could form the basis of the new rule. Those four
alternatives were as follows :
(i) The seniority of both the direct recruits
and the promotees to be based on their length of service in class 1;
(ii) To link the seniority to the proportion
of actual intake of direct recruits and the promotees each year from 16-1-1959
onwards;
117 (iii) To apply the 1959 principles of
seniority laid down by the Home Ministry which would employ ratio of vacancies
between the direct recruits and promotees based on the quota of vacancies reserved
for direct recruitment on promotion as may be fixed retrospectively from
16-1-1959;
(iv) To fix the seniority by alternating, on
a roster system, the actual intake, the vacancies being equally divided between
the promotees and the direct recruits for the entire period from 1959 to day.
The Government considered all these four
alternatives and having seen the inconvenience and disadvantages in following
the first three alternatives decided in favour of the fourth alternative as
fair and just. Detailed reasons have been given in the affidavit why the three
alternatives were rejected in favour of the last alternative and on a
consideration of the same, we do not think that the Government came to an
arbitrary or unreasonable decision.
It was contended on behalf of the promotees
that a fairer way would have been to fix seniority in accordance with the dates
of appointment, the 73 spill-overs being all deemed to have been appointed, on
16.1.1959 and the rest on-the dates of appointment. It is not as if the point
was not considered by the Government. In fact it was the first alternative. It
was rejected because if that principle were followed it would have resulted in
blocking of vacancies by direct recruits or promotees to the department of
both. The promotees and the direct recruits had, during the various years,
joined en bloc in particular months. For example, in 1959, 1960 and 1961 all
the promotees for that year came in one block in the month of April. In the
year 1962 they came in December,, in 1964 in May, in 1966 in January and 1971
again in May. The direct recruits, on the other hand, normally joined duty
around July and since both promotees and direct recruits joined in block of
large 'numbers it was inevitable that these blocks would operate disadvantageously
in the matter of promotion, because instead of ensuring a fairer proportion of
both promotees and direct recruits for the purposes of promotion as Assistant
Commissioners, the blocks would have operated to do just the opposite. The
whole situation is clearly illustrated in the affidavit filed by the department
and we don't think that the, department was wrong in not acceding to this
contention of the promotees.
The seniority rule allocates 50% of the
appointments to direct recruits and 50% to the promotees. That is undoubtedly a
gain for the promotees. Learned counsel for the direct recruits have complained
against the erosion of their own ration in the service. At one time they manned
80% of the posts. Later the ratio was brought down to 661/2% and now by this
rule it was brought down to 50%. They contended that recruitment of 50%
promotees is quite unusual, and, therefore, Government, should have fixed a
lower proportion for the promotees as it has done in other All India Services.
We do not think we can entertain this complaint. Direct recruits can have a
grievance if after recruitment they are not properly treated. They cannot
complain as if they are representatives of any particular section 118 of the
general public which is the source of recruitment.
On the other hand, class 11 officers in the
service are vitally interested in their promotion and they can legitimately
have a grievance if they are not properly represented in the higher grade of
class I. So far as the direct recruits are concerned they come into the service
directly after passing a competitive test, Indeed their complaint can only be
based on public interest and public policy viz. that it is better to have more
direct recruits in a service of this kind. But the question of public interest
and policy had better be left to the Government and authorities like the Public
Service Commission. It is their function to decide after considering all the
aspects of the question as to what should be the respective percentages.
It is not as if there is no other service in
which direct recruitment is limited to only 50% of the appointments. It is true
that the Direct Taxes Enquiry Committee (Wanchoo Committee) had recommended in
1971 a ratio of 2 : 1 and the Administrative Reforms Commission had recommended
two years earlier a ratio of 3 : 2. But as already pointed out at least from
1960, Government, having regard to (i) that the class 11 service is enormously
expanded and (ii) that the main burden of assessment work fell on members of
class 11 service, thought that it was absolutely essential that there should be
an adequate promotional outlet to members of class It service. In this context
we have to remember that direct recruits for about 2 or 3 years after
appointment are incapable of doing assessment work independently, and
consequently promotees who could straight way do the work had to be appointed
in large numbers. And, hence if, in the Govt.'s opinion, 50% of the posts in
class I service should be earmarked for promotees, there can be really no
objection, especially, when we know that the Union Public Service Commission
which had not given its consent in 1960 has now agreed to the proportion of
promotees being increased from 331% to 50%.
Nor indeed can the promotees, after obtaining
the benefit of a higher percentage of recruitment to class I service,
legitimately object to the abolition of weightage enjoyed formerly in the
matter of seniority. The direct recruits had always regarded as offensive that
their date, of joining the services should not count for seniority in spite of
their being members of an All India Service but that they should yield their
seniority to persons promoted 2/3 years after they had joined the service. This
discontent amongst the direct recruits was known to the Government. In the
package deal suggested in the letter referred to above, Government had asked
for the removal of this weightage.
This element of weightage in the old
seniority rule had given offence to the direct recruits, and it is obvious that
in the interest of harmonious relations between the two wings of the service,
Government, while increasing,, the proportion of promotees in the service,
abolished weightage in their favour.
On account of haphazard promotions,
especially, from 1959 onwards, it has happened that a direct recruit or
promotee gains or losses several places in the new seniority list on a
comparison with a list in 119 which seniority is based on the date of joining
service.
But we think this cannot be helped. If
hereafter care is taken in proper time to determine the vacancies to be filled
in any particular year and lists of an equal number of direct recruits and
promotees are kept ready, there will survive no serious ground for complaint,
because all those in the lists will be appointed in the course of the year and
will not face the situation with which the officers are faced at present. The
spill-over of 73 promotees on 16-11959 besides 240 promotees from 1959 to 1962
have been alternatively adjusted with direct recruits during these years and
this may well result in a promotee of 1962 becoming junior to a direct recruit
of 1966. See for example serial nos. 1109 and 1110 of the new seniority list.
But that is inevitable because of the massive
promotions over several years prior to 1963. Though as pointed out above, the
direct recruit of 1966 would become senior to a promotee of 1962, that is not
worse than what would have happened to these promotees if the 2 : 1 quota rule
had continued to be in force. In the latter case, the last few 1962 promotees
would have been pushed down to 1970 instead of 1966 as at present. Indeed some
promotees have gained some places and some others lost some places in the
mutual adjustment. But the fairness or justness of the rule should not be
judged, as already noticed, by its impact on any particular individual's
fortunes.
Though the promotees submitted that the
present rule was not fair to them, they themselves could not put forward any
rational alternative. They are indeed pleased with the increase in the promotional
chances. But they are sore that the artificial rule of seniority which gave
them weightage, has been removed. They do not dispute that by the increase in
their ratio in class I service, a larger number of class II officers will, in
course of time get a chance to be appointed by promotion as Assistant
Commissioners. But they are sorry that their chances to be promoted to posts
higher than that of the Assistant Commissioner are now retarded by the removal
of the weightage. They submit, that at the time of promotion to class 1, the
age factor had already become unfavourable to them and, therefore, weightage in
some form should have been given to them so that in the matter of competing for
the highest posts, they would have had an equal chance with the direct
recruits. On behalf of the department it is contended that on an analysis of
the vacancies which may occur in the higher echelons of the service in future
and the present ages of the promotees, there is really no ground for
despondency. But one thing cannot be ignored in this respect. Direct recruits
are recruited on an All India basis after a competitive examination. They
belong to a certain age group and are bound to be younger than the promotees.
In practically all India Services, promotees don't always have an equal chance
with the direct recruits in the matter of appointments to the highest posts.
Those who are young may indeed reach the top. Promotees who belong to a higher
age group have necessarily to pay the price and that is so in all services.
On the other hand, however, we must remember
that in all higher services, appointments are generally by selection and not
merely on the basis of seniority in which case promotees with the necessary
merit may 120 well reach the top. In this connection it may be necessary to
point out here that though the promotees of the 1960's lose some places to
direct recruits, class II officers who were not promoted in the years 1963,
1965 and 1967 to 1970 but got their chances of promotion for the first time in
1971 will" now get posts reserved for them in 1969. See for example serial
no. 1354 of the new seniority list and onwards. All this is the result of
haphazard promotions which were made in order to meet the demands of a suddenly
expanding department without sufficient attention to the Rules in force. We
have to take an overall view to determine whether the rule now framed by the
Government to determine seniority is just and fair. We, think it is.
Since the seniority list Annexure B filed on
15-2-1973 is in accordance with the directions given by this Court in its
judgment dated 16-8-1972, we accept it as the correct seniority list.
There shall be no order as to costs.
S.C. Petitions dismissed.
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