JUDGEMENT

SAWANT - (1.)THESE three petitions raise some common issues, and hence they aree being disposed of by this common judgment.
This petition is filed by the promotee Income-tax Officers Group-A seeking to challenge the Seniority Rules of 1973 on the ground that they were framed pursuant to a direction given by this Court in Bishan Sarup Gupta v. Union of India, 1975 Suppl SCR 491 : (AIR 1972 SC 2627), decided on 16/08/1972. According to the petitioners, the said direction was given because for want of sufficient material, the Court had come to the conclusion that the quota for recruitment of the direct recruits and the promotees had broken down as the promotees were appointed in excess of their entitlement in the quota. According to the petitioner, the requisite material showing the contrary was in the possession of the Government but did not come forth, then. The said material shows that in fact the appointments of the promotees were short of their quota. The petitioners, therefore, claim that not only the Seniority Rules of 1973 should be set aside, but the appointment of the promotees be made and their seniority be fixed, according to the Rules prevailing prior to the said Rules.

(2.)THE relevant facts necessary to dispose of the petition are as follows:
Pursuant to the Rules propounded in their letter of 29/09/1944, the Government reorganised the existing Income-tax Services into Class-I and Class-III. THE Rules,. among other things, laid down that the recruitment to the cadre of Income-tax Officers - Group A will be from two sources, viz., direct recruitment and promotion, the quota for the two being 80% - 20% respectively.

In 1945, the Government framed fresh Recruitment Rules for the said cadre of Class1 and Class-II, I-T.Os. Rule 3 of the said Rules reiterated that the recruitment to the said cadre will be from the two sources, viz., direct recruitment and promotion. Rule 4 of the said Rules, however, provided that the recruitment from the said sources will be made as per the discretion of the Government. This provision had the effect of virtually keeping in abeyance the recruitment quotas for the direct recruits and the promotees laid down in the Recruitment Rules of 29/09/1944.

On 9/09/1949, the Government framed Seniority Rules. Rule 1(f)(iii) thereof provided that the promotees who had been certified by the Federal Public Service Commission in any calendar year shall be senior to all direct recruits who completed their probation during that year or after, and are confirmed With effect from the date in that year or after. On 1/01/1950, the Seniority Rules were revised and the aforesaid Rule (1) (f)(iii) was amended as follows:

"(f) THE seniority of direct recruits recruited on the results of the examinations held by the Federal Public Service Commission in 1944 and subsequent years, shall be reckoned as follows:

(i) Direct recruits of an earlier examination shall, rank above those recruited from subsequent examination.

(ii) Direct recruits of any one examination shall rank inter se in accordance with the ranks obtained by them at that examination.

(iii) THE promotees who have been certified by the Commission in any calendar year shall be senior to all direct recruits who complete their probation during that year or after and are confirmed with effect from a date in that year or after.

Provided that a person initially recruited as Class-II Income-tax Officer, but subsequently appointed to Class I on the results of a competitive examination conducted by the Federal Public Service Commission shall, if he has passed the departmental examination held before his appointment to Class I service, be deemed to be promotee for the purpose of seniority".

By its letter of 18/10/1951, the Government revised the quotas of direct recruits and promotees (which was earlier laid down in their letter of 29/09/1944), from 80% and 20% to, 66-2/3% and 33-1/3%. On 5/09/1952 the Government also revised further the Seniority Rule 1(f)(iii) of 24/01/1950 as follows:

"(f) The seniority of direct recruits recruited oil the results of the examinations held by the Federal Public Service Commission in 1944, and subsequent years, shall be reckoned as follows:

(i) Direct recruits of an earlier examination shall rank above those recruited from a subsequent examination.

(ii) Direct recruits of any one examination shall rank inter se in accordance with the ranks obtained by them at that Examination.

(iii) Officers promoted in accordance with the recommendation of the Departmental Promotion Committee before the next meeting of the Departmental Promotion Committee shall be senior to all direct recruits appointed on the results of the examinations held by the Union Public Service Commission during the calendar year in which the Departmental Promotion Committee met and the three previous years."

It will thus be clear that this- revision, among other things, gave to the promotees a weightage of three years in seniority. These Rules continued to operate till 1959.

It appears that between 1959 and 1960, about 114 posts were upgraded to those of Income-tax Officers Group-A, and the promotees were appointed to the said posts during the relevant period.

(3.)ONE Jaisinghani, a direct recruit challenged the constitutional validity of Seniority Rule 1(f)(iii) and (iv) of 1952 Seniority Rules which had in effect given three years' weightage to the promotees in the matter of fixation of their seniority, and also the improper implementation of the quota by the Government, by filing a writ petition before the Punjab High Court. The High Court rejected the writ petition, and in the appeal filed against the said decision, this Court, by its decision in S. G. Jaisinghani v. Union of India (1967) 2 SCR 703 : ( AIR 1967 SC 1427) held that the quota was fixed by the Government by its letter of 15/10/1951 in exercise of the power given to it under Rule 4 of the Recruitment Rules of 1945 and hence it was valid and proper. The Court also upheld the weightage given to the promotees under the Seniority Rules of 1952. The Court, however, directed that for future years, the roster system should be adopted by framing an appropriate rule for working out the quota between the direct recruits and the promotees, and that a roster should be maintained indicating the order in which appointments are made by direct recruitment and by promotion, in accordance with the percentage fixed under the statutory Rules for each source of recruitment. The Court gave these directions because the Court came to the conclusion that the promotees were in excess of the prescribed quota for each of the years 1951 to 1956 and onwards, and that they had been illegally so promoted. The Court further held that the appellant Jaisinghani was entitled to a writ commanding the respondents to adjust the seniority of the appellant and other officers similarly placed like him, and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to 1956 and onwards, in accordance with the quota rule prescribed in the Government letter of 18/10/1951. The Court, however, made it clear that the said order would not affect such Class-II officers who had been appointed permanently as Assistant Commissioners of Income-tax.
Pursuant of the direction given by the Court, the Government prepared a Seniority List on 15/07/1968. This Seniority List was challenged in Delhi High Court in two separate writ petition, one filed by one B. S. Gupta, a promotee of 1962 and another by one M. C. Joshi, a direct recruit. The Delhi High Court by its decision of 29/07/1970 dismissed Gupta's petition and substantially allowed Joshi's petition and gave directions to prepare a fresh seniority list. Against the decision in both the petitions, Gupta filed two separate civil appeal. By its decision dated 16/08/1972 in the said appeals in B. S. Gupta case (AIR 1972 SC 2627) (supra) briefly known as 1st Gupta case, this Court held that the Seniority List was valid with regard to the promotions made up to 15/01/1959, since it was prepared on the basis of the quota, rule of 18/10/1951 and the Seniority List Rule 1(f)(iii) of 1952 Seniority Rules. The Court, however, held that the said List would not be valid for the period thereafter. The Court, therefore, set aside the said list to the extent it concerned the period from 16-1-1959 onwards and directed the Department to prepare a fresh seniority list, in the light of the observations made in the judgment. The Court also directed that the seniority list from 15/01/1959 should be prepared in accordance with a seniority rule to be framed afresh by the Government. The Court observed that the proceedings will have to be kept pending till such seniority list was prepared and filed before the Court. It is necessary to state here that the Court had given the said direction because it had come to the conclusion that the upgrading of a large number of posts and the appointments of the promotees made to them, the quota rule had collapsed, and with that, the seniority Rule giving weightage to the promotees had also collapsed. The decision to upgrades 100 posts was taken in January 1959 and the remaining 114 posts in the year 1960. The Court, therefore, held that the quota rule came to an end on 16/01/1959 when sanction to upgrade 100 temporary posts was given by the President and with that went the seniority Rule.

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