- (1.) The above appeals were disposed of by this Court on 16-8-1972. The Court set aside the seniority list prepared by the department on 15-7-1968 and gave directions as to how the same was to be prepared. The principal point which was decided in these appeals related to the validity of the quota rule and the seniority rule in their operation after 15-1-1959. This court held that on Government's decision to promote a large number of Income-tax Officers from Class II to class I, the quota rule which gave 66 2/3% of the posts to the direct recruits and 33 1 / 3% of the posts to the promotees collapsed and with the collapse of that quota rule, the seniority rule which gave weightage to the promotees of 2 to 3 years also broke down. The court observed : "Since the old seniority rule has ceased to operate by reason of the infringement of the quota rule it will be for the Government to devise, if necessary in consultation with the Union Public Service Commission, a just and fair seniority rule as between the direct recruits and the promotees for being given effect to from 16-1-1959. It follows, therefore, that the seniority list of 15-1-1968 will have to be set aside and the department will have to prepare a fresh seniority list in the light of the observations made in this judgment. Broadly speaking, the seniority list from 1951 to 15-1-1959 will be prepared in accordance with the quota rule of 1951 r/w the seniority rule 1(f)(iii). The seniority list from 16-1-1959 will be prepared in accordance with the rule to be freshly made by the Government in that behalf." It was further directed as follows : "As already shown, these proceedings before us arise out of the mandamus issued by this court in Jaisinghani's case (1967-2 SCR 703 = AIR 1967 SC 1427). The seniority list was prepared by the Government in pursuance of the mandamus. We have found that the seniority list is not correct and will have to be prepared afresh in accordance with the directions and observations made in this judgment. The demand made by the officers for the implementation of the mandamus is still unfulfilled and it can be achieved only after the Government files a proper list of have to be kept pending till such a seniority. list is prepared and filed in Court. The respondents namely the Union of India, the Ministry of Finance and the Central Board of Direct Taxes are, therefore, direct to prepare a fresh seniority list and file it in Court. It will be appreciated that this dispute regarding seniority is pending before the Court for several years and it was very essential that it should be resolved without further delay. We are, therefore, of the view that the respondents charged with the preparation of the fresh list shall prepare it and file it in court within six months from the date of this order. After the same is filed, liberty to apply is given to the parties to the proceedings."
(2.) Accordingly, on February 9, 1973 the President under the proviso to Article 309 of the Constitution made rules called the Income-tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973 to come into force from 16-1-1959. Rule 3 which is referred to hereinafter as the new seniority rule is as follows : "3 Seniority of Officers - The seniority of the Income-tax Officers in the Class I Service shall be regulated as from the date of commencement of these rules in accordance with the provisions hereinafter contained namely : (i) the seniority among the promotees inter se shall be determined in the order of selection for such promotion and the officers promoted as a result of any earlier selection shall rank senior to those selected as a result of any subsequent selection : (ii) the seniority among the direct recruits inter se shall be determined by the order of merit in which they are selected for such appointment by the Union Public Service Commission and any person appointed as a result of an earlier selection shall rank senior to all other persons appointed as a result of any subsequent selection; and (iii) the relative seniority among the promotees and the dated recruits shall be in the ratio of 1:1 and the same shall be so determined and regulated in accordance with a roster maintained for the purpose which shall follow the following sequence, namely: (a) promotee; (b) direct recruit; (c) promotee; (d) direct recruit; and so on." 2A. Having framed the above rule to regulate the seniority of the officers, in supersession of any other rule which was in force for the time being, the department prepared the seniority list in accordance with the directions given in the judgment and filed it in court on February, 15, 1973. it is not disputed that the directions given in the judgment have been followed with regard to the fixation of seniority till 15-1-1959. It is also not disputed that if the new seniority rule referred to above is a valid rule, then the rest of the seniority list which comes down to serial No. 1717 is also correct. The principal objection is to the validity of the new rule. It is challenged not only as unjust and unfair but also as violative of the promotee's fundamental right under Article 16 of the Constitution.
(3.) It is necessary to recall that in the 1950 there were several years when the promotees were appointed to posts which were in excess of their quota. Though the appointments were irregular when made, they were regularised in later years when posts from their quota became available for them. But when this court held on 16-8-1972 that the old quota Rule had collapsed on 16-1-1959 a new situation arose rendering further regularization impossible in the absence of any quota rule allocating the posts between the direct recruits and the promotees. Therefore, when the present seniority list was prepared, Government had on its hands 73 promotees who, thought appointed earlier between 1956-1958, had no quota posts for their absorption. On 16-1-1959 the 73 promotees, who are described as 'Spill overs' on 16-1-1959, as also subsequent promotees had to be absorbed in the service and this could only be done by a special rule framed in this behalf.;