BISHAN SAR UP GUPTA versus UNION OF INDIA AND ORS

BISHAN SAR UP GUPTA

UNION OF INDIA AND ORS

(With connected civil appeals)

August- 16, 1972

[S. M. S!KRr, C.J. A. N. RAY, l. D. DUA, D. Q. PALEKAR, ANb

M. H. BEG, JJ.]

l!'iAofne-Tax Officers Class I, Grade JI Service Rccruiflnent Rules of 1945-Rule 4 of the Rules of Pro1notion for Direct rccruits-Wlre1i statutory duty is cast on the Goren1J11ent to deten11ine the n;ethod to be e1nployed for the recruitrnent of candidates to vacancies in sen·ice and once the Governrllent has fixed the quota Rules of 2 : 1, the pron1otees are entitled till January 16th, 1959 to 331/J: per cent of "the l'acancies both in pern1anent and temporary posts, in any particular year irre:rpecdre of tfie fact whCtT1er the/'€' was any direct rrt:ruU~ nzent by cornpelitire examination in that year.

The scope of Rule I({) (iii) and (iv) of the semonty . Rules of the InCllme-Tax Officers (Class I Grade II) stn'ice Recruitment Rules and •!lo Rule 4 of the llules of Promotion of the Boatd of Revenue Office Procedurt ManutX came to ht! considered 'ln "laisl11Rliarii's case" [1967} (2) SCR 703 and the Supreme Court ·while rejecting the contention· that the rule was violative of.- Art 14 and 16 of the Constitution issued nzandamus to 11tepare fresh seniority rule b~ed on the "quota rule" of 2 : 1 between the direct recruit, and the "Promotees" for the year 1952-56. The. Government Uf)oet-stood the mandamus as also for the years upto 1967 and prepared freth seniority list dated 15-7-1968 and the appellants challenged the same 1111 violative 6f the mandalnus issued by the Court :

Accepting the appeals the Court,

HELD : It was for the Government under rule ·4 of the Income-TU Officers Class I, Grade II Service Recruitment Rules to determine the method or methods to be employed for the purposes of filling any particq1ar vacancies and the number of vacancies and the number of candidates to be recruited by each method. 'It is \V!Ong to assume that this Court woUld take upon itself to do what the Government is required to do under rule 4. The n1a11da11u1S \Vas really confined to the period bct"·cen l 951-1956. [49.5·H]

Rule 4 of tht- ]i'lcome•Tax Cla~ 1, Grade II Service ltecruitment ·Rules also refers to reoruitment of candidates to vacancies in the service. The vacancies for ariy particular, year being ascertained not more than ;..§rd of the same were to go to the promotees and the rest to the direct recruits. The ratio was not made dependent on whether any direct recruit was appaintcd in any particular year or not. The promotees were entitled to V3rd of the yacancies in any particular year whether or not there was direct recruitment by competitive exarninaticm in that year. [499G-H]

lt is true that the quota rule refers to vacancies but the vacancies are those vacancies which the Government wants to fill. It is the prerogative of the Government, reflected further in Rule 4, Whether any vacancy may be filled at all or not. Thel'efore, when the quota Tule tefers to vacancies it is, implicit in the rule tha:t the vacancies are vacancies, \vhich the Government, want to fill, whatever may be the actual number of vacancies. [501D·FJ

There is no sufficient warrant for the conlention that the vacancies referred to in the quota rule <.!fe vacancies only in the permanent cadre. [502D·E]

S. G. laisinfhani v. Union of India & Ors. [1967] (2) SCR 703, nature of nianda1nus clarified.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2060(N) of 1971.

Appeal by certificate from the Judgment and Order dated the 22nd September 1970 of the Delhi High Court in Civil Writ No. 196 of 1970 and Civil Appeal Nos. 67"139 and 393 of 1972.

For the Appellants : Yogeshwar Prasad & Mrs. S. Bagga in C.A. 2060171 and C.A. 393172, S. P. Nayar in C.A. 67 /72 and J.C. Talwar & Bishamber Lal in C.A. 139 /72.

For the Respond?nts: S. P. Nayar in C.A. 2060/71, C.A. 139/72 and C.A. 393/72, J. C. Talwar & Bishamber Lal in C.A. 2060/71 and C.A. 67 /72, Yogeshwar Prasad & Mrs. S. Bagga in C.A. 67 /72 and 139/72 and B. R. Agarwala in C.A. 67/72 & C.A. 393/72.

The Judgment of the Court was delivered by

PALEKAR, !.-In these appeals the challenge i~ to the seniority p list of Income-tax Officers prepared by the Central Board of Revenue in ,pursuance of the orders of this Court in Civil Appeal No. 1038 of 1965 and Writ Petition No. 5 of 1966. The appeal referred to was filed by one Jaisinghani and the Writ Petition by one Mohan Chandra Joshi, both of )Vhom had been directly recruited as Income-t.ax Officers, Class I, Grade IL The two proceedings were heard together and were disposed of by common judgment dated February 22, 1967 and mandamus in similar terms was issued in the two proceedings. These cases have been reported as S. G. Jaisinghani v. Union of India and Ors.('). For the purposes of the present appeals, we shall set oµt below the order passed in Jaisinghani's case (p. 718).

"We are accordingly of the opinion that promoteC'S 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 writ in the nature of mandamus commanding respondents 1 to 3 (1) Union of India, (2) Secretary to the Govt. of India in the Ministry of Finance and (3) Central Board of Revenue to adjust the seniority of the appellant (Jai~inghani) and other officers similarly placed like him and to prepare 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. J.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 appointed Assistant Com-missioners of Income Tax provisionally pursuant to the orders of the High Court."

( [1]) [1967] 2 S.C.R. 703.

For more than year the Government failed to prepare the seniority list as directed. So in April, 1968 the said Jaisinghani and Joshi started contempt proceedings against the Government. _in this Court. Thereupo·n, Government assured this Court that the list would be pre-pared before the Court re-opens after the summer vacation and, accordingly, on 15-7-1968 Government prepared 1.he seniority list and filed the same in Court. Objections were filed by Pfficcrs affected by the list. This Court, however, ruled on 6-11-1968 that contempt pro-ceedings were inappropriate and that if any of the Officers was aggriey-ed by the seniority- list, it was open to him to take appropriate pro-ceedings departmentally or otherwise.Thereupon· two Writ Petitions were filed in the Delhi High Court. Writ Petition No. 196/70 was filed on 23-2-1970 by one Bishan Swarup Gupta-a promotee of 1962. The other one was jlled by Mohan Chander Joshi being Writ Petition No. 550/70. Joshi, as already stated, was direct recrnit. In both these petitions the seniority list dated 15-7-1968 came in for attack for different reasons. The dispute was essentially between the direct recruits to Class I, Grade II of the Service arid the promotees to that cadre. · The ·two petitions <:ame before two separate benches. Writ Petition No. 196/70 was dismissed on 29-9-1970, whereas Writ Petition No. 550/70 filed by Mohan Chander Joshi was substantially allowed. Directions were ?,iven in th:rt Writ Petition for preparing the seniority list afresh in the light of the observations made in the judgment. Civil Appeal No. 2060 of 1971 before us is by Bishan Sarnp Oupta from the Order dismissing his Writ Petition (196/70). From the Order passed in the other Writ Petition namely 550/70 the other three appeals have been filed to ihis Court. Civil Appeal 67 of 1972 is filed by the Govt. Civil Appeal No. 139/72 is filed by Mohan Chander Joshi and Civil Appeal No. 393/72 is filed by one Helms and 4 other promotecs who were some of the respondents in Writ Pe!ition No. 550/70.

In all these appeals the only question for consideration was whether the seniority list prepared on 15-7-1968 was correct and in accordance with the nwndamus issued as above. All these appeals were, there-fore, heard together and will be disposed of by this judgment. '

As we are principally concerned with the mandamus issued in Jaisinghani's case, we have to understand the precise nature and scope of the mandamus. The mandamus was issued on the fa,cts brought to the notice of this Court at the time, and it is clear that the direc-tions given in the mandamus must be construed against the background of those facts. It is not necessary to recount all the facts here becauso they are all there in the official report-Jaisingliani vs. Union. of India [1967] (2) S.C.R. 703. Jaisinghani was directly recruited to class I, Grade II onhe Income Tax Service in 1951 after he had passed th~ competitive examination held by the Union Public Service Commis· sion in 1950. The other petitioner Jo5hi similarly had joined that service in 1953 after being selected in the competitive examination fa 1952. In 1962 and thereafter some promotions were made from this cla~s to the post of the Assistant Commissioner. The case of Jaisinghani and Joshi was that having joined service in 1951. and

1953 respectively, they were entitled to be considered for being select-ed to the higher post of the Assistant Commissioner, but they were not so considered because in the seniority list then prepared they were shown much tJelow some of the promotce oflicers who had been promoted to the cadre of Class I, Grade ll service long after Jai· singhani and Joshi had joined the service. This was done on the basis of seniority rule, also called the Weightagc rule, the effect of which was to give seniority to promotee of any year not only over the direct recruits who joined the service in that year but also over those direct recruits who joined the service in the previous two years. For example, if direct recruit was selected in the competi-tive examination of 1950 and joined the service in 1951 he will be not only junior to the promotee of 1951 but also to the promotee of 1952 and 1953. It was contended that such rule was unjust and violative of the principle of equality embodied in Articles 14 and 16 of the Constitution. In the second place, it was contended; even assuming that the seniority rule was not violative of any cons-titutional guarantee, the seniority list which had been actually pre-pared in-1962 and on the basis of which promotion to the post of Assistant Commi51;ioner had been made was not strictly in accordance with the quota rule and all those promotees who were shown as seniors, were not really entitled to that rank and be considered for pwmotion in preference to the petitioners.

This Court did not accept the first contention. This Court held that the rule of seniority was just and reasonable having regard to the fact that only small percentage of officers was promoted to the grade and those promotions were made out of experienced lncome-tax officers by rigid selection made by the Department Promotional Committee. At the time of the promotion from Class JI, Grade III to Class I, Grade JI, the promotees had to put in at least 5 years of service in class II, Grade lll of which two years were for pro-F bation and 3 years of actual income-tax assessment work. On the olher hand, the direct recruit after joining the service in any parti-cu!nr year had to undergo probation for two years in which they did not do any actual assessment work. Only after two years of probation, were they entrusted with assessment work. This Court pointed out (p. 712) 'The net effect of rule l(f)(iii) (seniority rule) therefore is that three years of outstanding work in Class II is equated to two years of probation in ·Class I service and on consideration of this aspect of the matter the promotec is given seniority over direct recruit completing the period of probation in the same year." Since at the time of entering Class I, Grade II service the recruitment was from two different sources, there was no question of an infringement of Articles 14 or 16(1); and since the promotees had experience of II assessment work at the time of the promotion and the direct recruit; had .none when tlrey completed their two years probation, it could not be said that the rule giving sen,iority to the promotees over such direct recruits was invalid. So far as the second contention was concerned thi' Court tried to ascertain, if in any particular year bet-ween 1951 to 1956 there had been promotions from class II service in excess of the quota laid down in the rule prescribed in

Govemment letter dated October 18, 1951. The qnota was relat-A able to permanent vacancies but the Secretary of the Finance Depart-ment Mr. Dutt was not able to enlighten this Court as to the number of such vacancies in these years though he was able to give the figures of direct recruits and promotccs appointed in those several years. In other words, there was, no sufficient material before the Court to decide whether or not the appointments of promotees were or were not in excess of the quota of 33-1/3 per cent of permanent vacancies avail-able to promtecs. Accordingly the mandamus was issued in the above terms.The Government understood the mandamus as covering the whole period from 1951 to 1967 the latter being the year in which the mandamus was issued. The seniority list, which is now challenj:ed, covens direc' recruits and promotecs for the whole of this period. Government felt that the expression used in the mandamus "recruitment for the period 1951 to 1956 and onwards" contained direction for the preparation of the c,;niority list not only for the years 1951 to 1956 but also for the succeeding years upto 1967. We are clearly of the view that this Court could not possibly have p in mind seniority list which took in promotees alter 1956. The quota rule had been specificl(lly noticed by this Court as being for. the duration of 5 years in the first instance i.e. to say from 1951 to .1956. The two direct recruits who were before the Court namely Jaisingbani and Joshi had entered the service during this period. ,Jaisinghani had entered service in 1951· and Joshi had joined service in 1953. Their complaint was that in 1962 and later they had not been considered for promotion to the post of the Assistant Commis-sioner though they thought they were eligible. Their complaint further was that some of the promotees who could not have found place in those years had found place above them and hence their chances of consideration for higher promotion had been postponed. Therefore, it was sufficient for the purpose of giving relief to Jaisinghani, Joshi ~nd otJ,er Officers similarly placed to consider which of the promg.. tees during the period of J 951 to 1956 should be relatively regarded as being senior to them and which who could not be so regarded. That was also the reason why in the petitions before this Court only the pro-motees for the years 1951to1956 had been specifically made parties. It was not, therefore, necessary for the purpose of giving relief to Jai-singhani and Joshi and other direct recruits similarly placed to consider the position of the promotees of 1957 and later years vis-a-vis J aisinghan.i and Joshi. It cannot be assumed that this Court made an Order which went far beyond the requirements of the case for the purposes of giving relief to the petitioncrs-Jaisinghani and Joshi. On compa-rison of the relative position of these petitioners with the validly pro-moted officers for those years it would have been possible to say at <Jnce whether in the year 1962 and the succeeding years when promo-H tions opened to the post of the Assistant Commissioners, promolces ,_;.:;,.-' DUtside the quota had been considered for promotion ignoring the seni-Drity of the petitioners. Secondly having specifically noted that the quota rule of 66% per cent and 33V:i per cent was to be in operation only for 5 years, in the first instance, that is to say upto 1956, it will be wrong to say that this Court could or would perpetuate the quota

~-·~----..--<

for the vears after 1956. It was for the Government under rule 4 of the Income-tax Officers, Class I, Grade II Service Recruitment Rules. to determine the method or methods to be employed for the purposes of filling any particular vacancie> and the number uf candidates to be recruited by each method. It is wrong to assume hat this Court would take upon itself to do what the Government is required to do under rule 4. In our view, therefore, the mandamus Awas really confined to the period between 1951-1956. It is true that the mandamus h;i,s also used the expression "and onwards" but the expression does not mean for all years to come. This Court had con-templated the possibility of some excess promotions being made in the years 1951 to 1956 on the basis of figures submitted to it. 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. They could be regularised by being absorbed i1t the quota for the later years. That is the reason why this Court advi-sedly used the expression "and onwards" just to enable the Govern- · ment to push down excess promotions to later years so tha,t these promotions can be absorbed in the lawful quota for those years.

In our opinion, therefore, the true scope of the mandamus is limited to the promotions during the period from 1951 to 1956.

The Goven1ment have, however, prepared seniority list upto 1967 and evidently want to support the promotions to the post of Asstt. Commissioner from 1962 onwards on that basis. In the letter dated 15-7-1968 they purport to have prepared this seniority list on the basis of certain principles. There is no dispute that if these principles are held to be correct, then the seniority list would be above challenged but the seniority list is challenged both by the promotecs and the direct recruits for separate reasons and it will be necessary for us tc:> consider those reasons, because those reasons apply not only to the promotces after 1956 but also the promotces from 1951 to 1956. The principles as enumerated in Government letter dated July 15, 1968 are as follows :

15-7-1968 they purport to have prepared this seniority list on the

promotces after 1956 but also the promotces from 1951 to 1956.

(i) Class II Officers promoted to Class I, Grade II prior to 1951 have been left undisturbed as the mandamus covers the period 1951 to 1956 onwards.

(ii) There were no promotions to Class I, Grade II, made in 1951. The officers promoted to Class I, Grade II in 1952 have either been confirmed as Assistant Com-missioners or they have left service. Their seniority as Income-tax Officers Class I therefore. has not been disturbed.

(iii) The list begins with the promotees of 1-1-1952. The names of the 1-1-1952 promotccs and the direct rec-ruits of 1948 examination have been included onlv· for technical compliance and to show the context. Th(. revision of seniority has actually taken place only in respect of the promotces of 1-1-1953 and sub-sequent batches.

(ivi In view of the difficulty in working out the vacancies arising in each year the total nnmber of direct recruits and promotees in each year have been taken into ac-count for the purpose of implementing the quota rule. (v) Class II Officers promoted to Class I, Grade Il have been allowed weightage vi de Rule 1 ( f) (iii) of the seniority rules, Any excess promotions over the quota in particular year have been carried forward to the subsequent year and taken against the promotions of that particular• year and given weightagc accor-dingly. The excess in that year has similarly been carried forward to the following year and so on. (vi) The quota for direct recruitment and promotion has been 66% per cent: 33V:i per cent respective! ysince 1951. The calculations have accordingly been made on this basis. (vii) As result of the adiustment, 154 junior-most officia-ting lncome-tax Officers, Class I (promotees) have been 66h per cent: 33!13 per cent respectively since cess has arisen because in 1959-60, 214 Class II posts were upgraded to Class I and these were ex-clusi.vcly filled up by promotions from Class II). The names of these officers appear at the bottom of this list. These promotees have not been given any weightage. They will be adjusted against the vacancies falling in the promotion quota in future years. These ofl:kers will, bowever, continue to work as Class l Officers.

Since the whole argument before us was based on the correctness or otherwise of these principles, it will be more convenient to deal with these principles one after ,another, noting in the appropriate place the several contentio,ns of the parties:

Principle (i) is correct and no possible objection can be raised to it because the mandanms covers only the period from 1951 to 1956 ~.nd does not affect promotions made to Class I, Grade II prior to 1951.

Principles (ii) and (iii) deal with promotions made in the years 1951 and 1952· In 1951, there were no promotions to Class I, Grade II from Class II, Grade J!I. Therefore, there could be no question of any excess promotions in that year. But objection is raised fo the list pertaining to the year 1952. It is true that the list begins with the promotees of 1-1-1952. Their names and also the names of direct recruits who finish the probation in that year have been included in the list but this, it is stated, had been done for tech-nical compliance and to show the context. The promotces of 1952 it is stated, have been either confirmed as Assistant Commissioners' or have left service and since under the mandamus promotees confirmed as Assistant Commissioners are not to be affected, it is said their seniority as Income-tax Officer, Class I has not been disturb~d. If on an examination of the position of each one of the promotees of 1952 it is found that they have either left service or were confirmed

a,s Assistant Commissioners, it may well be that their position cannot be disturbed. But it will not be correct to say that these promotions are not J to be taken into consideration at all. The whole object of the mandamus was to ascertain what was the excess promotion in any particular year having regard to the permanent vacancies which occurred in that year. There may or may not be any excess but when preparing the seniority list with view to sec whether there is any excess or not, it would not be correct answer that even if they are in excess they would not be affected as they are either confirmed Assistant Commissioners or have left service. lf an excess numlier of promo-tions is found for the year 1952 that m1miJcr shall have to be pushed down to the year 1953 and so on, and ab;orbcd in the quota of pro-motecs for the succeeding years. In our opinion, therefore, principles (ii) and (iii) arc partially incorrect in so far as they cxcme rdcrence to all the promotees of 1952. The promotees of 1952 should be re-ferred to in the seniority list, whether they are affected or not, the object being the ascertainment of excess promotions. ·

Principle (iv) would require some detailed consideration. lt has been consistently represented to this Court by the department that it is impossible for them to give the correct number of permanent vacancies in any particular yc.ar. When Juisingha11i's case was heard and this Court called upon the department to give the number of vacancies, Mr. R. C. Dutt, who was the Secretary of the Finance Ministry, said in his affidavit that he was not able to work out. inspite o[ his best endeavours, the number of vacancies arising in any parti-E cular year. AU that be could do was to furnish statement 'howing the number of officers recruited either by promotion or direct recruit-ment in any particular year. It was also represented that these appoint-ments were in substantial compliance with the quota rule. The r·~viscd quota rule dated October 18, 1951 showed that the Government had decided in consultation \\oth the Union Public Service Commission ai:d in modification of the previ0us order rn this respect c.latcc.l Sep-F tember 19, 1944 that for period of 5 years in the first instance, 66% per cent of the vacancies in Class I, Grade II will be filled by direct recruitment viz. the combined competitive examination and the remaining 33 V:i per cent by promotion on the basis of sckctio~ from . Goade Ill Class Il service. It further provided that any surplus vaca-ncies which 'could not be filled by promotion for want of suitable candidates were to be added to the quota of vacancies to be fiUed by direct re.curitment. This quota rule is substantially in compliance. with rule 4 of the Income-tax Officers, Class I, Grade !! Service Recruitment Rules, J 945 which authorised the Government to <1eter-mine the method or methods to be employed for the purp0se of filling any particular vacancies or such vacancies as required to be filled in during any particular period or the number of candidates to be recruited by each method. The methods of recruitment have been qiecifically referred to in the preceding rule 3 of these Rules and they are only two in number. One is to directly recruit the candidates by competitive examination and the other is by promotion on the basis of selection from Grade Ill.

It will be apparent from the rules referred to above that the ;>crcen-tage of 66% per cent and 33 y, per cent is related to vacancies. ·niat

B. s. GUPTA v. UNION (I'a/ekar, l.)

was also how it was understood in J aisinglzani's ca~e. This Court direc-ted Mr. Dutt to furnish the number of vacancies which had arisen from year to year. But Mr. Dutt informed the Court that inspitc of this best endeavours he could not state what was the number of vacancies arising in any particular year. However, he was able to give the number of appointments made in every year and wanted the Conrt to accept that that number reprcs~nted substantially the vacancies which occurred in that year. That was the line of a,rgument also adopted by the Solicitor Genci:al who said that on the basis of the figures of appointments given there was substantial compliance with the quota rule. This Court, however docs not appear lo have been satisfied with that line of rcasoning.Jt was observed. "But in the absence of figures of permanent vacancies in Class I, Grade I! for the relevant years the Solicitor General was unable to say to what extent there had been deviation from the rule." The whole object of asking Mr. Dutt to give the number of vacancies was to find out to what extent there was deviation from the quota rule, that is to say, how many promotees had been appointed in excess of the quota in any particular year. It is, therefore, implicit in the observation quoted above that in order to determine the excess of promotees in any particular year it is neces-sary for us to ascertain what was the number of vacancies in any particular year. Mr. Tarkundc, for the promotees, agrees that that is the proper construction of the rule and the learned Attorney General tor the Union also accepts its correctness. The · Attorney General, however, pleads that in spite of the Department's best endeavours it was not possible to determine the exact number of vacancies iu any particular year and so he submits that for tl1e purposes of the. nlanda-mus, the Court should proceed on the footing that the actual vacan-cies in any particular year were substantially the same as the number ()f appointments made in that year.

On the other hand, the contention on behalf of the direct recruits is that the real intention of the rule was to secure ,that at any given moment the service must consist of direct recruits and promotecs in the proportion of 2: I. If, for example, in any year 50 direct recruits were appointed, then not more than 25 promotecs could be appointed in that yea.r. If also no direct recruit was appointed in year there could be no appointment of promotees. This line of argument has been accepted by the High Court and it was substan-tially on that ground that the seniority list prepared on 15th July, 1968 has been set aside and directions given for preparing fresh one. What was, however, over-looked is that the rule dated October 18, 1951 was. not concerned with the constitution of the cadre but was concerned as to how permanent vacancies were to be iilled. Rule 4 of the Income-tax Class I. Grade II Services Recruit-ment Rules also refers to recruitment of candidates to vacancies in the service. The vacancies for any particular year being ascer-' tained, not more than I/3rd of the same were to. go to the promotees and the rest to the direct recruits. The ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. We are, therefore, unable -to accept the construction put <Jn the quota rule by the High Court. Tn our opinion, the pro-motees were entitled to I /3rd of the vacancies in any particular _

year whether or not there was direct recruitment by competitive examination in that year.

It was, therefore, essential that actual vacancies should be deter-mined in the cadre. E.ven now before us the Department is putting forward the plea that it 1s 1mposs1ble for them to give the exact figure of vacancies in any particular year. We do see that there might be difficulties .in ascertaining these figures but it is rather sur-prising that the department should not be able to determine per-manent vacanci~s which occurred in the years gone by. One can appreciate that it might be diflicult to say .at any given moment how many vacancies would take place in future year. Only tema-tiye estimate could be made and it is on such tentative estimates only that requisitions are made for recruitment by the Union Public Service Commission or by the Departmental Promotion Committee. If there is proper coordination between th~ several oflices and the department and proper exchange of information between them, it should not be really diflicult to decide, say in the year 1968, how many actual vacancies had taken place in the previous years. But we are now concerned with the mandamus and we have to consider whetber there has been substantial compliance with the mandamus. The learned Attorney General submits tha:t the figures of appoint-ments in any particular year may be taken as the most reasonable approximation of the actual vacancies in the absence of any material before the Court ,a;; to the actual vacancies. Mr. Tarkunde for the promotces, !Jowever, contends that he is in position to give the correct number of vacancies in any particular year on the basis of the figures taken from the record. He has given chart marked Annexurc I at the time of ·the argument and that chart is styled as 'Vacancies position during the calendar year-1951-1956 on the basis of admitted figures'. This chart is principally based on the deposition lists of officers issued by the Commissioners with refer-ence to their charges. The argument of Mr. Tarkunde runs thus: We know the sanctioned strength of Grade II Oflicers at the begin-ning of any given year. We also know the number of appoint-· ments made during the course of that year. Further we know from the deposition lists what was the actual strength of the officer& working at the end of the year. From these figures, he contends, it is possible to find out the vacancies in that particular year. For example, take the year 1952, the sanctioned strength of the cadre in the beginning of the year is 217. At the end of the year the working strength is found to be 121. Therefore, this would sljow that there would be 96 vacancies. But these 96 vacancies have taken place in spite of 51 new appointments made during that year. Therefore, the total vacancies in that year would be 96 + 51 i.e. 14 7. Mr. Tarkunde contends that the promotees are entitled to !/3rd of these vacancies i.e. to say 49 vacancies and since only 49 per-H sons were promoted in 1952 there has been no excess promotion. Thus goes on the chart for other years also. The learned Attorney General has serious objection to this manner of ca)culating the actual vacancies and it appears to us that it is not possible to pro-ceed on the figures given in the chart. It will be seen that from 1951 to 1958 the sanctioned strength of the cadre vari~s ·between 212 and 248 and if the chart is correct the total vacancies in each of

B. s. GUPTA v. UNION (Palekar, J.)

these years varies between 66 and 150. for example in 1951 the sanctioned strength is 212 in the beginning of the year and it is said that during the course of that·year !here were as many as 150 vacancies. In 1952 the sanctioned' strength was 217 and by the end of the year it is supposed that .147 vacancies had occurred in the cadre. It is rather difticult to believe that in cadre of this kind, there would be such a. large proportion of vacancies either by death, retirement, resignation or promotion. Secondly, serious gap would be notiC1'd, if we test the calculations in slightly different way. Ignore for the time being· the figures given for the sanctioned slrength in any particular year and go by the actual working strength from year to year. At the end of 1951 i.e. beginning of 1952 the working strength is 112 in the whole department. In the course of the year 1952, 51 new persons have been appointed. Therefore, at the .end of the year. 1952 the working strength should be 163. Actually it is 121. This would mean that !here were only 42 vacancies in the actual working strength and not 14 7 as shown in the chart. Similarly in 1953 and 1954 •the vacancies worked out would be 19 and 74 respectively instead of 112 and 95. We are not, therefore, satisfied that this chart has given correct estimate . of the fig1.1res of vacancies in any particular year. In the absence of any material which gives us the actual vacancies in year, we think that in order to implement tbs mandamus as for as it can possibly be done, it would be reasonable to accept the figures of appointments in those years as substantially representing the actual vacancies. There is also subsidiary r<Mlson why those figures may reasonably be accepted. It is true that the quota rule refers to vacancies but the vacancies are those vacancies which the Government wants to fill. lt is the prerogative of the Government, reflected further in Ruic 4 referred to above, whether any vacancy may be filled at all or not. Even if there are 100 vacancies in particular year the Government is not bound to fill all those vacan-cies. It may fill only 90 of !hem and no body can insist that the Government shall fill up all the vacancies. Therefore, when the quota rule refers to vacancies it is implicit in the rule that the vacancies arc vacancies which the Government wants to fill, what-ever may .be the actual number of vacancies. The actual appoint-ments are, therefore, in the absence of any evidence to the contrary,. the correct measure of the vacancies which the Government wanted to fill. From that point of view also it will be permissible to pro-ceed on the footing that the actual appointments represent the actual vacancies which the Government wanted to fill. For example, if in ihe year 1953, 53 posts were filled by direct recruits and 38 by promotees the total vacancies sought to be filled would _be 9} m which case the promotees would be entitled to 30 vacancies. fhat is how the Government has proceeded to determine the excess for each year from 1953 to 1957 as shown at Annexure 'N.' _(p. 26' Vol. I in Civil Appeal No. 2060(N) 1971). In our opinion the procedure . adopted by the. department in detern1inin~ the cx.cess number of promotees appomtcd m the several years is substantially correct. Annexure 'N' begins with the year 1953. It should begm

· with the year 1952 and_ not 1953. Iudeed the 5 year period staHs from 1951 and ends with 1956 but smcc there was no promotion m 1951 the question of excess m that year does not arise. For the purposes of the mandamus the seniority list will have to be re-settled from the year 1952 showing uot merely the excess from the years 1953 to 1956 but from 1952 to 1956. At the end of l '.156 the progressive total of the excess over the quota will be known and this excess, as already pointed out, is liable to !:re absorbed in the quota of the years succeeding 1956.It i'i feebly contended on behalf of the direct recruits that the quota rule should relate to only vacancies in permanent posts and not temporary posts. This contcn.ti.on is not accepted either by be promotces or the department. There is nothing in the Rules of 1945 or the quota rule of 1951 which says that the vacancies must be vacancies in permanent posts. I ndecd the vacancies must be permanent vacancies that is to say vacancies which are not for few days or for few months or are otherwise adventitious. The whole cadre has consisted of permanent and temporary posts for n years. Permanent vacancies are, therefore, likely to take place both in the permanent posts and in the temporary posts. fn fact Mr. Dutt, in his all1davit filed in Jaisinglzani's case had clearly alleged in paras 25 and 26 of the al!idavit that all <the direct recruits from l 948 onwards were initially appointed against temporary posts and even at the time of the filing of the aflidavit i.e. on 31st January, 1967 direct recruits were being appointed against temporary posts. We, therefore, find no suflicient warrant for the contention that the vacancies referred to in the quota rule are vacancies only in the per-manent posts. Principle V is obviously correct. Class JI officers promoted to Class J, Grade U have been allowed weightagc in accordance witb. rule 1 (f)(iii) of -the seniority Rules. That rule, in effect, provides that promotee in any particular year not only gets scniori ty over direct recruit appointed in that year but also in the two previous years. Any promotions in excess of the quota have to be carried forward to the subsequent year aud taken against the quota of promotions of that particular year and given wcightagc accordingly. That is how it s)10uld go on. That principle is fully available for the period 1951 to 1956, in view of the fact that the quota ruk of 18-10-1951 was to be in force for 5 years in the first instance.

· What is ·then the position for the years after 1956? Docs the quota rule apply? It is clear that, by its own force the quota rule will not apply because it was, indeed, to be in force for ~ years. There is no force also in the contention that if this quota rule of 1951 ceases to have effect, -then the quota rule of 1944 which laid down ratio of 4: 1 would automatically revive. As matter of fact. this 195 l rule had been made in supcrsession of the old rule as matter of policy. The old rule being superseded was dead, and could not be revived by the fact that the superseding rule ceases to have operation after certain number of years. It is· an admitt-ed fact that the Government did not prescribe in writing any new quota rule after 1956 but as matter of practice, it was st<>ted by

Government the guideli~ of the quota prescribed was followed even after the expiry of 5 years except in 2 instances once in 1958 and at another time in 1960. In these 2 years in all 214 Grade Ill posts were upgraded to Grade II posts and an equal number of Grade III officers were appointed to class I by promotion on an ad hoc basis. [See: Annexure J p. 216 in Vol. 1 of Civil Appeal No. 2060 (N) of 1971]. It appears to us that if the Govt. had decided to follow the old quota rule as guideline that would be perfectly consist-ent with rule 4 oL the Recruitment Rules of 1945 already referred to. We shall deal later wHh the question of the ad-hoc promotion of 214 vacancies in the years 1959 & 1960. It cannot be doubted that the Govt. was entitled by reason of rule 4 to follow the quota rule of 1951 as rough guideline without going to the trouble of putting the same on record in so many words. When the rule is followoo as guideline and appointments made, slight deviation from the quota would not be material. But if there is an enormous deviation, other considerations may arise. In the normal . course, therefore, the Govt. would be entitled to prepare the seniority list till the end of 1958 in accordance with the quota rule of 1951.

What is then the position with regard to ·the seniority list after the year 1958? It appears that for sometime before 1959 Govt. was considering upgrading large number of class II, Grade III posts to class l, Grade II posts. Direct recruits who, aftet proba-tion, started working in the department had naturally no experience of assessment work. On the other hand, class ·n, Grade III ofii-cers had at least 3 ·years experience of assessment work. The de-E partment thought that it would be expedient and just to increase the number of class I, Grad~ II posts and to appoint to them' on selective merit class JI, Grade JI! ol!iccrs who had sufiicicnt experi-ence of the assessment. That is how decision was taken at the end of !958 to upgrade number of posts in class II, Grade III and appoint otiiccrs in Grade lll in those upgraded posts. On January 16, 1959 Government in the Ministry of Finance wrote to all Commiss)oncrs of Income-tax that the President had sanctioned the upgrading to class I of 1 00 temporary pos·ts of Income-tax ofri-cers, Class II. Upgrading of post involves the transfer of post from the lower grade to the higher grade and the promotion of one of the incumbents of that post (o the upgraded post. If 100 posts are upgraded from class II to class I, class II posts will dwindle by I 00 posts and class I posts will increase by 100 posts. These extra upgraded posts are then filled by selection of 100 offi-cers of class l l. If that is not done, 100 class II oflicers will have no posts in class II after 100 posts are upgraded to class I. Then agam second time on December 9, 1960, Govt. sanctioned further upgrading of 114 posts from class II to elass I. TheS\O 114 pos1s consisted of 80 permanent posts and 34 temporary posts. Thus in all hetween 1959-60 altogether 214 posts were upgraded and filled by promotees. Government's contention was that these promotions v had been on an ad hoc basis. All these 214 promotions were not made in 1959-60 only. They were spaced over 3/4 years. But the point is that the cadre of class I, Grade II as it stood in 1958 enormously increased by this addition of 214 upgraded posts. If the same seniority rule applied to these promot~e' filling the upgraded posts, ·then they would not only be senior to the direct recruits appoin-ted in those years but also to those appointed in the previous two . ~ears. Two contentions were put forward on behalf of the direct recruits. One was that by the upgrading of the posts 214 new vacancies were created in class I, Grade Il and these vacancies must be filled in accordance with the quota rule i.e. to say 2/3 of these vacancies must go to the direct recruits and 1 /3 to promotees. Since, however, all these upgraded posts are filled by promotions, excess appointments to the extent of 2/3rd would be invalid. The second contention was that the seniority rule had collapsed by colossal departure from the quota rule. In Jaisinghani's case it was pointed out by this Court at p. 718 that "the quota rule was linked up with the seniority rule and unless the quota rule is strictly obser-ved in practice it will be difficult to .uphold that the seniority rule i.e. 1 (f) (iii) and (iv) is not unreasonable and does not offend Article 16 of the Constitution". It was contended that class I. Grade II was now flooded by an enormously large number of pro·· motccs and, therefore, with the breakdow~ of the quota rule there was breakdown in the seniority rule itself. So far as the first contention referred to above is concerned, there is no substance. There was no quota rule as such in existence in 1959. Only the old quota rule of 1951 was being followed as goideline. Rule 4 of the Recruitment Rules, 1945 permitted Gov-ernment to determine the method to be employed for the purpose of folling any particular vacancies and the number of candidates to be recruited by each of the two methods dc,cribed in rule 3. So if the Govt. takes decision that 214 posts mnst be upgraded to class I and all these upgraded posts must be filled by promotces from class JI which is one of the two methods described in Rule 3 of the Recruitment Rules, there can possibly be no objection. Rule 4 permitted the Government to fill the vacancies either by direct recruitment or by promotion or both. Therefore, it cannot be contended that these 214 upgraded posts must be divided between the direct recruits and promotees in the ratio of 2 : l. · But there is considerable substance in the second contention on behalf of the direct recruits, This Court in Jaisinghani's case has clearly expressed that the quota rule was linked. with the seniority rule and if the quota rule was not strictly adhered to, it would be difficill.t to uphold the seniority rule as reasonable, It was contended by Mr. Tarkunde that the basis for giving seniority to the promotees over those who were recruited in any particular year or in the pre-vious two years was based upon reasonable ground, viz. that whereas the promotee was conversant with the assessment work those direct recruits to whom he was considered senior had hardly any knowledge of assessment work. Then again it was not the case that these 214 class m officers were just moved up to class I on the up-grading of the posts. The cadre of class II posts was large one end from tbis cadre 214 officers were selected in the course of 3 or 4; years. All of 'them were selected on merit and there is no dispute that this was so. In these circumstances, Mr. Tarkunde for the promotees, contends that it would be reasonable to give all these

promotees seniority over direct recruits not only of that year but also of the two previous years. In other words, Mr. Tarkunde's contention i,s that t!Je quota rule and the seniority rule deserved to be considered independently of each other. That is, however, contrary to the view which had alre~dy been taken in Jaisinghani's case and . we do not think that there is sufficient ground for us to take different view. In our opinion, with the upgrading of a. large nnmber of posts and the appointments to them of promotees, the quota rule collapsed and with that the seniority rule also. The decision to upgrade 100 posts was taken in January, 1959 and the remaining 114 posts in the year 1960. In our opinion the quota rule came to an end on January 16, 1959 when sanction to upgrade lOO temporary posts was given by the President, and with that went the seniority. rule.

It would therefore, follow that the seniority list to the extent that it was prepared on .ihc basis of the quota rule dated 18-10-1951 r/w seniority rule !(f)(iii) already referred to above would be valid with regard to promotions made upto 15-1-1959 but would not be valid after that date. Indeed it might happen that there was spill over or excess of promotecs promoted before 15-1-1959 but that excess number can be absorbed on priority basis on or after 16-1-1959.

But if tlie seniority rule 1 (f) (iii) ceased to be operative from 16-1-1959 how is the inter-se seniority between the direct recruits and the promotees to be fixed thereafter ? Several suggestions were made with. view to persuade us that some fair and just seniority rule may be evolved. One of them was that the quota rule may still hold the field and that those who came in by promotioff to the upgraded posts may be ranked lower in seniority to the direct recruit who had finished his probation in that year. second suggestion was the one put forward by the Government in the letter dated 17-2-1960 to the Union ·Public Service Commission wherein package deal was suggested. The seniority list, as it stood, was to go and in its ]llace the seniority rule should be that promoted officers in any calendar year should be senior to th.c direct recruits appointed that year only. Having made that concession in favour of the direct recruits in response tel their demand it was suggested' that the quota of departmental promotees should be raised from 33% % to 50%. In o!her words, here was. ~ package deal whereby every year the appomtments should be dlV!ded equally between direct recruits and prom.otees an:J t.he promotees being already in the department should be given semonty over the new direct recruits. We do not think that w.e ~ha~ be justified in expressing our opinion as to how inter-se semonty 1s to be fixed after 15-1-1959. Since the old. seniority rule ~as .ceased to operate by reason of the infringement of the quota f?le 1t .will be for. the Gov.ernment to devise, if necessary in consulta-tio~ ~1th the Umon Public Service Commission, just and fair se~mnt:y rule as between the direct recruits and the promotees for be1~g .give!! effect to from 1~-1-1959. It follows, therefore, that the semontl'. list of 15-7-1968 will have to be set aside and the depart-· ment will have to prepare fresh seniority list in the light of the

[1975] SUPP. S.C.R.

observations made in this judgment. Broadly speaking the seniority list from 1951 to 15-1-1959 will be prepared in accordance with the quota rule of 1951 rlw the seniority rule l(f) (iii). The seniority list from 16-1-1959 will be prepared in accordance with tl<e rule to be freshly made by the Government in that behalf.

In view of the "above, principles VI and VU do not survive for further consideration separately.

After the fresh seniority list is made in accordance with tbe above directions it will be open to any direct recruit or promotee to point out to the department that in the selections made to the post of Assistant Commissioner from 1962 onwards, he, being otherwise eligible, was entitled on account of the new seniority given to him to be considered for promotion to the post of Assistant Commissioner. The department may have to consider his case for promotion on his record as on the date when he ought to have been considered for 'election but not so considered. I! he is selected, bis position will be adjusted in the cadre of the Assistant Commissioners witho11t affecting the promotee Assistant Commissioners who had been con-firmed prior to 22-2-1967-the date on which the Jaisinghani's case was dispose~ of by this Court.

As' already shown these proceedings before us arise out o.f the mandamus issued by this Court in Jaisinghani's case. The seniority list was prepared by the Government in pursuance of the mandamus. We have found that the seniority list is not correct and will have to be prepared afresh in accordance with the directions and observations made in this judgment. The demand made by the officers for the implementation of the mandamus is still unfulfilled and it can be achieved only after the Government files proper list of seniority. These proceedings, therefore, will have to be kept pending till such seniority list is prepared and filed in court. The respondents name!)' the Union of India, the Ministry of Finance and the Central Board' of Direct Taxes are therefore directed to prepare fresh seniority list and file it in Court. It will. be appreciated that this dispute regarding seniority is' pending before the Court for several years and it is very essential that it should be resolved without further delay. We are, therefore, of the view that th~ respondents charged with the preparation of the fresh list shall prepare it and file it in court within six months from the date of this order. After the same is filed, liberty to appl) i\ given to the parties to the proceedings.*

Case remanded

MGTPRRND-10 SC/75-lll-Day-13-2-76-2500.