UNION OF INDIA ETC. versus MAJJI JANGAMAYYA ETC.

UNION OF INDIA ETC.

MAJJI JANGAMAYYA ETC. (With connected Civil Appeals) November 5, 1976

[A. N. RAY. C. J., M. H. BEG AND JASWANT SSNGH, JJ.]

Constitution of India 1950, Arts. 53, 313 and 366-Scope of

Government of India Act, 1935, 241-Scope of-Office Manual, 1955, Vol. fl. r. 18-Whether statutory rule. ·

The Government of India, in 1950, framed rule for promotion of an Income Tax Officer as Assistant Commissioner and it was published as rule 18 in Vol. 11 of the Office Manual published in 1955. The rule provided that promotion shall be strictly on merit and that no one should ordinarily be considered for promotion unless he has completed at least ten years service as Income Tax Officer. In 1957, memorandum was issued by the Central Board of Revenue containing the following principles for promtion of Income Tax Officers Class I as Assistant Commissioners.

1. Greater emphasis should be laid on merit as criterion.

2. The Departmental Promotion Committee should first decide the field of choice, namely, the number of eligible officers awiating promotion who should be considered for inclusion in the selction list. An officer of outstanding merit may be included in the list even If he is outside the normal field of choice.

3. The field of choice wherever possible should extend to 5 to 6 timei the number of vacancies expected.

4. From among such officers those who are considered unfit for prometion should be excluded and the remaining should be classified as 'outstandin~· 'yery good' and 'good' on the basis of merit as determined by their respective records of service. The selection list should then be prepared by placing the aame8 in the order of these three categories without disturbing the seniority inter se within each category.

5. Promotions should strictly be made from such selection list in the order in which the names are finally arranged. The selection list should be periodic-ally reviewed removing from the list names of persons who have been pr•mot-ed, and including fresh names.

On 16th August 1972 this Court set aside the seniority list in the first Bishan Sarup Gupta case [1975] Supp. SCR 491 and gave directions for pre-paring fresh list. On 21 December 1972, the Government applied to this Court for making ad hoc promotions and the court permitted them to do so. ' Accordingly, in March 1973 and November 1973 the Board promoted 5' and 48 Income Tax Officers respectively as Assistant Commissioners. It was distinctly stated in those two orders that the ad hoc appointments made ago.inst those posts were provisional and that the appointments eventually be made on the basis of the revised seniority list of Income Tax Officers Class I as finally approved by this Court, and on selection by duly constituted Depart-mental Promotion Committee in accordance with the prescribed procedure. In February 1973, the Income Tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973, were made and revised seniority list of Income Tax Officers Class I was made on the basis of those rules. The list as well as the Rules were approved in the second Bishan Samp Gupta Case [1975] 1 SCR 104. From such seniority list the Departmental Promotion Committee made selection list in July 1974, for promtion of Income Tax Officers, Class I, as A8Sistant Commissioners. There were 112 vacancies and the Govrenment sent 336 names in the running order of seniority for consideration of the field of

choice. The Committee followed the instructions in the 1957 Memorandum and found 276 to be fit for the field of choice, assessed the merits of 145 persons in order of seniority, found one officer outstanding, 114 very good, and 7 Sche-duled Castes (Tribes officers good, according to the instructions. The Selection list was challenged in various High Courts. Two of the High Courts held in favour of the petitioners and the other High Courts gave interim orders staying the operation of the Selection List.

In appeals by the Union of India to this Court, the respondents sought to support the judgments in. their favour on the following contentions :-

{ 1) The requirement in the rule regarding 10 years experience was not abrogated as contended by the Government and the affidavits field in the various proceedings on behalf of the Union as well as the petitioners show that the 10 year rule was in force and was followed

{2) Rule 18 has the force of law under the Government of India Act, 1935, and hence is existing law within the meaning of Art. 366(10) of the Constitu-tion and also because it was incorporated in the Office Manual issued by the Government of India in exercise of its executive power under Art. 53.

{3) The rule constitutes one of the conditions of service and, therefore, should be followed.

{ .ol) The rule imposes an obligation on the Union Government to consider 'ordinarily' only Officers of ten years service, but the selection list was pre-pared in violation of the rule in that officers of 8 years experience were con-D side red.

( 5) The ~elction has been made in complete violation of the principl~ set out in the 1957-memorandum and was entirely arbitrary.

( 6) The promotion should be considered as on 21 December 1972 when the Government applied to this Court for permission to make ad hoc appoint-ment•, and on the two dates when the Government actually made 107 (59+48) ad hoc promotions and it was the duty of the Committee to regularise the 107 promotions as from the dates of the original promotion and to consider the eligibility of an officer for promotion as on those· dates, and this ·not having been done, the selection list was illegal being contrary to the observations in the first Bishan Sarup Gupta's case.

Rejecting these contentions of the respondents, allowing the appeals, and upholding the Selection List,

HELD : (I ) (a) The requirement of 10 years experience in r. 18 was modi-F fied to 8 years experience. The correspondence between the Finance Ministry and Home Ministry and the U.P.S.C. shows that there was concurrence with the change. The High Court was in error when it said that the requirement of 8 years experience must first be included in the appropriate recruitment rules and that until that was· done 10 years experience held the field. 8 years experience as working rule for promotion was publicly announced by the Minister in Parliament. Administrative instructions are followed as guide line on the basis of executive policy. The requirement of 8 years was followed -G as guideline in practice in 1968, 1970 and 1972. The requirement was thus not only modified but was given effect to. [39F] (b) The High Court was in error in treating the affidavit evidence of an officer of the Government, in other proceedings, as statement of fact that the 8 years rule had not been introduced. This affidavit evidence is torn out of context and is misread by the High Court without going into the question as to whether such evidence is admissible. The entire affidavit evidence as well as the submissions made on behalf of the Union Government is that the requirement of 10 years experience is replaced by one of 8 years. It is ques-tion of construction of the correspondence as to whether the 10 years rule was replaced by 8 years rule. The fact that no rules under Art. 309 were

framed does not detract from the position that prevoous administrative instruc-tion of 10 years experience was modified to 8 years experience. The various affidavits and documents show that the consistent position on behalf of the Union has always been that the requirement of 10 years experience was modified to one of 8 years. [41H; 42A-B]

(2) The rule is not statutory rule.

(a) The contention that because Government of India has authority to frame rules the letter of 16th January 1950 in which the rule was framed should, therefore, be treated as formal rule is erroneous since there is distinction between statutory orders an_d administrative instructions of the Government. The change was recorded by means of correspondence as an admin'strative instruction. In the absence of statutory rules, executive orders or administrative instruction may be made. [42E-F]

Commissioner of Income Tax Gujarat v. A. Rama11 & Compa11y. [1968] 1 S.C.R. 10, referred to.

(b) The letter of 16th January 1950 written by an Under Secreta.ry in the Ministry of Finance does not prove that it is rule made by the Governor-General or any person authorised by him under s. 241 (2), Government of India Act. 1935. Furthermore, there is no basis for any authentication under s. 17 of the 1935 Act in the letter. [42G]

(c) In the prefa~e to the Office Manual published in 1955 it is specifically stated that Vol. I contains statutory rules and Vol. II, in which r. 18 occurs, contains only administrative instructions. [42G]

S. C. Jaisingha11i v. Union of llldia &: ors. [1967] 2 S.C.R. 70, referred te.

(d) Article 313 refers to laws in force which mean statutory laws. An administrative instruction or order is not statutory rule or law. The lldmi-nistrative instructions can be changed by the Government by reason of Art. 63(1). Article 313 doe9 not change the legal character of document. [43B] (3) The High Court erred in holding that the 10 y!ar rule is condition of service. The word "ordinarily" in the rule does not impose an obligation on the Government not to consider any Income Tax Officer with less than I 0 years experience, for promotion. The rule on the face of it, confers discretion on the authorites to consider Income Tax Officers of lesser years experience if the circumstances so require, and whether such circumstances exist >hould be left to the decision of the authorites. Even the Central Board of Revenue, in letter written few months after the rule was framed, stated that the insistence of minimum period of experience cannot be regarded as affecting tbe conditions of service. In that letter, it was stated that the requirement of I 0 years experience is sufficiently elastic and all Income Tax Officers with more than 9 years experience could also be considered for promtion. Thi• letter wa' referred to by this Court in U11io11 of India v. Vasant Jayarama Karnik [1970J 3 sec 65. [43C-FJ

( 4) It cannot be said that there is deviation from the requirement of I 0 years experience in preparing the Selection list. That requirement wa9 modified to one of 8 years experience. The expression 'ordinarily' in the rule shows that there can be deviation and such deviation can be justified by reasons. Administrative instructions, if not carried into effect for good reasons, cannot confer right. [ o43G]

P. C. Sethi & ors. v. Union of l!1dia &: Ors. [1975] 3 S.C.R. 201, referred to.

( 5) The facts and circumstances in the present case merited the exercise of discretion which was bona .fidr exercised by determining the field of choice: and from 1963, the field of choice has always been in running order of seniority.

(a) There were, in the present case, 112 vacancies and JO anticipated vacancies and the Departmental Promotion Committee was to make panel. of 122 officers. If the field of choice has to be prepared on the basts of runmng seniority and if 10 years experience had been adhered to, there would not have been more than 95 officers in the field of choice although the number of vacan-cies was 122. This fact alone entitled the authorities to deviate from ·the rule of 10 years experience. [44E-F]

(b) The requirement of 10 years experience could not be given effect to also because in the second Bishan Sarup Gupta case, this Court had dire~ted that the two classes of Income Tax Officers, direct recruit5 and promotees, should first b~ fully integrated before determining inter se seniority. The ex-pression 'ordinarily' would hardly apply to such changed situation without destroying the integration. If the respondents' contention that the field of choice shall be restricted to 10 years experience only and the field e>f choice should have been at least 5 times the number of vacancies the result would have been that out of 560 persons in the field of choi-.:c 474 persons would have been promotees and only 86 persons would have been direct recruits and -429 senior officers, who were direct recruits, would have been ignored. That obviously would be unjust and unfair and also contrary to the decision of this Court in the second Bishan Sarup Gupta's case. [47BC)

(c) As result of administrative instructions issued, at least since 1963. for promotion of Income Tax Officers as Assistant Commissioners, the admi-nistrative practice is to take the field of choice generally of 3 times the number of vacan:ies. The evidence shows that in the circumstances of this case, it was not possible to have 5 or 6 times the number of vacancies in the field of choice.

( d) The High Court was wrong in holding that in the field of choice, the evaluation of merit of persons was not properly done. The 1957-Memorandnm requires that the field of choice is based on running seniority, and evaluation of merit does not come into picture for deciding the field of choice. The question of merit comes in only in the preparation of the selection list. Seniority is the sole criterion for determining the field of choice and merit is the sok criterion for putting th' officers in the Selection list. { 460]

In present case, the instructions in the 1957-memorandum w're strictly followed.

(e) The 7 Scheduled Caste/Tribes offic~rs were not entitlecj to grade hither than the grade assessed by the Committee, because, the Home Ministry instructions, regarding concessions to Scheduled Castes and Tribes applied in the case of promotions from Class III to Class II and within Class JI and from Class II to the lowest rank of Class I, but had no application in respect of promotion within Class I. [47EJ

(f) After 122 senior officers were assessed and 114 were found to be 'very good', they could not be supplanted by other who were also 'very good'·. Only 'outstanding' persons who would be junior to the 122 could surpass them. 111erefore, the Committee rightly considered the cases of the officers remaining out of the 276 only to find out whether there was any one 'outstanding" as it would be fruitless exercise to find out who among them was 'very good'. [-48B]

(g) The contention of the respondents that the officers remaining out of the 336 sent up, were not at all considered by the Committee is not also accept-able. When the Committee found, according to running seniority, that cerfain persons beyond certain number could not be in the field of choice, the Committee did not put the names in the field of choice. The question of the evaluation of their merits did not, therefore, arise. It is wrong to hold that because the Government sent the names of 336 persons the field of choice consisted of all 336 persons. The field is to be determined by the Committee and the Committee ri2htly considered 276 names as fit to be included. [ 48F]

(h) There is no substance in the contention that 4 of the officers had less than 8 years experience, b~cause, they were ex-military officers recruited by virtue of notification of the Ministry of Home Affairs. [49B-C]

(i) The contention that after putting the officers in the three categories they should further be evaluated on merit inter u within each category is con-trary to the specific provision of the 1957-memorandum, and further, there could not be any further intra-specific assessment of those who are already considered to be "very good". (490]

(6) The date for determining the eligibility of officers has nothing to do with the dates on which ad hoc appointments were permitted and ad hoc appointments were, in fact, made. The observations of this Court . in the first Bishan Sarup Gupta case, are that if as result of the fresh seniority list, it is found that any officer was eligible for promotion on account of his place in the new seniority list, the Committee might have to consider his case a., on the date when he ought to have been considered and his position adjusted in the seniority list of Assistant Commissioners. The observations did not mean that although the Committee can meet only after the seniority list is approved by this Court, the selection would be deemd to be made at the time when vacancy in the post occurred and the eligibility of officers for selection should be determined by such deemed date of selection. No employee has any ri,ht to vacancy in the higher post as soon as the vacancy occurs. The Government hllll right to keep it unfilled as long as it chooses. The seniority list which is basis for the field of choice for promotion was approved by this Court on 16th April 1964 in the second Bishan Sarup Gupta case. Promotions to the post of Assistant Commissioners are on the basis of the Selection List prepared by the Committee and are to be made prospectively and not retrospectively. [51C-DJ CrVIL APPELLATE JURISDICTION : Civil Appeal No. 1837 of 1974.

Appeal by Special Leave from the Judgment and Order dated 4-9-74 of the Calcutta High in Civil Rule No. 5547 (N) of 1974.

Civil Appeals Nos. 1838-1842/74

Appeals by Special Lel\ve from the Judgments -and Orders dated 18-9-74, 29-7-74, 9-8-74, of the Allahabad High Court (Lucknow Bench) in Civil Writ Nos. 4398, 400, 4397 of 1974 and C.W.A. 3344/74 and W.P. No. 947 /74.

Civil Appeal No; 485/75

Appeal by Special Leave from the Judgment and Order dated 24-10-74 of the Gujarat High Court in L.P.A. No. 208/74.

Civil Appeal No. 1246175

Appeal by Special Leave from the Judgment and Order dated 1-4-75 of the Andhra Pradesh High Court in W.A. No. 900/75.

Civil Appeal No. 2041174

Appeal by Special Leave from the Judgment and Order dated l 5-10-74 of the Gujarat High Court in L.P.A. No. 205/74.

Niren De, Attorney General for India (In all appeals) Devaki-nandan. (In all appeals) P. P. Rao (In C. As. 1245/75 and C. A. 2041174), R. N. Sachthey for the appellants in CAs. 1837-42 of 74, 1246/75 and 2041174 and R. 2 in C. As. 1839, 1840/74 and RR. 1 and 2 in C.A. 485/75.

A. K. Sen, (In CA 1837/74), J. N. Haldar (In CA 1837/74), K. K. Singhvi (In CA 2041/74), Yogeshwar Prasad; S. K. Bagga and (Mrs.) S. Bagga for RR. 1, 3, 7, 11, 12 and 14 in CA 1837/74 and R. 1 in CA Nos. 1839-1841/74 and 2041/74 and RR 2 and 3 in CA. No. 1246175.

Yogeshwar Prasad and (Miss) Rani Arora for R. 1' in C.A. 1838174.

Yogeshwar Prasad and (Miss) Rani Arora for R. 1 in C.A. 1842/ 74.

Ram Panjwani, Bishamber Lal, S. K. Gupta and Dayal for Appellant in CA. 485/75 and RR 5, 6 and 7 in CA 2041/74 for the Interverners in CA 1838, 1841, 2041/74 and CA No. 1246/75.

The Judgment of the Court was delivered by

Ray, C.J.-The principal question in these appeal is whether the selection list for promotion of Income Tax Officers Class I Service to the post of Assistant Commissioners of Income Tax is correct or not.

The selection list was prepared by the Departmental Promotion Committee on 23, 24 and 25 July, 1974.

It may be stated here that on 16 August 1972 this Court set aside the Seniority List which had been impugned in Civil Appeal No. 2060(N) of 1971 and gave directions on which the Seniority List was to be prepared. (See Bishan Sarup Gupta v. Union of India('). This selection list was prepared on the basis of the seniority list approved by this Court on 16 April, 1974 in Bishan Sarup Gupta etc. etc. v. Union of India & Ors. etc. (2).

The basis of the preparation of the selection list is the field of choice. The principles for promotion to selection posts are set out in Memorandum dated 16 May 1957 issued by the Central Board of Revenue. The principles are these : First, greater emphasis should be placed on merit as criterion for promotion. Appointments to selection posts and selection grades should be made on the basis of merit haYing regard to seniority only to the extent indicated there. Second, the Departmental Promotion Committee or other selecting authority should first decide the field of choice, namely, the number of eligible oflkers awaiting promotion who should be considered for inclusion in the selection list provided, however, that an officer of outstanding merit may be included in the list of eligible persons even if he is outside the normal field of choice. Third, the field of choice wherever possible should extend to five or six times the number of vacancies expected within year. Fourth, from among such officers those who are considered unfit for promotion should be excluded. The remaining officers should be classified as "outstanding", "very good" and "good" on the basis of merit as determined by their res-pective records of service. The selection list should then be pre-(!) [1975] Supp:s:C.R. 491. (2) [1975] l S.C.R. 104.

(!) [1975] Supp:s:C.R. 491. 4-1458SCI/76

-· -i-.fi<. .. -

[1977] 2 S.C.R.

P'.ired by. placi.ng the names in the order of these three categories without. d1sturbmg the. semonty inter se within each category. Fifth, promottons should stnctly be made from the selection list in the' order in which their names are finally arranged. The selection list should be periodically reviewe.d. The names of tl!ose officers who have already ~een promo~ed otherwise. than on local or purely temporary basis and contmue to officiate should be removed from the list and the rest of the names along with others who may now be included in the field of choice should be considered for the selec-tion list for the subsequent period. Several persons, mainly promotees from Class II to Class I as Income Tax Officers challenged in writ petitions field before several High Courts the correctness of tl!e field of choice so determined by the Departmental Promotion Committee hereinafter referred to as the Committee on the basis of which the said selection list was pre-pared. The Gujarat and the Andhra Pradesh High Courts delivered judgments. The other High Courts gave interim orders staying the operation of the. selection list. There are two appeals by special leave from the Judgments of the Gujarat and tl!e Andhra Pradesh High Courts. There are also appeals by special leave from the interim orders . of the High Courts because the questions involved are the same.

·There were 112 vacancies of Assistant Commissioners. The Government of India sent 336 names in the running order of seniority for consideration of the field of choice. Out of those 336 names the Committee took 276 names in tl!e running order of seniority. The principal question for consideration is whether the field of choice determined by the Committee on the basis of which the Committee prepared tl!e selection list is correct or not. Tile Gujarat High Court held that the requirement of 10 years' C<{perience as Income Tax Officer for promotion to the post of Assis-tant Commissioner as laid down in the Government of India letter No. C'. 33 (17) Adnm. I.I./49 dated 16 January 1950 prevailed while the Committee determined the field of choice and this requirement was violated because the Committee considered persons with 8 years' experience for the field of choice. The High Court further held that even if the requirement of 10 years' experience was not statutory rule the requirement was to be complied with in determining the field of choice unless people with such experience were not availa!Jle in the seniority list of Class I Incom~ Tax Officers. W.hat the High ~ourt said was that if such people with 10 years' expenence were available in .the seniority list only such people should be considered in the field of choice ignoring those in the seniority list who are senior to such person~ but have less than 10 years' experience as Income Tax Offi-cers. The second reason given by the High Court for holding the selection list to be incorrect is that under the letter dated 16 May 19?7 the field of choice should have been 5 times the number of vacancies whereas the actual field of choice contained rr;uch lesser n~mb~r. The third ground given by the High Court for holdmg the select10n list

to be incorrect is that in the field of choice of Committee did not pro-perly evaluate the merit of persons in the field of choice. The sec-tion of persons in the selection list was to be selection on merit only .and not seniority cum merit. The fourth reason given by the High Court is that the date for determining the eligibility of officers for promotion to the post of Assistant Commissioner of Income Tax should be .decided by the Committee by bearing in mind the two dates, name-ly, 21 December 1972 when this Court permitted provisional pro-motions and 29 November 1973 when Government made the second batch of ad hoc promotions, as the two terminals.

The principal contentions on behalf of the respondents are these. First, promotions from amongst Income Tax Officers Class I Service to the post of Assistant Commissioner of Income Tax have to be made solely on the basis of merit. The respondents relied on rule 18 of Chapter II(c) section 1 VoL II of the Office Manual in support of their contention. Broadly stated rule 18 is that the promotion shall be strictly on merit and further that no one should ordinarily be considered for promotion unless he has completed at least 10 years' service as Income Tax Officer. The respondents amplified their contention to mean that promotion to selection post is to be made solely on the basis of merit and not on the basis of seniority cum merit.

The second contention of the respondents is that only such of the Income Tax Officers in Class I Service who had put in at least 10 years' service as Income Tax Officers are eligible for being consi-dered for r>romotion to the post of Assistant Commissioners. This contention is also based on rule 18 and according to the respondents rule 18 means that the condition precedent for eligibility to be consi-dered for promotion to tl1e post of Assistant Commissioner is that an Income Tax Officer in Class I Service must have put in at least 10 years' service as Income Tax Officer . The rc~pondents further contended that rule 18 was framed on 16 January 1950 and the letter dated 21 July 1950 addressed by the Central Board of Revenue to all Commissioners of Income Tax shows that the Government of India framed the rule with the approval of the Union Public Service Commission and the Ministry of Home Affairs. The Government case is that the rule was abrogated. The respondents' aNswer to the Government contention is that the entire · correspondence relied on by the Government shows that the Ministry of Finance wanted to frame new rules of seniority. The respondents also contend that the Ministry of Home Affairs gave approval to the framing of new rules· of seniority but gave no direetio11 with · regard to the rule relating to the recruitment except stating that the said rule might b~ appropriately included in the relevant r~cruitment rules. Therefore tbe respondents contend that the recruitment rn!e regarding 10 vears' experience continued whereas: the seniority rule stood modified in terms of the letter of M. C. Thomas dated 4 April 1964. The respondents also re!v on the affidavit dated 8 March, 1968 filed by M. C. Thomas in the. Gujarat High Court in applicati.on No. 1365

of 1965, an affidavit of M. C. Thomas dated 21 May 1970 filed in the Delhi High Court in writ petition No. 196 of 1970, an affidavit of the respondents dated 5 August 1974 filed in the Gujarat High Court in support of the contention that the rule relating to 10 years' service was in force at least from 21 May, 1970. The respondents further contend that promotions to the post of Assistant Commissioners in the year 1964 and 1970 show that all promotees except 2 had com-B pleted at least 10 years' service before being selected for promotion. Even with regard to those two promotees the respondents submitted that both of them joined on 24 October, 1960 but they had been selected along with others in May 1960. T11erefore, those two officers were promoted along with their batch mates of May, 1960. The third contention of the respondents is that rule 18 has the force of law. It is said that under section 241 of the Government of India Act 1935 the Government was empowered to make rules. Pursuant to that power the Government of India made the rule. The letters elated 16 January 1950 and 21 July 1950 written by the Government to the Commissioners of Income Tax referring to rule 18 were relied on by the respondents in support of their contention. In the alternative, the respondents contended that the decision of the Government contained in the letter dated lo Januarv, 1950 was made by the Government of India in exercise of executive powers under section 8 of the Government of India Act 1935 read with item 8 of List I of the Seventh Schedule. This order which had the back-ing of law was an existing law within the meaning of clause 10 of Article 366 of the Constitution. In the further alternative the respondents contended that the rule contained in the letter dated 16 January, 1950 was incorporated in the Office Manual issued by the Government of India in exercise of its efecutive power under Article 53 of the Constitution and therefore these instructions have the force of law. It is also said by the respondents that the rule which affects promotions of the persons constitutes the conditions of service. The fourth contention on the part of the respondents is that the use of the word "ordinarily" in rule 18 imposes an obligation on the Union Government not to consider- an Income Tax Officer Class I who has not completed at least 10 years' service as Income Tax Officer for promotion as Assistant Commissioner unless there are extraordinarv circumstances. It is said that the word "ordinarily" does not vest in the Government unfettered condition to follow or not to follow the rule. It is also said that the use. of the word "at least 10 years' service" shows that the word "ordinarily" has been used to enable the Government to consider such of the Income Tax Officers who have put in more than 10 years' service. The respon-dents also contend that the Government proceeded on the basis that the rule relating to 10 years' service did not exist after April 1964; and, therefore, it cannot be said that the Government departed from rule 18 because of extraordinary circumstances.

The fifth contention is that the selection has been made in com-plete violation of the rule framed by the Government of India for promotion to selection post as contained in the Office Memorandum

of the Ministry of Home Affairs dated 16 _May, 1957. This conten-tion is expanded by submitting that tlie list should have contained names of at least 5 or 6 times the number of vacancies existing within year and in view of the fact that there were 112 existing and 10 anticipated vacancies the Government of India should have sent to the Committee names of at least 560 officers. The Committee should then have removed such names which were unfit for promotion and thereafter have classified the rest as outstanding, very good; and good on the basis of merit. The respondents contend that the Government sent only 33.6 names for consideration when the vacan-cies were more than 120 and the Government also ignored the rule of 10 years' experience. It is also said tliat the Committee ignored the names of 59 officers from consideration and classified only 144 · officers out of the remaining 277 and prepared the list of 122 out of 144 officers. The respondents further contend that though respon-dents No. 2 and 3 in Civil Appeal No. 2041 of 1974, namely, R. K. Desai and B. Srinivasan completed 10 years' experience they were not included within the field of choice as officers senior to them had not completed 8 years of service as Income Tax Officers. There-fore, rule 18 was violated.

The sixth contention of the responderits is that the entire selection was arbitrary and in violation of Article 16 of the Constitution. It is said that . if the rule requiring 10 years' experience had been followed only such of the persons who had put in 10 years' service would have been in the field for selection. It is said that the Govern-ment included Income Tax Officers who were direct recruits and who had put in less than 8 years' service in the list but excluded promotees Income Tax Officers who had put in more than 8 years' service as Income Tax Officers. It is further said by the respondents that out of 122 person~ selected 111 are direct recruits and only 11 are pro-. motees. Reference was made to the junior-most person in the selec-tion list Madan Mohan Joshi. It is said that Madan Mohan Joshi was. appointed as Income Tax Officer -Class 1 on 5 July, 1965, and, therefore, he completed 9 years' service at the time of selection. The last person considered by the Committee is direct recruit Rajeswar Rao Gautam who was appointed on 8 July, 1966. Again, it is said that from amongst the promotees Raghubir Singh the promotee who joined Class I Service on 1 May 1964 a11d had more than 10 years' service was not placed in the field of choice. The respondents, therefore, contend that promotee Officers who had put in more than 8 years' service as Income Tax Officers were not included in the field of choice whereas direct recruits who had not completed 8 years' service were included in the field of choice.

The seventh contention of the respondents is that the eligibility of Income Tax Officers for the purpose of promotion to the post of Assis-tant Commissioner should be considered either as on 21 October, 1972 or 2 l March 1973 or 29 November 1973. In support of that contention it is said that when the Government of India made an application for filling up certain posts this Court by order dated 21 December 1972 permitted the Government to fill in the posts on ad

hoc basis from amongst the eligible officers on the basis of continuous length of service in Class I. Accordingly, by orders dated 21 March 1973, and 29 November, 1973, 59 and 48 officers respectively were promoted on ad hoc ba:sis. These officers were to be replaced by regular selection. The seniority list "as confirmed by this Court by judgment dated 16 :\pril 1974. The respondents, therefore, contend that the Committee had to regularise aforesaid 107 promo-tions, and the regularization had necessarily to be done from the dates of original promotions on ad hoc basis. It is said in this context that the eligibility of officers for the purpose of promotion must be considered either on 21 December 1972 or on 21 March 1973 or on 29 November, 1973. The respondents also submit that the eligibility has reference to the date of vacancy and therefore only such of the persons who had the qualified service on the date of vacancy ought to be considered by the Committee. Reliance was placed on the observations of this Court in Bishan Sarup Gupta's case(') that after the finalisation of the seniority list the department should consider the cases of all eligible officers for promotion on the basis of their records as on the date when they ought to have been _ consiucrcd by selection but who we1 not so con>.i<lered.

The first question for consideration is whether the rule of 10 years' experience was modified to 8 years' experience. The corres-pondence between the Central Government and the Union Public Service Commission between 30 January 1963 and 26 June 1969 shows that the principle for promotion as Assistant Commissioner is that no Income Tax Officer should ordinarilv be considered unless he has completed 8 years' service as Income Tax Officer. The pro-posal for this change from 10 years to 8 years emanated from the Finance Ministry. The Home Ministry stated that the rule does not strictly relate to the seniority rules in respect of Assistant Commis-sioners of Incoine Tax and should thus be included in the relevant Recruitment Rules, that is, Rules for selection for the post of Assistant Commissioner of Income Tax. The Union Public Service Commis-sion as will appear from the letter dated 31 May, l 963 agreed subject to proposed modification regarding the seniority of Assistant Commisc sioners of Income Tax. It thus appears that th!:' Finance Ministry, the Home Ministry and the Union Public Cornmi-;sion concurred with. the change from the requirement of experience for 1 0 ye:::rs to that . of 8 years. The requirement of 10 years' experience as laid ~own· in the letter dated 16 January, 1950 and the Office :Vlanual published in 1955 thus came to be modified. The only thing which is to be noticed is that no Rules under Article 309 were made. The change from 1 O years to 8 years' experience was recorded by means of correis-pondence as an administrative instruction. It is explicable that the letter dated 16 January, 1950 as well as the Office .\fanual published in 1955 was an administrative instruction.

The change from 10 years to 8 years' cxpcrie1:ce "'.as not only niven effect to in the field of choice but also recog111zed m the Com-H ':nittee meetings of September 1968. April/May 1970 and Febr~ary, 1972. In September 1968, 16 pcrsom were over 9 years' experience (!) [19i51 Supp. S. C. R.491, 506

but less than 10 years' experience. None of these persons was how-ever selected to be placed on the selection list. In April/May 1970, 14 persons were over 9 years experience but le:ss than 10 years' ex-perience, and 24 persons were over 8 years' experience only. Out of those only 7 who were all over 9 years' experience were selected to be placed in the selection list. In 1972 the Committee considered 25 persons over 9 years' experience but less than 10 years·in experience, and 27 persons over 8 years' experience. Out of these only 10 persons who were all over 9 years' experience were selected to be placed in the selection list.

In the Committee meeting iof July, 1974 the selection list pre-pared did not have any person except 4 emergency commissioned officers who had less than 9 years' experience. The last person in the seniority list selected was M. M. Joshi bearing No. 967 in the senio-rity list.

8 years' experience as working rule for promotion was publicly announced by the Minister in Parliament on 11 June 197 L It is rightly said by the Attorney General that administrative instructions are followed as guide line on the basis of executive policy. It is not necessary to put the same on record in so many words. In Bishan Sarup Gupta v. Union of India & Ors. 1975 Supp. SCR 491 when the quota rule which was statutory ceased to have statutary effect after 5 years but the Government followed the principles as guide line it was upheld by this Court in the application of the principle from 1957 to 15 January, 1959. In the present case the requirement of 8 years was not only followed as guide line in practice but was also recorded in the correspondence between the Finance and the Home Ministries.

The High Court said that the requirement of 8 years' experience was to be included in the appropriate Recruitment Rules and until that was done the High Court held that 10 years' experience held the field. The High Court failed to consider the true effect of the correspondence between the finance and the Home Ministries and the Union Public Service Commission. The Ministry of Finance by its letter dated 30 January 1963 stated that the condition of 8 years' service for pro-motion was proposed to be retained. The Home Ministry by its letter dated 20 February, 1963 pointed out that the requirement of 8 years' experience for promotion did not strictly relate to seniority rules re-lating to Assistant Commissioners of Income Tax and should be de-Hnked from such rules and should be appropriately included in the relevant Recruitment Rules. Thus the Home Ministry and the Union Public Service Commission agreed in principle to the requirement of 8 years' experience and the Finance Ministry in practice changed the requirement of 10 years' to 8 years' experience. The letter of the Finance Ministry proposing the retention of the requirement of 8 yeans'' experience was only in Grade I. The minimum experience in Grade I proposed by the Board was approved by the Secretary as well as the Minister.

The High Court referred to the affidavits filed by M. G. Thom:!:i. in other proceedings. In one or: the affidavits affirmed by Thomas

on 8. M~rch 1968 and referred to by the High Court in Special Civil Apphcat10n No. 1365 of 1965 in the Gujarat High Court in paragraph 5 thereof Thomas said as follows : "The Departmental Promotion Committee which met sometime in August, 1949 recommended that no officers should be promoted as Assistant Commissioners of Income Tax until he had worked for not less than 10 years as Income Tax Officers. The Government of India agreed with the recommendation of the Departmental Promotion Committee that it was necessary in the interest of efficiency that the Assistant Commissioner of Income Tax should at least have 10 years of service as Income Tax Officer so that for the post of Assistant Commissioner of Income Tax matured and seasoned officer may be obtained. For arrivi:ng at the decision, the Government of India was also influenced by the recom-mendation of Income Tax Investigations Commission". The High Court also referred to paragraph 9 in the said affidavit of Thomas where he said as follows : "It can thus be seen that the seniority rules for Assistant Commissioner of' Income Tax were mainly framed due to the situation created by the introduction of Income Tax Service Class I on an All India basis and the requirement of minimum period of 10 years of service (later on reduced to 8 years' service) (as requisite condition for promotion )-this requirement of minimum ser-vice-resulted in senior Income Tax Officer who had not ccnnpleted the required length of service being passed over by junior Income Tax Officers, who had completed the required service. To safeguard the interest of such senior Income Tax Officer rule 1 (iii) (b) meaning thereby 10 years' rule wa:s introduced which enabled the senior officers to regain their seniority on subsequent promotion".

The High Court also referred to the affidavits of Thomas in Civil Writ Petition No. 196 of 1970 in the Delhi High Court. M. G. Thomas was an Under Secretary in the Ministry of Finance in 1964. Jn the affidavit affirmed by Thomas in Writ Petition No. 196 of 1970 in the Delhi High Court he dealt with paragraph 39 of the petition of Bishan Sarup Gupta where it was said that paragraph 18, of section 1, Volume 1 of the Office Manual clause (b) mentioned about the eligibility of 10 years of minimum service before an Income Tax Officer would be considered for promotion to the post of Assistant Commissioner. The High Court said that Thomas in his affidavit in reply had admit-ted the said statements and concluded that of 8 years' rule had been introduced Thomas would not have missed to mention the same in his affidavit.

The High Court also referred to two features. First. that it was not proposal of anew rule of 8 years in place of existing rule of 10 years; secondly, it was an assumption that the existing rule pres-cribed the minimum period of 8 years' service. The High Court fur-ther referred to the Delhi High Court proceedings in Writ Petition No. 196 of 1970 where Coun;sel for the Union said that the Govern-ment expected new rules to be framed under Article 309 to limit the field of choice to those who had 8 years' service to their credit as Income Tax Officers. The High Court read this argument of counsel for the Union in the High Court to concede that no change in the rule of 10 vears' service as Income Tax Officer was made so as to reduce the period from 10 years to 8 years.

The Central Board of Revenue as appears in No. F. 1/19/60-Ad. II at meeting on 2 May, 1959 approved the idea of laying down the minimum per~od of service uniformly for the three wings of the Central Board of Revenue for purposes of determining the eligibility ·of officers for promotion. It was decided that before an officer was promoted to higher post he must have put in period of minimum service as fol1ows: For promotion to Deputy Collector/ Assistant Commissioner (Grade Rs. 1000-1400 )-minimum service prescribed was 8 years' service in Class I posts. For promotion to Collector (Grade Rs. 1300-1600)-the minimum service prescribed was 12 years in Class I post out of which at least two years LShould. be in the grade of Deputy Collector. For promotion to the post of Collector (Grade Rs. 1600-1800)-the minimum service prescribed was .14 years in Class I posts provided that for promotion as Collector of Central Excise (scale Rs. 1600-1800) the officers should have worked at least two years in the scale of Rs. 1300-1600. For promotion to Collector Grade I/Commissioner Grade I (scale Rs. 1800-2000) the minimum service prescribed was 16 years in Class I posts. For promotion to Selection Grade posts of Collectors/Commissioners the minimum service prescribed was 20 years in Class I posts.

The Secretary in the note mentioned that he would prefer the alternative of keeping the rule and relaxing it in suitable cases. This note of the Secretary shows that he preferred. the retention of the rule in the other 4 grades. namely, Collector Grade Rs. 1300-1600, Col-lector Grade Rs. 1600-1800, Collector Grade l/Commi's1sioner Grade I Grade Rs. 1800-2000 and Selection Grade Posts of Co:Iectors/ Commissioners. That is apparent from the ·fact that the Board suggested the retention of minimum service in Grade !(Assistant Commissioners) but not in the· other four grades including the Se-lection Grade. The Minister preferred the deletion of the rule about Selection Grade. Thus the minimum experience in Grade I proposed by. the Board was approved by the Secretary as well as the Ministe~ . The minutes of the meeting of the Central Board of Revenue of 22 October 1960 show that the Board of Revenue decided that the minimum service of 8 years in Class I Service may be prescribed in the case of Deputy Collector/ Assistant Commissioners (Grade Rs. 1100-1400).

The affidavit evidence of Thomas shows that the minimum period ·of 10 years was later reduced to 8 years. The affidavit cfoes not show that the requirement of 10 years' service was maintalneid. In the Delhi High Court proceedings Bishan Sarup Gupta in his petition made reference to certain administrative instructions. Thomas in answer to those paragraphs did not have any occasion to say any-thing otherwise. Further counsel for the Union in the Delhi High ·Court merely stated that the Government was expecting rules to be framed under Article 309. This does not mean that the requirement of 8 years' experience. as an administrative practice did not prevail. The High Court was in error in treating the affidavit evidence of Thomas in other proceedings as statement of fact that 8 years' rule had not !been introduced. This affidavit evidence in other proceedings is tom

_ _____ -

out of co_ntext and fs misread by the Hiih Court without going into the quest10n as to wilether such affidavit evidence is admissible in evidence. It is apparent that the entire affidavit evidence as well· as the submission on behalf of the Union is that the requirement of 10 years' experience be replaced by 8 years. Administrative practice as indicated in the Department Promotion Committee meatings and the .Minister's statement in Parliament supported that contention of the Union. It is question of construction of correspondence as to whether I 0 years' rule was replaced by 8 years' rule. The fact that no rules ·under Article 309 were framed does not detract from the position that the previous administrative instruction of 10 years' ex-perience was modified to 8 years' experience. It was suggested on behalf of the respondents that the various affidavits and documents asserted that the requirement· of 10 years' experience had been abrogated and it was not open to the Government to take the stand that requirement of 1 O years' rule was modified or changed. Tnc contention is without any substance because the con-sistent position on behalf of the Union has always been that the re- · quirement of 10 years' experience was modified to 8 years and the Gujarat High Court considered the question whether 10 years' ex-D perience was abrogated or modified.

The second question is whether the requirement of 10 years' ex-perience was statutory rule. -The High Court held that the require-ment of 10 years' experience is not statutory rule. Counsel for the respondents contended that the requirement of 10 years' experience is statutory because the letter dated 16 January 1950 is by the Govern-ment of India and the Government of India has auihority to frame rules and one of the letters dated 21 July, 1950 referred to it as'a for-mal .rule. The contention is erroneous because there is distinction between statutory orders and administrative instructions of the Gov-ernment. This Court has held that in the absence of statutory rules executive orders or administrative instructions may be made. (See Commissioner of Income Tax Gujarat v. A. Ranum & Company('). The letter dated 16 January 1950 written by an Under Secretary in the Ministry of Finance does not prove that the requirement of 10-years' experience for promotion to the post of Assistant Commissiou>r was rule made by the Governor General or any person authoriserl by him under section 241 (2) of the Government of India Act, 1935. Furthermore, there is no basis for any authentication under section 17 of the 1935 Act in the letter cf 16 January, 1950. In the preface to the Manual published in 1955 it is specifically stated that Vol. l of the Manual contains statutory rules and VoL II. contains administra-. tive instructions. The requirement of 10 years' experience is in Vol. II of the Manual.

In S. G. laisinglzani v. Union of India & Ors.([2]) it is stated at pp. 717-718 that the quota fixed by the Government in its Jetter dated 18 October, 1951 must be deemed to be fixed in exercise of the statutory

(I) [1968] I S.C.R. 10. (2) [1967] 2 S.C.R. 703.

power under Rule 4 of the Recruitment Rules. There is no such statutory rule under which the letter of 16 January, 1950 was written, Counsel on behalf of the respondents contended that the require-ment of 10 years' experience laid down in the letter dated 16 January, 1950 had the furce of law because of Article 313. Article 313 does not change the legal character of document. Art.ic!e 31_3 r~fers to laws in force which means statutory laws. An adm1111strat1ve mstruc-tion or order is not statutory rule. The administrative instructions can be changed by the Government by reason of Article 53(1) (a) itself.The High Court said that even if the requirement of 10 years' se~-­vicc is not statutory, it is binding on the Government and is condi-tion o[ service. Counsel for the respondents contended that the word "ordinarily" in the rule imposes an obligation on the Government not to consider any Income Tax Officer with less than 10 years' experience for promotion except in extraordinary circumstances. The require-ment of 10 years' experience on the face of it confers discretion on the authorities to consider Income Tax Officers if according to the authorities the circumstances so require. What the circumstances are or should be are left entirely to the decision of the authorities. The Central Board of Revenue by letter dated '.21 July, 1950 few months after the letter dated 21 July, 1950 few months after the letter dated 16 January, 1950 which spoke of 10 years' experience stated that the insistence on minimum period of experience_ cannot be regarded as affecting the conditions of service. In the letter dated 21 July, 1950 it was said that the requirement as to 10 years' experience is su!Iiciently elasfr:: and all Income Tax Officers with more than 9 years' experience could be consjdered for promotion. The letter dated 21 July, 1950 was referred to by this Court in Union of India v. Vasant Jayaram Karnik & Ors('). It appears in that case that in November, 1951 the case of officers who had completed 9 years' gazetted service were considered and the Committee further decided to consider for promo-tion in the near future officers who had completed 8 years of service' beforr: 31 December, 1951. In -1953 officers who had completed 8 years' service were considered for promotion . The expression "ordinarily" in the requirement of 10 years' ex-perience shows that there can be deviation from the requirement and such deviation can be justified by reasons. Administrative instructions if not carried into effect for good reasons cannot confer right. (See P. C. Sethi & Ors. v. Union of India & Ors. ([2]). The requirement of 10 years' experience cannot be considered by itself. It is to be read along with administrative instructions of 16 May, 1957. The reason is that the requirement of 10 years' experience is for being considered for promotion. In paragraph 2 of the letter of 16 May, 1957 con-taining the said instructions it is said that the Committee ,.hould fir'' decide the field of choice, namely, the number of eligible officers awaiting promotion who should be considered to be included in the seniority list provided that an officer of outstanding merit may be in-cluded· in the list even if he is outside the normal list.

For the foregoing reasons our conclusions are these : First 10 years' experience was modified to 8 years' experience. Second there was no statutory rule requiring 10 years' experience. Third the facts and circumstances merited the exercise of discretion which was bona fide exercised by determining the field of choice. Fourth there was no deviation from 10 years' experience because of the modification to 8 years' experience. Fifth there could not be insistence on 10 years' experience as conditions of service. The next question is what should have been the field of choice. The two groups of Income Tax Officers in Class I, namely, the direct re-cruits and the promotees have always found that the field of choice has been prepared strictly on the basis of running seniority in the seniority list of Income Tax Officers Class I. In the three decisions of this Court relating to these officers Jaisinghani's case, Bishan Sarup Gupta's case and Bishan Sarup Gupta's case (supra) it wiH be seen that since 1962 there has been long fight between direct recruits and promotees mainly in respect of seniority list of Income Tax OHicers Class I. This struggle regarding seniority would have hardly any meaning unless the two groups fought to gain higher positions in the Seniority List only for the purpose of being in the field of choice for consideration for promtion to the post of Assistant Commi~sioner. If this was not so and if only certain number of years' requirement was the only consideration for being in the field of choice, this requirement wo•Jld have been fulfilled in any case without higher place in the seniority list. From 1963 the field of choice has always been in running order of seniority. This has been the administrative pr~ctice for over 10 years.

There were 112 vacancies and l 0 anticipated vacancies in 197 4. The Committee was to make select panel of 122 officers. the field of choice has to be prepared on the basis of running seniority, and if 10 years' experience had been adhered to, there would not have been more than 95 officers in the field· of choice although the number of vacancies was 122. This fact alone will entitle the authorities to de-viate from the rule of 10 years' exeperience.

By reason of the violation of the quota rule since 1952 benefiting the promotees this Court issued the mandamus in Jaisinghani's case (supra). The collapse of the quota rule and seniority rule from 16 January, 1959 led to the judgment of this Court dated 16 August, 1972 in Bishan Sarup Gupta's case (supra). The introducl1011 of the roster system of 1 direct recruit and 1 promotee being placed al-ternately in the order of seniority with effect from 16 January, 1959 was upheld by this Court in the judgment dated 16 April, 197 4 in Bishan Sarup Gupta's case (supra). As result of the senionty list being upheld by this Court by the decision dated 16 April, l<i/4 many promotees lost their earlier places in the Seniority List. This Court on 16 April, 1974 in Bishan Sarup Gupta's case (supra) at page 114 of the report said "In the case before us in the absence of rule deter-mining inter se senioritv between the two classes of Income Tax Offi-cers, there is really no ·integration of the service, which is unavoidably necessary for the purpose of effective promotions. One cannot speak

. • ;,c • ;,c ;,c

of promotions from cadre unless it is full:y integrated.'.' There was change in the seniority list froJ?l what prevailed at le~st m 1952. T~e requirement of 10 years' expenence could not be given effect to m such changed situation and the expression "ordinarily" would hardly apply to such changed situation wi~~out de.straying the int~grati~n and restoring to the promotees the pos1t10n which they had enjoyed m the past with the Quota Rule and the Seniority Rule and which they Jost as result of the last decision of this Court dated 16 April, 1974.' If the respondents' contention that the field of choice shall be restricted to 10 years' experience only and the field of choice should have been at least five times the number of vacancies, the result would have been that out of 560 persons in the field of choice, 474 persons would have been promotees and 86 persons would have been direct recruits and the last direct recruit in the seniority list would have been No. 873 and No. 874 to No. 1922 would have been all promotees. If the above basis suggested by the respondents were followed 429 per-sons all direct recruits and all senior officers in the seniority list would have been ignored in the field of choice. That would be unjust, un-fair and upsetting the decision of this Court dated 16 April, 1974.

In the letter of 16 May 1957 it is stated that the field of choice wherever possible should extend to 5 or 6 times the number ot vacan-cies expected within year. The letter contained administrative instruc-tions from the Home Ministry generally to all Ministries and was not meant specially for the Board of Revenue. These administrative instructions have been changed in the matter of promotions from Income Tax Officers to Assistant Commissioners at least from 1963 by the administrative practice of having in the field of choice generally three times the number of vacancies. In the Committee meeting held on 16 March, 1963 the Committee considered the names of first 33 eligible Income Tax Officers in order of existing seniority for 11 vacan-cies. In the meeting of the Committee held on 26 and 27 August, 1963 the Committee decided to consider the cases of 30 otiicers in order of seniority for 10 vacancies. In the Committee meeting held on 3 March, 1964 the Committee considered for 21 vacancies the names of 60 persons in order of seniority. At the Committ~e meet-ing held on 5 and 7 December, 1964 for 18 vacancies the Committee decided to consider the cases of 60 officers in order of seniodty. At the meeting held on 4 July, 1965 the Committee considered 60 Income Tax Officers in order of seniority for promotion to 20 vacancies. At the· Committee meeting held on 4 and 6 December, 1965 the Com-mittee considered 122 persons in order of seniority for 45 vacancies. In December, 1965 the Committee considered 114 senior most Income Tax Officers and 48 were promoted as Assistant Commissioners. At the meeting held on 17 May, 1966 the Committee considered the case of 65 officers and approved the promotion of 48 officers. At the meeting held on 16 and 17 September, 1968 the Committee considered 240 persons for promotion to 90 posts. In September, 1968 the Committee considered the cases of 16 officers who had less than 10 years' experience. The Committee in February 1969 considered. 61 persons for 20 posts. In September, 1969 the Committee considered 105 persons for promotion to 35 posts.

, There is note made by Thomas in the month of February, 1970 in F. No. 20/2170-Ad.Vl to the effect that if officers with less than S years' service and their juniors are excluded from the list of otiiccrs to be considered by the Co=ittee for 90 vacancies arising during ·the year only 193 officers will be available, This is said to be less than three times the number cf vacancies but this could not be helped un-1,,ss junior officers are considered over the head of their seniors. The number .of such jµniors officers with 8 years' service is also limited, namely, 11. In the circumstances, the se!e'ction was made from 193 officers. In April, 1970 the Committee had to select 80 perso;is for promotion. They desired that 240 names should normally be con-sidered. The Members however stated that the Ministry had already furnished the names of 193 eligible officers and there were no more eligible officers who could be considered. The Committee accord-ingly considered those 193 officers in order of seniority. In April and May 1970 the Committee considered the cases of 38 persons with less than 10 years' experience .. In 1972 there; .were 84 vacancies and 10 more vacancies were likely to arise. Therefore for 94 sele:tion posts the field of choice should normally have been 3 to 5 times the number of vacancies. It was found that there should have been at kast 300 officers. There-were 213 officers with 8 years' experien:c. There were some promotees with more than 8 years' experience but they were junior to the dire-ct recruits. As the direct recruits had not com-· pleted 8 years' service their juni9rs were not considered for promction over them.

In the background of these facts and circumstances it was net pos-sible to have 5 ·or 6 times the number of vacancies in the field of choice for the simple reason that the Committee required 8 years' ex-perience for promotion to the post of Assistant Commissioner. If the field of choice had to be based on running seniority the Coremittce ·could rightly only have 276 officers in the field of choice in the present case. ·

. The -next question is whether the Committee evaluated the merit of persons in the field of choice. The High Court held that in the field of choice the evaluation of merit of persons was nof properly done. The decision of the Hgh Court is wrong for the following reasons. The letter dated 16 May, 1957 indicates that the Co=ittee was first to decide the field of choice. The cardinal feature which is to be kept in the forefront is that the field of choice is based on running seniority in the seniority list and evaluation of merit does not come into picture for deciding the field of choice. Paragraph 3 of the said letter states that those in the field of choice who are considered unfit should be excluded from consideration. Under paragraph 4 of the letter evalua-tion of the remaining officers on the basis of merit has to be done by classifying the officers under three different categories, namely, 'out-standing', 'very good' and 'good'. Paragraph 4. of the letter states that the selection list is to be prepared by placing the riames of officers in th" said three categories, without disturbing the seniority inter se. within each category.

.In the present case in view of 112 actual vacancies the Gowrn-g),_ent sent. 336 na!lles fo~ the field of choice, _that is, three time~ ~he number of vacancies. Smee 1963 the Committee has been rece1vmg from the Government the names of persons forming three times the number of vacancies. The 336 names sent by the Government were in the running order of seniority betwee~ S. M. Isl~m. No: 155 in the seniority list and R N. Dave No. 1186 m the semonty llst. Under paragraph 2 of the letter dated 16 May, 1957 it is the function of the Committee to decide the field of choice. The Committee proceeded on the basis of 8 years' experience and thus could not possibly have in the field of choice any name from No. 1131 onwards because every alternate number thereafter had less than 8 years' experience. The Committee stopped at No. 1123. The Committee at the meeting held on 23, 24 and 25 July 1974 assessed the merits of 145 persons in order of seniority first. After such assessment the Committee found three officers No. 1, 30 and 109 ·in the list as not yet fit and excluded them. The Committee also excluded 4 officers whose findings were in sealed cover or whose re-ports were not yet complete (No. 2, 3, 6 and 138 in the Committee List). These 7 officers were excluded from further consideration for the selection list. In accordance with paragraph 3 of the letter of 16 May, 1957 the Committee considered the remaining 138 officers and assessed their meiits and put them in three categories. The Com-mittee found only one officer "oustanding", namely No. 16 in che list, 114 officers "very good" and 7 Scheduled Castes/Scheduled Tribes officers were 'good'. These 7 Scheduled Castes and Scheduled Tribes officers were No. 21, 24, 26, 90, 91, 93 and 94 in the list. The respondents contended that these 7 Scheduled Castes/Scheduled Tribes officers should have been given grade higher than the grade assessed by the Committee because of the Home Ministry Instructions dated 11 July, 1968. The respondents' contentions are incorrect for these reasons. In paragraph 2 of the Home Ministry instructions dated 26 March, 1970 on the subject "Concessions to Scheduled Castes and Scheduled Tribes in posts filled by promotion-Class I Services/ posts" it was laid down inter alia that the Scheduled Castes/Scheduled Tribes officers, who were senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which the selection list has to be drawn, would be included in that list provided they are not considered unfit for promotion. In paragraph 1 of these instructions, reference was made to the Home Ministry instructions dated 11 July, 1968. It would be found from those instructions as also the Home Ministry instructions dated 26 March, 1970 that the July, 1968 instructions applied in the case of promotions from Class III to Class II and within Class II and from Class II to the lowest rank or category to Class I but had no application in respect of promot:on within Class I.

The Committee at the meeting held on 23, 24 and 25 July 1974

The Committee found No. 16 to be 'outstanding', 114 (No. 2 to 115) 'very good' and 7 Scheduled Castes/Scheduled Tribes officers 'good' and they were to be included in the selection list vide Home Ministry instructions dated 26 March, 1970. The Committee next assessed the merit of the rest of the 27 6 officers to ascertain whether

any of them was 'oustanding'. If any one among these remaining offi-cers was not found 'outstanding' but was only ·very good' he would not come within the selection list because the selection list was pre-pared, after evaluati11g the merits of the officers on the basis of senio-rity in the seniority list in accordance with the letter dated 16 May, 1957. Paragraph 4 of that letter was followed by the Committee along with the Home Ministry instructions. It would not be neces-sary for the Committee after having considered 145 to put the others in the category of 'very good' when the Committee assessed their merits and found them to be not 'outstanding'. After 122 senior offi-cers were assessed and the Committee found that no other officers junior to them could be assessed to tlhe higher category, namely, 'out-standing' it would be fruitless exercise to find out who among these officers were 'very good' or 'good' or 'not yet fit'. The reason is obvious. Those in the selection list of 122 who had been found to be 'very good' could not be supplanted by others who were ·,·cry good'. Only 'outstanding' persons who would be junior to the category of 122 'very good' would surpass the category of 'very good'. Therefore the Committee rightly considered the cases only to find out whether there was a11y one outstanding and the Committee found none of them to be 'outstanding'.

The Government sent the names of 336 officers in the running order of seniority. Out of 336 the Committee found 276 to be fit for the field of choice. The Committee found l 'outstanding', 114 'very good' and 7 Scheduled Castes/Tribes 'good'. The respondents contended that the rest 59 were not at all considered by the Com-mittee. This contention is not acceptable for these reasons. From No. 1131 in the seniority list every alternate number was an officer with less than 8 years' experience. Under the letter of 16 May 1957 it is the Committee and not the Government which decides the field of choice. When the Committee found according to the running seniority No. 1131 onwards could not be in the field of choice the Committee did not put the names of the 59 officers in the field of choice. The question of the evaluation of the merits of these 59 offi-cers did not, therefore, arise because first the seniority list was con-sidered by the Committee and second the Committee took into con-sideration only those who were in the seniority list and fulfilled 8 years' experience.

It is wrong to hold that because the Government sent the naincs of 336 persons for consideration by the Committee the field of choice consisted of 336 persons. The field of choice is to be determined by the Committee. The Committee considered 276 names as fit to be included in the field of choice. It is erroneous to suggest that there were 336 names in the field of choice. The field of choice consisted of 276 names as determined by the Committee whose jurisdiction it was to determine. The Committee considered upto No. 1123 in the seniority list to be in the field of choice. Officers from 1124 to 1130 were not included by the Committee either because they had retired or joined the Indian Administrative Service and in any event no com-plaint has been made on their behalf. The Committee found that from

No. 1131 onwards every alternate officer had not completed 8 years' seoice and therefore they could not be put in the field of choice ac-cording to the Committee. The contention of the respondents that there were 3 3 6 officers in the field of choice and the Committee did not consider all the 336 persons unmeritorious.

The respondents next contended that persons bearing No. 877, Jl,79, 881 and 883 in the seniority list had been put on the select.ion list although they bad less than 8 . years' experience. There 1s no substance m the contention for the following reason. These 4 officers were taken on the ground that they were ex-military officers recruited to the Income Tax Department in 1968 and were deemed to have been recruited in 1964 by VJrtue of the Ministry of Home Affairs Notification dated 4 October, 1967.

Another submission was made on behalf of the respondents that after the Committee had put different persons in three categories 'out-standing', 'very good' and 'good' the Committee should have further evaluated the merit of all officers inter-se within each of the said three categories. This submission is contrary to the specific provision of paragraph 4 of the letter dated 16 May, 1957. Further within the category of 'very good' there could not be any further intra-specific assessment of those who were 'very good'.

criticism was made by the respondents that the assessment was to be only on merit and not seniority-cum-merit. This contention is wrong. Paragraph 2 of the letter of 16 May, 1957 states that the field of choice is to be decided by the Committee. No question of merit arises in deciding the field of choice. The field of choice is only on the basis or running seniority. The question of merit arises after the field of choice is decided. The selection was correctly done strictly on merit in accordance with paragraphs 3 and 4 of the letter dated 16 May, 1957. The Committee decides the field of choice in the running order of senio-rity. The Committee excludes names from the field Jf choice who are considered unfit for promotion. The remaining officers are classified as ·'outstanding', 'very good' and 'good' on the basis of merit. The selec-tion list is prepared by placing the names in the order of these three categories. That inter-se seniority of officers in the selection list under each category is not disturbed. These are the instructions in the afore-said letter. It will thus QC seen that seniority is the sole criterion for determining the field of choice in the running order of seniority and merit is the sole criterion for putting the officers in the selection list in ·each category according to merit.

. Finally the contention of the respondents is that the date for deter-mining the eligibility of officers for promotion to the posts as Assistant Commissioners should have been decided by the Committee by bearing in mind the two dates namely, 21 December 1972 and 29 November 1973. 21 December 1972 is the date when this Court permitted the Union Government to make ad hoc promotions. 21 March 1973 and 29 November 1973 are the two dates when the Central Board of Direct Tall:es promoted 59 and 48 officers respectively. This Court in the order dated 21 December, 1972 stated that the Government would be entitled to appoint people in order of seniority determined according to the date 5-1453SCI/76 )

of continuous officiating appointment in Class I subject to the suitability which would be decided by the Central Board or Direct Taxes. This order was made without prejudice to the contentions of the parties, or their rights in the appeals. Pursuant to the interim order of this Court the Government made two orders dated 21March1973 and 29 Novem-B ber 1973 provisionally promotJing 59 and 48 officers respectively. In each of the Government orders it is specifically stated as follows : "The above promotions are purely ad hoc and have been made on the basis of the suitability as decided by the Central Board of Direct Taxes in terms of dir.ections issued by this Court in their order dated 21 Decem-ber 1972. These promotions will not confer any claim for continued "officiation" (sic) in the grade of Assistant Commissioner of Income Tax or for seniority in that grade. Appointments against these posts will eventually be made on the basis of the revised list of senioritv of Income Tax Officenl Class I as finally approved by this Court and on selectioo by duly constituted Departmental Promotion Committee to be convened in accordance with the prescribed procedure. The promo-tions ordered will not establish any claim for eligibility or for selection on merit by properly constituted Departmental Promotion Committee· when the same is convened".

It is manifest from the order of this Court and the two orders made by the Government pursuant to this Court's order that these 107 pro-motions were purely provisional or ad hoc and were made by the Central Board of Direct Taxes and not by the Committee which is the authority for determining promotions. Further these provisional promotions were not made in conformity with the letter of 16 May 1957. It is distinctly stated in the aforesaid two Government orders that appointments ag;iinst these posts will eventually be made on the basis of revised seniority of Income Tax Officers Class I as finally approved by this Court and on selection by duly constituted Depart-mental Promotion Committee to be convened in accordance with fhe prescribed procedure. On 9 February 1973 the Income Tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973 were made under Article 309 See Bishan Sarup Gupta's case (supra). The revised seniority list of Income Tax Officers Class I was made on the basis of the Income Tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973 and was approved by this Court on 16 April, 1974. See Bishan Sarup· Gupta's case (supra). The selection list was made by the Committee after it met on 23, 24 and 25 July, 1974. Under paragraph 2 of the letter dated 16 May, 1957 the Committee was to decide the field of choice by including therein eligible officers awaiting promotion. This means that whether an officer is eligible or not should be decided with reference to the· date of the Committee meeting. This has always been done at all the Committee meetings.

The respondents contended that the regularisation of 107 promo-tees had to be done from the date of original promotions on ad hoc basis. In this connection, the respondents relied on the observations of this Court in Bishan Sarup Gupta's case (supra) at p. 506 of the report. The observations relied on are that after the fresh seniority

list is made in accordance with· the directions given by this Court in Bishan Sarup Gupta's case (supra) it would be open to any direct recruit or promotee to point out to the department that in the selection made to the post of Assistant Commissioner from 1962 onward~ ~e, being otherwise eligible, is entitled on account of the new semonty given to him to be considered for promotion to the post of Assistant Commissioner.

The observations of this Court in Bishan Sarup Gupta's case (supra) are that if as result of the fresh seniority list it is found that any officer was eligible for promotion to the post of Assistant Commis-sioner on account of his place in the new seniority list, the department might have to consider his case for promotion on his record as on the date when he ought to have been considered, and if he would be select-ed his position will be adjusted ,in the seniority list of Assistant Coin-mis~ioners. The object is to see that the position of siu:h person is not affeeted in the seniority list of Assistant Commissioners because he is actually promoted later pursuant to the new seniority list, although according to the new seniority list itself he should have been promoted earlier. The observations do not mean that al~hough the Committee can meet for the selection of officers for promotion to the post of Assistant Commissioner only after the seniority list is approv-ed by this Court, the selection would be deemed to be made at the 'time when vacancy in the post of Assistant Commissioner occurred and the eligibility of officers for selection will be determined by such deemed date of selection. No employee has any right to have vacancy in the higher post filled as soon as the vacancy occurs. Gov-ernment has the right to keep the vacancy unfilled as long as it chooses. In the present case, such position does not arise because of the controversy between two groups .of officers for these years. The seniority list which is the basis for the field of choice for promo-tion to the post of Assistant Commissioner was approved by this Court on 16 April, 1974. Promotions to ·the post of Assistant Commis-sioners are on the basis of the selection list prepared by the Com-mittee and are to be made prospectively and not retrospectively.

For the foregoing reasons the judgments and orders appealed against are set aside. The selection list made by the Departmental Promotion Committee forming the subject matter of these appeals is held to be correct, lawful and valid. Parties will pay and bear their own costs, V.P.S. Appeals allowed.