# BISHAN SARUP GUPTA ETC. ETC v. UNION OF INDIA & ORS. ETC. ETC

- **Citation:** [1975] 1 S.C.R. 104
- **Court:** Supreme Court of India
- **Decided:** 1974-04-16
- **Case number:** Civil Appeals Nos. 2060 of 1971
- **Bench:** A. N. Ray C.J, D. G. Palekar, K. K. Mathew, A. Alagiriswami, P. N. Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bishan-sarup-gupta-etc-etc-v-union-of-india-ors-etc-etc-6300
- **Pages:** 17

## Headnote

Jncome.-tax _Officers (Class I) Service _(R~gulation of Seniority Rules 1973Whether violative of Art. 16 of the Constlfutton-lf the Rules are just and fair.
A
B
The above appeals were disposed of by this Court on 16-8-72.
The court set
aside: the seniority-,Jist prepared by the Department on 15-7-68 and gave directions
as to how the same was to be prepared. This Court held that the Government's
decision to promote a large number of Income Tax Officers from Class II to
Class I infringed the quota rule which gave 66}o/o of the posts to the direct
recruits and 33t% of the posts to the promotees anct therefore, the quota rule
C
collapsed and it was for the Government to devise a just and fair seniority rule as
between the direct recruits and the promotees for bdng given effect to from
16-1-1959. It followed from the judgment tltat the Government will
prepare
the seniority list from 1951 to 15-1-195-9 in accordance with the quota rule of
1952 r/w the seniority rule I(f) (iii). The seniority list from 16-1-1959 will be
prepared in accordance wilh the rule to be freshly made by the Government in
that behalf.
·
Al:cordingly on February 9, 1973 the President under the proviso to Art. 309
D
of the Constitution, made rules called the Income-tax Officers (Class I) Service
(Regulation of Seniority) Rules 1973, which were to come into force from
16-1-1959. Rule 3 which provided for seniority of officers-was that seniority
among the promotees inrer se shall be determined in the order of selection for
such promotion.
The seniority an1ong the direct recruits inter se shall be determined by the order of merit in which they are selected and the relative seniority
among the promotees and the direct recruits shall be in the ratio I : 1 and sha11
be regulated in accordance with a roster maintained for the purpose etc.
E
When the present seniority list was prepared Government had on its hands 73
promotees (Spill-over) who, though appointed earlier between 1956-1958, had
·no quota posts for their absorption.
Therefore, the Government had to prepare
a new seniority list not only as regards the officers who were absorbed in the
11erv1ce before 15-1-1959 but all officers including these spill-overs,
aopointed
after 15-1-1959.
Th~ seniority list from serial No. 1 to serial No.
485 (who
were appointed prior to 15-1-1959) ha~ been prepared in accordance with
-the
quota system and serial No. 486 to 1717 related to officers_ who have to be
E
accommodated from 16-1-1959 in accordance with the new Seniority Rule. Since
under Rule 3(iii), the promotee must come first, and then the direct recruit,
serial No. 486 went to the promotee and serial No. 487 went to a direct recruit
and so on.
•
The contention of 7?. spill-over promotees of 16-1-1959 was that since this
Court had directed that they should be absorbed on a "priority basis'', all of them
should have been shown in the Seniority List, as having been appointed on
......_ __ ~
16-1-1959 in a block and thereafter the direct recruits for that year should have
G
been shown.
It was further contended that as the quota rule expired on
16·1-1959, the
promotees must be deemed to have been validly appointed in accordance with
rule 4 of the Income-tax Officers (Class I) Grade II Service Recrnitm~nt Rules
1945 and since there remained! in existence. no seniority or quota rule determining
their seniority vis-a-vis the direct resru.its, their natural seniority of earlier appointment cannot retrospectively be altered to their detriment, and to do '50 would be
1-1
violative of Article 16 of the Constitution.
Dismissing the petitions and holding that the new seniority list is the correct
seniority list.
•
A
B
c
D
E
B. S. GUPTA V. UNION
105
HELD : ( 1) It is true that this Court had directed that the aforesaid 73 promotees should be ab.jorbed on a "prionty bas_is".
That only meant that their
position as seniors should not be prejudiced by any possible claim by later promotees, on the ground that being recruited outside the

## Text

_Characters 0–39,990 of 54,329. This is a partial read: ask again with offset=39990 for what follows._

104
BISHAN SARUP GUPTA ETC. ETC.
v.
UNION OF INDIA & ORS. ETC. ETC.
April 16, 1974
[A. N. RAY C.J., D. G. PALEKAR, K. K. MATHEW, A. ALAGIRISWAMI
AND P. N. BHAGWATI, JJ.J
Jncome.-tax _Officers (Class I) Service _(R~gulation of Seniority Rules 1973Whether violative of Art. 16 of the Constlfutton-lf the Rules are just and fair.
A
B
The above appeals were disposed of by this Court on 16-8-72.
The court set
aside: the seniority-,Jist prepared by the Department on 15-7-68 and gave directions
as to how the same was to be prepared. This Court held that the Government's
decision to promote a large number of Income Tax Officers from Class II to
Class I infringed the quota rule which gave 66}o/o of the posts to the direct
recruits and 33t% of the posts to the promotees anct therefore, the quota rule
C
collapsed and it was for the Government to devise a just and fair seniority rule as
between the direct recruits and the promotees for bdng given effect to from
16-1-1959. It followed from the judgment tltat the Government will
prepare
the seniority list from 1951 to 15-1-195-9 in accordance with the quota rule of
1952 r/w the seniority rule I(f) (iii). The seniority list from 16-1-1959 will be
prepared in accordance wilh the rule to be freshly made by the Government in
that behalf.
·
Al:cordingly on February 9, 1973 the President under the proviso to Art. 309
D
of the Constitution, made rules called the Income-tax Officers (Class I) Service
(Regulation of Seniority) Rules 1973, which were to come into force from
16-1-1959. Rule 3 which provided for seniority of officers-was that seniority
among the promotees inrer se shall be determined in the order of selection for
such promotion.
The seniority an1ong the direct recruits inter se shall be determined by the order of merit in which they are selected and the relative seniority
among the promotees and the direct recruits shall be in the ratio I : 1 and sha11
be regulated in accordance with a roster maintained for the purpose etc.
E
When the present seniority list was prepared Government had on its hands 73
promotees (Spill-over) who, though appointed earlier between 1956-1958, had
·no quota posts for their absorption.
Therefore, the Government had to prepare
a new seniority list not only as regards the officers who were absorbed in the
11erv1ce before 15-1-1959 but all officers including these spill-overs,
aopointed
after 15-1-1959.
Th~ seniority list from serial No. 1 to serial No.
485 (who
were appointed prior to 15-1-1959) ha~ been prepared in accordance with
-the
quota system and serial No. 486 to 1717 related to officers_ who have to be
E
accommodated from 16-1-1959 in accordance with the new Seniority Rule. Since
under Rule 3(iii), the promotee must come first, and then the direct recruit,
serial No. 486 went to the promotee and serial No. 487 went to a direct recruit
and so on.
•
The contention of 7?. spill-over promotees of 16-1-1959 was that since this
Court had directed that they should be absorbed on a "priority basis'', all of them
should have been shown in the Seniority List, as having been appointed on
......_ __ ~
16-1-1959 in a block and thereafter the direct recruits for that year should have
G
been shown.
It was further contended that as the quota rule expired on
16·1-1959, the
promotees must be deemed to have been validly appointed in accordance with
rule 4 of the Income-tax Officers (Class I) Grade II Service Recrnitm~nt Rules
1945 and since there remained! in existence. no seniority or quota rule determining
their seniority vis-a-vis the direct resru.its, their natural seniority of earlier appointment cannot retrospectively be altered to their detriment, and to do '50 would be
1-1
violative of Article 16 of the Constitution.
Dismissing the petitions and holding that the new seniority list is the correct
seniority list.
•
A
B
c
D
E
B. S. GUPTA V. UNION
105
HELD : ( 1) It is true that this Court had directed that the aforesaid 73 promotees should be ab.jorbed on a "prionty bas_is".
That only meant that their
position as seniors should not be prejudiced by any possible claim by later promotees, on the ground that being recruited outside the quota, they had higher
rights than these 73 promotees who had no posts. It was not intended that these
73 promotees should not be governed by any seniority rule. They were to be
governed by a rule which covered all those who ca·me or were deemed to have
com' into the cadre after 15-1-1959.
[109D-EJ
l2) The new Rules are not violative of Art. 16 of the Constitution.
When
the 73 spill-over appointments were made, there were no allocated posts to which
the appointments couid have been validly n1ade.
On 16-1-1959, there were no
posts cannarked for then1, the ordinary consequence of which \vould
be to
revert them to their onginal class Il posts unless class I posts
\.Vere
regularly
found for them.
Wh.:n the quota rule wa<> no long~r in existence there was no
possibility of regularising the appointn1ents. lt is, therefore, clear that the infi.rmity in the appointrn.:!nts continued on 16-1-1959 and that infirmity could not be
overcome except by a new rule.
Jt is not correct to say that this infirmity disappeared with the disappearance of the quota rule.
The spill-over promotees
claim seniority from 16-1-1959 antl th.:: other promotecs clain1 from some date
between 1959 and 1962, when they were pron1oted, but this claim is untenable
because all these officers were told when promoted that their appointments were
on an officiating or ad hoc basis and lh.:: question of th~ir seniorit~
1 had not been
dctcrn1ined.
Therefore, they cannot contend that their dates of appointment in
class I will not be altered for the purpose<; of Jr,termining seniority. There is
no question in this case of any di~crlm:nation being n1ade in a service after officers from two sources have been brought and absorb-:d in one cadre. The problem here is of integrating officers from two sources into one service by adjusting
their seniority inter se.
[ 111 G-1 l 2B, E; 1l3A-G; l 14B-D; 1l5A-CJ
Meq)y/l Cci1ti11ho & Or!J. v. Coflcctor of Ct1sto1n.~ Bo111hay & Ors. [1966] (3)
SCR 600 Roslwn Lal. v. Union of India [1968] 1 S.C.R. 185 and S. M. Pandit &
Ors. v. State of Guiarat A.1.R. 1972 S.C. 252 discussed and distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos.
2060 of
1971, 67, 139 and 393 of 1972.
From the Jndgment and Order dated the 22nd September, 1970
F
ankl 25th March, 1971 of tho Delbi High Court at New Delhi in
Civil Writ Nos. 196 and 550 of 1970 respectively and
G
H
WRIT PETITION No. 287 of 1973.
Under Article 32 of the Constitution of India for the enforcement
of fundamental rights.
V. M. Tarkunde, K. K. Singhvi, Yogeshwar Prasad, S. K. Bag~a
and S. Bagga for the appellant (In CA 2060/71).
Niren De, Attorney General of India, F. S. Nariman Additional
Solicitor Genera!
of India R. H. Dhebar. R. M. Mehta and S. P.
Navar for the apoelhnts (In CA 67 /72) and for Respondent Nos.
1-3 (In CA 2060/71) and for Respondents Nos. 1-2 (In CA
139/72) and for Respondents Nos. 2-5 (In CA 393/72) and
for
Respondents Nos. 1-1 (IN WP 287 /73).
106
SUPREME COURT REPORTS
[1975] l s.c.R.
G. L. Sanghi, Bishambar Lal, P. V. Kapur and s. C. Patel for the
appellant (in CA 139172).
K. K. Singhvi, Yogeshwar Prasad, S. K. Bagga and S. Bagga !or
'
the Appellants On CA 393172) and for Respondents Nos. 18, 20,
29, 43, 46, and 58 (In CA 67172) and for Respondents Nos. 22,
30, 47, 50 and 62 (Jn CA 139172).
M. C. Seta!,vad, G. L. Sanghi, Bishamber Lal; P. V. Kapur _and
S. C. Patel for Respondents Nos. 25, 28, 29, 43, 50, 57 and 74 (In
CA 2060171).
R. K. Garg, S. C. Agarwal and V. J. Franci.i for Respondent No.
86 (In CA 2060171).
S. K. Acharya
and
Somnath Chatterjee, J. N. Haldar, B. P.
Maheshwari and Suresh Sethi for the Petitioner in (WP 287/73).
V. S. Desai. G. L- Sanghi, Bishamber Lal, P. V. Kapur and S. C.
Patel for Respondent No. 1 (In CA 67172).
B. R. Agarwa!a for Respondent No. 13
(In-CA
67 /72)
and
for Respondent No. 17 (Jn CA 393172).
J. R. Nanavati, S. K. Dholakia and R. C. Bhatia Advocates for
Intervener Nos. 1, 4 & 5.
S. K. Bagga and S. Bagga for Intervener No. 2.
J ntervencr No. 3 appeared in person.
The Judgment of the Court was delivered byPALEKAR, !.-The above appeals were disposed of by this Court on
16-8-1972.
The court set asid~ 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 po'n.t which was decided in these
appeals related to the validity of the quota rule ar.d the sen'ority
B
c
D
E.
rule in their operation after 15-1-1959. This Court held that on GovF
ernment's decision to promote a large number of Income-tax Officers
from Oass JI to Oass I. the auota rule which gave 66!% of
the
pQsts to the direct recruits and 33!% of the posts to the promotees
coJlaosed and with the collaPSe of that qu0ta rule, the se~ioritv rule
·~hich gave weightage to the promotees of 2 to 3 vears n lso
hrnlce
down.
The court observed, "Since the o'd seniority rule has ceased
to overate by reason of the infringement of the quota rule it will be
G
for the Government to devise, if necessary in consultation with the
Union Pnblic Service Commission, a iust and fair seniority rule as
between the direct recruits antl the promotees fnr being' given effect
to from 16-1-1959.
Tt follows, therefore, that the seniority list of
15-7 1968 will have to he set nside and the deoartment will have to
breoare a fresh senior;tv list in tlie )iuht or the observntinns mnrle in
H
this iud<!111ent.
Broaillv sneaking the senior;ty list from 1951
to
15-1-1959 will be preoared in accorcfance with the Quota rule of
1951 r/w the seniority rule
l(f)(iii). The
seniority list
from
•
A
(
t
•
B
c
D
E
F
G
H
)l. s. GUPTA v. UNION (Palekar, /.)
107
16-1-1959 will be prepared in accordance with the rule to be freshly·
made bv 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 Jaisinglwni's case. 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 seniority. These proceedings, therefore, will have to be kept pending till such a seniority
list is prepared and filed in conrt. The respondents namely the Union
of India, the Ministry of Finance and th.e Central Board of Direct
Taxes are, therefore, directed 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 is 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."
Accordingly on February 9, 1973 the President under the proviso
to Article 309 of the Consiitution made rules called the Income-tax
Officers (Class ll 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 . ()If
commencement of these rules in accordance
with
the
provisions.
hereinafter contained namely :-
(i) the seniority among the promotees inter se shall be determineJj 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 apoointed as a result of an
earli~r selection shall rank
senior_ to all other persons
appo•nted as a result of any subsequent selection; and
(iii) the relative seniority among the promotees and the d;rect
recruits shall be in the ratio of 1 : 1 and the same shall
be so cletermineld
and regulated in accordance with
a
roster maintained for the purpose which shall follow the
following sequence, namely :-
'
108
SUPREME COURT REPORTS
[1975] l s.c.R.
(a) promotee;
A
(b) direct recruit;
(cl promotee;
(d) direct recruits; and so on."
..
Having
framed
the
above
rule
to
regulate
the
B
seniority
of
the
ollicers,
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. Jt is no: 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 ;hat
if the new seniority rule referred to above is a valid rule, then the rest
C
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 promotces' fundamental right under Article 16 of the Constitution.
It is necessary to recall that in the 1950/s there were
several
years when the promotees were appointed to pc~ts which were
in
excess of their quota.
Though the appointments
were
irreguiar
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
ru1c allocating
the
posts between the direct recruits
and the promotees.
Therefore
when the present seniority list was prepared, Government had
on
its hand' 73 promotees who, though appointed earlier between 19561958, had no quota posts fclr their absorption. On 16-1-1959 the 73
promotees, who are described as 'spillovers' on 16-1-1959, as also
subsequent promotees had to be absorbed in the service and this
conld only be done by a special rule framed in this behalf.
Since it was anticipated that there would be a spill-over like thi~
the department had been directed that these officers must be absorbed on a 'priority basis'. The Government, therefore prepared a new
seniority list nc~ only as regards the officers who were absorbed in
the service before 15-1-1959, but all officers, including these spillovers, appointed aft-cr 15-1-1959.
The method adooted is
simple
enough. The seniority list from serial No. 1 to serial No. 485 relating
to the period prior to 16-1-1959 i.e. to sav, from 1951 onwards; has
been prepared in accordance with the quota rule r /w the seniority
rule which prevailed till then. Serial Nos. 486 to 1717 relate
to
officers who have to be accommodated frcim 16-1-1959 in accordance
w.ith the new senioritv rule. Since under tiJle
3(iii)
the promotee
must come first and then the direct recruit, serial No. 486 goes to a
promotee and serial No. 487 goes to a direct r.~cruit and so on. All
the promotees who come below serial No. 485 are either out of the
D
E
F
G
II
y •
A
•
B
c
D
E
F
G
•
H
B. s. GUPTA v. UNION (Palekar, }.)
10~
spillovers of 16-1-1959 or those w~o _have b~en appointed by pro~10tion later. That is how the new semonty hst 1s prepared. The Government had been directed to make a new rule. The seniority rule referred
to is the new rule. Its wording is not happy. But by mentioning a ratio ·
of 1 : l and directing that the seniority would be in accordance :v1th
the roster maintained in a particular sequence of promotees and dffect
recruits, the Government has notionally allocated the posts bearmg
even serial numbers to the promotees and odd serial numbers to tho
direct recruits. In other words, the new seniority rule not only permits
the absorption of all promotees from 16-1-1959 into posts allocated
to them but also determines their seniority not only between themselves but also in relation to the direct recruits appointed from 1959
onwards.
The contention on behalf of the 7 3 spill-over
promotees
of
16-1-1959 is that since this Court had directed that they should be
absorbed on a "priority basis'', all of them should have been sl10w11
in the seniority list as having been appointed on 16-1-1959 in a block
and thereafter the direct recruits for that year should
have
been
shown. It is true that this Court had directed that these
promotecs
should be absorbed on a "priority basis".
That only meant that
their position as senior should not be prejudiced by any possible claim
by later promotees, qn the ground, that being recruited outside the
quota, they had higher rights than those
73
promotees
who
had
no posts. It was not intended that these 73 should not be go'iemed
by any senic~ity rule.
They were to be governed by a rule which
covered all those who came or were deemed to have come into the
cadre after 15-1-1959.
It was faintly argued that at least JO out of these 73 spill:overs
should have been accommodated in the period prior to 16-1-1959 on
the ground that this would have amounted, in the language of the
judgment, to a "slight deviation" from the quota rule. It is true that
this Court had observed that the Government was entitled between
1956 and 16th January, 1959 to follow the quota rule as a rourrh
guideline and that a slight deviation from the quota would not be
material. That observation, however, applied to
a situation when
~he G?ver~ment deliberately made an appointment in
a stray post
mt.endmg 1t. to be ~!located to a. promotee, in spite of its being not
stnctly ~?ns1s.tcnt with the gmdelme of the quota rule.
That is not
the pos1!Jon m the present case.
Government
went
on
makino
appointments knowing that tho promotees had no posts out of theh'.
quota and 1t cinly hoped to regularize them when poits were available.
Therefore, when the department was directed to prepare the seniority
hst from 1956 to January _IS: 1959 in accordance with the quota
rule of 1951 ~/w the
semonty Ruic
I (!)(iii), the
Government
ooi;ld not pc1is1bly say that 10 promotees out of these 73 had been
deliberately appomted ?Y it to t_hese posts intending the same to go
to the promot~cs m spite of their falling outside the quota.
The 10
promotees besides the remaimng 63 became spill-overs on 16-1-1959
as they could not be absorbed in any quota posts available to them till
15-1-1959.
110
SUPREME COURT REPORTS
[1975] I s.c.R.
It was next contended that as the quota rule expired on 16-1-1959,
the promotees who comprised this spill-over as also those who were
promoted thereafter must be deemed to have been validly appointed
in accordance with rule 4 of the Inoome-tax Officers (Class I) Grade
II Service Recruitment Rules, 1945, and since there remained
in
existence no seniority or quota rule determining their seniority vis-avis. the direct recruits, their natural seniority of earlier appointment
. cannot retrc~pectively be altered to their detriment, and to do so
-would be violative of Article 16 of the Constitution.
That is the
principal contention on behalf of the promotees in this case.
It is necessary tq clearly understand the implications
of
ouf
·decision in which we had held that both the quota rule and
the
seniority rule had broken down on 16-1-1959. Tue cadre from the
very beginning ( 1945) was a cadre, recruitment to which was prcs-
·Cribed from two sources.
The vacant posts were directed tc/
be
callotted to direct recruits and promotees in a particular ratio
and
seniority was regulated inter se by ruJ.~s framed later. Some principle
of allocating posts and some principle of determining relative scnority
were inevitable in the context of the constitution of the cadre, and
·Government did not and could not have abandoned these 1Jfinciples
in the matter of recruitment. The quota rule allocated
the
po~ts
between the two sources and the seniority rule regulated the seniority
vis-a-vis the direct recruits and the promotees.
Indeed there
was
nothing special about it.
In any service where recruitment is ma.cle
from severol sources, there is bound to be some method of allocation
-of posts between the several sources coupled with a rule to determine
seniority amongst the candidates recruited from those sources. In fa.ct
a rule for regulating allocation of posts and to determine seniority
amongst the officers in a silie-qua-non of every well-regulated service
to which direct recruits and promotees are appointed. The Government was fully aware of this binding nature of the principles in the
matter of recruitment and, therefore, when it made promotce appointments knowingly in excess of the quota available to them, it calculated
tl;at these appointments were liable to be regularized in subsequent
years when quota vacancies were available to the promotees. That
Is why when promotee appointments were made from 1957 onwards,
they were made on an officiating basis, and every promotee was inforrned that the question as to how his seniority amongst the officers
would ultimately
be decided was still under consideration. In the
meantime, however, our
decision, which held that both the quota
rnle and the seniority rule had collapsed on 16.1.1959, left a void in
which neither promotees nor direct recruits could identify any posts
as having been allocated to them. Tue 73 spill-overs had no allocated posts. We do not mean to say that there were no posts at all.
'The point is that these 73 promotces had no allocated posts.
Since.
as already pointed out, the service was constituted on the principle
that vacancies have to be alloaited between the two sources and seni-
, ority fixed thereafter, the void created by our decision had necessarily
to be filled right from 16-1-1959 by making a rule which not merely
allocted posts between the direct recruits and the promotees. but. also
.-determined inter se seniority.
As a matter of fact this was envisaged
A
B
•
c
D
..
E
F
G
H
I
t
•
..
' .
A
c
D
F
B. s. GUPTA v. UNION (Palekar, J.)
1 I I
by all parties to this litigation as is clear from the following passage
in para 25 of the judgment :
"Several suggestions were made with a view to persuade us that
some fair anci just seniority rule may be evolved.
One of them was
that the quota rule may still hold the field and that those who came
in by promotiou to the upgraded posts may be ranked lower in seniority
to the direct recruit who had finished his probation in that year.
A
second suggestion was the one put forward by the Government in the
letter dated 17-2-1960 to the Union Public Service Commission wherein a package deal was suggested. The senioritv rule, as it stood, was ~o
go and in its place the seniority rule should be that promoted officers
in any calendar year should be senior to the direct recruits appointed
that year only.
Having made that concession in favour of the direct
recruits in response to their demand, it was suggested that the quota
of departmental promo tees should be raised from 33! % to 50%. In
other words, there was a package deal whereby every year the appointments should be divided equally between direct recruits and promotees
and the promotees being already in the department should be given
seniority over the new direct recruits." Although the parties had made
these suggestions, this Court declined to accept the responsibility and
observed : "We do not think that we shall be justified in expressing our
opinion as to how inter se seniority is to be fixed after 15-1-1959.
Since the old seniority rule has ceased to operate by reason of the
infriJJgement 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 form 16-1-1959." The new seniority rule is the direct outcome of not only our judgment but also of
the very principles on which th~ service had ·been constituted.
The
new seniority rule, therefore, was a substitute rule very necessary from
the point of view of the constitution of the service for maintaining its
continuity as a well-regulated cadre.
When the old quota rule and
the seniority rule broke down on 16·1-1959, their place was
taken
by the new rule which while regulating seniority between the promotees
and the direct recruits also notionally allocated
alternate posts
in
accordance with the roster.
The contention of the promotees is that their appointments having
been liberated from the limitation of the quota rule must be regarded
as validly made under rule 4 of the Recruitment Rules and consequently
the dates of their appointments should be regarded as determining their
seniority vis-a-vis the direct recruits. This submission does not b~ar
scrutiny. When the 73 spill-over appointments had been made, there
were no allocated posts to which the appointments could have been
validly made. On 16-1-1959 there were no posts earmarked for them.
the ordinary consequence of which would be that they would have had
to revert to their original class II posts unless class I posts were regularly found for them.
When the quota rule was in existence, these
-appointments, though invalid when made, were liable to be regularised
in subsequent years when posts were found for them as a consequence
of the quota rule. But once the quota rule ceased to exist on 16-1-1959,
112
SUPREME COURT REPORTS
(1975] 1 s.c.R.
.
there was no possibility of regularising the appointments unless a new
rule was framed to make such posts available to them. It is, therefore,
clear that the infirmity in the appointments continued on 16-1-1959
and that infirmity could not be overcome except by a new rule which
made some posts available. It is not correct to think that this infirmity
disappeared with the disappearance of the quota rule. The disappearance of the quota rule did not automatically regularise an appointment which was intially invalid. The promotees continued in the cadre
because it was thought by Government that their appointments may
be regularised under the quota rule which, in its opinion, was operative. The 214 officers also who were promoted from 1959 to 1962
after upgrading an equal number of class II posts could not possibly
claim better treatment than the 73 spill-overs who were their seniors.
At one time an attempt had been made by the officers of the department to rationalize these appointments as appointments 'outside the
quota'. But that was a misconception. The cadres was one regulated
by rules and there could be no valid appointments outside the quota
as shown in Jaisinghani's case. (See: [1967] (2) S.C.R. 703 at 718).
This was soon realised and hence in an endeavour to maintain the
quota ratio the department decided not to make any promotions in the
years 1963, 1965 and 1967 to 1970 so that the officers who had been
already promoted could be absorbed in their quota.
But since this
Court held in 1972 that the quota rule had ceased to exist on 16-11959 it must follow that the appointments were continued irregularly
in the absence of a regularising Rule. The rule now challenged in just
the rule which makes posts available right from 16-,1-1959.
Apart
from the fact that all the promotees from 16-1-1959 onwards had
lJ\:en appointed on an officiating or ad hoc basis with notice that the
question of their seniority was still
undecided,
the
appointments
carried their own infirmity as irregular appointments, and hence in
the absence of clear allocation of posts, they could hardly lay claim
to any seniority and _object that their natural seniority had undergone
an unwarranted change in violation of Article 16.
It is true that this Court held that quota rule had ceased to exist
but that does not mean that having regard to its constitution, the service
could continue to function without a substitute rule in its place.
The
constitution of the service required allocation of posts to direct recruits
and promotces.
The Government was throughout making
appointments from both sources trying as far as it could to maintain a certain
ratio between the two sources.
Such
aUocation was implicit in
the
constitution of the service itself.
When Government decided to recruit
promotees on a very large scale on 16-1-1959 it was unconscious of
the consequences of its action.
Had it known then, as it does now,
that the quota rule would cease to exist it would have, of necessity;
framed a su_bstitute rule for allocating posts between the two sources
because the constitution of the service coupled with its own decision
to continue to recruit from both sources would not have tolerated
a
void in the allocation of posts.
By framing the new seniority rule,
following the direction of this Court. it is doing no more than what it
would have itself done on 16-1-1959 to preserve continuity in the allocation of posts to the two sources so that irregularities, if any, in the
A
B
c
i
D
..
E
F
G
'
II
A
•
B
c
D
..
E
F
G
•
H
B. s. GUPTA v. UNION (Palekar, !.)
113
prior appointments could be regularised.
And ·since it is clear that
the new rule must be read as if it was made on 16-1-1959 in substitution of the old rules, the appointees after that date e.g. the 214 promotees would be governed by the rule.
The 73
spill-over promotees
would have at least some excuse for complaint because their
actual appointments had been made prior to 16-1-1959. But,
as
already noticed, it is the new seniority rule which saves them from reversion and, therefore, they are as much bound by it as the promotees
appointed after 16-1-1959. The present rule, it may be repeated, is
a composite rule which besides notionally allocating posts between the
two sources determines seniority in accordance with the roster. After
all but 73 spill-over promotees were given available posts prior to
16-1-1959, the unallocated posis from serial no. 486 onwards were
allocated to promotees and direct recruits alternately. The spill-over
of 73 promotees was thus absorbed against even serial numbers alternately with the direct recruits who were allotted odd serial numbers.
That -is how the whole list of seniority stands today.
In these circumstances we don't see on what grounds the promotees before m can
challenge the new seniority rule as violative of Artie~ 16.
The argument based on Article 16 proceeded on the assumption
that the spill-over promotees of 16-1-1959 and the officers promoted
thereafter were entitled to claim seniority from the date of their appointment. The spill-over promotees claim 16-1-1959 as the date of appointment and the other promotees claim some date between 1959 and 1962
when they were promoted. It is on this assump~ion that they are entitled
to get these dates as the dates to determine their seniority that the whole
submission under Article 16 is based.
It is necessary. to remember, however, in this connection that all
these officers had been told when promoted that their appointments
were on an officiating or a_d hoc basis and the question of their seniority
had not been determined. It was thereby implied that orders about
seniority could only be passed after the department was in a position to
take a decision with regard to the inter se seniority between the promotees and the direct recruits. That being the situation of all these officers
they could hardly contend that the dates of appointment will not be altered for the purposes of determining seniority. Where recruitment is
made from one source, there is some ground for the contention that an
officer promoted earlier should be regarded as senior to an officer recruit..
ed later. But other considerations come in when recruitment is made
from several sources and it may become necessary in the public interest
to frame a Rule of seniority to adjust inter se seniority on a basis o'.her
than the normal. In such cases, dates other than the dates of appointment
may determine the seniority inter se. As a matter of fact, we have found
in the case of these Income-tax officers themselves that since the very
beginning when the cadre was constituted the dates of appointment did
not determine seniority. Promotees were given seniority not only over the
direct recruits appointed in that year but also over those who had been
appointed in the two previous years. This led to discontent between the
two wings of the Income-tax Service and the Government was serlouslv
thinking how best to remove it since about 1957. In 1960 the Government suggested to the Union Public Service Commission that it would
9-131 Sup.CI/75
114
SUPREME COURT REPORTS
[1975] J S.C.R.
like to suggest a package deal by which the ratio of recruitment' be increase.ct to 50 : 50 in favour of the promotees in consideration of which
the weightage given to them in seniority as against direct recruits, may
be abolished. The Public Service Commission did not agree to this and
· hence the problem remained unsolved. That was the reason why all
promotee appointments had been made on an officiating basis with a
warning that the promotees' seniority in the promoted cadre was undetermined.
The promotees, therefore, were not entitled to assume that
their date of appointment in class I would be the date for counting
seniority.
There is no question in this case of any discrimination being made in
a service after officers from two sources have been brought in one cadre.
It is true that seniority is a vital element in the matter of promotion but
that does not mean that allotment of seniority by rule, relative to ,ecruitment, involves any classification for the purposes of promotion. The
~rgument that the promotees and direct recruits became one class immediately on entry and, thereafter, there could be no classification between
them does.not diSf,lose the correct approach to the problem of fixing inter
se seniority between them. When recruits from two sources have come
into a service it is essential to fix inter se seniority for a proper integration of the cadre. Therefore, it is really a case of adjustment of seniority between the recruits and does not amount to makmg a classification
after their absorption in one service. The cases on which reliance was
placed on behalf of the promotees are quite inapplicable. In Mervyn
Coutinho & Ors. v. Collector of Customs,. Bombay & Ors(!) the point
was whether Appraisers promoted to the grade of Principal Appraisers
could be discriminated in the matter of seniority in the grade of Principal Appraisers on the ground that they had entered the grade of
Appraisers as either promotees or direct recruits. The Customs
department sought to carry their birth marks into the grade of the
Principal
Appraisers
and determine their seniority accordingly.
This Court disallowed it pointing out that once officers from
two sources came into one integrated grade, viz. the grade of
Appraisers, their seniority in the grade of Principal Appraisers wa~
to- be governed by their length of service in
that grade, and was
not liable to be altered with reference to their original position in the
Appraisers' grade. In other words, the court he.Id that all the Appra!scrs
lost their birth marks after they were integrated m the cadre of Appra1sen
and they could not be revived after promotion to the higher grade of
Principal Appraisers. In the case before us, in the absence of a rule determining inter se se'.'iority ~etween the tw? classe.s of. Jneome:tax Officers,
there is really no mtegrahon of the service, which 1s 11nav01dably necessary for the purpose of effective promotions. One cannot spea~ of promotions from a cadre unless it is fully integrated. If promot10ns are
made before it is fully integrated, they can be only on an ad hoc basis
to be reviewed after seniority of the officers is finally fixed-as has happened in our case. Mervvn Cormtinho's case would .have been applica~le
if, after integration of all these Income-tax Officers u;i class I, thelf sen~o
rity as promoted Assistant Commissioners were agam to be altered with
reference to their birth mark as direct recruits and promotees. That
question, however, does not arise in the present case. In Roshan Lal v.
(1}[1%61 3 S.C.R. 600.
A
B
•
c
D
..
E
F
G
•
H
A
•
B
c
D
E
F
G
•
H
•
B. s. GUPTA v. UNION (Palekar, ]. )
I 15
Union of lndia,(1) the decision in Marvyn Coutinho's case referred to
above was relied upon and reaffirmed.
The case does not shed any
light on the question with which we are concerned. Similar is
the
case in S. M. Pan:<1it and Aiir. v. State of Gujarat.( 2 )
In this case
Mamlatdars were recruited from two sources-directly and by promotion. They had the same designation, same pay scales, same functions
and their posts were also interchangeable. It was, therefore, held that
Government could not discriminate between them in the matter of their
further promofion to the post of Deputy Collector.
As said earlier, the problem before us is not of making discrimination in the matter of promotion from an integrated service constituted
from two sources. The problem is of integrating two sources in one
service by adjusting seniority inter se.
The cases referred to above
relate to the debunking of the established seniority of officers in
a
cadre in the matter of promotion.
It was next contended on behalf of the oromotees that this Court
had directed that the rule to be framed by the Government should b~
just and fair but, in their submission, it was not so. The promotees
contended that having regard to their age at the time of promotion,
their experience, and their diminished chances of promotions to grades
higher than those of the Assistant Commissioners, Govt. ought to have
given them due weightage in the matter of seniority and since this was
not done the new seniority rule was neither just not fair.
When considering this point it must be clearly understood that this
Court is not concerned with Govt.'s policy in recruiting officers to any
service. Government runs the service and if it is presumed that it knows
what is best in the public interest.
Government knows the calibre of
candidates available and it is for the Government to determine how a
particular service is to be manned-whether by direct recruits or by
promotees or both and, if by both, what should be the ratio between
the two sources having regard to the age factor, experience and other
exigencies of service. Commissions and Committees appointed by the
Government mav indeed give useful advice but ultimately it is for the
Government to decide for itself. In the particular service with which
we are concerned, viz. that of class I Income-tax Officers, Government
had known for many years that there was a lot of discontent amenest
the officers. The promotees were clamouring for a higher proportion
of posts in the cadre while the cjirect recruits were chafing against the
·seniority rule which gave promotees 2 to 3 years' seniority over the
direct recruits. To begain with the promotees had been given only
20% of the vacancies but that was raised later on to 33 ! %.
The
department was fast expanding and more officers in class I who coulc!
immediately take up assessment work,. were required.
Senior class II
officers who 4ad the necessary experience were always available. On
the other hand, class I officers, directly recruited, did not obtain this
experience for about 2 to 3 years. Therefore, though direct recruit·
ment was made from year to year, the department had to promote
more officers from class II to class I; and this was the reason whv
there was a spill-over of 73 promotee officers on 16-1-1959. In the
(1) [1968] I S.C.R.