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1980 (4) TMI 301
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.... round of litigation come to a decision than is another round started by one party or the other, sometimes alleging, as in these Writ- Petitions, that important facts and circumstances were not taken into consideration in the earlier proceedings either because they were suppressed or because, though cited, they were overlooked or misunderstood. A virtual review is thus asked for, opening flood gates to fresh litigation. There are few other litigative areas than disputes between members of various services inter se, where the principle that public policy requires that all litigation must have an end can apply with greater force. Public servants ought not to be driven or required to dissipate their time and energy in court-room battles. Thereby their attention is diverted from public to private affairs and their inter se disputes affect their sense of oneness without which no n institution can function effectively. The constitution of Service Tribunals by State Governments with an apex Tribunal at the Centre, which, in the generality of cases, should be the final arbiter of controversies relating to conditions of service, including the vexed question of seniority, may save the courts....
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.... I.T.Os. in July 1950. In 1959-60 he was promoted as I.T.O., Class I, and was confirmed in that cadre with effect from December 9, 1960. He was promoted as an Assistant Commissioner of Income-tax with effect from December 17, 1969. Respondents 1 to 3 to that petition are the Union of India, the Chairman of the Central Board of Direct Taxes and the Union Public Service Commission respectively. Respondents 4 to 8 are B. D. Roy, S. G. Jaisinghani, M. C. Joshi, B. S. Gupta and M. Jangamayya respectively. These officers have figured in certain well-known decisions of this Court, as a result of which their names have become house hold words in service jurisprudence. In fact, Shri B. S. Gupta figures in two cause-titles known as 'the first Gupta case' and the 'Second Gupta case'. Respondents 4, 7 and 8 are Assistant Commissioners of Income-tax while respondents 5 and 6 are workings Deputy Directors of Investigation. It will be difficult to appreciate the nature of the relief sought in these Writ Petitions without a proper understanding of the history of the litigation leading to these petitions. That history is quite checkered. one of the principal grievances of the petitioners is t....
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....ive examination held in India in accordance with Part II of the Rules and (ii) by promotion on the basis of selection from Grade III (Class II Service) in accordance with Part III of the Rules. By rule 4, the Government was to determine, subject to the provisions of rule 3, the method or methods to be employed for the purpose of filling any particular vacancies, or such vacancies as may require to be filled during any particular period, and the number of candidates to be recruited by each method. Part III of the Rules called 'Recruitment by Promotion' provided by paragraph 21 that recruitment by promotion shall be made by selection from among Grade I II Income-tax officers (Class II Service) after consultation with the Federal Public Service Commission and that no officer shall have any claim to such promotion as of right. By a letter dated January 24, 1950 the Government of India laid down certain rules of seniority (a) as between direct recruits, (b) as between promotees selected from Class II, and (c) as between direct recruits who completed their probation in a given year and the promotees appointed in the same year to Class I. On October 18, 1951, the Government of India....
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....rvice for an officer of Class I, Grade II for promotion to A Grade I is 5 years gazetted service including 1 year in Class l, Grade II. For a promotee from Class II, the minimum period of service for promotion to Class I, Grade I, would be actually 4 years service in Class II and 1 year service in Class I, Grade II. In 1962, S. G. Jaisinghani (who is respondent No. 358 in Writ Petition No. 66 of 1974 and respondent No. S in Writ Petition No. 4146 of 1978) filed Civil Writ No. 189-D of 1962 in the High Court of Punjab under Article 226 of the Constitution, challenging the validity of the seniority rules in regard to Income-tax Service, Class I, Grade II as also the actual implementation of the 'quota' rule, as infringing Articles 14 and 16(1) of the Constitution. Promotees who were likely to be affected by the decision of the Writ Petition were added as respondents 4 to 126 to that Petition. Jaisinghani who was recruited directly as an Income-tax officer, Class I (Grade II), raised four principal contentions: (i) Rule l(f)(iii) of the seniority rules as framed in 1952 was based upon an unjustifiable classification between direct recruits and promotees after they had entered Cl....
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....nable classification and that rule 4 of Chapter IX of the 'Central Board of Revenue office Procedure Manual' cannot be held to lead to any discrimination as between direct recruits and promotees, since the object of the rule was really to carry out the policy of rule l(f)(iii) of the Rules of Seniority and not allow it to be defeated by the requirement of five years service in Class I, Grade II itself, before a person could be considered for promotion to Class I, Grade I. On the question of excessive recruitment of promotees from 1951 to 1956 in violation of quota rule, the Court had directed the Secretary of the Finance Ministry, during the hearing of the appeal, to furnish information regarding the number of vacancies which had arisen from year to year from 1945 onwards, the nature of the vacancies-permanent or temporary-the chain of vacancies and such other details which were relevant to the matters pending before the Court. In his affidavit dated January 31, 1967 Shri R. C. Dutt, Finance Secretary, said that he was not able to work out, in spite of his best endeavours, the number of vacancies arising in a particular year. However, a statement, Ex. E. was furnished to the Court ....
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....rder will not affect such Class II officers who have been appointed permanently as Assistant Commissioners of Income Tax. The Court suggested 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 percentages fixed under the statutory rule for each method of recruitment. In Writ Petition No. S of 1966 filed by Mohan Chandra Joshi under Article 32 of the Constitution, a similar mandamus was issued by the Court. Mohan Chandra Joshi, like Jaisinghani, was recruited directly as Income-tax officer, Class I, Grade II, with the only difference that he was appointed in 1953 while Jaisinghani was appointed in 1951. Thus the direct recruits succeeded substantially in their contentions. the quota rule acquired statutory force, appointments of promotees in excess of the quota became bad and it became obligatory for the Government to prepare a fresh seniority list. Promotees found to have been appointed in excess of the quota admis....
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....instance that this Court could not possibly have in mind a seniority list which took in promotees after 1956 and that therefore under the mandamus issued by this Court, appointments of promotees in excess of the quota could only be taken into consideration in relation to the period 1951 to 1956. The reason for the use of the words "and onwards" was explained to be that Government should be able to push down excess promotions to later years in order that such promotions could be absorbed in the lawful quota available for later years. C In Bishan Sarup Gupta-the Court was called upon to examine the correctness of seven principles enumerated in the Government letter dated July 15, 1968 governing seniority. The first principle was accepted as good. The second and the third principles were held to be partially incorrect in so far as they excluded reference to all the promotees of 1952. The Court held that the promotees of 1952 should be referred to in the seniority list whether they are affected or not, the object being the ascertainment of excess promotions. The fourth principle set out in the letter of July 15, 1968 which is important for our purpose reads thus: E In view of ....
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....romotees in excess of their quota did not arise for that year. The argument advanced on behalf of the direct recruits that the quota rule should be co-related to vacancies in permanent posts only and not to those in temporary posts was rejected by the Court. The Court upheld the 5th principle under which Class II officers promoted to Class I, Grade II, were allowed weightage under rule 1(f)(iii). The Court then considered the question whether the quota rule could be applied after the year 1956. It held that even after 1956, the Government was entitled by reason of rule 4 of the Recruitment Rules of 1945 to follow the quota rule of 1951 as a rough guideline, "without going to the trouble of putting the same on record in so many words". The Court observed that if the rule is followed as a guideline, a slight deviation from the quota would be permissible but if there was an "enormous deviation", other considerations may arise. Taking into consideration the relevant circumstances, the Court came to the conclusion that in the normal course the Government was entitled to prepare the seniority list till the end of 1958 in accordance with the quota rule of 1951. In regard to th....
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....nge was considered and repelled by this Court in Bishan Sarup Gupta etc. v. Union of India & ors. etc. etc.,(l) the 2nd Gupta case. Rule 3 of the new Seniority Rules of 1973 reads thus: "3. Seniority of officers- The seniority of the Incometax 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 promotes inter se shall be deter mined 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 deter- mined 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 select ion shall rank senior to all other persons appointed as a result of any subsequent selection; and (iii) the relative seniority among the promotes and the direct recruits shall be in the ratio of 1: 1 and the same shall be so determined and regulated in accordance with a roster maintai....
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....ed by claims made by later promotes on the ground that since the spillover promotes were recruited in excess of the quota, the later promotes whose promotion did not violate the quota rule had higher rights than those 73. The principal contention of the promotes in the 2nd GPA case was this: As the quota rule collapsed on January 16, 1959 the spillover promotes as also those who were promoted thereafter must be deemed to have been validly appointed in accordance with rule 4 of the Recruitment Rules of 1945. Since there was no seniority or quota rule in existence for determining the seniority of promotes Que the direct recruits, the natural seniority linked with the earlier date of appointment must be respected. lt could not be altered to the detriment of the promotes since to do so would violate Article 16 of the Constitution. This contention was rejected by the Court on the ground That when the 73 spillover appointments were made, there were no allocated or earmarked posts to which those promotes could have been validly appointed, the ordinary consequence of which would have been their reversion to Class II posts which they originally held. So long as the quota rule was in exis....
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.... inference for the Court to draw, in the absence of material which ought to have been produced by the Government, was that if appointments were to be made of direct recruits and promotes in the proportion of 2: 1, and if 20 promotes were in fact appointed, the Government desired to appoint 40 direct recruits but could only appoint 10, probably because of the non- availability of suitable candidates for direct recruitment. (ii) It was wrongly assumed or held that rule 4 of the Income tax officers (Class I. Grade ll) Service Recruitment Rules was a statutory rule. (iii) lt was wrongly assumed that 100 posts in Class 11, Grade III, and 114 posts in the same cadre which were upgraded as Class I, Grade II posts on January 16, 1959 and December 9, 1960 respectively were exclusively allotted to promotes and were in fact filled in by the appointment of promotes. In regard to the decision in the 2nd Gupta case (Supra) it is contended that the decision suffers from the following infirmities: (i) It was wrongly held therein that the 73 spillover promotes as on January 16, 1959 could not be given priority en bloc, even though it was directed in the judgment in the 1st Gupta Case (s....
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.... supplementary affidavit in rejoinder which was filed in this Court in April 1978. By paragraph 45 of his Writ Petition, which was filed on June 27, 1978 Sajnani did contend that the aforesaid judgments be reviewed since they were wrongly decided. Sajnani asked by paragraph Sl of his petition, and so did the petitioners in, the companion petitions asked by, their supplementary rejoinder, that the decision of this Court in Union of India v. M. Jangamayya(1) should also be reviewed. In his writ petition, Sajnani has cited several specific instances in support of his contention that under the new seniority rules, the promotes have been treated with an evil eye and an uneven hand. His complaint is that direct recruits who are "15 years junior in age and 15 years junior in experience had been placed above him"; and that the seniority list dated April 15, 1978 of Assistant Commissioners of Income- tax, which is the basis of further promotion to the post of Commissioner of Income- tax, does not include his name at all, though he has been working as an Assistant Commissioner ever since 1969 when he was selected by the competent authority with the concurrence of the U.P.S.C., after putti....
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....nt vacancies, etc. in a proper perspective." The Committee examined the files produced before it by the Ministry, expressed its sense of "shock" at the plea of the Ministry that files of vital matters were not traceable and concluded that the new seniority rules of 1973 should be scrapped. The Committee recommended, inter alia,: "The entire concept of a common seniority list should be given up. The existing common seniority list of 1973 be replaced by two sets of seniority lists consisting of direct recruits and promotes respectively, on the basis of the dates of their appointment. The integration of the two channels which may be turned into two cadres should not be done at the level of I.T.Os. but after the level of Assistant Commissioners." The Committee hoped that with the separation of the two seniority lists, the controversy of inter se, seniority will be resolved and the hardship caused to the 434 officers promoted between 1956 to 1966 will be relieved. The Committee made certain calculations according to which, the correct number of spill-over promotes as on January 16, 1959 was 15 and not 73. Observing in paragraph 7(i) that the Parliament owes responsibility in se....
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....of posts brought about a collapse of the quota rule. Subsequent absorption in posts which become available for being filled up later really means regularization of appointments, which is possible provided there is no excessive deviation from the quota rule. A We quite appreciate that no blame can be laid at the doors of the promotes on the score that they were appointed in excess of the quota available to them. Perhaps, their appointments must even have enabled the administration to tide over administrative stalemate. But the tough problem which the administration has to face is that whereas it is necessary to recognize and protect the claims of promotes who are appointed in excess of their quota, it is equally necessary to ensure that the direct recruits do not suffer an undue set back in service on account of the excessive appointments of promotes. The conflicting claims of the two components of Service, both having an importance of their own, have therefore to be reconciled. It was with that object that the rules have been modified from time to time. The judgments rendered by this Court in matters which the petitioners want to be reopened show, without a shadow of doubt, how eve....
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....n of conflicting claims of two important constituents of Service, one of which brings fresh blood and the other mature experience. The counter-affidavit dated August 31, 1973, filed in the 2nd Gupta case (supra) by Shri Mehra, Deputy Secretary, Ministry of Finance, shows the fullness with which the Government had consulted all possible interests while framing the impugned rules of seniority. The gamut of reasonable possibilities is fairly covered by the four alternatives referred to in Shri Mehra's affidavit. The inconveniences and disadvantages flowing from the first three alternatives would be far greater than those flowing from the 4th. That is why the choice ultimately fell on the 4th alternative, under which the seniority between Promotes and direct recruits was fixed alternately on a roster system, vacancies being equally divided between Promotes and direct recruits, for the entire period from 1959 up-to-date. Though the promotes submitted in the 2nd Gupta case (supra) that the new seniority rule was unfair to them, they were unable to put forward any rational alternative, a fact which is noted at page 119 of the Report. That led the Court to remark: "They are indeed pl....
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.... under its consideration. In the circumstances, it has done as good a job as a Committee can and we desire to find no fault with its Report. But we can- not accept the submission pressed upon us by the petitioners that the Committee's Report must displace our judgments. It shall have been noticed that we have refused to reconsider our decisions not so much because of the view taken in the various cases cited by the learned Solicitor General, like Sajja Singh v. State of Rajasthan,(l) that this Court should not review its decisions too readily, as because, on merits, we see no justification for reconsidering the judgments already rendered by this Court. No fresh facts are brought to our notice, by way of discovery of new and important evidence, which would justify reconsideration of the decisions already rendered by this Court after the most careful examination of the competing contentions. The report of the Rajya Sabha Committee on Petitions shows, as already indicated, that the relevant files are still not traceable. The petitions are accordingly dismissed but there will be no order as to costs. DESAI, J.-I have carefully gone through the Judgment prepared by My Lord the ....
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....d out in the first Gupta case. 4. In the 1st Gupta case while holding that the mandamus directing to treat the quota as statutory beyond 1956 was not justified yet till January 16, 1959, the Court itself in- , directly accepted the quota rule as a guideline and treated that there was a spill over of 73 promotes. If rule 4 was not statutory and consequently the quota prescribed in exercise of the power which had outlived its prescribed span of life in 1956 could not be brought in to treat any appointment as invalid on the ground that there was no allocated post for those appointees treated as spill over because under rule 4 itself the Government had power to determine the method or methods to be employed for the purpose of filling in particular vacancies or such vacancies as may be required to be filled in during any particular period and the number of candidates to be recruited by each method. 5. The action of the Government in upgrading 214 posts between 1959 and 1962 from Class II, Grade III to Class I. Grade II was not open to question as at that stage there was no quota rule and rule 4 enabled the Government to make recruitment from either of the two sources in exercise o....
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....r the 80: 20 quota during the period 1945-50 was really operative. The file is reported missing. Another file reported mis sing is that relating to the framing of the recruitment rules, 1945. The file relating to Shri R.C. Dutt's affidavit (filed in Jaisinghani's case) is also not available. Even the very recent file relating to the framing of Seniority Rules, 1970, is reported as 'not available'. On our insistence they have produced a thick sheaf of papers said to be 'reconstructed file'. It is strange that many of the files which could probably have that own light on the question of excess promotion, are reported 'missing' or 'not available'. The conclusion is Inescapable that these losses of files are far from being accident. We can only conclude that important information was deliberately withheld from the Supreme Court as well as from the Committee". On these observations the credibility submission would not only stand squarely answered, but need not deter us from going into the points made in these petitions. However, this Court does not lightly undertake review of its decisions, more especially where conflicting claims have been settled by a decision of the Court and t....
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....evision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. The Court's discretion should be guided by such consideration whether in the interest of public good or for any other valid or compulsive reasons it is necessary that the earlier decision should be revised. This view was re-affirmed in Manganese Ore (India) Ltd. v. The Regional Assistant Commissioner of Sales Tax, Jabalpur.(l) Bearing these principles in mind, it is necessary to examine whether a case for reconsideration of the three earlier decisions is made out by the petitioners or not. Jaisinghani's case proceeds on a concession that rule 4 and the quota prescribed by the Government referable to the power conferred by rule 4 were statutory in character. This is borne out by the observation of the Court which may be extracted: "It is not disputed that rule 4 of the Income Tax officers, Class I, Grade II Service Recruitment Rules is a statutory rule and there is a statutory duty cast on the Government under ' this Rule to determine the method or methods to be employed for the purpose of filling the vacancies or n....
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....in this case on a plain reading of rule 4 it would not even be irregular. In P.C. Sethi & Ors. v. Union of India & Ors., this Court held that in the absence of any statutory rules it was open to the Government in exercise of its executive power to issue administrative instructions with regard to constitution and reorganization of service as long as there is no violation of Articles 14 and 16 of the Constitution. If the parent rule 4 enables the Government to prescribe method to be employed for the purpose of filling in any particular vacancy {. Or such vacancies as may be required to be filled in during any particular period and the number of candidates to be recruited by each method and if the so called quota is not statutory but merely a guideline, the Government whenever making appointment would be acting in exercise of power conferred by rule 4 which leaves it to the discretion of the Government to decide from what source recruitment should be made and what must be the quantum of vacancies that must be filled in at a given point of time and such appointment could not be said Hi to be invalid. Alternatively, even if the assumption made in Jaisinghi's case that rule 4 and t....
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....anently as Assistant Commissioners of Income-Tax. But this order will apply to all other officers including those who have been appointed Assistant Commissioners of Income Tax provisionally pursuant to the orders of the High Court". The Government understood the mandamus as covering the whole period from 1951 to 1967. When this was questioned in the 1st Gupta case, this Court held that the quota rule Proprio vigor operated between 1951 to 1956 and if there were promotions in any year in excess of the quota those promotions were merely invalid for that year but they were not invalid for all time and they could be regularized by being absorbed in the quota for the later years. So adjusting the quota at any rate upto 1956, the quota rule on its own strength evaporated because it was to be in operation for a period of five years and no fresh quota rule was issued by the Government. Therefore, after 1956 rule 4 remained in force in all its rigour and was not hedged in by any quota. Rule 4 permitted the Government to make recruitment from either source without lettering its discretion by any quota rule which it was not bound to prescribe. On January 16, 1959, Government in the ministr....
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....he may be a student. May be he may not have even passed the competitive examination, yet he may come into the picture and challenge one who has already been serving in the Department for a number of years. To illustrate, in the new seniority list prepared by the Government pursuant to the order made by this Court in the 1st Gupta case and upheld by this Court in 2nd Gupta case a promote of 1962 will have to yield his place to a direct recruit of 1966. With utmost hesitation I must say that service jurisprudence hardly permits a situation where a man not in service comes and challenges some thing which has been done much before he came in to service and gets such an advantage which on the face of it appears to be unfair. But apart from this, even in 1959 there was no quota rule and assuming that the old service rule giving weightage to the promotes crushed under that weight of large number of promotes being promoted, it would not be open to the Government to so prepare a fresh seniority list which cannot be given effect to unless a roster is introduced which introduces quota by the back door and which is so unfair in its operation that promotes of 1962 will have to yield place to di....