B.L. Hansaria, J. - (1.) The fight in this application under Article 226 of the Constitution of India is regarding the interse seniority between the promoted Superintendents of Taxes and those who were recruited directly to this post. This is a well known fight in service jurisprudential arena. The promotees expect a better deal because of their having put in long period of service in the cadre. The direct recruits on the other hand lay their claim perhaps on higher educational qualification.
(2.) The six petitioners were appointed as Inspectors of Taxes in 1957 and were subsequently confirmed in the post in due course. Some other Inspectors of Taxes were promoted in 1973 as Superintendents of Taxes under Regulation 4 (d) of Assam Public Service Commission (Limitation of Functions) Regulation. The Assam Public Service Commission, hereinafter the Commission, was thereafter approached by the Finance Department on 6.2.74 for selecting promotees for the post of the Superintendent of Taxes. For this purpose, the Finance Department forwarded names of 32 persons including the six petitioners. Before that, an advertisement had been put in by the Commission in 1973 seeking applications for direct recruitment to the post of Superintendent of Taxes. The competitive examination to select direct recruits was held between 9.12.74 to 2.1.75. Viva voce test was held from 13th September, 1975 to 26th September, 1975. Thereafter the Commission sent a list of 15 persons on 10.10.75 vide Annexure-B to the affidavit in opposition filed on behalf of respondents No. 4,6,7 and 8. Subsequently, the Commission was requested by the Government by its letter dated 8.11.75 to send a further list of direct recruits for appointment to the post of Superintendent of Taxes,. The Commission thereafter recommended the names of 12 persons by its letter issued on 3.12.75 as at Annexure-D to the aforesaid affidavit-in-opposition. After-ward, the Commission recommended cases of 24 promotees for appointment to the post of Superintendent of Taxes. This was by its letter dated 3.3.76. One name which was left out inadvertently was subsequently recommended. The petitioners are among the 24 promotees whose names were recommended by the Commission on 3.3.76. In pursuance of the aforesaid recommendations, the Government appointed the incumbents on different dates. A provisional gradation list of the incumbents, was made vide Notification No. FEB. 391/77/54 dated 23rd August, 1980. Objections we.e raised by the promotees as well as direct recruits relating to their places in the provisional gradation list, which had been prepared in accordance with the provisions finding place in the Assam Taxation Service Rules, 1962, for short the Rules. Rule 16 of the Rules dealing with seniority is in the following language : *16. Seniority.- (1) The seniority of a member shall be determined according to the order of preference in the list referred to in sub-rule (2) of either Rule 7 or Rule 8, if he joins his appointment within 15 days of the receipt of the order of appointment: Provided that if a member is prevented from joining within this period by circumstances of a public nature or for reasons beyond his control, the Governor may extend it for a further period of 15 days. If a member fails to join within the period so extended his seniority shall be determined in accordance with the date of joining. (2) A member appointed by promotion shall be senior to a member appointed through competitive examination in the same batch. Note.- The expression "same batch" shall not be applied in any case where for any reason the promotion list is forwarded by the Commission more than 90 days after the competitive examination list.
(3.) Sub-rule (2) states that a member appointed by promotion shall be senior to a member appointed through a competitive examination in the same batch. Note below the Rule says that the expression "same batch" shall not be applied in any case where for any reason the promotion list is forwarded by the Commission more than 90 days after the competitive examination list. As it was found that the gap between the list of the direct recruits forwarded by the Commission on 3.12.75 and the list of the selected promotees which is dated 3.3.76 was 91 days, the power of relaxation given by Rule 20 of the Rules providing as below - "20. Relaxation-Where the Governor is satisfied that the operation of any of these rules causes hardship in any particular cases, he may order to dispense with or relax the requirement of that rule to such conditions as he may consider necessary for dealing with the case in a just and equitable manner : Provided that the case of any person shall not be dealt with in any manner less favourable to his than that provided by any of these rules." was invoked by Notification No. FTX. 234/81/456 dated 23.6.82 to extend the aforesaid period of 90 days to 91 days. A final gradation list was thereafter prepared on 25.6.82.;