# • BISHAN SAR UP GUPTA v. UNION OF INDIA AND ORS

- **Citation:** [1975] Supp. 1 S.C.R. 491
- **Court:** Supreme Court of India
- **Decided:** 1975
- **Case number:** Civil Writ No. 196 of 1970
- **Bench:** S. M. S!KRr, C.J. A. N. Ray, l. D. DUA, D. Q. Palekar, ANb M. H. BEG
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bishan-sar-up-gupta-v-union-of-india-and-ors-6540
- **Pages:** 16

## Headnote

B
l!'iAofne-Tax Officers Class I, Grade JI Service Rccruiflnent Rules of 1945Rule 4 of the Rules of Pro1notion for Direct rccruits-Wlre1i a statutory duty
is cast on the Goren1J11ent to deten11ine the n;ethod to be e1nployed for the
recruitrnent of candidates to vacancies in sen·ice and once the Governrllent has
fixed the quota Rules of 2 : 1, the pron1otees are entitled till January 16th, 1959
C
to 331/J: per cent of "the l'acancies both in pern1anent and temporary posts, in
any particular year irre:rpecdre of tfie fact whCtT1er the/'€' was any direct rrt:ruU~
nzent by cornpelitire examination in that year.
The scope of Rule I({) (iii) and (iv) of the semonty . Rules of the
InCllme-Tax Officers (Class I Grade II) stn'ice Recruitment Rules and •!lo
Rule 4 of the llules of Promotion of the Boatd of Revenue Office Procedurt
ManutX came to ht! considered 'ln "laisl11Rliarii's case" [1967} (2) SCR 703
and the Supreme Court ·while rejecting the contention· that the
rule
was
violative of.- Art 14 and 16 of the Constitution issued a nzandamus to 11tepare
a fresh seniority rule b~ed on the "quota rule" of 2 : 1 between the direct
recruit, and the "Promotees" for the year 1952-56. The. Government Uf)oetstood the mandamus as also for the years upto 1967 and prepared a freth
seniority list dated 15-7-1968 and the
appellants
challenged the
same
1111
violative 6f the mandalnus issued by the Court :
Accepting the appeals the Court,
E
HELD : It was for the Government under rule ·4 of the Income-TU
Officers Class I, Grade II Service Recruitment Rules to determine the method
or methods to be employed for the purposes of filling any particq1ar vacancies
and the number of vacancies and the number of candidates to be recruited by
'
each method. 'It is \V!Ong to assume that this Court woUld take upon itself
F
to do what the Government is required to do under rule 4. The n1a11da11u1S
\Vas really confined to the period bct"·cen l 951-1956. [49.5·H]
Rule 4 of tht- ]i'lcome•Tax Cla~ 1, Grade II Service ltecruitment ·Rules
also refers to reoruitment of candidates to vacancies in the
service.
The
vacancies for ariy particular, year being ascertained not more than ;..§rd of the
same were to go to the promotees and the rest to the direct recruits.
The
ratio was not made dependent on whether any direct recruit was appaintcd
in any particular year or not. The promotees were entitled to V3rd of the
G
yacancies in any particular year whether or not there was direct recruitment
by competitive exarninaticm in that year.
[499G-H]
lt is true that the quota rule refers to vacancies but the vacancies are
those vacancies which the Government wants to fill.
It is the prerogative of
the Government, reflected further in Rule 4, Whether any vacancy may be
filled at all or not.
Thel'efore, when the quota Tule tefers to vacancies it is,
implicit in the rule tha:t the vacancies are vacancies, \vhich the Government,
H
want to fill, whatever may be the actual number of vacancies. [501D·FJ
There is no sufficient warrant for the conlention that the vacancies referred
to in the quota rule <.!fe vacancies only in the permanent cadre.
[502D·E]
S. G. laisinfhani v. Union of India & Ors. [1967] (2) SCR 703, nature of
nianda1nus clarified.
10 SC/75-33
492
A
SUPREME COURT REPORTS
[1975] SUPP. S.C.R.

## Text

_Characters 0–39,919 of 52,937. This is a partial read: ask again with offset=39919 for what follows._

.
•
BISHAN SAR UP GUPTA
A
v.
UNION OF INDIA AND ORS
(With connected civil appeals)
August- 16, 1972
[S. M. S!KRr, C.J. A. N. RAY, l. D. DUA, D. Q. PALEKAR, ANb
M. H. BEG, JJ.]
B
l!'iAofne-Tax Officers Class I, Grade JI Service Rccruiflnent Rules of 1945Rule 4 of the Rules of Pro1notion for Direct rccruits-Wlre1i a statutory duty
is cast on the Goren1J11ent to deten11ine the n;ethod to be e1nployed for the
recruitrnent of candidates to vacancies in sen·ice and once the Governrllent has
fixed the quota Rules of 2 : 1, the pron1otees are entitled till January 16th, 1959
C
to 331/J: per cent of "the l'acancies both in pern1anent and temporary posts, in
any particular year irre:rpecdre of tfie fact whCtT1er the/'€' was any direct rrt:ruU~
nzent by cornpelitire examination in that year.
The scope of Rule I({) (iii) and (iv) of the semonty . Rules of the
InCllme-Tax Officers (Class I Grade II) stn'ice Recruitment Rules and •!lo
Rule 4 of the llules of Promotion of the Boatd of Revenue Office Procedurt
ManutX came to ht! considered 'ln "laisl11Rliarii's case" [1967} (2) SCR 703
and the Supreme Court ·while rejecting the contention· that the
rule
was
violative of.- Art 14 and 16 of the Constitution issued a nzandamus to 11tepare
a fresh seniority rule b~ed on the "quota rule" of 2 : 1 between the direct
recruit, and the "Promotees" for the year 1952-56. The. Government Uf)oetstood the mandamus as also for the years upto 1967 and prepared a freth
seniority list dated 15-7-1968 and the
appellants
challenged the
same
1111
violative 6f the mandalnus issued by the Court :
Accepting the appeals the Court,
E
HELD : It was for the Government under rule ·4 of the Income-TU
Officers Class I, Grade II Service Recruitment Rules to determine the method
or methods to be employed for the purposes of filling any particq1ar vacancies
and the number of vacancies and the number of candidates to be recruited by
'
each method. 'It is \V!Ong to assume that this Court woUld take upon itself
F
to do what the Government is required to do under rule 4. The n1a11da11u1S
\Vas really confined to the period bct"·cen l 951-1956. [49.5·H]
Rule 4 of tht- ]i'lcome•Tax Cla~ 1, Grade II Service ltecruitment ·Rules
also refers to reoruitment of candidates to vacancies in the
service.
The
vacancies for ariy particular, year being ascertained not more than ;..§rd of the
same were to go to the promotees and the rest to the direct recruits.
The
ratio was not made dependent on whether any direct recruit was appaintcd
in any particular year or not. The promotees were entitled to V3rd of the
G
yacancies in any particular year whether or not there was direct recruitment
by competitive exarninaticm in that year.
[499G-H]
lt is true that the quota rule refers to vacancies but the vacancies are
those vacancies which the Government wants to fill.
It is the prerogative of
the Government, reflected further in Rule 4, Whether any vacancy may be
filled at all or not.
Thel'efore, when the quota Tule tefers to vacancies it is,
implicit in the rule tha:t the vacancies are vacancies, \vhich the Government,
H
want to fill, whatever may be the actual number of vacancies. [501D·FJ
There is no sufficient warrant for the conlention that the vacancies referred
to in the quota rule <.!fe vacancies only in the permanent cadre.
[502D·E]
S. G. laisinfhani v. Union of India & Ors. [1967] (2) SCR 703, nature of
nianda1nus clarified.
10 SC/75-33
492
A
SUPREME COURT REPORTS
[1975] SUPP. S.C.R.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2060(N) of
1971.
B
Appeal by certificate from the Judgment and Order dated the 22nd
September 1970 of the Delhi High Court in Civil Writ No. 196 of
1970 and Civil Appeal Nos. 67"139 and 393 of 1972.
For the Appellants : Yogeshwar Prasad & Mrs. S. Bagga in C.A.
2060171 and C.A. 393172, S. P. Nayar in C.A. 67 /72 and J.C. Talwar
& Bishamber Lal in C.A. 139 /72.
For the Respond?nts: S. P. Nayar in C.A. 2060/71, C.A. 139/72
and C.A. 393/72, J. C. Talwar & Bishamber Lal in C.A. 2060/71
C and C.A. 67 /72, Yogeshwar Prasad & Mrs. S. Bagga in C.A. 67 /72
and 139/72 and B. R. Agarwala in C.A. 67/72 & C.A. 393/72.
The Judgment of the Court was delivered by
PALEKAR, !.-In these appeals the challenge i~ to the seniority
p list of Income-tax Officers prepared by the Central Board of Revenue
in ,pursuance of the orders of this Court in Civil Appeal No. 1038
of 1965 and Writ Petition No. 5 of 1966. The appeal referred to
was filed by one Jaisinghani and the Writ Petition by one Mohan
Chandra Joshi, both of )Vhom had been directly recruited as Income-t.ax
Officers, Class I, Grade IL The two proceedings were heard together
and were disposed of by a common judgment dated February 22, 1967
E and a mandamus in similar terms was issued in the two proceedings.
G
H
These cases have been reported as S. G. Jaisinghani v. Union of India
and Ors.('). For the purposes of the present appeals, we shall set
oμt below the order passed in Jaisinghani's case (p. 718).
"We are accordingly of the
opinion
that
promoteC'S from
Class II, Grade III to Class I, Grade II Service in excess
of the prescribed quotas for each of the years 1951 to
1956 and onwards have been illegally promoted and the
appellant is entitled to a writ in the nature of mandamus
commanding respondents 1 to 3 (1) Union of India, (2)
Secretary to the Govt. of India in the Ministry of Finance
and (3) Central Board of Revenue to adjust the seniority
of the appellant (Jai~inghani) 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 letter of the Government
of India No. F. 24(2)-Admn. J.T/51 dated October 18,
1951. We, however, wish to make it clear that this order
will not affect
such
Class II Officers who have been
appointed permanently
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."
( 1) [1967] 2 S.C.R. 703.
•
•
B. s. GUPTA v. UNION (Palekar, !.)
493
For more than a year the Government failed to prepare the seniority
list as directed.
So in April, 1968 the said Jaisinghani and Joshi
started contempt proceedings against the Government. _in this Court.
Thereupo·n, Government assured this Court that the list would be prepared before the Court re-opens after the summer vacation and,
accordingly, on 15-7-1968 Government prepared 1.he seniority list and
filed the same in Court. Objections were filed by Pfficcrs affected by
the list. This Court, however, ruled on 6-11-1968 that contempt proceedings were inappropriate and that if any of the Officers was aggrieyed by the seniority- list, it was open to him to take appropriate proceedings departmentally or otherwise.
Thereupon· two Writ Petitions were filed in the Delhi High Court.
Writ Petition No.
196/70 was filed
on 23-2-1970 by one Bishan
Swarup Gupta-a promotee of 1962.
The other one was jlled by
Mohan Chander Joshi being
Writ Petition No. 550/70. Joshi, as
already stated, was a direct recrnit. In both these petitions the seniority
list dated 15-7-1968 came in for attack for different reasons.
The
dispute was essentially between the direct recruits to Class I, Grade II
of the Service arid the promotees to that cadre. · The ·two petitions
<:ame before two separate benches.
Writ Petition No. 196/70 was
dismissed on 29-9-1970, whereas Writ Petition No. 550/70 filed by
Mohan Chander Joshi was substantially allowed. Directions were ?,iven
in th:rt Writ Petition for preparing the seniority list afresh in the light
of the observations made in the judgment.
Civil Appeal No. 2060
of 1971 before us is by Bishan Sarnp Oupta from the Order dismissing
his Writ Petition (196/70). From the Order passed in the other Writ
Petition namely 550/70 the other three appeals have been filed to ihis
Court. Civil Appeal 67 of 1972 is filed by the Govt. Civil Appeal
No. 139/72 is filed
by Mohan Chander Joshi
and Civil Appeal
No. 393/72 is filed by one Helms and 4 other promotecs who were
some of the respondents in Writ Pe!ition No. 550/70.
In all these appeals the only question for consideration was whether
the seniority list prepared on 15-7-1968 was correct and in accordance
with the nwndamus issued as above. All these appeals were, therefore, heard together and will be disposed of by this judgment.
'
B
c
D
E
F
As we are principally concerned with the mandamus issued in
Jaisinghani's case, we have to understand the precise nature and scope
G
of the mandamus.
The mandamus was issued on the fa,cts brought
to the notice of this Court at the time, and it is clear that the directions given in the mandamus must be construed against the background
of those facts. It is not necessary to recount all the facts here becauso
they are all there in the official report-Jaisingliani vs. Union. of India
[1967] (2) S.C.R. 703. Jaisinghani was directly recruited to class I,
Grade II onhe Income Tax Service in 1951 after he had passed th~
H
competitive examination held by the Union Public Service Commis·
sion in 1950.
The other petitioner Jo5hi similarly had joined that
service in 1953 after being selected in the competitive examination
fa 1952. In 1962 and thereafter some promotions were made from
this cla~s to the post of the Assistant Commissioner.
The case of
Jaisinghani and Joshi was that having joined service in 1951. and
494
SUPREME COURT REPORTS
(1975] SUPP. S.C.R.
A 1953 respectively, they were entitled to be considered for being selected to the higher post of the Assistant Commissioner, but they were
not so considered because in the seniority list then prepared they
were shown much tJelow some of the promotce oflicers who had been
promoted to the cadre of Class I, Grade ll service long after Jai·
singhani and Joshi had joined the service.
This was done on the
B basis of a seniority rule, also called the Weightagc rule, the effect of
which was to give seniority to a promotee of any year not only over
the direct recruits who joined the service in that year but also over
those direct recruits who joined the service in the previous two
years.
For example, if a direct recruit was selected in the competitive examination of 1950 and joined the service in 1951 he will be
not only junior to the promotee of 1951 but also to the promotee
C of 1952 and 1953. It was contended that such a rule was unjust
and violative of the principle of equality embodied in Articles 14
and 16 of the Constitution.
In the second place, it was contended;
even assuming that the seniority rule was not violative of any constitutional guarantee, the seniority list which had been actually prepared in-1962 and on the basis of which promotion to the post of
D Assistant Commi51;ioner had been made was not strictly in accordance
with the quota rule and all those promotees who were shown as
seniors, were not really entitled to that rank and be considered for
pwmotion in preference to the petitioners.
This Court did not accept the first contention.
This Court held
E
that the rule of seniority was just and reasonable having regard to
the fact that only a small percentage of officers was promoted to the
grade and those promotions were made out of experienced lncometax officers by a rigid selection made by the Department Promotional
Committee. At the time of the promotion from Class JI, Grade III
to Class I, Grade JI, the promotees had to put in at least 5 years
of service in class II, Grade lll of which two years were for proF
bation and 3 years of actual income-tax assessment work.
On the
olher hand, the direct recruit after joining the service in any particu!nr year had to undergo probation for two years in which they
did not do any actual assessment work.
Only after two years of
probation, were they entrusted with assessment work.
This Court
pointed out (p. 712) 'The net effect of rule l(f)(iii) (seniority rule)
G therefore is that three years of outstanding work in Class II is equated
to two years of probation in ·Class I service and on consideration of
this aspect of the matter the promotec is given seniority over a direct
recruit completing the period of probation in the same year."
Since
at the time of entering Class I, Grade II service the recruitment was
from two different sources, there was no question of an infringement
of Articles 14 or 16(1); and since the promotees had experience of
II assessment work at the time of the promotion and the direct recruit;
had .none when
tlrey
completed their two
years probation,
it
could not be said that the rule giving sen,iority to the promotees over
such direct recruits was invalid. So far as the second contention was
concerned thi' Court tried to ascertain, if in any particular year between 1951 to 1956 there had been promotions from class II service
in excess of the
quota
laid
down in the rule prescribed in
\
•
•
)), s. GUPTA v. UNION (Palekar, J.)
495
Govemment letter dated October 18, 1951.
The qnota was relatA
able to permanent vacancies but the Secretary of the Finance Department Mr. Dutt was not able to enlighten this Court as to the number
of such vacancies in these years though he was able to give the figures
of direct recruits and promotccs appointed in those several years. In
other words, there was, no sufficient material before the Court to decide
whether or not the appointments of promotees were or were not in B
excess of the quota of 33-1/3 per cent of permanent vacancies available to promtecs.
Accordingly the mandamus was issued in the
above terms.
The Government understood the mandamus as covering the whole
period from 1951 to 1967 the latter being the year in which the
mandamus was issued.
The seniority list, which is now challenj:ed,
C
covens direc'
recruits and promotecs for the whole of this period.
Government felt that the expression used in the mandamus "recruitment
for
the
period
1951
to
1956
and
onwards"
contained
a
direction for the preparation of the c,;niority list not only for the
years 1951 to 1956 but also for the succeeding years
upto 1967.
We are clearly of the view that this Court could not possibly have
p
in mind a seniority list which took in promotees alter 1956.
The
quota rule had been specificl(lly noticed by this Court as being for.
the duration of 5 years in the first instance i.e. to say from 1951 to
.1956.
The two direct recruits who were before the Court namely
Jaisingbani and Joshi
had entered
the service during this period.
,Jaisinghani had entered service in 1951· and Joshi had joined service
in 1953. Their complaint was that in 1962 and later they had not
E
been considered for promotion to the post of the Assistant Commissioner though they thought they were eligible. Their complaint further
was that some of the promotees who could not have found a place in
those years had found a place above them and hence their chances of
consideration for higher promotion had been postponed. Therefore, it
was sufficient for the purpose of giving relief to Jaisinghani, Joshi
F
~nd otJ,er Officers similarly placed to consider which of the promg..
tees during the period of J 951 to 1956 should be relatively regarded
as being senior to them and which who could not be so regarded. That
was also the reason why in the petitions before this Court only the promotees for the years 1951to1956 had been specifically made parties. It
was not, therefore, necessary for the purpose of giving relief to Jaisinghani and Joshi and other direct recruits similarly placed to consider
G
the position of the promotees of 1957 and later years vis-a-vis J aisinghan.i
and Joshi. It cannot be assumed that this Court made an Order which
went far beyond the requirements of the case for the
purposes of
giving relief to the petitioncrs-Jaisinghani and Joshi. On a comparison of the relative position of these petitioners with the validly promoted officers for those years it would have been possible to say at
<Jnce whether in the year 1962 and the succeeding years when promoH
tions opened to the post of the Assistant Commissioners, promolces ,_;.:;,.-'
DUtside the quota had been considered for promotion ignoring the seniDrity of the petitioners. Secondly having specifically noted that the
quota rule of 66% per cent and 33V:i per cent was to be in operation
only for 5 years, in the first instance, that is to say upto 1956, it will
be wrong to say that this Court could or would perpetuate the quota
~-·~----..--<
496
SUPRilME COURT REPORTS [1975] SUPP. S.C.R.
A for the vears after 1956. It was for the Government under rule 4 of
the Income-tax Officers, Class I, Grade II Service Recruitment Rules.
to determine the method or methods to be employed for the purposes
of
filling
any
particular
vacancie>
and
the
number
uf candidates to be recruited by each method. It is wrong to assume
A
hat this Court would take upon itself to do what the Government is
B required to do under rule 4. In our view, therefore, the mandamus
was really confined to the period between 1951-1956. It is true that
the mandamus h;i,s also used the expression "and onwards" but the
expression does not mean for all years to come. This Court had contemplated the possibility of some excess promotions being made in the
years 1951 to 1956 on the basis of figures submitted to it. If there
were promotions in any
year in excess
of
the quota, those
C promotions
were merely invalid for that year but they were not
invalid for all time. They could be regularised by being absorbed i1t
the quota for the later years. That is the reason why this Court advisedly used the expression "and onwards" just to enable the Govern- ·
ment to push down excess promotions to later years so tha,t these
D
promotions can be absorbed in the lawful quota for those years.
In our opinion, therefore, the true scope of the mandamus is limited
to the promotions during the period from 1951 to 1956.
The Goven1ment have, however, prepared a seniority list upto 1967
and evidently want to support the promotions to the post of Asstt.
Commissioner from 1962 onwards on that basis. In the letter dated
E 15-7-1968 they purport to have prepared this seniority list on the
basis of certain principles. There is no dispute that if these principles
are held to be correct, then the seniority list would be above challenged
but the seniority list is challenged both by the promotecs and the
direct recruits for separate reasons and it will be necessary for us tc:>
consider those reasons, because those reasons apply not only to the
F promotces after 1956 but also the promotces from 1951 to 1956.
The principles as enumerated in Government letter dated July 15,
1968 are as follows :
G
H
(i) Class II Officers promoted to Class I, Grade II prior
to 1951 have been left undisturbed as the mandamus
covers the period 1951 to 1956 onwards.
(ii) There were no promotions to Class I, Grade II, made
in 1951. The officers promoted to Class I, Grade II
in 1952 have either been confirmed as Assistant Commissioners or they have left service. Their seniority
as Income-tax Officers Class I therefore. has not been
disturbed.
(iii) The list begins with the promotees of 1-1-1952. The
names of the 1-1-1952 promotccs and the direct recruits of 1948 examination have been included onlv·
for technical compliance and to show the context. Th(.
revision
of
seniority
has
actually
taken place
only in respect of the promotces of 1-1-1953 and subsequent batches.
r
I
B. s. GUPTA v. UNION (Palekar, J.)
497
(ivi
(v)
(vi)
(vii)
In view of the difficulty in working out the vacancies
arising in each year the total nnmber of direct recruits
and promotees in each year have been taken into account for the purpose of implementing the quota rule.
Class II Officers promoted to Class I, Grade Il have
been allowed weightage vi de Rule 1 ( f) (iii) of the
seniority rules, Any excess promotions over the quota
in a particular year have been carried forward to
the subsequent year and taken against the promotions
of that particular• year and given weightagc accordingly. The excess in that year has similarly been
carried forward to the following year and so on.
The quota for direct recruitment and promotion has
been 66% per cent: 33V:i per cent respective! ysince
1951. The calculations have accordingly been made
on this basis.
As a result of the adiustment, 154 junior-most officiating lncome-tax Officers, Class I (promotees) have
been 66h per cent: 33!13 per cent respectively since
cess has arisen because in 1959-60, 214 Class II
posts were upgraded to Class I and these were exclusi.vcly filled up by promotions from Class II).
The names of these officers appear at the bottom of
this list. These promotees have not been given any
weightage. They will be adjusted against the vacancies
falling in the promotion quota in future years. These
ofl:kers
will, bowever, continue to work as Class
l Officers.
Since the whole argument before us was based on the correctness or
otherwise of these principles, it will be more convenient to deal with
these principles one after ,another, noting in the appropriate place
the several contentio,ns of the parties:
Principle (i) is correct and no possible objection can be raised to
it because the mandanms covers only the period from 1951 to 1956
~.nd does not affect promotions made to Class I, Grade II prior to
1951.
Principles (ii) and (iii) deal with promotions made in the years
1951 and 1952· In 1951, there were no promotions to Class I, Grade
II from
Class II,
Grade
J!I.
Therefore,
there
could
be
no question of any excess promotions in that year.
But objection
is raised fo the list pertaining to the year 1952. It is true that the list
begins with the promotees of 1-1-1952. Their names and also the
names of direct recruits who finish the probation in that year have
been included in the list but this, it is stated, had been done for technical compliance and to show the context. The promotces of 1952 it
is stated, have been either confirmed as Assistant Commissioners' or
have left service and since under the mandamus promotees confirmed
as Assistant Commissioners are not to be affected, it is said their
seniority as Income-tax Officer, Class I has not been disturb~d. If
on an examination of the position of each one of the promotees of
1952 it is found that they have either left service or were confirmed
A
B
c
E
F
G
H
498
SUPREME COURT REPORTS
[1975] SUI'P. S.C.R.
A a,s Assistant Commissioners, it may well be that their position cannot be
disturbed. But it will not be correct to say that these promotions are not
J to be taken into consideration at all. The whole object of the mandamus
was to ascertain what was the excess promotion in any particular
year having regard to the permanent vacancies which occurred in
that year.
There may or may not be any excess but when preparing
B the seniority list with a view to sec whether there is any excess or
not, it would not be a correct answer that even if they are in excess
they would not be affected as they are either confirmed Assistant
Commissioners or have left service.
lf an excess numlier of promotions is found for the year 1952 that m1miJcr shall have to be pushed
down to the year 1953 and so on, and ab;orbcd in the quota of promotecs for the succeeding years.
In our opinion, therefore, principles
C
(ii) and (iii) arc partially incorrect in so far as they cxcme rdcrence
to all the promotees of 1952.
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.
·
Principle (iv) would require some detailed consideration. lt has
been consistently represented to this Court by the department that
D it is impossible for them to give the correct number of permanent
vacancies in any particular yc.ar. When Juisingha11i's case was heard
and this Court called upon the department to give the number of
vacancies, Mr. R. C. Dutt, who was the Secretary of the Finance
Ministry, said in his affidavit that he was not able to work out. inspite
E
F
o[ his best endeavours, the number of vacancies arising in any particular year. AU that be could do was to furnish a statement 'howing
the number of officers recruited either by promotion or direct recruitment in any particular year. It was also represented that these appointments were in substantial compliance with the quota rule. The r·~viscd
quota rule dated October 18, 1951 showed that the Government had
decided in consultation \\oth the Union Public Service Commission
ai:d in modification of the previ0us order rn this respect c.latcc.l September 19, 1944 that for a period of 5 years in the first instance,
66% per cent of the vacancies in Class I, Grade II will be filled by
direct recruitment viz. the combined competitive examination and the
remaining 33 V:i per cent by promotion on the basis of sckctio~ from
. Goade Ill Class Il service. It further provided that any surplus vacancies which 'could not be filled by promotion for want of suitable
candidates were to be added to the quota of vacancies to be fiUed
G by direct re.curitment. This quota rule is substantially in compliance.
with rule 4 of the Income-tax Officers, Class I, Grade !! Service
Recruitment Rules, J 945 which authorised the Government to <1etermine the method or methods to be employed for the purp0se of
filling any particular vacancies or such vacancies as required to be
filled in during any particular period or the number of candidates to
be recruited by each method. The methods of recruitment have been
H
qiecifically referred to in the preceding rule 3 of these Rules and they
are only two in number. One is to directly recruit the candidates by
competitive examination and the other is by promotion on the basis of
selection from Grade Ill.
It will be apparent from the rules referred to above that the ;>crcentage of 66% per cent and 33 y, per cent is related to vacancies. ·niat
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B. s. GUPTA v. UNION (I'a/ekar, l.)
499
was also how it was understood in J aisinglzani's ca~e. This Court direcA
ted Mr. Dutt to furnish the number of vacancies which had arisen
from year to year. But Mr. Dutt informed the Court that inspitc of this
best endeavours he could not state what was the number of vacancies
arising in any particular year. However, he was able to give the
number of appointments made in every year and wanted the Conrt to
accept that that number reprcs~nted substantially the vacancies which
B
occurred in that year. That was the line of a,rgument also adopted by
the Solicitor Genci:al who said that on the basis of the figures of
appointments given there was a substantial compliance with the quota
rule. This Court, however docs not appear lo have been satisfied with
that line of rcasoning.Jt was observed. "But in the absence of figures
of permanent vacancies in Class I, Grade I! for the relevant years
the Solicitor General was unable to say to what extent there had been
C
deviation from the rule." The whole object of asking Mr. Dutt to give
the number of vacancies was to find out to what extent there was
deviation from the quota rule, that is to say, how many promotees
had been appointed in excess of the quota in any particular year. It
is, therefore, implicit in the observation quoted above that in order
to determine the excess of promotees in any particular year it is necesD
sary for us to ascertain what was the number of vacancies in any
particular year. Mr. Tarkundc, for the promotees, agrees that that is the
proper construction of the rule and the learned Attorney General
tor the Union also accepts its correctness. The · Attorney General,
however, pleads that in spite of the Department's best endeavours it
was not possible to determine the exact number of vacancies iu any
particular year and so he submits that for tl1e purposes of the. nlandaE
mus, the Court should proceed on the footing that the actual vacancies in any particular year were substantially the same as the number
()f appointments made in that year.
On the other hand, the contention on behalf of the direct recruits
is that the real intention of the rule was to secure ,that at any given
F
moment the service must consist of direct recruits and promotecs
in
the proportion of 2: I. If, for example, in any year 50 direct recruits
were appointed, then not more than 25 promotecs could be appointed
in that
yea.r.
If also
no
direct recruit
was
appointed
in
a year
there could be no appointment of promotees.
This line of
argument has been accepted by the High Court and it was substantially on that ground that the seniority list prepared on 15th July,
G
1968 has been set aside and directions given for preparing a fresh
one. What was, however, over-looked is that the rule dated
October 18, 1951 was. not concerned with the constitution of the
cadre but was concerned as to how permanent vacancies were to be
iilled. Rule 4 of the Income-tax Class I. Grade II Services Recruitment Rules also refers
to recruitment of candidates to vacancies
in the service.
The vacancies for any particular year being ascerH
' tained, not more than I/3rd of the same were to. go to the promotees
and the rest to the direct recruits. The ratio was not made dependent
on whether any direct recruit was appointed in any particular year
or not.
We are, therefore, unable -to accept the construction put
<Jn the quota rule by the High Court.
Tn our opinion, the promotees were entitled to I /3rd of the vacancies in any particular _
.:Mt
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500
SUPREME COURT REPORTS
(1975] SUPP. S.C.R.
A year whether or not there
was direct recruitment by competitive
examination in that year.
It was, therefore, essential that actual vacancies should be determined in the cadre.
E.ven now before us the Department is putting
forward the plea that it 1s 1mposs1ble for them to give
the exact
figure of vacancies in any particular year.
We do see that there
B might be difficulties .in ascertaining these figures but it is rather surprising that the department should
not be able to determine permanent vacanci~s which occurred in the years gone by.
One can
appreciate that it might be diflicult to say .at any given moment how
many vacancies would take place in a future year.
Only a tematiye estimate could be made and it is
on such tentative estimates
C only that requisitions are made for recruitment by the Union Public
Service Commission or by the Departmental Promotion Committee.
If there is proper coordination between th~ several oflices and the
department and a proper exchange of information between them, it
should not be really diflicult to decide, say in the year 1968, how
many actual vacancies had taken place in the previous years.
But
we are now concerned with the mandamus and we have to consider
D whetber there has been substantial compliance with the mandamus.
The learned Attorney General submits tha:t the figures of appointments in any particular year may be taken as the most reasonable
approximation of the actual vacancies in the absence of any material
before the Court ,a;; to the actual vacancies.
Mr. Tarkunde for the
promotces, !Jowever, contends that he is in a position to give the
E correct number of vacancies in any particular year on the
basis
of the figures taken from the record.
He has given a chart marked
Annexurc I at the time of ·the argument and that chart is styled as
'Vacancies position during the calendar year-1951-1956 on the
basis of admitted figures'.
This chart is principally based on the
deposition lists of officers issued by the Commissioners with reference to their charges.
The argument of Mr. Tarkunde runs thus:
F We know the sanctioned strength of Grade II Oflicers at the beginning of any given year.
We
also know the number of appoint-·
ments made during the course of that year.
Further we know from
the deposition lists
what was the actual strength of
the officer&
working at the end of the year.
From these figures, he contends,
it is possible to find out the vacancies in that particular year.
For
example, take the year 1952, the sanctioned strength of the cadre
G in the beginning of the year is 217.
At the end of the year
the
working strength is found to be 121.
Therefore, this would sljow
that there would be 96 vacancies.
But these 96 vacancies
have
taken place in spite of 51 new appointments made during that year.
Therefore, the total vacancies in that year would be 96 + 51 i.e. 14 7.
Mr. Tarkunde contends that the promotees
are entitled to !/3rd
of these vacancies i.e. to say 49 vacancies and since only 49 perH sons were promoted in 1952 there has been no excess promotion.
Thus goes on the chart for other years also.
The learned Attorney
General has
serious
objection to this
manner of ca)culating the
actual vacancies and it appears to us that it is not possible to proceed on the figures given in the chart. It will be seen that from 1951
to 1958 the sanctioned strength of the cadre vari~s ·between 212
and 248 and if the chart is correct the total vacancies in each of
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B. s. GUPTA v. UNION (Palekar, J.)
501
these years varies between 66 and 150. for example in 1951 the
sanctioned strength is 212 in the beginning of the year and it is
said that during the course of that·year !here were as many as 150
vacancies.
In 1952 the sanctioned' strength was 217 and by the
end of the year it is supposed that .147 vacancies had occurred in
the cadre. It is rather difticult to believe that in a cadre of this kind,
there would be such a. large proportion of vacancies either by death,
retirement, resignation or
promotion.
Secondly, a serious
gap
would be notiC1'd, if we test the calculations in a slightly
different
way.
Ignore for the time being· the figures given for the sanctioned
slrength in any particular year and go by the actual working strength
from year to year.
At the end of 1951 i.e. beginning of 1952 the
working strength is 112 in the whole department.
In the course
of the year 1952, 51 new persons have been appointed.
Therefore,
at the .end of the year. 1952 the working strength should be 163.
Actually it is 121.
This
would mean that !here
were only 42
vacancies in the actual working strength and not 14 7 as shown in
the chart.
Similarly in 1953 and 1954 •the vacancies worked out
would be 19 and 74 respectively instead of 112 and 95.
We are
not, therefore, satisfied that this chart has given a correct estimate
. of the fig1.1res of vacancies in any particular year.
In the absence of any material which gives us the actual vacancies
in a year, we think that in order to implement tbs mandamus as
for as it can possibly be done, it would be reasonable to accept the
figures of appointments in those years as substantially representing
the actual vacancies.
There is also a subsidiary r<Mlson why those
figures may reasonably be accepted.
It is true that the quota rule
refers to vacancies but the vacancies are those vacancies which the
Government wants to fill. lt is the prerogative of the Government,
reflected further in Ruic 4 referred to above, whether any vacancy
may be filled at all or not.
Even if there are 100 vacancies in a
particular year the Government is not bound to fill all those vacancies.
It may fill only 90 of !hem and no body can insist that
the
Government shall fill up all the vacancies.
Therefore, when the
quota rule refers
to vacancies it is implicit in
the rule that the
vacancies arc vacancies which the Government wants to fill, whatever may .be the actual number of vacancies.
The actual appointments are, therefore, in the absence of any evidence to the contrary,.
the correct measure of the vacancies which the Government wanted
to fill.
From that point of view also it will be permissible to proceed on the footing that the actual appointments represent the actual
vacancies which the Government wanted to fill.
For example, if
in ihe year 1953, 53 posts were filled by direct recruits and 38 by
promotees the total vacancies sought to be filled would _be 9} m
which case the promotees would be entitled to 30 vacancies.
fhat
is how the Government has proceeded to determine the excess for
each year from 1953 to 1957 as
shown at Annexure 'N.' _(p. 26'
Vol. I in Civil Appeal No. 2060(N) 1971).
In our opinion the
procedure . adopted by the. department in detern1inin~
the cx.cess
number of promotees appomtcd m the several years is substantially
correct.
Annexure 'N' begins with the year 1953. It should begm
A
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502
SUPREME COURT REPORTS
[1975] SUPP. S.C.R.
A · with the year 1952 and_ not 1953.
Iudeed the 5 year period staHs
from 1951 and ends with 1956 but smcc there was no promotion
m 1951 the question of excess
m that year does not arise.
For
the purposes of the mandamus the seniority list will have to be resettled from the year 1952 showing uot merely the excess from the
years 1953 to 1956 but from 1952 to 1956.
At the end of l '.156
B the progressive total of the excess over the quota will be known and
this excess, as already pointed out, is liable to !:re absorbed in the
quota of the years succeeding 1956.
It i'i feebly contended on behalf of the direct recruits that
the
.._,
quota rule should relate to only vacancies in permanent posts
and
not temporary posts.
This contcn.ti.on is not accepted either by be
C promotces or the department.
There is nothing in
the Rules of
'
1945 or the quota rule of 1951 which says that the vacancies must
~
be vacancies in permanent posts.
I ndecd the vacancies must be
permanent vacancies that is to say vacancies which are not for a
,.
few days or for a few months or are otherwise adventitious.
The
whole cadre has consisted of permanent and temporary posts for
n years.
Permanent vacancies are, therefore, likely to take place both
in the permanent posts and in the temporary posts. fn fact Mr. Dutt,
in his all1davit filed in Jaisinglzani's case had clearly alleged in paras
25 and 26 of the al!idavit that all <the
direct recruits from l 948
onwards were initially appointed against temporary posts and even
at the time of the filing of the aflidavit i.e. on 31st January, 1967
direct recruits were being appointed against temporary posts.
We,
E therefore, find no
suflicient warrant for the contention
that the
vacancies referred to in the quota rule are vacancies only in the permanent posts.
Principle V is obviously correct.
Class JI officers promoted to
Class J, Grade U have been allowed weightagc in accordance witb.
F
rule 1 (f)(iii) of -the seniority Rules.
That rule, in effect, provides
that a promotee in any particular year not only gets scniori ty over
a direct recruit appointed in that year but also in the two previous
years.
Any promotions in excess of the quota have to be carried
forward to the subsequent year aud taken
against the quota of
promotions of that particular year and given wcightagc accordingly.
That is how it s)10uld go on. That principle is fully available for the
G period 1951 to 1956, in view of
the fact that the quota ruk
of
18-10-1951 was to be in force for 5 years in the first instance.
· What is ·then the position for the years after 1956?
Docs the
quota rule apply? It is clear that, by its own force the quota rule
will not apply because it was, indeed,
to be in force for
~ years.
There is no force also in the contention that if this quota rule of
1951 ceases to have effect, -then the quota rule of 1944 which laid
H down a ratio of 4: 1 would automatically revive.
As a matter of
fact. this 195 l rule had been made in supcrsession of the old rule
as a matter of policy.
The old rule being superseded was dead,
and could not be revived by the fact that the superseding rule ceases
to have operation after a certain number of years.
It is· an admitted fact that the Government did not prescribe in writing any new
quota rule after 1956 but as a matter of practice, it was st<>ted by
.)
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B. s. GUPTA v.