# UNION OF INDIA ETC v. MAJJI JANGAMAYYA ETC - **Citation:** [1977] 2 S.C.R. 28 - **Court:** Supreme Court of India - **Decided:** 1976-11-05 - **Bench:** A. N. Ray. C. J, M. H. Beg, Jaswant Ssngh - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-etc-v-majji-jangamayya-etc-7036 - **Pages:** 24 ## Headnote Constitution of India 1950, Arts. 53, 313 and 366-Scope of Government of India Act, 1935, 241-Scope of-Office Manual, 1955, Vol. fl. r. 18-Whether statutory rule. · The Government of India, in 1950, framed a rule for promotion of an C Income Tax Officer as Assistant Commissioner and it was published as rule 18 in Vol. 11 of the Office Manual published in 1955. The rule provided that promotion shall be strictly on merit and that no one should ordinarily be considered for promotion unless he has completed at least ten years service as Income Tax Officer. In 1957, a memorandum was issued by the Central Board of Revenue containing the following principles for promtion of Income Tax Officers Class I as Assistant Commissioners. 0 E F ' G H 1. Greater emphasis should be laid on merit as a criterion. 2. The Departmental Promotion Committee should first decide the field of choice, namely, the number of eligible officers awiating promotion who should be considered for inclusion in the selction list. An officer of outstanding merit may be included in the list even If he is outside the normal field of choice. 3. The field of choice wherever possible should extend to 5 to 6 timei the number of vacancies expected. 4. From among such officers those who are considered unfit for prometion should be excluded and the remaining should be classified as 'outstandin~· 'yery good' and 'good' on the basis of merit as determined by their respective records of service. The selection list should then be prepared by placing the aame8 in the order of these three categories without disturbing the seniority inter se within each category. 5. Promotions should strictly be made from such selection list in the order in which the names are finally arranged. The selection list should be periodically reviewed removing from the list names of persons who have been pr•moted, and including fresh names. On 16th August 1972 this Court set aside the seniority list in the first Bishan Sarup Gupta case [1975] Supp. SCR 491 and gave directions for preparing a fresh list. On 21 December 1972, the Government applied to this Court for making ad hoc promotions and the court permitted them to do so. Accordingly, in March 1973 and November 1973 the Board promoted 5' and 48 Income Tax Officers respectively as Assistant Commissioners. It was distinctly stated in those two orders that the ad hoc appointments made ago.inst those posts were provisional and that the appointments eventually be made on the basis of the revised seniority list of Income Tax Officers Class I as finally approved by this Court, and on selection by a duly constituted Departmental Promotion Committee in accordance with the prescribed procedure. In February 1973, the Income Tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973, were made and a revised seniority list of Income Tax Officers Class I was made on the basis of those rules. The list as well as the Rules were approved in the second Bishan Samp Gupta Case [1975] 1 SCR 104. From such seniority list the Departmental Promotion Committee made a selection list in July 1974, for promtion of Income Tax Officers, Class I, as A8Sistant Commissioners. There were 112 vacancies and the Govrenment sent 336 names in the running order of seniority for consideration of the field of ( . - \ UNION OF INDIA V. MAJJI JANGAMAYYA (Ray, C.J.) 29 choice. The Committee followed the instructions in the 1957 Memorandum and found 276 to be fit for the field of choice, assessed the merits of 145 persons in order of seniority, found one officer outstanding, 114 very good, and 7 Scheduled Castes (Tribes officers good, according to the instructions. The Selection list was challenged in various High Courts. Two of the High Courts held in favour of the petitioners and the other High Courts gave interim orders staying the operation of the Selection List. In appeals by the Union of India to this Court, the respondents sought to support the judgments in. their favour on the f ## Text _Characters 0–39,148 of 80,811. This is a partial read: ask again with offset=39148 for what follows._ A B 28 UNION OF INDIA ETC. v. MAJJI JANGAMAYYA ETC. (With connected Civil Appeals) November 5, 1976 [A. N. RAY. C. J., M. H. BEG AND JASWANT SSNGH, JJ.] Constitution of India 1950, Arts. 53, 313 and 366-Scope of Government of India Act, 1935, 241-Scope of-Office Manual, 1955, Vol. fl. r. 18-Whether statutory rule. · The Government of India, in 1950, framed a rule for promotion of an C Income Tax Officer as Assistant Commissioner and it was published as rule 18 in Vol. 11 of the Office Manual published in 1955. The rule provided that promotion shall be strictly on merit and that no one should ordinarily be considered for promotion unless he has completed at least ten years service as Income Tax Officer. In 1957, a memorandum was issued by the Central Board of Revenue containing the following principles for promtion of Income Tax Officers Class I as Assistant Commissioners. 0 E F ' G H 1. Greater emphasis should be laid on merit as a criterion. 2. The Departmental Promotion Committee should first decide the field of choice, namely, the number of eligible officers awiating promotion who should be considered for inclusion in the selction list. An officer of outstanding merit may be included in the list even If he is outside the normal field of choice. 3. The field of choice wherever possible should extend to 5 to 6 timei the number of vacancies expected. 4. From among such officers those who are considered unfit for prometion should be excluded and the remaining should be classified as 'outstandin~· 'yery good' and 'good' on the basis of merit as determined by their respective records of service. The selection list should then be prepared by placing the aame8 in the order of these three categories without disturbing the seniority inter se within each category. 5. Promotions should strictly be made from such selection list in the order in which the names are finally arranged. The selection list should be periodically reviewed removing from the list names of persons who have been pr•moted, and including fresh names. On 16th August 1972 this Court set aside the seniority list in the first Bishan Sarup Gupta case [1975] Supp. SCR 491 and gave directions for preparing a fresh list. On 21 December 1972, the Government applied to this Court for making ad hoc promotions and the court permitted them to do so. Accordingly, in March 1973 and November 1973 the Board promoted 5' and 48 Income Tax Officers respectively as Assistant Commissioners. It was distinctly stated in those two orders that the ad hoc appointments made ago.inst those posts were provisional and that the appointments eventually be made on the basis of the revised seniority list of Income Tax Officers Class I as finally approved by this Court, and on selection by a duly constituted Departmental Promotion Committee in accordance with the prescribed procedure. In February 1973, the Income Tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973, were made and a revised seniority list of Income Tax Officers Class I was made on the basis of those rules. The list as well as the Rules were approved in the second Bishan Samp Gupta Case [1975] 1 SCR 104. From such seniority list the Departmental Promotion Committee made a selection list in July 1974, for promtion of Income Tax Officers, Class I, as A8Sistant Commissioners. There were 112 vacancies and the Govrenment sent 336 names in the running order of seniority for consideration of the field of ( . - \ UNION OF INDIA V. MAJJI JANGAMAYYA (Ray, C.J.) 29 choice. The Committee followed the instructions in the 1957 Memorandum and found 276 to be fit for the field of choice, assessed the merits of 145 persons in order of seniority, found one officer outstanding, 114 very good, and 7 Scheduled Castes (Tribes officers good, according to the instructions. The Selection list was challenged in various High Courts. Two of the High Courts held in favour of the petitioners and the other High Courts gave interim orders staying the operation of the Selection List. In appeals by the Union of India to this Court, the respondents sought to support the judgments in. their favour on the following contentions :- { 1) The requirement in the rule regarding 10 years experience was not abrogated as contended by the Government and the affidavits field in the various proceedings on behalf of the Union as well as the petitioners show that the 10 year rule was in force and was followed {2) Rule 18 has the force of law under the Government of India Act, 1935, and hence is existing law within the meaning of Art. 366(10) of the Constitution and also because it was incorporated in the Office Manual issued by the Government of India in exercise of its executive power under Art. 53. {3) The rule constitutes one of the conditions of service and, therefore, should be followed. A B c { .ol) The rule imposes an obligation on the Union Government to consider 'ordinarily' only Officers of ten years service, but the selection list was prepared in violation of the rule in that officers of 8 years experience were conD side red. ( 5) The ~elction has been made in complete violation of the principl~ set out in the 1957-memorandum and was entirely arbitrary. ( 6) The promotion should be considered as on 21 December 1972 when the Government applied to this Court for permission to make ad hoc appointment•, and on the two dates when the Government actually made 107 (59+48) ad hoc promotions and it was the duty of the Committee to regularise the 107 E promotions as from the dates of the original promotion and to consider the eligibility of an officer for promotion as on those· dates, and this ·not having been done, the selection list was illegal being contrary to the observations in the first Bishan Sarup Gupta's case. Rejecting these contentions of the respondents, allowing the appeals, and upholding the Selection List, HELD : (I ) (a) The requirement of 10 years experience in r. 18 was modified to 8 years experience. The correspondence between the Finance Ministry and Home Ministry and the U.P.S.C. shows that there was concurrence with the change. The High Court was in error when it said that the requirement of 8 years experience must first be included in the appropriate recruitment rules and that until that was· done 10 years experience held the field. 8 years experience as a working rule for promotion was publicly announced by the Minister in Parliament. Administrative instructions are followed as a guide line on the basis of executive policy. The requirement of 8 years was followed as a guideline in practice in 1968, 1970 and 1972. The requirement was thus not only modified but was given effect to. [39F] (b) The High Court was in error in treating the affidavit evidence of an officer of the Government, in other proceedings, as a statement of fact that the 8 years rule had not been introduced. This affidavit evidence is torn out of context and is misread by the High Court without going into the question as to whether such evidence is admissible. The entire affidavit evidence as well F -G as the submissions made on behalf of the Union Government is that the H requirement of 10 years experience is replaced by one of 8 years. It is a question of construction of the correspondence as to whether the 10 years rule was replaced by 8 years rule. The fact that no rules under Art. 309 were - 30 SUPREME COURT REPORTS [ 1977) 2 S.C.R. A framed does not detract from the position that prevoous administrative instruction of 10 years experience was modified to 8 years experience. The various affidavits and documents show that the consistent position on behalf of the Union has always been that the requirement of 10 years experience was modified to one of 8 years. [41H; 42A-B] B c D (2) The rule is not a statutory rule. [ 420] (a) The contention that because Government of India has authority to frame rules the letter of 16th January 1950 in which the rule was framed should, therefore, be treated as a formal rule is erroneous since there is a distinction between statutory orders an_d administrative instructions of the Government. The change was recorded by means of correspondence as an admin'strative instruction. In the absence of statutory rules, executive orders or administrative instruction may be made. [42E-F] Commissioner of Income Tax Gujarat v. A. Rama11 & Compa11y. [1968] 1 S.C.R. 10, referred to. (b) The letter of 16th January 1950 written by an Under Secreta.ry in the Ministry of Finance does not prove that it is a rule made by the GovernorGeneral or any person authorised by him under s. 241 (2), Government of India Act. 1935. Furthermore, there is no basis for any authentication under s. 17 of the 1935 Act in the letter. [42G] (c) In the prefa~e to the Office Manual published in 1955 it is specifically stated that Vol. I contains statutory rules and Vol. II, in which r. 18 occurs, contains only administrative instructions. [42G] S. C. Jaisingha11i v. Union of llldia &: ors. [1967] 2 S.C.R. 70, referred te. (d) Article 313 refers to laws in force which mean statutory laws. An administrative instruction or order is not a statutory rule or law. The lldministrative instructions can be changed by the Government by reason of Art. E 63(1). Article 313 doe9 not change the legal character of a document. [43B] F G (3) The High Court erred in holding that the 10 y!ar rule is a condition of service. The word "ordinarily" in the rule does not impose an obligation on the Government not to consider any Income Tax Officer with less than I 0 years experience, for promotion. The rule on the face of it, confers a discretion on the authorites to consider Income Tax Officers of lesser years experience if the circumstances so require, and whether such circumstances exist >hould be left to the decision of the authorites. Even the Central Board of Revenue, in a letter written a few months after the rule was framed, stated that the insistence of a minimum period of experience cannot be regarded as affecting tbe conditions of service. In that letter, it was stated that the requirement of I 0 years experience is sufficiently elastic and all Income Tax Officers with more than 9 years experience could also be considered for promtion. Thi• letter wa' referred to by this Court in U11io11 of India v. Vasant Jayarama Karnik [1970J 3 sec 65. [43C-FJ ( 4) It cannot be said that there is a deviation from the requirement of I 0 years experience in preparing the Selection list. That requirement wa9 modified to one of 8 years experience. The expression 'ordinarily' in the rule shows that there can be deviation and such deviation can be justified by reasons. Administrative instructions, if not carried into effect for good reasons, cannot confer a right. [ o43G] P. C. Sethi & ors. v. Union of l!1dia &: Ors. [1975] 3 S.C.R. 201, referred to. H ( 5) The facts and circumstances in the present case merited the exercise of discretion which was bona .fidr exercised by determining the field of choice: and from 1963, the field of choice has always been in a running order of seniority. • ) '· UNION OF INDIA V. MAJJI JANGAMAYYA (Ray, C.J.) 31 (a) There were, in the present case, 112 vacancies and JO anticipated A vacancies and the Departmental Promotion Committee was to make a panel. of 122 officers. If the field of choice has to be prepared on the basts of runmng seniority and if 10 years experience had been adhered to, there would not have been more than 95 officers in the field of choice although the number of vacancies was 122. This fact alone entitled the authorities to deviate from ·the rule of 10 years experience. [44E-F] (b) The requirement of 10 years experience could not be given effect to B also because in the second Bishan Sarup Gupta case, this Court had dire~ted that the two classes of Income Tax Officers, direct recruit5 and promotees, should first b~ fully integrated before determining inter se seniority. The expression 'ordinarily' would hardly apply to such a changed situation without destroying the integration. If the respondents' contention that the field of choice shall be restricted to 10 years experience only and the field e>f choice should have been at least 5 times the number of vacancies the result would have been that out of 560 persons in the field of choi-.:c 474 persons would have been promotees and only 86 persons would have been direct recruits and C -429 senior officers, who were direct recruits, would have been ignored. That obviously would be unjust and unfair and also contrary to the decision of this Court in the second Bishan Sarup Gupta's case. [47BC) (c) As a result of administrative instructions issued, at least since 1963. for promotion of Income Tax Officers as Assistant Commissioners, the administrative practice is to take the field of choice generally of 3 times the number of vacan:ies. The evidence shows that in the circumstances of this case, it was D not possible to have 5 or 6 times the number of vacancies in the field of choice. [-46E] ( d) The High Court was wrong in holding that in the field of choice, the evaluation of merit of persons was not properly done. The 1957-Memorandnm requires that the field of choice is based on running seniority, and evaluation of merit does not come into picture for deciding the field of choice. The question of merit comes in only in the preparation of the selection list. Seniority is the sole criterion for determining the field of choice and merit is the sok E criterion for putting th' officers in the Selection list. { 460] In present case, the instructions in the 1957-memorandum w're strictly followed. (e) The 7 Scheduled Caste/Tribes offic~rs were not entitlecj to a grade hither than the grade assessed by the Committee, because, the Home Ministry instructions, regarding concessions to Scheduled Castes and Tribes applied in the case of promotions from Class III to Class II and within Class JI and from Class II to the lowest rank of Class I, but had no application in respect of promotion within Class I. [47EJ F (f) After 122 senior officers were assessed and 114 were found to be 'very good', they could not be supplanted by other who were also 'very good'·. Only 'outstanding' persons who would be junior to the 122 could surpass them. 111erefore, the Committee rightly considered the cases of the officers remaining out of the 276 only to find out whether there was any one 'outstanding" as G it would be a fruitless exercise to find out who among them was 'very good'. [-48B] (g) The contention of the respondents that the officers remaining out of the 336 sent up, were not at all considered by the Committee is not also acceptable. When the Committee found, according to running seniority, that cerfain persons beyond a certain number could not be in the field of choice, the Committee did not put the names in the field of choice. The question of the evaluation of their merits did not, therefore, arise. It is wrong to hold that because the Government sent the names of 336 persons the field of choice consisted of all 336 persons. The field is to be determined by the Committee and the Committee ri2htly considered 276 names as fit to be included. [ 48F] H 32 SUPREME COURT REPORTS [1977] 2 s.c.R. A (h) There is no substance in the contention that 4 of the officers had less B c D E F G H than 8 years experience, b~cause, they were ex-military officers recruited by virtue of a notification of the Ministry of Home Affairs. [49B-C] (i) The contention that after putting the officers in the three categories they should further be evaluated on merit inter u within each category is contrary to the specific provision of the 1957-memorandum, and further, there could not be any further intra-specific assessment of those who are already considered to be "very good". (490] (6) The date for determining the eligibility of officers has nothing to do with the dates on which ad hoc appointments were permitted and ad hoc appointments were, in fact, made. The observations of this Court . in the first Bishan Sarup Gupta case, are that if as a result of the fresh seniority list, it is found that any officer was eligible for promotion on account of his place in the new seniority list, the Committee might have to consider his case a., on the date when he ought to have been considered and his position adjusted in the seniority list of Assistant Commissioners. The observations did not mean that although the Committee can meet only after the seniority list is approved by this Court, the selection would be deemd to be made at the time when a vacancy in the post occurred and the eligibility of officers for selection should be determined by such deemed date of selection. No employee has any ri,ht to a vacancy in the higher post as soon as the vacancy occurs. The Government hllll a right to keep it unfilled as long as it chooses. The seniority list which is a basis for the field of choice for promotion was approved by this Court on 16th April 1964 in the second Bishan Sarup Gupta case. Promotions to the post of Assistant Commissioners are on the basis of the Selection List prepared by the Committee and are to be made prospectively and not retrospectively. [51C-DJ CrVIL APPELLATE JURISDICTION : Civil Appeal No. 1837 of 1974. Appeal by Special Leave from the Judgment and Order dated 4-9-74 of the Calcutta High in Civil Rule No. 5547 (N) of 1974. Civil Appeals Nos. 1838-1842/74 Appeals by Special Lel\ve from the Judgments -and Orders dated 18-9-74, 29-7-74, 9-8-74, of the Allahabad High Court (Lucknow Bench) in Civil Writ Nos. 4398, 400, 4397 of 1974 and C.W.A. 3344/74 and W.P. No. 947 /74. Civil Appeal No; 485/75 Appeal by Special Leave from the Judgment and Order dated 24-10-74 of the Gujarat High Court in L.P.A. No. 208/74. Civil Appeal No. 1246175 Appeal by Special Leave from the Judgment and Order dated 1-4-75 of the Andhra Pradesh High Court in W.A. No. 900/75. Civil Appeal No. 2041174 Appeal by Special Leave from the Judgment and Order dated l 5-10-74 of the Gujarat High Court in L.P.A. No. 205/74. Niren De, Attorney General for India (In all appeals) Devakinandan. (In all appeals) P. P. Rao (In C. As. 1245/75 and C. A. 2041174), R. N. Sachthey for the appellants in CAs. 1837-42 of 74, 1246/75 and 2041174 and R. 2 in C. As. 1839, 1840/74 and RR. 1 and 2 in C.A. 485/75. \ i UNION OF INDIA V. MA.JJI JANGAMAYYA (Ray, C.J.) 33 A. K. Sen, (In CA 1837/74), J. N. Haldar (In CA 1837/74), K. K. Singhvi (In CA 2041/74), Yogeshwar Prasad; S. K. Bagga and (Mrs.) S. Bagga for RR. 1, 3, 7, 11, 12 and 14 in CA 1837/74 and R. 1 in CA Nos. 1839-1841/74 and 2041/74 and RR 2 and 3 in CA. No. 1246175. Yogeshwar Prasad and (Miss) Rani Arora for R. 1' in C.A. A 1838174. B Yogeshwar Prasad and (Miss) Rani Arora for R. 1 in C.A. 1842/ 74. Ram Panjwani, Bishamber Lal, S. K. Gupta and Dayal for Appellant in CA. 485/75 and RR 5, 6 and 7 in CA 2041/74 for the Interverners in CA 1838, 1841, 2041/74 and CA No. 1246/75. The Judgment of the Court was delivered by c Ray, C.J.-The principal question in these appeal is whether the selection list for promotion of Income Tax Officers Class I Service to the post of Assistant Commissioners of Income Tax is correct or not. The selection list was prepared by the Departmental Promotion D Committee on 23, 24 and 25 July, 1974. It may be stated here that on 16 August 1972 this Court set aside the Seniority List which had been impugned in Civil Appeal No. 2060(N) of 1971 and gave directions on which the Seniority List was to be prepared. (See Bishan Sarup Gupta v. Union of India('). This selection list was prepared on the basis of the seniority list approved by this Court on 16 April, 1974 in Bishan Sarup Gupta etc. etc. v. Union of India & Ors. etc. (2). E The basis of the preparation of the selection list is the field of choice. The principles for promotion to selection posts are set out in a Memorandum dated 16 May 1957 issued by the Central Board of Revenue. The principles are these : First, greater emphasis F should be placed on merit as criterion for promotion. Appointments to selection posts and selection grades should be made on the basis of merit haYing regard to seniority only to the extent indicated there. Second, the Departmental Promotion Committee or other selecting authority should first decide the field of choice, namely, the number of eligible oflkers awaiting promotion who should be considered for inclusion in the selection list provided, however, that an officer of G outstanding merit may be included in the list of eligible persons even if he is outside the normal field of choice. Third, the field of choice wherever possible should extend to five or six times the number of vacancies expected within a year. Fourth, from among such officers those who are considered unfit for promotion should be excluded. The remaining officers should be classified as "outstanding", "very good" and "good" on the basis of merit as determined by their resH pective records of service. The selection list should then be pre- (!) [1975] Supp:s:C.R. 491. (2) [1975] l S.C.R. 104. 4-1458SCI/76 A B c D E F G H -· - i-.fi<. .. - 34 SUPREME COURT REPORTS [1977] 2 S.C.R. P'.ired by. placi.ng the names in the order of these three categories without. d1sturbmg the. semonty inter se within each category. Fifth, promottons should stnctly be made from the selection list in the' order in which their names are finally arranged. The selection list should be periodically reviewe.d. The names of tl!ose officers who have already ~een promo~ed otherwise. than on a local or purely temporary basis and contmue to officiate should be removed from the list and the rest of the names along with others who may now be included in the field of choice should be considered for the selection list for the subsequent period. Several persons, mainly promotees from Class II to Class I as Income Tax Officers challenged in writ petitions field before several High Courts the correctness of tl!e field of choice so determined by the Departmental Promotion Committee hereinafter referred to as the Committee on the basis of which the said selection list was prepared. The Gujarat and the Andhra Pradesh High Courts delivered judgments. The other High Courts gave interim orders staying the operation of the. selection list. There are two appeals by special leave from the Judgments of the Gujarat and tl!e Andhra Pradesh High Courts. There are also appeals by special leave from the interim orders . of the High Courts because the questions involved are the same. ·There were 112 vacancies of Assistant Commissioners. The Government of India sent 336 names in the running order of seniority for consideration of the field of choice. Out of those 336 names the Committee took 276 names in tl!e running order of seniority. The principal question for consideration is whether the field of choice determined by the Committee on the basis of which the Committee prepared tl!e selection list is correct or not. Tile Gujarat High Court held that the requirement of 10 years' C<{perience as Income Tax Officer for promotion to the post of Assistant Commissioner as laid down in the Government of India letter No. C'. 33 (17) Adnm. I.I./49 dated 16 January 1950 prevailed while the Committee determined the field of choice and this requirement was violated because the Committee considered persons with 8 years' experience for the field of choice. The High Court further held that even if the requirement of 10 years' experience was not a statutory rule the requirement was to be complied with in determining the field of choice unless people with such experience were not availa!Jle in the seniority list of Class I Incom~ Tax Officers. W.hat the High ~ourt said was that if such people with 10 years' expenence were available in .the seniority list only such people should be considered in the field of choice ignoring those in the seniority list who are senior to such person~ but have less than 10 years' experience as Income Tax Officers. The second reason given by the High Court for holding the selection list to be incorrect is that under the letter dated 16 May 19?7 the field of choice should have been 5 times the number of vacancies whereas the actual field of choice contained a rr;uch lesser n~mb~r. The third ground given by the High Court for holdmg the select10n list ( ..... 1 I ) .., \ .. UNION OF INDIA \'. MAJ.JI JANGAMAYYA (Ray, C.J.) 35 to be incorrect is that in the field of choice of Committee did not properly evaluate the merit of persons in the field of choice. The section of persons in the selection list was to be selection on merit only .and not seniority cum merit. The fourth reason given by the High Court is that the date for determining the eligibility of officers for promotion to the post of Assistant Commissioner of Income Tax should be .decided by the Committee by bearing in mind the two dates, namely, 21 December 1972 when this Court permitted provisional promotions and 29 November 1973 when Government made the second batch of ad hoc promotions, as the two terminals. The principal contentions on behalf of the respondents are these. First, promotions from amongst Income Tax Officers Class I Service to the post of Assistant Commissioner of Income Tax have to be made solely on the basis of merit. The respondents relied on rule 18 of Chapter II(c) section 1 VoL II of the Office Manual in support of their contention. Broadly stated rule 18 is that the promotion shall be strictly on merit and further that no one should ordinarily be considered for promotion unless he has completed at least 10 years' service as Income Tax Officer. The respondents amplified their contention to mean that promotion to a selection post is to be made solely on the basis of merit and not on the basis of seniority cum merit. The second contention of the respondents is that only such of the Income Tax Officers in Class I Service who had put in at least 10 years' service as Income Tax Officers are eligible for being considered for r>romotion to the post of Assistant Commissioners. This contention is also based on rule 18 and according to the respondents rule 18 means that the condition precedent for eligibility to be considered for promotion to tl1e post of Assistant Commissioner is that an Income Tax Officer in Class I Service must have put in at least 10 years' service as Income Tax Officer . The rc~pondents further contended that rule 18 was framed on 16 January 1950 and the letter dated 21 July 1950 addressed by the Central Board of Revenue to all Commissioners of Income Tax shows that the Government of India framed the rule with the approval of the Union Public Service Commission and the Ministry of Home Affairs. The Government case is that the rule was abrogated. The respondents' aNswer to the Government contention is that the entire · correspondence relied on by the Government shows that the Ministry of Finance wanted to frame new rules of seniority. The respondents also contend that the Ministry of Home Affairs gave approval to the framing of new rules· of seniority but gave no direetio11 with · regard to the rule relating to the recruitment except stating that the said rule might b~ appropriately included in the relevant r~cruitment rules. Therefore tbe respondents contend that the recruitment rn!e regarding 10 vears' experience continued whereas: the seniority rule stood modified in terms of the letter of M. C. Thomas dated 4 April 1964. The respondents also re!v on the affidavit dated 8 March, 1968 filed by M. C. Thomas in the. Gujarat High Court in applicati.on No. 1365 A B c D E F H A B c D E F G H 36 SUPREME COURT REPORTS _[1977) 2 S.C.R. of 1965, an affidavit of M. C. Thomas dated 21 May 1970 filed in the Delhi High Court in writ petition No. 196 of 1970, an affidavit of the respondents dated 5 August 1974 filed in the Gujarat High Court in support of the contention that the rule relating to 10 years' service was in force at least from 21 May, 1970. The respondents further contend that promotions to the post of Assistant Commissioners in the year 1964 and 1970 show that all promotees except 2 had completed at least 10 years' service before being selected for promotion. Even with regard to those two promotees the respondents submitted that both of them joined on 24 October, 1960 but they had been selected along with others in May 1960. T11erefore, those two officers were promoted along with their batch mates of May, 1960. The third contention of the respondents is that rule 18 has the force of law. It is said that under section 241 of the Government of India Act 1935 the Government was empowered to make rules. Pursuant to that power the Government of India made the rule. The letters elated 16 January 1950 and 21 July 1950 written by the Government to the Commissioners of Income Tax referring to rule 18 were relied on by the respondents in support of their contention. In the alternative, the respondents contended that the decision of the Government contained in the letter dated lo Januarv, 1950 was made by the Government of India in exercise of executive powers under section 8 of the Government of India Act 1935 read with item 8 of List I of the Seventh Schedule. This order which had the backing of law was an existing law within the meaning of clause 10 of Article 366 of the Constitution. In the further alternative the respondents contended that the rule contained in the letter dated 16 January, 1950 was incorporated in the Office Manual issued by the Government of India in exercise of its efecutive power under Article 53 of the Constitution and therefore these instructions have the force of law. It is also said by the respondents that the rule which affects promotions of the persons constitutes the conditions of service. The fourth contention on the part of the respondents is that the use of the word "ordinarily" in rule 18 imposes an obligation on the Union Government not to consider- an Income Tax Officer Class I who has not completed at least 10 years' service as Income Tax Officer for promotion as Assistant Commissioner unless there are extraordinarv circumstances. It is said that the word "ordinarily" does not vest in the Government unfettered condition to follow or not to follow the rule. It is also said that the use. of the word "at least 10 years' service" shows that the word "ordinarily" has been used to enable the Government to consider such of the Income Tax Officers who have put in more than 10 years' service. The respondents also contend that the Government proceeded on the basis that the rule relating to 10 years' service did not exist after April 1964; and, therefore, it cannot be said that the Government departed from rule 18 because of extraordinary circumstances. The fifth contention is that the selection has been made in complete violation of the rule framed by the Government of India for promotion to selection post as contained in the Office Memorandum ( i • -\ ONION OF INDIA F. MAJ.JI JANGAMAYYA (Ray, C.J.) 37 of the Ministry of Home Affairs dated 16 _May, 1957. This contention is expanded by submitting that tlie list should have contained names of at least 5 or 6 times the number of vacancies existing within a year and in view of the fact that there were 112 existing and 10 anticipated vacancies the Government of India should have sent to the Committee names of at least 560 officers. The Committee should then have removed such names which were unfit for promotion and thereafter have classified the rest as outstanding, very good; and good on the basis of merit. The respondents contend that the Government sent only 33.6 names for consideration when the vacancies were more than 120 and the Government also ignored the rule of 10 years' experience. It is also said tliat the Committee ignored the names of 59 officers from consideration and classified only 144 · officers out of the remaining 277 and prepared the list of 122 out of 144 officers. The respondents further contend that though respondents No. 2 and 3 in Civil Appeal No. 2041 of 1974, namely, R. K. Desai and B. Srinivasan completed 10 years' experience they were not included within the field of choice as officers senior to them had not completed 8 years of service as Income Tax Officers. Therefore, rule 18 was violated. The sixth contention of the responderits is that the entire selection was arbitrary and in violation of Article 16 of the Constitution. It is said that . if the rule requiring 10 years' experience had been followed only such of the persons who had put in 10 years' service would have been in the field for selection. It is said that the Government included Income Tax Officers who were direct recruits and who had put in less than 8 years' service in the list but excluded promotees Income Tax Officers who had put in more than 8 years' service as Income Tax Officers. It is further said by the respondents that out of 122 person~ selected 111 are direct recruits and only 11 are pro- . motees. Reference was made to the junior-most person in the selection list Madan Mohan Joshi. It is said that Madan Mohan Joshi was. appointed as Income Tax Officer -Class 1 on 5 July, 1965, and, therefore, he completed 9 years' service at the time of selection. The last person considered by the Committee is a direct recruit Rajeswar Rao Gautam who was appointed on 8 July, 1966. Again, it is said that from amongst the promotees Raghubir Singh the promotee who joined Class I Service on 1 May 1964 a11d had more than 10 years' service was not placed in the field of choice. The respondents, therefore, contend that promotee Officers who had put in more than 8 years' service as Income Tax Officers were not included in the field of choice whereas direct recruits who had not completed 8 years' service were included in the field of choice. The seventh contention of the respondents is that the eligibility of Income Tax Officers for the purpose of promotion to the post of Assistant Commissioner should be considered either as on 21 October, 1972 or 2 l March 1973 or 29 November 1973. In support of that contention it is said that when the Government of India made an application for filling up certain posts this Court by order dated 21 December 1972 permitted the Government to fill in the posts on ad A B c D E F G H A B c D E F G 38 SUPREME COURT REPORTS (1977] 2 S.C.R •. hoc basis from amongst the eligible officers on the basis of continuous length of service in Class I. Accordingly, by orders dated 21 March 1973, and 29 November, 1973, 59 and 48 officers respectively were promoted on ad hoc ba:sis. These officers were to be replaced by regular selection. The seniority list "as confirmed by this Court by judgment dated 16 :\pril 1974. The respondents, therefore, contend that the Committee had to regularise aforesaid 107 promotions, and the regularization had necessarily to be done from the dates of original promotions on ad hoc basis. It is said in this context that the eligibility of officers for the purpose of promotion must be considered either on 21 December 1972 or on 21 March 1973 or on 29 November, 1973. The respondents also submit that the eligibility has reference to the date of vacancy and therefore only such of the persons who had the qualified service on the date of vacancy ought to be considered by the Committee. Reliance was placed on the observations of this Court in Bishan Sarup Gupta's case(') that after the finalisation of the seniority list the department should consider the cases of all eligible officers for promotion on the basis of their records as on the date when they ought to have been _ consiucrcd by selection but who we1 e not so con>.i