Kamal Kanti Dutta & Ors Vs. Union of
India & Ors [1980] INSC 93 (23 April 1980)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) UNTWALIA, N.L.
KAILASAM, P.S.
DESAI, D.A.
VENKATARAMIAH, E.S. (J)
CITATION: 1980 AIR 2056 1980 SCR (3) 811 1980
SCC (4) 38
CITATOR INFO :
R 1986 SC1830 (38,58) RF 1987 SC 386 (14) RF
1989 SC1972 (11) RF 1990 SC1106 (9,10)
ACT:
Review of Judgments of the Supreme Court of
India under Article 137 of the Constitution read with Order XXL of the Supreme
Court Rules, 1966-Petitions filed under Article 32 of the Constitution
indirectly invoking the review jurisdiction and seeking a review of earlier
decision of the Courts Held, there is no substance in the request.
HEADNOTE:
With a view to improving the Income-tax
administration, the Government of India in consultation with the Federal Public
Service Commission decided to reconstitute then existing income-tax services,
Class I and II. Under the scheme of reorganisation of the services set out in a
letter dated September 29, 1944 of the Government of India Finance Department,
the central service Class I was to consist of (i) Commissioners of Income-Tax
(ii) Assistant Commissioners of Income-Tax; (iii) Income-Tax Officers Grade I
and (iv) Income-Tax Officers Grade-II. Thus Income-Tax Officers Class I were to
be of two grades, Grade I and II; while Income-Tax Officers Class II were to
consist of one grade, namely, Grade III. Clauses (a) to (e) of paragraph 2 of
the letter prescribed the mode of recruitment to the various posts in Class I
and Class II. Under Clause (d) recruitment to Class I Grade II was 20% by
promotion from Class II, Grade III and 80% by direct recruitment via Indian
Audit and Accounts Service etc. examination. Rules regulating recruitment to
the Income-Tax Officers (Class I, Grade II) service "liable to alteration
from year to year" were published on May 26, 1945, by a resolution of the
Finance (Central Revenues) Department. Rule 3 provided that recruitment to
Class I, Grade II's service shall be made (1) by competitive examination held
in India in accordance with Part-II of the Rules and (ii) by promotion on the
basis of selection of Grade III (Class II service, in accordance with Part III
of the Rules. By Rule 4 of the Government was to determine, subject to the provisions
of Rule 3, the method or methods to be employed for the purpose of filling any
particular vacancies, or such vacancies as may be required to be filled during
any particular period, and the number of candidates to be recruited by such
method. Part III of the Rules called (Recruitment by Promotion) provided by
paragraph 21 that "recruitment by promotion shall be made by selection
from Grade-III Income-Tax Officers (Class II service) after consultation with
the Federal Public Service and that no officer shall have any claim to such
promotion as of right".
By a letter dated January 24, 1950 the
Government of India laid down certain rules of seniority : (a) as between
direct recruits; (b) as between promotees selected from Class II and (c) as
between direct recruits who completed their probation in a given year and the
promotees appointed in the same year to Class I.
812 On October 18, 1951 the Government of
India addressed a letter to all the Commissioners of Income-Tax titled
"Income-Tax Officers, Grade-II (Class- I service)-quota of vacancies
filled by promotions" wherein it was outlined that for a period of 5 years
in the first instance 66 and 2/3 per cent of the vacancies in Class-I, Grade-II
would be filled by direct recruitment by a combined competitive examination and
the remaining 33 and 1/3 per cent on the basis of selection by promotion from
Grade-III (Class-II service).
Any surplus vacancies which could not be
filled by promotion for want of suitable candidates would be added to the quota
of vacancies to be filled by direct recruitment. By a letter dated September 5,
1952 the Government of India revised with a retrospective effect the Rules of
Seniority which were laid down on January 24, 1950. Rule 1 (f)(iii) as framed
on January 24, 1950 which was to the effect that "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" was revised on
September 5, 1952 as "officers promoted in accordance with the
recommendations of the Departmental Promotion Committee before the next sitting
of the Departmental Promotion Committee shall be senior 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 during the three previous years". Rule 1(f)(iv) of the 1952
Rules dealt with a special situation in which an officer initially appointed to
Class II service was given seniority in the same manner as a departmental
promotee, if subsequent to his passing the departmental examination he was
appointed to Class I on the results of the competitive examination. Rule 4 of
Chapter IX of the Rules of Promotion of the Central Board of Revenue Office
Procedure Manual states that the prescribed minimum service for an officer of
Class-I, Grade- II for promotion to Grade-I is 5 years gazetted service
including one year in Class-I, Grade-II. For a promotee from Class-II the
minimum period of service for promotion to Class-I, Grade-I would be actually 4
years service in Class- II and one year service in Class-I, Grade-II.
In an appeal arising out of Writ Petition No.
189-D of 1962 filed by one S. G. Jai Singhani (who is respondent No. 358 in
Writ Petition No. 66 of 1974 and respondent No. 5 in Writ Petition No. 4146 of
1978), a constitutional Bench of this Court held : (i) Rules 1(f)(iii) and (iv)
of the Seniority Rules framed in 1952 did not violate Articles 14 and 16 since
they were based on a reasonable classification;
(ii) Rule 4 of Chapter IX of the Central
Board of Revenue Office Procedure Manual did not lead to any discrimination as
between direct recruits and promotees, since the object of the rule was really
to carry out the policy of Rule 1(f)(iii) of the Rules of Seniority and not
allow it to be defeated by the recruitment of 5 years' service in Class-I,
Grade-II itself, before a person could be considered for promotion to Class-I,
Grade-I; (iii) Rule 4 of the Income- Tax Officers (Class-I, Grade-II) Service
Recruitment Rules was a statutory rule to which a statutory duty was cast on
the Government to determine the method or methods to be employed for the
purpose of filling of the vacancies and the number of candidates to be
recruited by each method; and that though in the letter of the Government of
India dated October 18, 1951 there was no specific reference to Rule 4, the
quota fixed by that letter must be deemed to have been fixed in exercise of the
statutory power given by Rule 4.
There was, therefore, no discretion left to
the Government of 813 India to alter that quota according to the exigencies of
the situation or to deviate from the quota in any particular year at its own
will and pleasure. The quota rule, according to the Court, was linked up with
the Seniority Rule and unless it was strictly observed in practice it would be
difficult to hold that the seniority rule contained in rule l(f)(iii) was not
unreasonable and did not offend Article 16 of the Constitution. The Court
suggested that for future years the roster system should be adopted by framing
an appropriate rule for working out the quota between the direct recruits and
the promotees and that a roster n should be maintained indicating the order in
which appointments were made by direct recruitment and by promotion in
accordance with the percentages fixed under the statutory rule for each method
of recruitment. Thus the direct recruits succeeded substantially in their
contentions, the quota rule acquired statutory force, appointments of promotees
in excess of the quota became bad and it became obligatory for the Government
to prepare a fresh seniority list. Promotees found to have been appointed in
excess of the quota admissible to promoteeS had naturally to go down in the
final gradation of seniority.
On July 15, 1968 the Government prepared a
fresh seniority list and filed it in the Supreme Court. That list failed to
satisfy promotees as well as direct recruits.
Whether this seniority list was collect and
in accordance with the mandamus which was issued by this Court in S. G.
Jai Singhani`s case, [1967] 2 S.C.R. 703 came
up for consideration in four appeals which were disposed of by a common
judgment dated August 16, 1972 reported as Bishan Sarup Gupta v. Union of India
(first Gupta's case) in [1975] Suppl. S.C.R. 491. The Court was also called
upon to examine the correctness of seven principles enumerated in the
Government letter dated July 15, 1968 governing seniority.
The first principle was accepted as good. The
second and the third principles were held to be partially incorrect in so for
as they excluded reference to all the promotees of 1952.
The Court held that the promotees of 1952
should be referred to in the seniority list whether they are affected or not,
the object being the ascertainment of excess promotions.
This Court further held that the rule dated
October 18, 1951 was not concerned with the Constitution of the cadre but
"was concerned with how permanent vacancies were to be filled" and,
therefore, the promotees would be entitled to 1/3 of the vacancies in any
particular year whether or not there was direct recruitment by competitive
examination in that year. This ratio of 2 :1 between the direct recruits and
the promotees could not be made to depend on whether any direct recruits were
appointed in any particular year. It, therefore, became essential to determine
the actual vacancies in the cadre but the Government put forward the plea even
in this case as in Jai Singhani's that it was impossible for them to give the
exact figure of vacancies in any particular year. According to the Court, when
the quota rule referred to vacancies it was implicit that the vacancies are
those which the Government wanted to fill up whatever may be the actual number
of vacancies available for being filled up. Any number of posts among the
promotees more than 1/3 of the total number of appointments in the particular
year was considered to be in excess of the quota available for promotees. The
Court rejected the argument that the quota rule which is co-related to
vacancies of permanent posts only and not to those in temporary posts.
While upholding the weightage allowed under
Rule I (f) (iii) to Class-II officers promoted to Class-l, Grade-II, the Court
also held that even after 1956, the Government was entitled by reason of Rule 4
of the Recruitment Rules of 1945 to follow the quota rule of 1951 as a rough
guideline, "without going through the trouble of putting the same on
record in so many words" and 814 that in the normal course the Government
was entitled to prepare the seniority list till the end of 1958 in accordance
with the quota rule of 1951. In regard to the position after year 1958 the
Court came to the conclusion that the quota rule ceased to apply and came to an
end on January 16, 1959, when the sanction to upgrade 100 temporary posts in
Class-II, Grade-III to Class-I, Grade-II was given by the President. The
seniority rule then fell with quota rule. On these considerations the Court
held that the seniority list. was valid in regard to promotions made up to
January 15, 1959 to the. Extent that it was prepared on the basis of the quota
rule dated October 18,1951 read with Seniority Rule l(f)(iii). As a corollary,
the Court set aside the seniority list of July 15, 1968 and directed the
Government to prepare a fresh seniority list. The List for the years 1955 to
January 15, 1959 was directed to be prepared in accordance with the quota rule
of 1951 read with Seniority Rule l(f) (iii). The List to be effective from
January ]6, 1959 was directed to be prepared in accordance with the rules to be
made afresh by the Government.
On February 9, 1973 the President made rules
called the Income-Tax (CIass-I) Service (Regulation of Seniority) Rules 1973
under Article 309 of the Constitution giving retrospective effect from January
16, 1969. In pursuance of the liberty reserved to the parties under the
Judgment in the first Gupta's case the validity of the new seniority rules was
challenged by the promotees once again. The challenge was considered and
repelled by the Court in Bishan Swarup Gupta etc. v. Union of India and
Ors.[1975] 1 S.C.R. 104, second Gupta's case., When the new list of seniority
was prepared by the Government, in accordance with these rules, the Government
had on its hand 73 promotees who though appointed earlier between 1956 and 1958
had no quota post, for their absorption. The 73 promotees described as
"spill-overs on January 15, 1959", as also those who were promoted
subsequently had to be absorbed in the Service, which could only be done by a
special rule framed in that behalf. The new seniority rule contained a formula
for the absorption OF all promotees with effect from January 16, 1959 in posts allocated
to them, it determined their seniority inter se and last but not the least it
determined their seniority qua the direct recruits appointed from 1959.
The Court overruled the objection of the '73'
spill-over promotees that since in the first Gupta's case the 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 pointed on January 16, 1959 en bloc and the
direct recruits for that year should have been shown thereafter. It was
explained that by use of the expression "priority basis" what was
meant by the Court was that the position or the spill-over promotees as seniors
should not be prejudiced by claims made by later promotees on the ground that
since the spill-over promotees were recruited in excess of the quota, the later
promotees whose promotion did not violate the quota rule had higher rights than
those 73.
The Court further held that, v he the 73
spill-over appointments were made, there were no allocated or earmarked posts
to which those promotees could have been validly appointed. the ordinary
consequence of which would have been their revision to Class II posts which
they originally held.
So long as the quota rule was in existence
appointments in excess of the quota, though invalid when made, were at least
liable to be regularised in subsequent years when vacancies were available. to
the promotees as a consequence of the quota rule But. Once the quota rule
ceased to exist on January 16, 1959, any possibility of the excess appointments
of the promotees being regularised vanished. It was in order 815 to overcome
this injustice to the promotees, that the new rule was framed by the
Government. The new rule was thus not only the direct outcome of the judgment or
the Court in the 1st Gupta case, but it was followed on the very principles on
which the Income-tax Service had been constituted. The Court finally said that
it had also to be remembered that promoteeS appointed from January 16, 1959
onwards were appointed on an officiating or ad hoc basis with notice that the
question of their seniority was still undecided. This circumstance coupled with
the absence of clear allocation of posts, made it impossible for the promotees
to lay claim to seniority and contend that they were deprived of their natural
seniority in violation of Article 16.
The petitioners who were promotee Income-Tax
officers Class-I, Grade-II prayed for reconsideration of these three decisions
S. G. Jai Singhani v. Union of India and Anr.
[1967] 2 S.C.R. 703; Bishan Swarup Gupta v.
Union of India and Ors.(First Gupta's case),[1975] Suppl. S.C.R. 495;
Bishan Swarup Gupta etc. v. Union of India
and ors. (Second Guptas case) [1975] S.C.R. 104 and to the extent S. G. Jai
Singhani's case is relied upon in Union of India v. Malji Jangamayya
etc.,[1977] 2 S.C.R. 28. On the following grounds:
1. The Conclusion that Rule 4 of the
Income-Tax officers (Class-l. Grade-II) Service Recruitment Rules is statutory
and, therefore, the quota prescribed by the Government of India for recruitment
to Income-Tax officers Class-I, Grade-II in exercise of the power conferred by
Rule 4 would be statutory, proceeds on an assumption not warranted by the
provisions of law bearing on the point and if both Rule 4 and the quota presumably
prescribed in exercise of the power conferred by Rule 4 are not shown to be
statutory; the foundation of which the edifice in S. G. Jai Singhani's case
rests is knocked down because it can be demonstrably established that neither
rule 4 nor the quota, prescribed thereunder was statuary in character but was
at best an administrative instruction.
2. After the Court on an interpretation of
the quota rule held that the quota was related to vacancies arising in the
grade every year, the conclusion reached did not conform to this finding but
accommodated the so-called inability (now shown to be factually incorrect) of
the Government of India to give information to the Court about the vacancies in
the grade every year with the result that the whole calculation of spill-over
is vitiated.
3. The mandamus issued in Jai Singhani's case
was misinterpreted by the Government because even if the quota was statutory it
was operative only between 1951 and 1956 but the Government interpreted the
mandamus to be operative beyond 1956 and up to 1967 which misinterpretation has
been pointed out in the first Gupta's case.
4. In the first Gupta's case while holding
that the mandamus directing, to treat the quota statutory beyond.
1956 was not justified yet till January 16.
1959, the Court itself indirectly accepted the quota rule as a guideline and
treated that there was a spill-over of 73 promotees. If Rule 4 was not
statutory and consequently the quota prescribed in exercise of the power which
had outlived its prescribed span of life in 1956 could not be brought in to
treat any appointment as invalid on the ground that there was no allocated post
for those appointees treated as spill-over because under Rule 4 itself the
Government had power to determine the method or methods to be employed for the
purpose of 816 filling in particular vacancies or such vacancies as may be
required to be filled in during any particular period and the number of
candidates to he recruited by each method.
5. The action of the Government of upgrading
214 posts between 1959 and 1962 from Class-II, Grade-II to Class I, Grade II
was not open to question as at that stage there was no quota rule and Rule 4
enabled the Government to make recruitment from either of the two sources in
exercise of its executive power. In regard to the second Gupta's case the Court
introduced quota rule retrospectively by the back door which is impermissible
and its operation manifestly establishes its utter unfairness inasmuch as a
direct recruit nor anywhere in the department or may be a student may secure a
march-over a promotee which has been working in Class-I, Grade-II.
Dismissing the petitions the Court, ^ HELD:
Per Chandrachud, C.J. (On behalf of N. L . Untawalia, P. S Kailasam, E. S.
Venkataramaiah, JJ. and himself). (Majority view) i. A consideration of certain
historic facts in this case makes it clear that there is no substance in the
request made for a review of the decisions in Jai Singhani v. Union of India
and Ors., [1967] 2 S.C.R. 703; Bishan Swarup Gupta v. Union of India and ors.
(Ist Gupta's case) [1975] supplementary S.C.R. 491; Bishan Swarup Gupta v. Union
of India & Ors.; Second Gupta's case [1975] 1 S.C.R.
104 and Union of India v. Malji
Jangamayya[1977] 2 S.C.R.
28. [840 E-F] For nearly a. decade after
1950, appointments of promotees were made far in excess of the quota available
to them. So long as the quota rule operated. it was possible to regularise
their appointments when posts within their quota became available in later
years. But a somewhat unprecedented situation arose by the upgrading of Class
II posts to Class I grade II-100 of them on January 16, 1959 and 114 on
December 9, 1960. This massive upgrading of posts brought about a collapse of
the quota rule. Subsequent absorption in posts which became available for being
filled up later really means regularisation of appointments, which is possible
provided there is no excessive deviation from the quota rule. [840 G-H, 841 A]
It is true that no blame can be laid at the doors of the promotees on the score
that they were appointed in excess of tho quota available to them. Perhaps,
their appointments must even have enabled the administration to tide over
administrative stale-mate. But the tough problem which the administration has
to face is that whereas it is necessary to recognise and protect the claims of
promotees who were appointed in excess of their quota, is equally necessary to
ensure that the direct recruits do not suffer an nude set-back in service on
account of the appointments of promotees. The conflicting claims of the two
components of Service, both having an importance of their own, have therefore
to be reconciled. It was with that object that the rules have been modified
from time to time. The judgments rendered by this Court in the aforesaid four
cases show, without a shadow doubt, how every effort was made to ensure that no
hardship or injustice is caused to the promotees merely because their
appointments exceeded their quota. [841 A-C]
2. It is not correct to say that the judgment
in Jai Singhani was based on a concession or that the Court felt compelled to
draw the particular conclusions 817 therein because of the inability or refusal
of the Finance Ministry to produce A the relevant files. The Court adopted what
it considered in the circumstances to be a satisfactory and scientific method
of ascertaining the number of vacancies available for being file up. It came to
the conclusion that the number of actual appointments should determine the
number of vacancies available which was a perfectly legitimate conclusion to
draw. In the grey area where service rules operate, more than one view is
always possible to take without sacrificing either reason or commonsense but
the ultimate choice has to be necessarily conditioned by several considerations
ensuring justice to as many as possible and injustice to as few. There was no
error in the conclusion in Jai Singhanni that Rule 4 of the Recruitment Rules
was a statutory rule Subsequent decisions would show that there was hardly any
dispute between the parties, at later stages at any rate, that Rule 4 was a
statutory rule. [841 D-G]
3. No doubt, the promotees should not be
penalised for the mere reason that those of them who were appointed after
January 16, 1959 were appointed on an officiating or ad hoc basis and had clear
notice that the question of their seniority was still undecided. The
circumstances attendant upon their appointments cannot, however, be wholly
overlooked in determining whether the constitutional constraints have been
over-stepped. [841 H, 842 A]
4. It is not safe to test the
constitutionality of a service rule on the touch stone of fortunes of
individuals.
No matter with what care, objectivity and
foresight a rule is framed, some hardship, inconvenience or injustice is bound
to result to some members of the service. The paramount consideration is the
reconciliation of conflicting claims of two important constituents of Service,
one of which brings fresh blood and the other mature experience.
[842 A-C]
5. Though the promotees submitted in the
Second Gupta case that the new seniority rule was unfair to them, they were
unable to put forward any rational alternative. On the contrary the
counter-affidavit dated August 31, 1973 file in the Second Gupta case by Shri
Mehra., the Deputy Secretary Finance, shows the fullness with which the
Government had consulted all possible interests while framing the impugned
rules of seniority. The gamut of reasonable possibilities is fairly covered by
the four alternatives referred to in Shri Mehra's affidavit. The inconveniences
and disadvantages flowing from the first three alternatives would be far
greater than those flowing from the fourth. That is why the choice ultimately
fell on the fourth alternative under which the seniority between promotees and
direct recruits was filed alternately on a roster system, vacancies being
equally divided between promotees and direct recruits, for the entire period
from 1959 up-to-date. The observation of the Court in the Second Gupta's case
at page 119 shows how difficult it is to solve the jig-saw puzzle of service
disputes. [842 C-Hl G
6. The report of the 'Committee on petitions'
of the Rajya Sabha, howsoever, sincerely motivated and fully drawn cannot be
given the importance which the promotees seem to attach to it. In paragraph 16
of its Report the Committee does refer to certain files but those files appear
to contain some notions in regard to the direct recruitment only. The Committee
has given a table of comparative appointments in paragraph 19 of its Report but
it had to speculate on an important aspect of the matter, as is shown by its
own language, that the table shows the member of direct recruits which the
Government wanted to take and "on the basis of which the promotees must
have been given promo- 818 tions". If indeed the relevant files were
produced before the Committee, it would not have expressed its sense of deep
shock and resentment at the disappearance of the files.
Further para 32 of the Report shows that the
Committee had to grope in the dark and indulge in a certain amount of
speculation on matters under its consideration. In the circumstances it has
done as good a job as a Committee can and no fault need to found with it. But
nevertheless the said Committee's report cannot displace the Courts judgments.
[842 H, &43 A-C] Even on merits there is no justification for considering
the judgments already rendered by this Court inasmuch as no fresh facts were
brought to notice by way of discovery of new and important evidence which would
justify reconsideration of the decisions already rendered by this Court after
the most careful examination of the competing contentions. The report of the
Rajya Sabha Committee on petitions shows that the relevant files are still not
traceable. [843 E-F, G-H, 844 A] Per Desai, J. (contra )
1. While, no doubt, the Supreme Court has
constitutional rower lo review its decision, it is a power to be sparingly
exercised because any such review has the tendency to unsettle questions which
may have been finally determined. The Supreme Court does not lightly undertake
review of its decisions more especially where conflicting claims have been
settled by the decision of this Court and the whole gamut may have to be gone
through over again on a reconsideration of the decision. While exercising
inherent power to reconsideration and review its earlier decision, the Supreme
Court would naturally like to, impose certain reasonable limitations and would
be reluctant to entertain plea for reconsideration and review all its earlier
decisions unless it is satisfied that there are compelling and substantial
reasons to do so. It is general judicial experience that in manners of law
involving questions of construing statutory or constitutional provisions, two
views are often reasonably possible and when judicial approach has to make a
choice between the two reasonable possible views, the process of decision
making is often very difficult and delicate. [846 A-B, 847 C, G-H. 848 A-B] In
deciding whether a review is necessary when two views are possible it would not
necessarily be an adequate reason for such review and revision to hold that
though the earlier view is reasonably possible view the alternative view which
is pressed on the subsequent occasion is more reasonable. The Court's
discretion should be guided by such consideration whether in the interest of
public good or for any other valid or compulsive reason it is necessary that
the: earlier decision should be revised. [848 B-C] Sajjan Singh v. State of
Rajasthan, [1965] 1 S.C.R. 931; Keshav Mills Co. Ltd. v. commissioner of Income
Tax, Bombay North, [1965] 2 S.C.R. 90B & 921; Manganese Ore (India) Ltd. v.
The Regional Assistant Commissioner of Sales Tax, Jabalpur, [1976] 3 S.C.R. 99
applied,
2. Jai Singhani case proceeds on a concession
that Rule 4 and the quota prescribed by the Government referable to the power
conferred by Rule 4 were statutory in character.
[848 D-E] Income-tax service was
reconstituted on September 29, 1974. The Government of India classified the
existing income-tax service as Class I and Class II.
819 The scheme provided for recruitment of
income-tax officers Class I grade II partly by promotion and partly by direct
recruitment. The scheme was set out in the Government of India Finance
Department (Central Revenues) letter dated September 29, 1944. The quota
prescribed therein has undergone a revision at a later date. The rules being
Pre- constitution Rules, their source must be traced to the Government of India
Act, 1935. Section 241 of the 1935 Act made provision for recruitment and
conditions of service.
Section 241 makes it clear that the power to
make appointments in the case of service of Federation and posts in connection
with the affairs of the Federation was conferred on the Governor-General or
such person as he may direct. The power to make rules in this behalf was
conferred by sub-section '' on the Governor-General or by some person or
persons authorised by the Governor-General to make the rules for the purpose.
But, the rules were not made either by the Governor-General or such person
authorised by him.
'The rules were made by the Finance
Department and no material was placed to show that the persons or the persons
who made the rules were authorised by the Governor-General, under Section 241(2)
of the 1935 Act in this behalf. The assumption made therefore, that Rule 4 of
the Rules are statutory and that the quota prescribed in exercise of the power
conferred by Rule 4 must be statutory is ill-founded This knocks out the entire
foundation of the judgment of this Court in Jai Singhani's case because this
Court proceeded to hold that as the quota was statutory, any recruitment made
in excess of the quota in any given year would be invalid and at best can be
regularised by relegating such excess appointment to the quota next year.
If Rule 4 and the quota referable to the
power conferred by Rule 4 were not statutory but were merely execute
instructions, its violation would not render any appointment in excess of it
invalid but at best would be irregular and in this case on a plain reading of
Rule 4 it would not even be irregular. [848 G-H, 849 A-E]
3. In P. C. Sethi & Ors. v. Union of
India & Ors. This Court held that in the absence of any statutory rules it
was open to the, Government in exercise of its executive power to issue
administrative instructions with regard to constitution and recognition of
service as long as there is no violation of Articles 14 and 16 of the
constitution. If the present Rule 4 enables the Government to prescribe method
to be employed for the purpose of filling, in any particular vacancy or such
vacancies as may be required to be filled in during any particular period and
the number of candidates to be recruited by each method arid if the so called
quota is not statutory but merely a guideline, the Government whenever making
appointments would be acting in exercise of power conferred by Rule 4 which
leaves it to the discretion, of the Government to decide from what Source
recruitment should be made and what must be the quantum of vacancies that must
be filled in at a given point of time and such appointment could not be said to
be invalid. [849 E-H] Alternatively. even if the assumption made in Jai
Singhani's case that Rule 4 and the quota referable to the exercise of power conferred
by Rule 4 is unquestionable yet when this Could held that the quota is related
to the vacancies, the decision proceeding on an incorrect plea that the
information about the number of vacancies in a year is not available, is
unsustainable for two reasons, namely,(1) that the files are now produced; (2)
in the absence of information about the vacancies available the Court could not
have invalidated any appointment on the assumption that appointment from the
source of promotees was in excess of the quota. [850 A-B] 820 on a plain
levelling of Rules 3,, 4 and 5, it is clear that the, quota was related to
vacancies and at one stage that was accepted. On this finding unless the fact
situation is clearly established showing vacancies year to year it would be
impossible to hold that in any year there was excess in either source. Suppose
there were 90 vacancies in a year and the quota was 66-2/3 for direct recruits
all 33 1/3 for promotees it would be open to the Government to promote 30
persons irrespective of the fact whether 60 direct recruits have become
available or not. The assumption made that the recruitment made in a given year
from both the sources would furnish information about the vacancies in a year
would lead to a rather unfair conclusion inasmuch as the action of the
Government in acting in a certain manner without due regard to the quota rule
would work hardship on appointees even though on a correct calculation of
vacancies the appointments may be valid and legal. [850 C-E] 4 The Government understood
the mandamus issued in Jai Singhani's case as covering, the whole period from
1951 to 1967. When this was questioned in the First Gupta's case this Court
held that the quota rule proprio vigme operated between 1951 to 1956 and if
there were promotions in any year in excess of the quota. those promotions were
merely invalid for that year but they were not invalid for all time and they
could be regularised by being absorbed in the quota for the later years. So
adjusting the quota at any rate up to 1956, the quota rule on its own strength
evaporated because it was to be in operation for a period of five years and no
fresh quota rule was issued by the Government.
Therefore, after 1956 Rule 4 remained in
force in' all its r ignore and was not hedged in by any quota. Rule 4 permitted
the Government to make recruitment from either source without fettering its
discretion by any quota rule which it was not bound to prescribe. On January
16, 1959 Government hl the Ministry of Finance informed the Commissioner of
Income tax that the resident had sanctioned the upgrading to Class I of one
hundred temporary posts of Income-Tax officers Class II. On December 19, 1960
there was further upgrading of 114 posts from Class II to Class I. Between 1959
and 1962 these 214 posts were filled in by promotees.
Now in the First Gupta's case, this Court
held even though the quota expired in 1956 yet the Government of India adopted
it as a guideline. May be it may be so. But, it cannot be said that. any
appointment in breach of the guideline neither statutory nor even having the
fragrance of any executive instruction becomes invalid more so, when the
Government had power to make appointment from either source uninhibited by any
quota rule under Rule 4. Yet the Court found that between 1956 and 1959 when
one hundred posts came to be upgraded there was a spill-over of 73 persons and
because of the huge departure from guidelines the weightage rule giving
seniority to the promotees by 2 to 3 years was crushed under its own debris. Again,
Rule 4 is overlooked or by-passed when saying that. there was a spill-over of
73 promotees between 1956 and 1959, nor could it be said that the upgrading of
214 posts and filling them up by promotees would be in any way even irregular
much less invalid because Rule t enables the Government to draw from either
source.
5. In the Second Gupta's case in view of the
decision in the First Gupta's case, a fresh seniority rule was prepared and it
was made retroactive from January 16, 1959.
lt, inter alia, provides that the relative
seniority amongst the promotees and the direct recruits shall be in the ratio
of 1: 1 and the same shall be so determined and regulated in accordance with a
roster main- 821 tained for this purpose which shall follow the following
sequence, namely, promotee; direct recruit, promotee; direct recruit etc. This
method of roster undoubtedly introduces a quota by the back door. Once a roster
is introduced promotee direct recruit, promotee direct recruit etc. even if
some promotees have come in a bulk and if at a later date some direct recruits
are appointed in bulk while preparing roster an earlier date-promotee will have
to yield his place to a later date direct recruit. Bluntly translated it means
that the direct recruit who was never in service when promotee was promoted
probably he may be a student, he may not have even passed the competitive
examination, yet he may come into the picture challenge one who has already
been serving in the department for a number of years. To illustrate in the new
seniority list prepared by the Government pursuant to the order made by this
Court in the First Gupta's case and upheld by this Court in the Second Gupta's
case a promotee of 1962 will have to yield his place to a direct recruit of 1966.
[851 G-H, 852 A-D] C
6. Service jurisprudence hardly permits a
situation where a man not in service comes and challenges something which has
been done much before he came into service and gets such an advantage which on
the face of it appear to be unfair. But apart from this, even in 1959 there was
no quota rule and assuming that the old service rule giving weightage to the
promotees crushed under weight of large number of promotees being promoted it
would not be open to the Government to so prepare a fresh seniority list which
cannot be given effect to unless a roster is introduced which introduces quota
by the back door and which is so unfair in its operation that promotees of 1962
will have to yield place to direct recruits of 1966. Under the old weightage
rule promotees were given weightage for service of 2 to 3 years over direct
recruits because direct recruits were unable to undertake regular assessment
work for a period of 2 to 3 years when they were more or less under training
while promotees have been doing this work for a number of years and whose
experience is reflected in the weightage.
The whole thing now appears to be in the
reverse gear in that an uninitiated direct recruit takes precedence over an
experienced promotee. The unfairness of the new rule is writ large on the face
of the record. [852 E-H]
7. The fresh seniority rule violates another
important rule well-recognised principle in the service jurisprudence that in
the absence of any valid rule of seniority date of continuous officiation
provides a valid rule of seniority.
This rule is completely crucified upon two
unsustainable assumptions that a quota rule having guideline sanction is made
imperative in character and assumed to be in force between 1956 and 1959, and
that even though Government in exercise of power conferred by Rule 4 for its
own necessity promoted 214 promotees to the upgraded post, yet they must yield
to some future direct recruits who may come to the department at a later date.
This Court sustained the decision holding that these were ad hoc appointments
and there are no regular posts for these promotees. This approach wholly
overlooks the fact and the force of Rule 4.
[853 A-C]
8. Certainty and continuity demand that this
Court should not reopen settled decisions or reopen closed questions unless
under compelling necessity. It may he that the fact of Income-Tax officers
promotees and direct recruits may rest with the three decisions of this Court.
Unfairness to some of them H may itself not
provide a good and compelling reason for reopening and reconsidering the
decisions. [853 C-D] 822 Jai Singhani and the Two Gupta cases are being quoted,
times without number before this Court for the principles enunciated therein.
These decisions, therefore, affected subsequent decisions of this Court as well
as the High courts and some of the principles enunciated in these three cases
stand in sharp contrast to other decisions of this Court and in fact this Court
itself felt it necessary to warn that it may become necessary to reconcile
these conflicting decisions. The three decisions are incorrect in the light of
the materials now placed, especially the files which were withheld from the
Court and the Committee. A strong case has been made out for reconsideration of
these decisions [853 E-F, 854 C-D] N. D. Chauhan & Ors. v. State of
Rajasthan & Ors.
[1977] 1 S.C.R. 1037 and 1053 referred to.
ORIGINAL JURISDICTION: Writ Petition Nos.
66/1974 & 4146/1978.
(Under Article 32 of the Constitution) V. M.
Tarkunde, J. N. Haldar, Rathin Dass and A. K. Sanghi, for the Petitioners in WP
66/74.
Dr. Y. S. Chitale, Mukul Mudgal and B. R.
Aggarwal for the Petitioners in WP No. 4146/78.
S. N. Kackar, Sol. Genl. R. N. Sachthey, E.
C. Agarwala and Miss A. Subhashini for RR 1-3 in WP 66 and RR 1-2 in WP 4146.
Ram Panjwani, Raj Panjwani, S. K. Bagga and
Mrs. 5.
Bagga for R. 4 in WP 4146 and Intervener
(Gujjar Mal.).
Ram Panjwani, Bishamber Lal, Raj Panjwani and
Vijay Panjwani for the R.6 in WP No. 4146 and R,358 in WP 66.
Yogeshwar Prasad and Mrs. Rani Chhabra for
the R. 7 in WP 4146.
A. K Sanghi for the Interveners (Hari Narain
and L. S. Chakravarty).
The Judgment of Y. V. Chandrachud, C.J., N.
L. Untwalia, P. S. Kailasam and E. S. Venkataramiah, JJ. was delivered by
Chandrachud, C.J. D. A. Desai, J. gave a dissenting opinion.
CHANDRACHUD, C. J.-The disputes between
promotees and direct recruits in various departments of the Government seem to
have no end. No sooner does one round of litigation come to a decision than is
another round started by one party or the other, sometimes alleging, as in
these Writ- Petitions, that important facts and circumstances were not taken
into consideration in the earlier proceedings either because they were
suppressed or because, though cited, they were overlooked or misunderstood. A
virtual review is thus asked for, opening flood 823 gates to fresh litigation.
There are few other litigative areas than disputes between members of various
services inter se, where the principle that public policy requires that all
litigation must have an end can apply with greater force. Public servants ought
not to be driven or required to dissipate their time and energy in court-room
battles.
Thereby their attention is diverted from
public to private affairs and their inter se disputes affect their sense of
oneness without which no n institution can function effectively. The
constitution of Service Tribunals by State Governments with an apex Tribunal at
the Centre, which, in the generality of cases, should be the final arbiter of
controversies relating to conditions of service, including the vexed question
of seniority, may save the courts from the avalanche of writ petitions and
appeals in service matter-. The proceedings of such Tribunals can have the
merit of informality and if they will not be tied down to strict rules of
evidence, they might be able to produce solutions which will satisfy many and
displease only a few.
There are always a few whom nothing can
please.
The three petitioners in Writ Petition No. 66
of 1974 are all promotees. Petitioner No. 1, Kamal Kanti Dutta, was appointed
as an Inspector of Income-tax on December, 7, 1950 and after passing the
departmental examination he was promoted an Income-tax officer, Class II on
June 21, 1954.
On January 1, 1966 he was promoted as
Income-tax officer, Class I, which post he was holding on the date of the
petition, February 8, 1974. Petitioners 2 and 3, Bikash Mohan Das Gupta and
Sushil Ranjan Das, were promoted as Inspectors of Income-tax in April, 1955.
The former was promoted as I.T.O., Class II in December, 1957 and as I.T.o.,
Class I, in May, 1971 while the latter was promoted as I.T.o., Class II, in
August, 1973.
Respondents 1 to 5 to the petition are the
Union of India, Secretary to the Ministry of Finance, the Central Board of
Direct Taxes, Secretary to the Ministry of Home Affairs and the Union Public
Service Commission respectively. Respondents 6 to 357 who were recruited
directly as I.T.Os., Class I, were appointed on probation as Class I officers
after Petitioner No. 1 was promoted to that cadre on January, 1, 1966.
Respondents 280 to 357 were appointed on probation as I.T.os., Class I, after
Petitioner No. 2 was promoted to that cadre in May 1971.
Respondent No. 358, S. G. Jaisinghani, who
was recruited directly as I.T.O., Class I, in 1951 was holding the rank of
Assistant Commissioner of Income-tax on the date of the petition. He was posted
at the relevant time as the Deputy Director of Investigation, New Delhi.
Respondent 359, Mohan Chandra Joshi, who was recruited directly as I.T.O.,
Class L in 1953 was also holding a similar rank and was 824 working as Deputy
Secretary, Ministry of Defence, Government of India.
In Writ Petition No. 4146 of 1978 the
Petitioner, Hundraj Kanyalal Sajnani, was appointed directly on the
recommendation of the Union Public Service Commission as I.T.O., Class II
(Trainee) on July 1, 1947. After successfully completing the period of
probation, he passed the departmental examination for I.T.Os. in July 1950. In
1959-60 he was promoted as I.T.O., Class I, and was confirmed in that cadre
with effect from December 9, 1960.
He was promoted as an Assistant Commissioner
of Income-tax with effect from December 17, 1969.
Respondents 1 to 3 to that petition are the
Union of India, the Chairman of the Central Board of Direct Taxes and the Union
Public Service Commission respectively.
Respondents 4 to 8 are B. D. Roy, S. G.
Jaisinghani, M. C. Joshi, B. S. Gupta and M. Jangamayya respectively. These
officers have figured in certain well-known decisions of this Court, as a
result of which their names have become house hold words in service
jurisprudence. In fact, Shri B. S. Gupta figures in two cause-titles known as
'the first Gupta case' and the 'Second Gupta case'. Respondents 4, 7 and 8 are
Assistant Commissioners of Income-tax while respondents 5 and 6 are workings
Deputy Directors of Investigation.
It will be difficult to appreciate the nature
of the relief sought in these Writ Petitions without a proper understanding of
the history of the litigation leading to these petitions. That history is quite
checkered. one of the principal grievances of the petitioners is that some of
the previous decisions rendered by this Court are erroneous and that some have
not been properly understood and interpreted while framing rules of seniority.
That makes it necessary to refer to the previous proceedings leading to the
present controversy.
With a view to improving the income-tax
administration, the Government of India, in consultation with the Federal
Public Service Commission, decided to reconstitute and classify the then
existing Income-tax Services, Classes I and II. The scheme of reorganisation of
the Services was set out in a letter dated September 29, 1944 of the Government
of India, Finance Department (Central Revenues), which was sent to all the
Commissioners of Income-tax. The Central Service, Class I was to consist of (1)
Commissioners of Income-tax, (2) Assistant Commissioners of Income-tax, (3)
Income-tax officers, Grade I and (4) Income-tax officers, Grade II. The Central
Service, Class II comprised Income-tax officers, Grade III. Thus Income-tax
officers, Class I were to be of two grades, Grades I and II, while Income-tax
825 Officers, Class II, were to consist of one grade, namely, Grade Ill. A
Clauses (a) to (e) of paragraph 2 of the aforesaid letter prescribed modes of
recruitment to the various posts in Class I and Class II. Clause (d) which
prescribed the mode of recruitment to the post of Income-tax officer, Class I,
Grade II, said:
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
& Accounts and Allied Service Examination. The remaining 20 per cent of
vacancies will be filled by pro motion on the basis of selection from Grade III
(Class II Service), provided that suitable men upto 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.
Rules regulating recruitment to the
Income-tax officers (Class I, Grade II) Service, "liable to alteration
from year to year", were published on May 26, 1945 by a resolution of the
Finance Department (Central Revenues). Rule 3 provided that recruitment to
Class I, Grade II Service shall be made (i) by competitive examination held in
India in accordance with Part II of the Rules and (ii) by promotion on the
basis of selection from Grade III (Class II Service) in accordance with Part
III of the Rules. By rule 4, the Government was to determine, subject to the
provisions of rule 3, the method or methods to be employed for the purpose of
filling any particular vacancies, or such vacancies as may require to be filled
during any particular period, and the number of candidates to be recruited by
each method. Part III of the Rules called 'Recruitment by Promotion' provided
by paragraph 21 that recruitment by promotion shall be made by selection from
among Grade I II Income-tax officers (Class II Service) after consultation with
the Federal Public Service Commission and that no officer shall have any claim
to such promotion as of right.
By a letter dated January 24, 1950 the
Government of India laid down certain rules of seniority (a) as between direct
recruits, (b) as between promotees selected from Class II, and (c) as between
direct recruits who completed their probation in a given year and the promotees
appointed in the same year to Class I.
On October 18, 1951, the Government of India
addressed a letter to all the Commissioners of Income-tax on the subject
Income-tax officers, 14-463 SCI/80 826 Grade II (Class I Service) quota of
vacancies filled by promotion . The letter says:
The Government of India have had under
consideration the question of increasing the proportion of vacancies reserved
for promotion from Class II Income-tax officers in Class I. It has been decided
in consultation with the Union Public Service Commission and in modification of
para 2(d) of the Finance Dept.
(Central Revenues) letter No. 195-Admn.
(IT/39 dated the 29th September, 1944 that for a period of five years in the first
instance 66/2-3 % of the vacancies in Class I, Grade II, will be filled by
direct recruitment via combined competitive examination and the remaining 33%
by promotion on the basis of selection from Grade III (Class II Service). Any
surplus vacancies which cannot be filled by promotion for want of suitable
candidates will be added to the quota of vacancies to be tilled by direct
recruitment.
By a letter dated September S, 1952, the
Government of India revised with retrospective effect the rules of seniority
which were laid down on January 24, 1950.
Rule l(f)(iii) as framed on January 24, 1950
read thus:
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.
The rule as revised on September 5, 1952 read
thus:
Officers promoted in accordance with the
recommendation of the Departmental Promotion Committee before the next meeting
of the Departmental Promotion Committee shall be senior 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.
Rule l(f)(iv) of the 1952 Rules dealt with a
special situation in which an officer initially appointed to Class II service
is given seniority in the same manner as a departmental promotee, if subsequent
to his passing the departmental examination he is appointed in Class I on the
results of the competitive examination.
Rule 4 of Chapter IX of the "Rules of
Promotion of the Central Board of Revenue office Procedure Manual states, that
the prescribed 827 minimum service for an officer of Class I, Grade II for
promotion to A Grade I is 5 years gazetted service including 1 year in Class l,
Grade II. For a promotee from Class II, the minimum period of service for
promotion to Class I, Grade I, would be actually 4 years service in Class II and
1 year service in Class I, Grade II.
In 1962, S. G. Jaisinghani (who is respondent
No. 358 in Writ Petition No. 66 of 1974 and respondent No. S in Writ Petition
No. 4146 of 1978) filed Civil Writ No. 189-D of 1962 in the High Court of
Punjab under Article 226 of the Constitution, challenging the validity of the
seniority rules in regard to Income-tax Service, Class I, Grade II as also the
actual implementation of the 'quota' rule, as infringing Articles 14 and 16(1)
of the Constitution.
Promotees who were likely to be affected by
the decision of the Writ Petition were added as respondents 4 to 126 to that
Petition. Jaisinghani who was recruited directly as an Income-tax officer,
Class I (Grade II), raised four principal contentions:
(i) Rule l(f)(iii) of the seniority rules as
framed in 1952 was based upon an unjustifiable classification between direct
recruits and promotees after they had entered Class I, Grade II Service. On the
basis of that classification, promotees were given seniority over direct recruits
of the same year and with weightage of three previous years. All officers
appointed to Class I, Grade II Service formed one class and after being
recruited to that class, no distinction could be made between direct recruits
and promotees.
(ii) Rule 1(f)(iv) was discriminatory because
though the petitioner, Jaisinghani, qualified in the same competitive
examination of 1950 for appointment to Class I, Grade II Service as respondents
4, 5 and 6 to that petition, they were treated as senior to him by the
operation of the artificial rule by which they were regarded as "deemed
promotees", since they were appointed to Class II, Grade III Service in
1947. All the four of them were appointed to Class I, Grade II Service in 1951
and therefore the period of service put in by respondents 4, 5 and 6 in Class
II, Grade III Service cannot be counted for fixing their seniority vis-a-vis
the petitioner.
(iii) Rule 4 of Chapter IX of the 'Central
Board of Revenue office Procedure Manual' leads to discrimination as between
direct recruits and promotees; and that 828 (iv) during the years 1951 to 1956,
there was excessive recruitment of 71 promotees, in violation of the quota rule
of 2: 1 contained in Government of India's letter dated October 18, 1951. The
quota fixed by that letter must be deemed to have been fixed in exercise of the
statutory power given by rule 4 of the Income-tax officers (Class I, Grade II)
Service Recruitment Rules published on May 26, 1945.
A full Bench of the Punjab High Court,
Circuit Bench, Delhi, rejected the writ petition, holding that the principles
for determining seniority between direct recruits and promotees laid down in
rules 1(f) (iii) and (iv), 1952 were not discriminatory, that the quota rule
announced by the Government of India were merely a policy statement and had no
statutory force, that departure from the quota rule did not give rise to any
justiciable issue and that the promotion rule governing promotions from Class
I, Grade II to Class I, Grade I was not discriminatory and ultra vires of
Articles 14 and 16 of the Constitution.
In appeal, a Constitution Bench of this Court
held that rules l(f)(iii) and (iv) of the seniority rules framed in 1952 did
not violate Articles 14 and 16 since they were based on a reasonable classification
and that rule 4 of Chapter IX of the 'Central Board of Revenue office Procedure
Manual' cannot be held to lead to any discrimination as between direct recruits
and promotees, since the object of the rule was really to carry out the policy
of rule l(f)(iii) of the Rules of Seniority and not allow it to be defeated by
the requirement of five years service in Class I, Grade II itself, before a
person could be considered for promotion to Class I, Grade I. On the question
of excessive recruitment of promotees from 1951 to 1956 in violation of quota
rule, the Court had directed the Secretary of the Finance Ministry, during the
hearing of the appeal, to furnish information regarding the number of vacancies
which had arisen from year to year from 1945 onwards, the nature of the
vacancies-permanent or temporary-the chain of vacancies and such other details
which were relevant to the matters pending before the Court. In his affidavit
dated January 31, 1967 Shri R. C. Dutt, Finance Secretary, said that he was not
able to work out, in spite of his best endeavours, the number of vacancies
arising in a particular year. However, a statement, Ex. E. was furnished to the
Court showing the number of officers recruited by the two methods of
recruitment to Class I Service during the relevant years. The Court found that
it was not clear from Shri Dutt's affidavit whether the quota rule was followed
strictly for the years in question and noted that in the absence of figures of
permanent vacancies in Class 1, Grade II, for the relevant years, the Solicitor
General was unable to say to what extent 829 there had been deviation from that
rule. Rejecting the submission of the Solicitor General that the quota rule was
merely an administrative direction, the Court held that rule 4 of the
Income-tax officers Class I, Grade II) Service Recruitment Rules was a
statutory rule under which a statutory duty was cast on the Government to
determine the method or methods to be employed for the purpose of filling the
vacancies and the number of candidates to be recruited by each method; and
that, though in the letter of the Government of India dated October 18, 1951
there was no specific reference to rule 4, the quota fixed by that letter must
be deemed to have been fixed in exercise of the statutory power given by rule
4. There was therefore no discretion left with the Government of India to alter
that quota according to the exigencies of the situation or to deviate from the
quota, in any particular year, at its own will and pleasure. The quota rule,
according to the Court, was linked up with the seniority rules and unless it
was strictly observed in practice it would be difficult to hold that the
seniority rule contained in rule l(f)(iii) was not unreasonable and did not
offend Article 16 of the Constitution. The Court expressed its conclusion thus:
D We are accordingly of the opinion that promotees from Class II, Grade III to
Class I, Grade II Service in excess of the prescribed quotas for each of the
years 1951 to 1956 and onwards have been illegally promoted and the appellant
is entitled to a writ in the nature of mandamus commanding respondents ' I to 3
to adjust the seniority of the appellant and other officers similarly placed
like him and to prepare a fresh seniority list in accordance with law after
adjusting the recruitment for the period 1951 to 1956 and onwards in accordance
with the quota rule prescribed in the letter of the Government of India No.
F. 24(2)-Admn. I.T./51 dated October 18,
1951. We, however, wish to make it clear that this order will not affect such
Class II officers who have been appointed permanently as Assistant
Commissioners of Income Tax.
(emphasis supplied).
The Court suggested that for future years the
roster system should be adopted by framing an appropriate rule for working out
the quota between the direct recruits and the promotees and that a roster
should be maintained indicating the order in which appointments are made by
direct recruitment and by promotion in accordance with the percentages fixed
under the statutory rule for each method of recruitment.
In Writ Petition No. S of 1966 filed by Mohan
Chandra Joshi under Article 32 of the Constitution, a similar mandamus was
issued by the Court. Mohan Chandra Joshi, like Jaisinghani, was recruited
directly 830 as Income-tax officer, Class I, Grade II, with the only difference
that he was appointed in 1953 while Jaisinghani was appointed in 1951.
Thus the direct recruits succeeded
substantially in their contentions. the quota rule acquired statutory force,
appointments of promotees in excess of the quota became bad and it became
obligatory for the Government to prepare a fresh seniority list. Promotees
found to have been appointed in excess of the quota admissible to promotees had
naturally to go down lin the final gradation of seniority.
The aforesaid decision was given by this
Court on February 2, 1967. But, in spite of the mandamus issued by it,
Government did not prepare a fresh seniority list for over a year, which led to
the filing of a contempt petition by Jaisinghani and Joshi. Those proceedings
were dismissed by this Court on November 6, 1968. In the meanwhile on July 15,
1968, the Government prepared a fresh seniority list and filed it in this
Court. That list failed to satisfy promotees as well as direct recruits.
Two writ petitions were filed in the Delhi
High Court to challenge the fresh seniority list: one by B. S. Gupta, a
promotee of 1962 and the other by M. C. Joshi, a direct recruit who had
succeeded in the earlier round of litigation in this Court. These writ
petitions were heard by two separate Benches of the Delhi High Court. Writ
Petition No. 196 of 1970 filed by B. S. Gupta was dismissed whereas Writ
Petition No. 550 of 1970 filed by M. C. Joshi was substantially allowed.
Setting aside the seniority list, the High Court gave a direction that another
seniority list be prepared in the light of its judgment.
The decision of the Delhi High Court in the
aforesaid two writ petitions was challenged in this Court in four appeals: one
by B. S. Gupta against the dismissal of his writ petition and the other three
by (i) the Government, (ii) M. C. Joshi and (iii) S promotees. In all these
appeals, the only question or consideration was whether the seniority list
prepared on July 15, 1968 was correct and in accordance with the mandamus
issued by this Court in Jaisinghani v. Union of India and Ors.(1). These
appeals were heard together and were disposed of by a judgment dated August 16,
1972 which is reported in Bishan Sarup Gupta v. Union of India and Ors.(2).
While preparing the seniority list the
Government understood the mandamus issued in Jaisinghani(l) as covering the
entire period from 1951 to 1967. For doing that it could not be blamed, since
the mandamus issued in Jaisinghani(1) directed the Government to adjust the 831
seniority of various officers for the period 1951 to 1956 "and
onwards", A though the argument regarding excessive recruitment of the
promotees was confined to the years 1951 to 1956. Palekar, J. speaking for the
Court in Bishan Sarup Gupta (Supra) observed in the first instance that this
Court could not possibly have in mind a seniority list which took in promotees
after 1956 and that therefore under the mandamus issued by this Court,
appointments of promotees in excess of the quota could only be taken into
consideration in relation to the period 1951 to 1956. The reason for the use of
the words "and onwards" was explained to be that Government should be
able to push down excess promotions to later years in order that such promotions
could be absorbed in the lawful quota available for later years. C In Bishan
Sarup Gupta-the Court was called upon to examine the correctness of seven
principles enumerated in the Government letter dated July 15, 1968 governing
seniority. The first principle was accepted as good. The second and the third
principles were held to be partially incorrect in so far as they excluded
reference to all the promotees of 1952. The Court held that the promotees of
1952 should be referred to in the seniority list whether they are affected or
not, the object being the ascertainment of excess promotions.
The fourth principle set out in the letter of
July 15, 1968 which is important for our purpose reads thus: E In view of the
difficulty in working out the vacancies arising in each year the total number
of direct recruits and promotees in each year have been taken into account for
the purpose of implementing the quota rule.
This Court held that the rule dated October
18, 1951 was not concerned with the constitution of the cadre but "was
concerned with how permanent vacancies were to be filled" and therefore
the promotees would be entitled to 1/3 of the vacancies in any particular year
whether or not there was direct recruitment by competitive examination in that
year.
This ratio of 2: 1 between the direct
recruits and the promotees could not be made to depend on whether any direct
recruits were appointed in any particular year. It therefore became essential
to determine the actual vacancies in the cadre but even in B. S. Gupta the
Government put forward the plea that it was impossible for them to give the
exact figure of vacancies in any particular year. Counsel 11 who appeared for
the promotees in that case filed a chart marked Annexure 1 which, according to
him, showed the correct number of 832 vacancies in the particular years. The
Court, however, found it impossible to determine the actual vacancies on the
basis of the figures given in that chart. In the circumstances, the Court
considered it reasonable to accept the number of appointments made in the
particular years as substantially representing the actual vacancies available
for being filled up. One of the reasons which the Court gave in support of this
conclusion was that when the quota rule referred to vacancies, it was implicit
that the vacancies are those which the Government wanted to fill up, whatever
may be the actual number of vacancies available for being filled up.
Thus, if in the year 1953, 53 posts were
filled by direct recruits and 38 by promotees, the total number of vacancies
which were intended by the Government to be filled in would be 91. Promotees
would be entitled to hold 1/3 of these namely, 30. 8 promotees therefore could
be said to have been appointed in excess of the quota available for promotees.
This was in fact what the Government had done
while preparing the fresh seniority list, though it had wrongly calculated the
vacancies with effect from the year 1953 instead of doing so w.e.f. the
beginning of the year 1952.
There were no promotions in 1951 and
therefore, the question of appointment of promotees in excess of their quota
did not arise for that year.
The argument advanced on behalf of the direct
recruits that the quota rule should be co-related to vacancies in permanent
posts only and not to those in temporary posts was rejected by the Court.
The Court upheld the 5th principle under
which Class II officers promoted to Class I, Grade II, were allowed weightage
under rule 1(f)(iii).
The Court then considered the question
whether the quota rule could be applied after the year 1956. It held that even
after 1956, the Government was entitled by reason of rule 4 of the Recruitment
Rules of 1945 to follow the quota rule of 1951 as a rough guideline,
"without going to the trouble of putting the same on record in so many
words".
The Court observed that if the rule is
followed as a guideline, a slight deviation from the quota would be permissible
but if there was an "enormous deviation", other considerations may
arise. Taking into consideration the relevant circumstances, the Court came to
the conclusion that in the normal course the Government was entitled to prepare
the seniority list till the end of 1958 in accordance with the quota rule of
1951.
In regard to the position after the year
1958, the Court came to the conclusion that the quota rule ceased to apply and
came to an end on January 16, 1959 when the sanction to upgrade 100 temporary
posts in 833 class II, grade III to class I, grade II was given by the
President. The seniority rule then fell with the quota rule.
On these considerations it was held that the
seniority list was valid in regard to promotions made upto January 15, 1959 to
the extent that it was prepared on the basis of the quota rule dated October
18, 1951 read with the seniority rule 1(f) (iii).
This position made it necessary for the Court
to consider as to how the inter seniority between the direct recruits and the
promotes was to be fixed after January 16, 1959, if the seniority rule
l(f)(iii) ceased to be operative from that date. Several suggestions were made
to the Court with a view to evolving a fair and just seniority rule. The Court
declined to be drawn into any such exercise and preferred to leave it to the
Government to devise a fair and just seniority rule, if necessary, in
consultation with the U.P.S.C. As a corollary, the Court set aside the
seniority list of July 15, 1968 and directed the Government to prepare a fresh
seniority list. The list for the years 1955 to January 15, 1959 was directed to
be prepared in accordance with the quota rule of 1951 read with seniority rule
l(f)(iii). The list to be effective from January 16. 1959 was directed to be
prepared in accordance with rules to be made afresh by the Government.
Principles (6) and (7) did not survive for
consideration separately in view of the position mentioned above. E The Court
kept the proceedings pending on its file to enable the Government to prepare a
fresh seniority list in the light of the directions given by it within six
months from the date of the order. Liberty was given to the parties to apply to
the Court after the list was filed.
The judgment in B.S. Gupta (supra) was given
on August 16, 1972. On February 9, 1973, the President made rules called the
Income-tax (Class 1) Service (Regulation of Seniority) Rules, 1973. These Rules
were made under Article 309 of the Constitution and were given retrospective
effect from January 16, 1959. In pursuance of the liberty reserved to the
parties under the judgment in B.S. Gupta, the validity of the new Seniority
Rules was challenged by the promotes. That challenge was considered and
repelled by this Court in Bishan Sarup Gupta etc. v. Union of India & ors.
etc. etc.,(l) the 2nd Gupta case.
Rule 3 of the new Seniority Rules of 1973
reads thus:
"3. Seniority of officers- The seniority
of the Income- tax officers in the Class I service shall be regulated as from
the 834 date of commencement of these rules in accordance with the provisions
hereinafter contained namely:- (i) the seniority among the promotes inter se
shall be deter mined 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 deter- mined 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 select ion shall rank senior to all other
persons appointed as a result of any subsequent selection; and (iii) the
relative seniority among the promotes and the direct recruits shall 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:- (a) promote;
(b) direct recruit;
(c) promote;
(d) direct recruit; and so on When the new
list of seniority was prepared by the Government in accordance with these
rules, the Government had on its hands 73 promotes who, though appointed
earlier between 1956 and 1958, had no quota posts for their absorption. The 73
promotes, described as "spillovers on January 16, 1959" as also those
who were promoted subsequently had to be absorbed in the Service, which could only
be done by a special rule framed in that behalf.
The method adopted in the preparation of this
list was, according to Palekar, J., who spoke again for the Constitution Bench
in the 2nd Gupta case, "simple enough", though the wording of the
rule "19 not happy". The simple method adopted by the Government was
like this: The seniority list from serial No. 1 to serial No. 485 relating to
the period from 1951 to January 16, 1959 was prepared in accordance with the
quota rule read with the seniority rule which prevailed until January 16, 1959.
At serial numbers 486 to 1717 are officers who had to be accommodated from
January 16, 1959 in accordance with the new seniority rules.
Since under rule 3 (iii), the first post in
the roster has to go to a promote and the next to a direct recruit 835 serial
No. 486 goes to a promote, serial No. 487 to a direct recruit A. and so on.
Promotes whose ranking is below serial No. 485 are either out of the 73
spillovers as on January 1959, or are those who were appointed later. Thus, the
new seniority rule contains a formula for the absorption of all Promotes with
effect from January 16, 1959 in posts allocated to them, it determines their
seniority inter se and last but not the least, it determines their seniority
qua the direct recruits appointed from 1959.
The Court over-ruled the objection of the 73
spillover Promotes that since, in the Ist Gupta case, the 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
January 16, 1959 embolic and the direct recruits for that year should have been
shown thereafter. It was explained that by the use of the expression
"priority basis", what was meant by the Court was that the position of
the spillover promotes as seniors should not be prejudiced by claims made by
later promotes on the ground that since the spillover promotes were recruited
in excess of the quota, the later promotes whose promotion did not violate the
quota rule had higher rights than those 73.
The principal contention of the promotes in
the 2nd GPA case was this: As the quota rule collapsed on January 16, 1959 the
spillover promotes as also those who were promoted thereafter must be deemed to
have been validly appointed in accordance with rule 4 of the Recruitment Rules
of 1945.
Since there was no seniority or quota rule in
existence for determining the seniority of promotes Que the direct recruits,
the natural seniority linked with the earlier date of appointment must be
respected it could not be altered to the detriment of the promotes since to do
so would violate Article 16 of the Constitution. This contention was rejected
by the Court on the ground That when the 73 spillover appointments were made,
there were no allocated or earmarked posts to which those promotes could have
been validly appointed, the ordinary consequence of which would have been their
reversion to Class II posts which they originally held. So long as the quota
rule was in existence, appointments in excess of the quota, though invalid when
made, were at least liable to be regularized in subsequent years when vacancies
were available to the promotes as a consequence of the quota rule. But once the
quota rule ceased to exist on January 16, 1959, any possibility of the excess
appointments of the promotes being regularized vanished. It was in order to
overcome this injustice to the promotes, that the new rule was framed by the
Government.
The new rule was thus not only the direct
outcome of the judgment of the Court in the 1st Gupta case, 836 but it was
founded on the very principles on which the Income tax Service had been
constituted. The Court finally said that it had also to be remembered that
promotes appointed from January 16, 1959 onwards were appointed on an
officiating or ad-hoc basis with notice that the question of their seniority
was still undecided. This circumstance, coupled with the absence of clear
allocations of posts, made it impossible for the promotes to lay claim to
seniority and contend that they were deprived of their natural seniority in
violation of Article 16.
Shri V.M. Tarkunde who appears on behalf of
the petitioners in Writ Petition No. 66 of 1974 has made a fresh challenge to
the new seniority list prepared in pursuance of the rules dated February 9,
1973 the validity of which was upheld by this Court in the 2nd Gupta case
(Supra).
According to the learned counsel, the
decision in Jaisinghani. (Supra) suffers from the following three infirmities:
(i) It was assumed in that case that the
appointments of promotes were in excess of the quota available to them because
the relevant files were not made available to the Court, nor indeed was the
necessary data placed before the Court, even though during the hearing of the
appeal the Court had asked the Secretary of the Finance Ministry to furnish
information in that behalf. In the absence of such information, the Court made
an assumption which was unjustified, that the total number of vacancies
available for promotes was equal to the total number of appointments actually
made. If, for example, 10 direct recruits and 20 promotes are appointed in a
particular year it cannot be assumed either that only 30 vacancies are
available for being filled up in that year or that only 30 appointments are
intended to be made by the Government during that year. The proper inference
for the Court to draw, in the absence of material which ought to have been
produced by the Government, was that if appointments were to be made of direct
recruits and promotes in the proportion of 2: 1, and if 20 promotes were in
fact appointed, the Government desired to appoint 40 direct recruits but could
only appoint 10, probably because of the non- availability of suitable
candidates for direct recruitment.
(ii) It was wrongly assumed or held that rule
4 of the Income tax officers (Class I. Grade ll) Service Recruitment Rules was
a statutory rule.
837 (iii) lt was wrongly assumed that 100
posts in Class 11, Grade III, and 114 posts in the same cadre which were
upgraded as Class I, Grade II posts on January 16, 1959 and December 9, 1960
respectively were exclusively allotted to promotes and were in fact filled in
by the appointment of promotes.
In regard to the decision in the 2nd Gupta
case (Supra) it is contended that the decision suffers from the following
infirmities:
(i) It was wrongly held therein that the 73
spillover promotes as on January 16, 1959 could not be given priority en bloc,
even though it was directed in the judgment in the 1st Gupta Case (supra) that
they should be dealt with on a "priority basis".
(ii) It was wrongly held that 214 promotes
were appointed in excess of the quota available to the promotes.
(iii) The conclusion that no distinction can
be made between promotes and direct recruits once they belong to a common cadre
was erroneous, as a result of which the promotes were unjustly deprived of
their right to weightage.
(iv) The provision in rule 3 (iii) of the new
Rules of seniority of 1973 that direct recruits and promotes will be appointed
in the ratio of SO: SO cannot work to the advantage of the promotes because the
measure of SO percent is fixed by the new rules in relation to the actual
appointments made, whereas the old proportion of 2: 1 was in relation to the
actual number of vacancies available for being filled in.
Learned counsel has demonstrated with the
help of some of the instances in the new seniority list, as to how promotes
have been treated unfairly and unjustly in comparison with direct recruits. One
such instance is that a direct recruit, Hrushikesh Mishra, who was appointed on
July 3, 1966 is placed at serial No. 1001 while one of the petitioners, Kamal
Kanti Dutta, who was appointed six months earlier on January 1, 1966 is placed
at serial No. 1318.
Another instance cited is that of a promote,
V. R. Hiremath, who was appointed on March 1, 1956 but is placed at serial No.
486, the first 485 officers having been ranked according to the quota rule read
with the seniority rule which prevailed till January 16, 1959. Hiremath, it is
contended, not having been appointed in excess of the quota should have been
given his seniority, on account of the three years' weightage, with effect from
March 1, 1953. In the process, he has lost a benefit spread 838 Over not only
three but six years, because his ranking has been made according to the new
rule in relation to the date January 16, 1959.
These contentions were adopted by Dr. Y.S.
Chitale who appears on behalf of the petitioner H.K. Sajnani in Writ Petition
No. 4146 of 1978. It may be mentioned that in Writ Petition No. 66 of 1974 of
K.K. Dutta and others which was filed on February 8, 1974 no demand was made
for the review of the decisions earlier given by this Court on the points under
consideration. The request for review of those decisions was made for the first
time by the petitioners by paragraph 3 of their supplementary affidavit in
rejoinder which was filed in this Court in April 1978. By paragraph 45 of his
Writ Petition, which was filed on June 27, 1978 Sajnani did contend that the
aforesaid judgments be reviewed since they were wrongly decided. Sajnani asked
by paragraph Sl of his petition, and so did the petitioners in, the companion
petitions asked by, their supplementary rejoinder, that the decision of this
Court in Union of India v. M. Jangamayya(1) should also be reviewed.
In his writ petition, Sajnani has cited
several specific instances in support of his contention that under the new
seniority rules, the promotes have been treated with an evil eye and an uneven
hand. His complaint is that direct recruits who are "15 years junior in
age and 15 years junior in experience had been placed above him"; and that
the seniority list dated April 15, 1978 of Assistant Commissioners of Income-
tax, which is the basis of further promotion to the post of Commissioner of
Income- tax, does not include his name at all, though he has been working as an
Assistant Commissioner ever since 1969 when he was selected by the competent
authority with the concurrence of the U.P.S.C., after putting in 22 years of
service as an I.T.O., out of which 10 years' service was rendered in Class I
itself. Sajnani also prays that the seniority list dated April 15, 1978 for the
cadre of Assistant Commissioners be set aside as violating Articles 14 and
16(1) of the Constitution.
In addition to these grounds which are
pressed upon us for reviewing our decisions in Jaisinghani, 1st Gupta case, 2nd
Gupta case and Jangamayya, (supra) the petitioners have placed strong reliance
on the findings of the 49th Report of the Committee on Petitions of the Rajya
Sabha, which was presented on January 9, 1976. A full text of that Report is
extracted at pages 242 to 363 of the compilation filed by the writ petitioners
in this Court.
It appears from that report that at the sitting
of the Rajya Sabha held on the 23rd August, 1974, Shri Kali Mukherjee, M.P.,
presented 839 a petition signed by Shri R.C. Pandey, General Secretary, All
India A Federation of Income-tax Gazetted Services Associations, New Delhi,
praying for the repeal of the Income-tax officers (Class I Service) 4
Regulation of Seniority Rules, 1973) and for the framing of fresh seniority
rules in lieu thereof. The Committee heard the representatives of (i) promotes
on whose behalf the petition was presented to The Rajya Sabha; (ii) the
Ministry of Finance and (iii) the direct recruits who were represented by the
Indian Revenue Service Association. After going through the evidence, the
memoranda and the files- supplied by the Ministry of Finance the Committee
observed:
".... the Department from 1944 till
today has been working in a very haphazard, irregular and unscientific way.
They made policies, rules, etc. and then went on deviating from them to suit
certain exigencies. Instead of meeting the new situation or the demands of the
Department in a scientific or rational way, ad-hocism prevailed. This led to
litigation for nearly two decades. Since the year 1944, the Department has made
so many commissions and omissions in its long working.
thereby it has provided arguments to both the
direct recruits and promotes which have been advocated by them force fully.
'This has created bitterness and a picture of civil war in the Department. It
would facilitate our understanding if we look at the various points, like
vacancies, quota, seniority, weightage, confirmations, recruitments or
promotions to temporary and permanent vacancies, etc. in a proper
perspective." The Committee examined the files produced before it by the
Ministry, expressed its sense of "shock" at the plea of the Ministry
that files of vital matters were not traceable and concluded that the new
seniority rules of 1973 should be scrapped. The Committee recommended, inter
alia,:
"The entire concept of a common
seniority list should be given up. The existing common seniority list of 1973
be replaced by two sets of seniority lists consisting of direct recruits and
promotes respectively, on the basis of the dates of their appointment. The
integration of the two channels which may be turned into two cadres should not
be done at the level of I.T.Os. but after the level of Assistant
Commissioners." The Committee hoped that with the separation of the two
seniority lists, the controversy of inter se, seniority will be resolved and
the hardship caused to the 434 officers promoted between 1956 to 1966 will be
relieved. The Committee made certain calculations according to which, the
correct number of spill-over promotes as on Jan- 840 uary 16, 1959 was 15 and
not 73. Observing in paragraph 7(i) that the Parliament owes responsibility in
service matters too and that the executive is answerable to the Parliament for
its actions, the Committee concluded its Report with the observation:
".... if necessary, a special law could
be enacted and in corporated in the Ninth Schedule of the Constitution so that
no further scope is left for disputes and litigation and the Department would
start functioning as an efficient and well- knit unit and fulfill its intended
role in combating the evils of black money and tax evasion and ensuring the stability
and progress of our country." It is not necessary to go into complications
arising out of the random placement of statutes, rules and notifications in the
9th Schedule, but we do hope that, some day, the promised millennium will come.
The Solicitor General and the other learned
counsel who appear for the respondents resisted with great stoutness the
attempt of the petitioners to reopen decisions rendered by this Court in
disputes between promotes and direct recruits of the Income-tax Service. The respondents
contend that everyone of the arguments now presented before us has been already
considered carefully in the earlier decisions and the petitioners' demand for
review is only yet another attempt to retrieve a lost cause. The learned
Solicitor General also pressed upon us the need for treating the matter as
closed. Reviews, he contends, should not be granted save in exceptional
circumstances and at any rate, he says, no solution in service matters can ever
satisfy both the promotes and direct recruits in an equal measure.
Having considered these rival submissions
carefully we are of the opinion that there is no substance in the request made
on behalf of the petitioners for a review of the decisions in Jaisinghani, the
1st Gupta case, the 2nd Gupta case and Jangamayya (supra).
Certain historic facts have to be borne in
mind while considering the points raised before us. It is necessary to recall
that for nearly a decade after 1950, appointments of promotes were made far in
excess of the quota available to them. So long as the quota rule operated, it
was possible to regularize their appointments when posts within their quota
became available in later years. But a somewhat unprecedented ed situation
arose by the upgrading of Class II posts to Class I, Grade II,- 100 of the
month January 16, 1959 and 114 on December 9, 1960. This massive upgrading of
posts brought about a collapse of the quota rule. Subsequent absorption in
posts which become available for being filled up later really means
regularization of appointments, which is 841 possible provided there is no
excessive deviation from the quota rule. A We quite appreciate that no blame
can be laid at the doors of the promotes on the score that they were appointed
in excess of the quota available to them. Perhaps, their appointments must even
have enabled the administration to tide over administrative stalemate. But the
tough problem which the administration has to face is that whereas it is
necessary to recognize and protect the claims of promotes who are appointed in
excess of their quota, it is equally necessary to ensure that the direct
recruits do not suffer an undue set back in service on account of the excessive
appointments of promotes. The conflicting claims of the two components of
Service, both having an importance of their own, have therefore to be
reconciled. It was with that object that the rules have been modified from time
to time.
The judgments rendered by this Court in
matters which the petitioners want to be reopened show, without a shadow of
doubt, how every effort was made to ensure that no hardship or injustice is
caused to the promotes merely because their appointments exceeded their quota.
It is not correct to say that the judgment in
Jaisinghani (supra) was based on a concession or that the Court felt compelled
to draw the particular conclusions therein because of the inability or refusal
of the Finance Ministry to produce the relevant files. The Court adopted what
it considered in the circumstances to be a satisfactory and scientific method
of ascertaining the number of vacancies available for being filled up. It came
to the conclusions that the number; of actual appointments should determine the
number of vacancies available which, with great respect, was a perfectly
legitimate conclusion to draw. In the grey area where service rules operate,
more than one view is always possible to take without sacrificing either reason
or commonsense but the ultimate choice has to be necessarily conditioned by
several considerations ensuring justice to as many as possible and injustice to
as few. We also find it impossible to hold that there was any error in the
conclusions in Jaisinghani (supra) that rule 4 of the Recruitment Rules was a
statutory rule. Subsequent decisions would show that there was hardly any
dispute between the parties, at later stages at any rate, that rule 4 was a
statutory rule.
The other objections raised against the
judgments in the various cases partake more or less of the same character and
must be overruled for similar reasons.
We appreciate that the promotes should not be
penalized for the mere reasons that those of them who were appointed after
January 16, 1959 were appointed on an officiating or ad-hoc basis and had clear
notice that the question of their seniority was still undecided. The 842
circumstances attendant upon their appointments cannot, however, be wholly
over-looked in determining whether the, constitutional constraints have been
over- stepped.
In regard to the individual instances cited
before us as exemplifying the injustice caused to the Promotes, it is not scare
to test the constitutionality of a service rule on the touchstone of fortunes
of individuals. No matter with what care, objectivity and foresight a rule is
framed, some hardship, inconvenience or injustice is bound to result to some
members of the service. The paramount consideration is the reconciliation of
conflicting claims of two important constituents of Service, one of which
brings fresh blood and the other mature experience.
The counter-affidavit dated August 31, 1973,
filed in the 2nd Gupta case (supra) by Shri Mehra, Deputy Secretary, Ministry
of Finance, shows the fullness with which the Government had consulted all
possible interests while framing the impugned rules of seniority. The gamut of
reasonable possibilities is fairly covered by the four alternatives referred to
in Shri Mehra's affidavit. The inconveniences and disadvantages flowing from
the first three alternatives would be far greater than those flowing from the
4th. That is why the choice ultimately fell on the 4th alternative, under which
the seniority between Promotes and direct recruits was fixed alternately on a
roster system, vacancies being equally divided between Promotes and direct
recruits, for the entire period from 1959 up-to-date.
Though the promotes submitted in the 2nd
Gupta case (supra) that the new seniority rule was unfair to them, they were
unable to put forward any rational alternative, a fact which is noted at page
119 of the Report. That led the Court to remark:
"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." This shows how difficult it is
to solve the jig-saw puzzle of service disputes.
The Report of the 'Committee on Petitions' of
the Rajya Sabha, howsoever sincerely motivated and fully drawn, cannot be given
the 843 importance which the promotes seem to attach to it. It is urged that
the findings of the Committee are authentic because the Finance Ministry had
made the relevant files available to it. We do not think that this argument is
well- founded. In paragraph 16 of its Report, the Committee does refer to
certain files but those files appear to contain some noting in regard to the
direct recruitment only. The Committee has given a table of comparative
appointments in paragraph 19 of its Report, but it had to speculate on an
important aspect of the matter, as is shown by its own language, that the table
shows the number of direct recruits which the Government wanted to take and
" on the basis of which the promotes must have been given
promotions".
(emphasis supplied). If indeed the relevant
files were produced before the Committee, it would not have expressed its sense
of deep shock and resentment at the - disappearance of the files. We share the
concern of the Committee which is expressed in paragraph 32 of its Report thus
.
"It is strange that many of the files
which could probably have thrown light on the question of excess promotion, are
reported `missing' or `not available'.
The conclusion is inescapable that these
losses of files are far from being accidental. We can only conclude that
important information was deliberately withheld from the Supreme Court as well
as from the Committee. Had the Committee been allowed access to the file
relating to the Seniority Rules framed in 1973, we could have known some more facts".
This shows that the Committee, too? had to
grope in the dark and indulge in a certain amount of speculation on matters
under its consideration. In the circumstances, it has done as good a job as a
Committee can and we desire to find no fault with its Report. But we can- not
accept the submission pressed upon us by the petitioners that the Committee's
Report must displace our judgments.
It shall have been noticed that we have
refused to reconsider our decisions not so much because of the view taken in
the various cases cited by the learned Solicitor General, like Sajja Singh v.
State of Rajasthan,(l) that this Court should not review its decisions too
readily, as because, on merits, we see no justification for reconsidering the
judgments already rendered by this Court.
No fresh facts are brought to our notice, by
way of discovery of new and important evidence, which would justify
reconsideration of the decisions already rendered by this Court after the most
careful examination of the competing 844 contentions. The report of the Rajya
Sabha Committee on Petitions shows, as already indicated, that the relevant
files are still not traceable.
The petitions are accordingly dismissed but
there will be no order as to costs.
DESAI, J.-I have carefully gone through the
Judgment prepared by My Lord the Chief Justice but I regret my inability to
agree with the same.
The history, chronology of events,
contentions canvassed and the three decisions of this Court disposing of the
contentions have been so succinctly drawn up in the main judgment that its
repetition would merely be an idle formality. I would, therefore, straightaway
deal with the points raised in these petitions.
The petitioners who are promote Income Tax
officers Class I, Grade II, pray for reconsideration of the three decisions
specifically S.G. Jaisinghani v. Union of India & O.r.s.. Bishan Satup
Gupta v. Union of India & o.r.s..(2) ('1st Gupta case' for short) and,
Bishan Sarup Gupta etc.
etc. v. Union of India & ors. etc. etc.
(13) ('2nd Gupta case' for short), and to the extent the first mentioned case
is relied upon in Union of India etc. v. Malji Jangamayya etc.,(4) on the
following grounds;
1. The conclusion that rule 4 of the Income
Tax officers (Class l, Grade II) Service Recruitment Rules is statutory and,
therefore, the quota prescribed by the Government of India for recruitment to
Income Tax officers Class I, Grade II in exercise of the power conferred by
rule 4 would be statutory, proceeds on an assumption not warranted by the
provisions of law bearing on the point and if both rule 4 and the quota
presumably prescribed in exercise of the power conferred by rule 4 are not
shown to be statutory, the foundation on which the edifice in Jaisinghani's
case rests is knocked out because it can be demonstrably established that
neither rule 4 nor the quota prescribed there under was statutory in character
but was at best an administrative instruction.
2. After the Court on an interpretation of
the quota rule A held that the quota was related to vacancies arising in the
grade every year, the conclusion reached did not conform to this finding but
accommodated the so called inability (now shown to be factually incorrect) of
the Government of India to give information to the Court about the vacancies in
the grade every year with the result that the whole calculation of spill over
is vitiated.
3. The mandamus issued in Jaisinghani's case
was minister pretend by the Government because even if the quota was statutory
it was operative only between 1951 and 1956 but the Government interpreted the
mandamus to be operative beyond 1956 and up to 1967 which misinterpretation has
been pointed out in the first Gupta case.
4. In the 1st Gupta case while holding that
the mandamus directing to treat the quota as statutory beyond 1956 was not
justified yet till January 16, 1959, the Court itself in- , directly accepted
the quota rule as a guideline and treated that there was a spillover of 73
promotes. If rule 4 was not statutory and consequently the quota prescribed in
exercise of the power which had outlived its prescribed span of life in 1956
could not be brought in to treat any appointment as invalid on the ground that
there was no allocated post for those appointees treated as spill over because
under rule 4 itself the Government had power to determine the method or methods
to be employed for the purpose of filling in particular vacancies or such
vacancies as may be required to be filled in during any particular period and
the number of candidates to be recruited by each method.
5. The action of the Government in upgrading
214 posts between 1959 and 1962 from Class II, Grade III to Class I. Grade II
was not open to question as at that stage there was no quota rule and rule 4
enabled the Government to make recruitment from either of the two sources in
exercise of its executive power. In upholding the seniority rules in 2nd Gupta
case the Court introduced quota rule retrospectively by the back door which is
impermissible and its operation manifestly establishes its utter unfairness
inasmuch as a direct recruit not anywhere in the Department or may be a student
may secure a march over a promote who has been working in Class 1, Grade II.
846 While no doubt this Court has
constitutional power to review its decision, it is a power to be sparingly
exercised because any such review has the tendency to unsettle questions which
may have been finally determined. In fact, learned Solicitor-General appearing
for the Union of India warned us that the credibility of this Court is at stake
if it goes on re-opening and reviewing propositions which have been finally
determined by this Court. Whose credibility is at stake would be presently
pointed out because the examination of this ugly aspect could have been spared
if such a contention was not canvassed. Repeatedly the Government of India kept
back material from this Court filing affidavit after affidavit showing its
inability to provide such important information on which the decision of the
Court would turn even though it can now be demonstrably established that such
material and information was with the Government. If the Government of India
Had not withheld such material information' which has been rather adversely
commented upon not by the Court but by the Legislature, the credibility of the
department would be exposed. Reference may be made in this connection to the
49th Report of Committee on Petitions presented on January 9, 1976, to Rajya
Sabha Secretariat, set up to dispose of a petition filed by one R.C. Pandey,
General Secretary, All India Federation of Income Tax Gazetted Services
Associations, praying for repeal of the Income Tax officers (Class I Service)
(Regulation of Seniority) Rules, 1973, and for the framing of fresh seniority
rules in lieu thereof. While disposing of this petition, the observation
pertinent to the point under discussion may be extracted:
"The Committee is shocked at the pleas
of loss of vital records taken by the administration. In response to the
committee's requests relating to important files the administration has taken a
similar plea. The Committee asked for a file which could possibly show the
correct position on the question whether the 80: 20 quota during the period
1945-50 was really operative.
The file is reported missing. Another file
reported mis sing is that relating to the framing of the recruitment rules,
1945. The file relating to Shri R.C. Dutt's affidavit (filed in Jaisinghani's
case) is also not available. Even the very recent file relating to the framing
of Seniority Rules, 1970, is reported as 'not available'. On our insistence
they have produced a thick sheaf of papers said to be 'reconstructed file'.
It is strange that many of the files which
could probably have that own light on the question of excess promotion, are
reported 'missing' or 'not available'.
The conclusion is Inescapable that these
losses of files are far from being accident. We can only 847 conclude that
important information was deliberately withheld from the Supreme Court as well
as from the Committee".
(emphasis supplied) On these observations the
credibility submission would not only stand squarely answered, but need not
deter us from going into the points made in these petitions.
However, this Court does not lightly
undertake review of its decisions, more especially where conflicting claims
have been settled by a decision of the Court and the whole gamut may have to be
gone through over again on a reconsideration of the decision. The approach of
the Court on a plea of reconsideration has been spelt out in Sajan Singh v.
State of Rajasthan,(l) where a plea for reconsideration of the decision of this
Court in Sri Sankari Prasad Singh Deo v. Union of India & State of
Bihar,(2) was repelled observing as under:
"It was, however, urged before us during
the course of the hearing of these writ petitions that we should reconsider the
matter and review our earlier decision in Sankari Prasad's case. It is true
that the Constitution does not place any restriction on our powers to review
our earlier decisions or even to depart from them and there can be no doubt
that in matters relating to the decision of constitutional points which have a
significant impact on the fundamental rights of citizens, we would be prepared
to review our earlier decisions in the interest of public good. The doctrine of
stare decisions may not strictly apply in this context and no one can dispute
the position that the said doctrine should not be permitted to perpetuate
erroneous decisions pronounced by this Court to the detriment of general welfare.
Even so, the normal principle that judgments pronounced by this Court would be
final, cannot be ignored and unless considerations of a substantial and
compelling character make it necessary to do so, we should be slow to doubt the
correctness of previous decisions or to depart from them". G Similarly, in
the Keshav Mills Co. Ltd. v. Commissioner of Income Tax Bombay North,(3) it was
held that while exercising inherent power to reconsider and review its earlier
decisions this Court would naturally like to impose certain reasonable
limitations and would be reluctant 848 to entertain plea for reconsideration
and review of its earlier decisions, unless it is satisfied that there are
compelling and substantial reasons to do so. It is general judicial experience
that in matters of law involving questions of construing statutory or
constitutional provisions, two views are often reasonably possible and when
judicial approach has to make a choice between the two reasonably possible
views, the process of decision-making is often very difficult and delicate. In
deciding whether a review is necessary when two views are possible it would not
necessarily be an adequate reason for such review and revision to hold that
though the earlier view is a reasonably possible view, the alternative view
which is pressed on the subsequent occasion is more reasonable. The Court's
discretion should be guided by such consideration whether in the interest of
public good or for any other valid or compulsive reasons it is necessary that
the earlier decision should be revised. This view was re-affirmed in Manganese
Ore (India) Ltd. v. The Regional Assistant Commissioner of Sales Tax,
Jabalpur.(l) Bearing these principles in mind, it is necessary to examine
whether a case for reconsideration of the three earlier decisions is made out
by the petitioners or not.
Jaisinghani's case proceeds on a concession
that rule 4 and the quota prescribed by the Government referable to the power
conferred by rule 4 were statutory in character. This is borne out by the
observation of the Court which may be extracted:
"It is not disputed that rule 4 of the
Income Tax officers, Class I, Grade II Service Recruitment Rules is a statutory
rule and there is a statutory duty cast on the Government under ' this Rule to
determine the method or methods to be employed for the purpose of filling the
vacancies or number of candidates to be recruited by each method".
Income Tax Service was reconstituted on
September 29, 1944 The Government of India classified the existing Income Tax
Service as Class I and Class II. The scheme provided for recruitment of Income
Tax officers Class I, Grade II partly by promotion and partly by direct
recruitment. The scheme was set out in the Government of India, Finance
Department (Central Revenues) letter dated September 29, 1944. The quota
prescribed therein has undergone a revision at a later date. It thus appears
that the rules were pre-constitution Rules and, therefore, their source must be
traced to the Government of India Act, 1935 ('1935 Act' for short). Section 241
of the.
849 1935 Act made provision for recruitment
and conditions of service. A bare perusal of the section would show that the
power to make appointments in the case of service of Federation and posts in
connection with the affairs of the Federation was conferred on the
Governor-General or such person as he may direct. The power to make rules in
this behalf was conferred by sub-s. (2) on the Governor-General or by some
person or persons authorized by the Governor- General to Make the rules for the
purpose. On an examination of the rules under discussion no material was placed
on record to show that the rules were made either by the Governor-General or
such person as authorized by him. As pointed out a little while ago, the rules
were made by the Finance Department and no material was placed to show that the
person or the persons who made the rules were authorized by the
Governor-General under s. 241(2) of the 1935 Act in this behalf. The assumption
made, therefore, that rule 4 of the Rules was statutory and that the quota
prescribed in exercise of the power conferred by rule 4 must be statutory, is
ill- founded. This knocks out the entire foundation of the judgment of this
Court in Jaisinghani's case because this Court proceeded to hold that as the
quota was statutory any recruitment made in excess of the quota in any given
year would be invalid and at best can be regularized by relegating such excess
appointments to the quota next year.
If rule 4 and the quota referable to the
power conferred by rule 4 were not statutory but were merely executive
instructions, its violation would not render any appointment in excess of it
invalid, but at best would be irregular and in this case on a plain reading of
rule 4 it would not even be irregular.
In P.C. Sethi & Ors. v. Union of India
& Ors., this Court held that in the absence of any statutory rules it was
open to the Government in exercise of its executive power to issue
administrative instructions with regard to constitution and reorganization of
service as long as there is no violation of Articles 14 and 16 of the
Constitution.
If the parent rule 4 enables the Government
to prescribe method to be employed for the purpose of filling in any particular
vacancy {. Or such vacancies as may be required to be filled in during any
particular period and the number of candidates to be recruited by each method
and if the so called quota is not statutory but merely a guideline, the
Government whenever making appointment would be acting in exercise of power
conferred by rule 4 which leaves it to the discretion of the Government to
decide from what source recruitment should be made and what must be the quantum
of vacancies that must be filled in at a given point of time and such
appointment could not be said Hi to be invalid.
850 Alternatively, even if the assumption
made in Jaisinghi's case that rule 4 and the quota referable to the exercise of
power conferred by rule 4 is unquestionable yet when this Court held that the
quota is related to the vacancies, the decision proceeding on an incorrect plea
that the information about the number of vacancies in a year is not available,
is unsustainable for two reasons, namely, (I) that the files are now produced;
and (2) in the absence of information about the vacancies available the Court
could not have invalidated any appointment on the assumption that appointment
from the source of promotes was in excess of the quota. On a plain reading of
rules 3, 4 and S it appears crystal clear that the quota was related to
vacancies and at one stage that was accepted. On this finding unless the fact
situation is clearly established showing vacancies year to year it would be
impossible to hold that in any year there was in excess in either source.
Suppose there were 90 vacancies in a year and the quota was 66-2/3 for direct
recruits and 33-1/3 for promotes, it would be open to the Government to promote
30 persons irrespective of the fact whether 60 direct recruits have become
available or not. The assumption made that the recruitment made in a given year
from both the sources would furnish information about the vacancies in a year
would lead to a rather unfair conclusion inasmuch as the action of the
Government in acting in a certain manner without due regard to the quota rule
would work hardship on appointees even though on a correct calculation of
vacancies the appointments may be valid and legal.
The mandamus issued in Jaisinghani's case was
as under:
"We are accordingly of the opinion that
promotes from class II, grade III to class I, grade II service in excess of the
prescribed quotas for each of the years 1951 to 1956 and on wards have been
illegally promoted and the appellant is entitled to a writ in the nature of
mandamus commanding respondents 1 to 3 to adjust the seniority of the appellant
and other officers similarly placed like him and to prepare a fresh seniority
list in accordance with law after adjusting the recruitment for the period 1951
to 1956 and onwards in accordance with the quota rule prescribed in the letter
of the Government of India No.
F. 24(2)-Admn. I.T./51 dated October 18,
1951. We, however, wish to make it clear that this order will not affect such
class II officers who have been appointed permanently as Assistant
Commissioners of Income-Tax.
But this order will apply to all other
officers including those who have been ap- 851 pointed Assistant Commissioners
of Income Tax provisionally pursuant to the orders of the High Court".
The Government understood the mandamus as
covering the whole period from 1951 to 1967. When this was questioned in the
1st Gupta case, this Court held that the quota rule Proprio vigor operated
between 1951 to 1956 and if there were promotions in any year in excess of the
quota those promotions were merely invalid for that year but they were not
invalid for all time and they could be regularized by being absorbed in the
quota for the later years. So adjusting the quota at any rate upto 1956, the
quota rule on its own strength evaporated because it was to be in operation for
a period of five years and no fresh quota rule was issued by the Government.
Therefore, after 1956 rule 4 remained in force in all its rigour and was not
hedged in by any quota. Rule 4 permitted the Government to make recruitment
from either source without lettering its discretion by any quota rule which it
was not bound to prescribe. On January 16, 1959, Government in the ministry of
Finance informed the commissioners of Income tax that the President had
sanctioned the upgrading to class I of 100 temporary Posts of Income Tax
officers, Class II. On December 19, 1960, there was further upgrading of 114
posts from class II to class I. Between 1959 and 1962 these 214 posts were
filled in by promotes. Now, in the 1st Gupta case this court held that even
though the quota rule expired in 1956, yet the Government of India adopted it
as a guideline.
May be, it may be so. Does any appointment in
breach of the guideline neither statutory nor even having the fragrance of any
executive instruction become invalid more so when the Government had power to
make appointment from either source uninhibited by any quota rule under rule 4
? Yet the Court found that between 1956 and 1959 when 100 pasts came to be
upgraded there was a spillover of 73 persons and because of the huge departure
from guidelines the weightage rule giving seniority to the promotes by 2- 3-
years was crushed under its own debris. Again, with respect it must be
confessed that rule 4 is overlooked or bypassed when saying that there was a
spillover of 73 promotes between 1956 and 1959. Nor could it be said that the
upgrading of 214 posts and filling them up by promotes would be in any way even
irregular much less invalid because rule 4 enables Government to draw from
either source.
In the 2nd Gupta case in view of the decision
in 1st Gupta case a fresh seniority rule was prepared and it was made
retroactive from 11 January 16, 1959. If, the inter alia provides that the
relative seniority amongst the promotes and the direct recruits shall be in the
ratio of 852 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:
(a) Promote;
(b) direct recruit, (c) Promote, (d) direct
recruits, and so on.
This method of roster undoubtedly introduces
a quota by the back door. Once a roster is introduced Promote direct recruit,
Promote direct recruit etc. even if some promotes have come in a bulk and if at
a later date some direct recruits are appointed in bulk, while preparing roster
an earlier date promote will have to yield his place to a later date direct
recruit. Bluntly translated it means that the direct recruit who was never in
service when promote was promoted, probably he may be a student. May be he may
not have even passed the competitive examination, yet he may come into the
picture and challenge one who has already been serving in the Department for a
number of years. To illustrate, in the new seniority list prepared by the
Government pursuant to the order made by this Court in the 1st Gupta case and
upheld by this Court in 2nd Gupta case a promote of 1962 will have to yield his
place to a direct recruit of 1966. With utmost hesitation I must say that
service jurisprudence hardly permits a situation where a man not in service
comes and challenges something which has been done much before he came in to
service and gets such an advantage which on the face of it appears to be
unfair. But apart from this, even in 1959 there was no quota rule and assuming
that the old service rule giving weightage to the promotes crushed under that
weight of large number of promotes being promoted, it would not be open to the
Government to so prepare a fresh seniority list which cannot be given effect to
unless a roster is introduced which introduces quota by the back door and which
is so unfair in its operation that promotes of 1962 will have to yield place to
direct recruits of 1966. Now under the old weightage rule promotes were given a
weightage for service of 2-3 years over direct recruits because direct recruits
were unable to undertake regular assessment work for a period of 2-3 years when
they were more or less under training while promotes have been doing this work
for a number of years and their experience is rejected in the weightage. The
whole thing now appears in the reverse gear in that an uninitiated direct
recruit takes precedence over an experienced promote. The unfairness of the new
rule is writ large on the face of it.
853 This rule violates another important rule
well recognised in the service jurisprudence that in the absence of any valid
rule of seniority date of continuous officiation provides a valid rule of
seniority. This rule is completely crucified under two unsustainable assumption
that a quota rule having guideline sanction is made imperative in character and
assumed to be in force between 1956 and 1959, and that even though Government
in exercise of power conferred by rule 4 for its own necessity promoted 214 promotes
to the upgraded posts yet they must yield place to some future direct recruits
who may come to the department at a later date. This Court sustained the
position holding that these were ad hoc appointments, and there were no regular
posts for those promotees. This approach wholly overlooks the effect and the
force of rule 4.
Certainty and continuity demand that this
Court should not reopen settled decisions or reopen closed questions unless
under a compelling necessity. It may be that the fate of Income Tax officers,
promotees and direct recruits, may rest with the three decisions of this Court.
Unfairness to some of them may itself not provide a good and compelling reason
for reopening and reconsidering the decisions.
Therefore, if that were the only point for
our consideration I would have unhesitatingly agreed with the decision rendered
by My Lord the Chief Justice. But there is a further compelling necessity which
impels me to pen these few lines.
Jaisinghani and the two Gupta cases are being
quoted times without number before this Court for the principles enunciated
therein. These decisions, therefore, affect subsequent decisions of this Court
as well as the High Courts. And some of the principles enunciated in these
three cases stand in sharp contrast to other decisions of this Court and in
fact this Court itself felt it necessary to warn that it may become necessary
to reconcile these conflicting decisions. In this connection reference may be
made to N.K. Chauhan and ors. v. State of Gujarat and ors.
where this Court after referring to two sets
of decisions charting two different courses, observed as under:
"After all, we live in a judicial system
where earlier curial wisdom, unless competently over-ruled, binds the Court.
The decisions cited before us start with the leading case in Mervyn Coutindo
& ors. v. Collector of Customs, Bombay and close with the last
pronouncement in Badami v. State of Mysore and ors.
This time-span has seen dicta go zigzag but
we see no difficulty 854 in tracing a common thread of reasoning. However,
there are divergencies in the ratiocination between Mervyn Coutindo (supra) and
Govind Dattatray Kelkar and ors. v. Chief Controller of Imports and Exports and
ors., on the one hand and S. G. Jaisinghani v. Union of India (supra) Bishan
Sarup Gupta v. Union of India (supra) Union of India and ors. v. Bishan Sarup
Gupta , and A. K. Subraman and ors. v. Union of India on the other, especially
on the rota system and the year being regarded as a unit, that this Court may
one day have to harmonize the discordance unless Government wakes up to the
need for properly drafting its service rules so as to eliminate litigative
waste of its servants' energies".
It is not for a moment suggested and I say so
with utmost respect that the aforementioned three decisions are incorrect. In
the light of the materials now placed especially the files which were withheld
from the Court and the Committee the only view that I express is that enough
compelling and necessary material has been placed on record making out a strong
case for reconsideration of these decisions. Accordingly, in my view the
present two petitions deserve to be placed before a larger Bench to be
constituted by the Hon'ble Chief Justice of India.
ORDER In view of the majority opinion the
Writ Petitions are dismissed with no order as to costs.
S.R. Petitions dismissed.
Back
