ition Nos
4146 of 1978 and 546 47 of 1983
Under Article 32 of the Constitution of India  Rajinder Sachhar Govind Das TS Krishnamurthy lyer AK Sanghi Ravinder Bana RB Misra Miss A Subhashini Bhisamber Lai and Miss Gitanjali Mohan for the appearing parties
The Judgment of the Court was delivered by SAWANT J
These three petitions raise some common issues and hence they are being disposed of by this common judgment
WP No 4146of 1978
This petition is filed by the promotee Income Tax Offi cers Group A seeking to challenge the Seniority Rules of 1973 on the ground that they were framed pursuant to a direction given by this Court in Bishan Sarup vs Union of India  Ors decided on August 16 1972
According to the petitioners the said direction was given because for want of sufficient material the Court had come to the conclusion that the quota for recruitment of the direct recruits and the promotees had broken down as the promotees were appointed in excess of their entitlement in the quota
According to the petitioners the requisite material showing the contrary was in the possession of the Government but did not come forth then
The said material shows that in fact the appointments of the promotees were short of their quota
The petitioners therefore claim that not only the 999 Seniority Rules of 1973 should be set aside but the ap pointments of the promotees be made and their seniority be fixed according to the Rules prevailing prior to the said Rules
The relevant facts necessary to dispose of the peti tion are as follows
Pursuant to the Rules propounded in their letter of September 29 1944 the Government reorganised the existing Income Tax services into Class I and Class II
The Rules among other things laid down that the recruitment to the cadre of Income Tax Officers Group A will be from two sources viz direct recruitment and promotion the quota for the two being 80 20 respectively
In 1945 the Government framed fresh Recruitment Rules for the said cadre of Class I and Class II ITOs
Rule 3 of the said Rules reiterated that the recruitment to the said cadre will be from the two sources viz direct recruitment and promotion
Rule 4 of the said Rules however provided that the recruitment from the said sources will be made as per the discretion of the Government
This provision had the effect of virtually keeping in abeyance the recruitment quotas for the direct recruits and the promotees laid down in the Recruitment Rules of September 29 1944
On September 9 1949 the Government framed Seniority Rules
Rule 1fiii thereof provided that the promotees who had been certified by the Federal Public Service Commis sion in any calendar year shall be senior to all direct recruits who completed their probation during that year or after and are confirmed with effect from the date in that year or after
On January 1 1950 the Seniority Rules were revised and the aforesaid Rule 1fiii was amended as follows f The seniority of direct recruits recruited on the results of the examinations held by the Federal Public Service Commission in 1944 and subsequent years shall be reckoned as follows i Direct recruits of an earlier examination shall rank above those recruited from subsequent examination
ii Direct recruits of any one examination shall rank inter se in accordance with the ranks obtained by them at that examination
1000 iii The promotees who have been certified by the Commis sion in any calendar year shall be senior to all direct recruits who complete their probation during that year or after and are confirmed with effect from a date in that year or after
Provided that a person initially recruited as Class II Income Tax Officer but subsequently appointed to Class I on the results of a competitive examination conduct ed by the Federal Public Service Commission shall if he has passed the departmental examination held before his appoint ments to Class I service be deemed to be promotee for the purpose of seniority
By its letter of October 18 1951 the Government revised the quotas of direct recruits and promotees which was earlier laid down in their letter of September 29 1944 from 80 and 20 to 66 23 and 33 13
On September 5 1952 the Government also revised further the Seniority Rule 1fiii of January 24 1950 as follows f The seniority of direct recruits recruited on the results of the examinations held by the Federal Public Service Commission in 1944 and subsequent years shall be reckoned as follows i Direct recruits of an earlier examination shall rank above those recruited from a subsequent examination
ii Direct recruits of any one examination shall rank inter se in accordance with the ranks obtained by them at that Examination
iii Officers promoted in accordance with the recommenda tion of the Departmental Promotion Committee before the next meeting of the Departmental Promotion Committee shall be senior to all direct recruits appointed on the results of  the examinations held by the Union Public Service Commission during the calendar year in which the Departmental Promotion Committee met and the three previous years
 It will thus be clear that this revisionamong other things gave to the promotees a weightage of three years in seniority
These Rules continued to operate till 1959
1001 4
It appears that between 1959 and 1960 about 114 posts were upgraded to those of Income Tax Officers Group A and the promotees were appointed to the said posts during the relevant period
One Jaisinghani a direct recruit challenged the constitutional validity of Seniority Rule 1fiii and iv of 1952 Seniority Rules which had in effect given three years  weightage to the promotees in the matter of fixation of their seniority and also the improper implementation of the quota by the Government by filing a writ petition before the Punjab High Court
The High Court rejected the writ petition and in the appeal filed against the said decision this Court by its decision in SG Jaisinghani vs Union of India  Ors  held that the quota was fixed by the Government by its letter of October 15 1951 in exercise of the power given to it under Rule 4 of the Recruitment Rules of 1945 and hence it was valid and proper
The Court also upheld the weightage given to the promotees under the Seniority Rules of 1952
The Court however directed that for future years the roster system should be adopted by framing an appropriate rule for working out the quota between the direct recruits and the promotees and that a roster should be maintained indicating the order in which appointments are made by direct recruitment and by promotion in accordance with the percentage fixed under the statutory Rules for each source of recruitment
The Court gave these directions because the Court came to the conclu sion that the promotees were in excess of the prescribed quota for each of the years 1951 to 1956 and onwards and that they had been illegally so promoted
The Court further held that the appellant Jaisinghani was entitled to a writ commanding the respondents to adjust the seniority of the appellant 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 Government letter of October 18 1951
The Court howev er made it clear that the said order would not affect such Class II officers who had been appointed permanently as Assistant Commissioners of Income Tax
Pursuant to the direction given by the Court the Government prepared a Seniority List on July 15 1968
This Seniority List was challenged in Delhi High Court in two separate writ petitions one filed by one BS Gupta a promotee of 1962 and another by one MC Joshi a direct recuit
The Delhi High Court by its decision of July 29 1970 dismissed Gupta s petition and substantially allowed Joshi s petition and gave directions to prepare a fresh seniority List
Against the 1002 decision in both the petitions Gupta filed two separate civil appeals
By its decision dated August 16 1972 in the said appeals in BS Gupta case supra briefly known as 1st Gupta case this Court held that the Seniority List was valid with regard to the promotions made upto January 15 1959 since it was prepared on the basis of the quota rule of October 18 1951 and the Seniority Rule 1fiii of 1952 Seniority Rules
The Court however held that the said List would not be valid for the period thereafter
The Court therefore set aside the said list to the extent it con cerned the period from 161
1959 onwards and directed the Department to prepare a fresh seniority list in the light of the observations made in the judgment
The Court also directed that the seniority list from January 15 1959 should be prepared in accordance with a seniority rule to be framed afresh by the Government
The Court observed that the proceedings will have to be kept pending till such seniority list was prepared and filed before the Court
It is neces sary to state here that the Court had given the said direc tion because it had come to the conclusion that with the upgrading of a large number of posts and the appointments of the promotees made to them the quota rule had collapsed and with that the seniority Rule giving weightage to the promotees had also collapsed
The decision to upgrade 100 posts was taken in January 1959 and the remaining 114 posts in the year 1960
The Court therefore held that the quota rule came to an end on January 16 1959 when sanction to upgrade 100 temporary posts was given by the President and with that went the seniority Rule
In pursuance of the above direction the Government framed the impugned Seniority Rules of 1973 and prepared a fresh seniority list on February 9 1973 giving retrospec tive effect to the said Rules from January 15 1959
The gist of the 1973 Seniority Rules was that the seniority of the direct recruits and promotees appointed on and from January 16 1959 was to be fixed as follows First promotee and then direct recruit and so on
The result of these Rules was that not only the seniority Rule but also the quota of the direct recruits and the promotees was changed from 66 23 and 3313 to 50 and 50 or 1 1
It may be mentioned here that the new seniority list was prepared by fixing the seniority upto 15th January 1959 according to the old Seniority Rules and the seniority from 16th January 1959 on the basis of the new Rules
However 73 of the promotees who were promoted in excess of their quota between 1956 58 could not be accommodated as per the earlier quota rule in the list of seniority prepared upto 15th January 1959 and hence the seniority of the said 73 promotees was fixed according to the new seniority Rules which 1003 applied to the appointments made from 16th January 1959
Both the new Rules and the new Seniority List were filed in this Court as per the earlier direction
The same Shri BS Gupta challenged both the validity of the new Seniority Rules of 1973 and as well as the new Seniority List
This Court by its decision dated 16th April 1974 in Bishan Sarup Gupta etc
vs Union of India  Ors etc
   known as 2nd Gupta case upheld both the Seniority Rules as well as the Seniority List
It further appears that one Kamal Kanti Dutta and others had also filed an independent writ petition challeng ing the Seniority List of February 9 1973
It was dismissed by this Court by its decision dated 23rd April 1980 in Kamal Kanti Dutta  Ors
vs Union of India  Ors  upholding the validity of the said Seniority List
While disposing of the said writ petition this Court made the following observations on which a strong reliance is placed by the present petitioners It shall have been noticed that we have refused to recon sider our decisions not so much because of the view taken in the various cases cited by the learned Solicitor General like Sajjan Singh vs State of Rajasthan   947948 that this Court should not review its decisions too readily as because on merits we see no justification for reconsidering the judgment already rendered by this Court
No fresh facts are brought to our notice by way of discovery of new and important evidence which would justify reconsid eration of the decisions already rendered by this Court after the most careful examination of the competing conten tions
The Report of the Rajya Sabha Committee on petitions shows as already indicated that the relevant files are still not traceable That judgment was by a majority with Justice DA Desai delivering a dissenting judgment
Since the petitioners here are relying also upon some observations made in the dissent ing judgment we may reproduce them here In the light of the materials now placed especially the files which were withheld from the Court and the Committee the only view that I express is that enough compelling and 1004 necessary material has been placed on record making out a strong case for reconsideration of these decisions
 The Committee referred to in the aforesaid observation is the Rajya Sabha Petition Committee
The present petition had also come to be dismissed erroneously along with the Writ Petition of Kamal Kanti Dutta supra
It was restored for hearing on September 9 1980
On July 28 1982 the Parliamentary Committee on Subordinate Legislation published its 12th Report wherein it referred to a letter of February 4 1976 from the Minister of State for Finance
The Committee stated that the Seniori ty Rules of 1973 were unfair and hence they should be scrapped with effect from January 15 1959 and that fresh equitable seniority rules be framed
The Committee recom mended that the artificial distinction between the ITO Group A and Group B should be abolished as they were per forming identical functions and were working on interchange able posts
The Committee also recommended the grant of the same weightage in seniority to the promotees from 15th January 1959 as was available to them before that date
The Committee further recommended an increase in the quota of promotions from Group B to Group A on account of an unprece dented stagnation of Group B service as a direct result of the Seniority Rules of 1973
It does not appear that these recommendations were accepted
We are referring to these recommendations of the Committee because the petitioners have made a reference to them and not because they are legally binding
Thereafter on February 16 1983 the accompanying Writ Petitions viz Nos
546 47 of 1983 were filed chal lenging i the validity of Section 117 of the Income Tax Act 1961 ii the classification of Income Tax Officers in GroUp A and Group B Officers iii the Seniority Rules of 1973 and iv the Seniority List prepared on their basis
The last two reliefs claimed in the said petitions are common to the present petition and hence they will be dis posed of along with the judgment in the present case
The first two reliefs and the reliefs claimed incidental thereto will be dealt with separately
It is further necessary to note that while admitting the accompanying petitions the Court had passed the follow ing order 1005 Subject to the specific condition that the petitioners shall not be permitted to reopen whatever classification was made in the cadre of ITOs in the past as also inter se seniority between direct recruits and promotees which had been upheld by the decisions of this Court in SC Jaising hani BS Gupta and KK Dutta s case rule nisi limited to the question whether the classification of ITOs into Group A and Group B section 117 of the IT Act 1961 is viola tive of Articles 14 and 16 of the Constitution
Even if the issue is answered in affirmative the petitioners will be entitled to the relief if any only prospectively for future implementation of the decisions from the date of the judgment in the Petition
This order will not preclude any contention that can and may be raised in the Writ Petition No 4 14678 HK Sajnani vs UOI  Ors to be examined on merits
On May 3 1983 this Court passed an order in CMP Nos
13200 and 6762 of 1983 in both the present and the accompanying writ petitions as follows In allowing prayer i of CMP No 676283 we direct Writ Petition Nos
546 4783 be heard alongwith Writ Petition No 414678 and that the grounds challenging the validity of seniority rule 1973 as taken in Writ Petition Nos
546 47 83 are allowed to be taken in Writ Petition No 414678 in so far as the prayer iii of CMP is concerned we direct the Government to file a statement in this Court before July 15 1983 as to the result of the examination of the recom mendation of the Committee on Subordinate Legislation and decision and other measures taken by the Government thereon
On February 27 1985 the Court gave direction to the Government in CMP No 1903 of 1983 in the present Writ Petition to allow the petitioners inspection of the files relating to the vacancies
The inspection was completed on October 7 1985 which according to the petitioners shows the following facts i that the relevant record is available and was always available with the Government and that its production was deliberately withheld from this Court ii that the promotions were all within quota and that there was no excess
Rather there was a deficiency in promotions iii that the quota rule was adhered to from year to year right from the year 1951 upto the date of the judgment in the 1st Gupta case supra iv that the quota rule did 1006 not collapse on 1511959 v that as required by the exigencies of the service the quota rule was amendedre laxed in the years 1958 and 1959 vi that in applying the quota rule in pursuance of the man damus the Government did not follow the principles decided by this Court in 1st Gupta case supra and committed the following errors a The Government did not apply the quota to the vacancies existing at a particular point of time
Instead of doing so
it misinterpreted the quota rule of 66 23 and 3313 as if it required that a ratio of 21 had to be maintained in the cadre of Income Tax Officers and as if there had to be one promottee against every 2 direct recruits
This erroneous interpretation was applied in clear breach of the principle laid down by this Court in the 1st Gupta case supra
b Another error committed by the Government in applying the quota rule in violation of the principles decided by this Court in the 1st Gupta Case supra was that the sub stantive vacancies in the temporary posts which were a regular part of the cadre and which eventually became perma nent were not taken into account while applying the quota rule with the result that the promotees were denied their share in such vacancies
The most harmful thing done by the Government was that it did not take into account substantive vacancies in temporary posts till 1963 for applying the quota rule and worked out the excess in promotions ignoring such vacancies
But they started taking into account those very vacancies for direct recruitment from 1963 onwards
If such vacancies were taken into account prior to 1963 and the quota rule was applied to them there would have been no excess in promotions as was erroneously worked out
On the contrary there was a deficiency in promotions because of the incorrect application of the quota rule
c The promotees were not given their full quota even in the permanent vacancies which should have bee given to them inrespective of whether the direct recruitment was made in full
There was under utilisation of quota of direct re cruits with the result that the promotees were denied their legitimate share even in permanent vacancies
In these circumstances the actual appointments were taken as vacan cies and were bound to result inevitably into excess of promotions
On the basis of these facts which according to the petition 1007 ers were revealed in their inspection their case is that their allegation that the relevant files were available and yet were not produced before the Court and the further allegation that there were no excess promotions were borne out
This shows that the direction given in the 1st Gupta case supra to frame new rules and hence the new Seniori ty Rules of 1973 framed pursuant to these directions were unwarranted unjust and illegal
The petitioners further contend that the principle that the vacancies mean those the Government wants to fill is not compatible with the principle laid down in the 1st Gupta case supra that the promotees should get their share of the quota irrespective of whether the direct recruits  quota is filled or not
But in the present case the con trary has happened viz the promotees  quota is calculated on the basis of the appointments of the direct recruits causing thereby injustice to the promotees by depriving so many of them of their chances of promotion which were other wise available
It is also the contention of the petitioners that in fact there were vacancies and the Government wanted to fill those vacancies
This is evidenced by the fact that when new posts were created for the purpose of assessment work the direct recruits were not available and hence the promotions were made from Group B to Group A and even Group B Officers were appointed against Group A posts and they performed identical functions as of Group A Officers
This contention has also a bearing on the issue involved in Writ Petitions Nos
546 47 of 1983 and we will deal with it in that con text later
While these petitions were pending the Government on January 24 1988 amended the Income Tax Act 1961 with effect from April 1 1988 and among other things changed the designation of Income Tax Officers and Assistant Commis sioners as follows Pre Amendment Post Amendment a Income Tax Officers Income Tax Officers Group B b Income Tax Officers Assistant Commissioners Group A c Assistant Commisioners Deputy Commissioner
The amendment also substituted Sections 116 117 118 and 120 with 1008 effect from the same date ie April 1 1978 and autho rised the Central Board of Direct Taxes to issue notifica tions authorising Chief Commissioners and Commissioners of Income Tax to classify the work of newly designated Income Tax Officers and Assistant Commissioners and to provide for the jurisdiction of the Income Tax Officers and Assistant Commissioners on the basis of quantum of income
According to the petitioners this was done to destroy the cause of action Writ Petition Nos
546 47 of 1983
On May 12 1988 the Government framed New Rules of Recruitment among other things providing for quota of 50 each to the promotees and direct recruits
In consequence an application for amendment of Writ Petitions Nos
546 47 of 1983 was filed raising additional grounds
It will thus be apparent that the whole foundation of the case of the petitioner promotees in the present petition is that the Seniority Rules of 1973 were made by the Government pursuant to the direction of this Court in the 1st Gupta case supra on August 16 1972 and that direction was given by this Court because on the basis of the material produced by the Government this Court had come to the conclusion that the promotees were promoted in excess of their quota
According to them however the new material which they have discovered shows that in fact there were not only no excess promotees but in fact there was a shortfall in their promotions as per their entitlement in the quota
Both on behalf of the Government as well as the respondent Union of India and the direct recruits it is pointed out to us that the so called new material produced on behalf of the petitioner promotees far from proving their allegation supports the conclusion to which this Court had arrived at in the 1st Gupta case supra
In this connec tion it is pointed out that admittedly there were at the relevant time Class I and Class II posts of Income Tax Offi cers corresponding to Group A and Group B posts
Class I or Group A consisted of Grade I and Grade II Officers whereas Class II or Group B consisted of Grade II Officers
Group B Officers were entitled to be promoted first to Group A Grade II posts
Hence the vacancies available for promotion to the promotees which ought to be taken into consideration at any point of time are the vacancies in Grade II posts of Class I or Group A
However it is obvious from page 32 of Volume II of their petition that the petitioner promotees have taken into consideration vacancies not only in Grade II posts but also in Grade I posts to show 1009 that in fact not only they were not promoted in excess but their promotions were short of the vacancies which were available to them in their quota
We may reproduce herein below the relevant table of the sanctioned strength the vacancies the quota for promotees the actual number of promotions made and their deficit or excess in the quota since 1951 to 1958 as calculated by the petitioners on the said page 32
According to the petitioners the figures in the table are taken from the newly discovered files VACANCY POSITION FROM 1951 1958 Year Total Working Total Quota Actual Def Sanctioned Strength Vacancies of pro No of icit Strength Gr
II motions promo   tions
or Grade I Grade II Exc ess 1951 216200  416 77  98  175 241 80 1952 224221  445 83 113  196 249 83 49   34 1953 224221  445 130 129  259 186 62 38   24 1954 224221  445 169 157  326 119 40 31   9 1955 224221  445 154 217  371 74 25 24   1 1956 224221  445 187 214  401 44 15 25  10 1957 287248  535 224 184  408 127 42 26   16 1958 290248  538 213 202  415 123 41 28   13 97 1087 Net Deficiency 23
It is clear from the above table that the petition er promotees have calculated the posts in the sanctioned strength not only in Grade II posts but also in Grade I posts
When the posts available to them for promotion were only in Grade II
Hence their further calculations of the working strength the vacancies and the quota available to them in the vacancies and of the deficiencies or the excess in the quota are erroneous
On behalf of the Government the following calculations have been made for the relevant period from 1951 to 1958 on the basis of the actual vacan cies in the sanctioned strength of Grade II posts of Group A Class I
These calculations show that in fact during the said period the promotees were promoted to Grade II posts of Group A Class T in excess to the extent of 93
There fore the deficiency of 97 which they have shown in their appointments during the said period is obviously wrong
The said table first handed over to us by Shri Govind 1010 Das Counsel for the Government is prepared on the basis of the very same figures on page 32 of the Writ Petition
It now forms an annexure to the additional affidavit dated 23rd January 1990 filed by one Ravi Kumar Under Secretary Department of Revenue Ministry of Finance
The table is as follows Year Sanctioned Working Vacancies Quota Actual Excess Grade II Strength of pro promo Class I Gr
IICl
I motion tion as 33 stated at 32
1951 200 98 102 34 1952 221 113 108 36 49 13 1953 221 129 92 31 38 7 1954 221 157 64 21 31 10 1955 221 217 4 1 24 23 1956 221 214 7 2 25 23 1957 248 184 64 22 26 4 1958 248 202 46 15 28 13 93 24
The figures shown in the above table are self explanatory
Confronted with these figures the petitioners came out with another 
chart the relevant extract of which is as follows Total Vacancies Direct Recruits Promotees Year Sanc Work Va Quo Actu Excess Quota Act Exce tion ing can ta als Shortage tual ss ed Stren cies pro Shor in Gr
in Gr
in Gr
motio tage II II II ns 1 2 3 4 5 6 7 8 9 10 1952 221 113 108 72 33  39 36 49  13 1953 221 129 92 61 28  33 31 38  7 1954 221 157 64 43 52  9 21 31  10 1955 221 217 4 3 53 50 1 24  23 1956 221 214 7 5 48 43 2 25  23 1957 248 184 64 43 27  16 21 26  5 1958 248 202 46 31 99 68 15 28  13 385 258 340  82 127 221  94 1011 By producing this chart the attempt of the petitioners is to show that the direct recruits were appointed in excess of their quota to the extent of 82 during the relevant period
The interesting feature of this chart however is that the petitioners admit that they were also appointed in excess of their quota during the period to the extent of 94 as against 93 shown in the chart prepared on behalf of the respondent Union of India the difference of one being on account of the calculation of the excess as 5 for the year 1957 as against 4 calculated by the respondents for the same year
On the basis of this chart it is contended that in view of the fact that both direct recruits and promotees were ap pointed in excess of their quota it could not be said that the quota had broken down
In the first instance the chart prepared by the petitioners themselves shows that the conclusion which was arrived at by this Court in the 1st Gupta case that the promotees were appointed in excess of their quota is cor rect and demolishes the very foundation of their case in the present petition namely that the newly discovered material shows that not only they were not appointed in excess of their quota but were in fact short of it
Second ly assuming that their figures of the appointment of direct recruits during the relevant period are correct since so far it was never their contention that the direct recruits were appointed in excess of their quota and therefore the respondents had no opportunity to meet it that only strengthens the conclusion of this Court in the 1st Gupta case that the quota rule had broken down
The quota rule does not collapse only when the appointments from one source alone are disproportionately deficient or in excess
It was then contended on behalf of the petitioners that the Government s method of working out the vacancies was wrong
It is not necessary for us to go into this alle gation and to find out the correct way of working out the vacancies
This is so because firstly the petitioners have come to this Court by the present petition on the basis of the vacancies worked out by the Government but which vacan cies according to the petitioners were suppressed
Second ly their own chart shows that the vacancies were worked out by the Government by deducting the annual working strength from the sanctioned strength every year
The quota of the promotees shown by the petitioners in their chart is further on the basis of the vacancies so arrived at and is not on the basis of the appointment of the direct recruits as is alleged by them which allegation is the basis of their other contention in the petition
Thirdly it is to be remembered that in the present petition it 1012 is the petitioners  contentions that the new figures of the deficiencies in the promotions have been worked out by the petitioners on the basis of the notings made in the missing files which were not available at the time this Court decid ed the 1st Gupta case supra
Hence even assuming that these notings have an intrinsic evidentiary value to prove the annual vacancies available on the relevant dates the petitioners  contentions stand disproved even on the basis of the said notings
Lastly and this according to us is an equally damaging fact as far as the petitioners  present case is concerned the figures of the sanctioned strength and the vacancies which are worked out by this Court in the 1st Gupta case supra are almost identical with the figures shown by the petitioners themselves in their new chart with only a negligible difference at some points
This fact strikes at the very root of the present petition because the only ground on which the petitioners have approached this Court by way of this petition is that the figures of the annual vacancies were suppressed by the respondents from this Court and it is this suppression which had led this Court to come to the conclusion that the promotees were in excess of their quota and to give a direction to frame the new Seniority Rule and to prepare the fresh Seniority List
The so called new material on the other hand proves that the directions given in the 1st Gupta case supra were based on proper calculations and were justified
It is also not correct to say that this Court had given the direction in question only because there was an absence of material to show the annual vacancies in a year
This is clear from the following passage in the decision in the 1st Gupta case supra at pp 501 502 In the absence of any material which gives us the actual vacancies in a year we think that in order to imple ment the mandamus as far as it can possibly be done it would be reasonable to accept the figures of appointments in those years as substantially representing the actual vacan cies
There is  also a subsidiary reason 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
It is the prerogative of the Government reflected further in Rule 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 Govern ment is not bound to fill all those vacancies
It may fill only 90 of them and nobody can insist that the Government shall fill up all the vacancies
Therefore when 1013 the quota rule refers to vacancies it is implicit in the rule that the vacancies are vacancies which the Government wants to fill whatever may be the actual number of vacan cies
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 the year 1953 53 posts were filled by direct recruits and 38 by promotees the total vacancies sought to be filled would be 91 in which case the promotees would be entitled to 30 vacancies
That 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 1 in CA No 2060n 1971
In our opinion the procedure adopted by the depart ment in determining the excess number of promotees appointed in the several years is substantially correct
Annexure N  begins with the year 1953
It should begin with the year 1952 and not 1953
Indeed the 5 year period starts from 1951 and ends with 1956 but since there was no promotion in 1951 the question of excess in that year does not arise
For the purposes of the mandamus the seniority list will have to be resettled from the year 1952 showing not merely the excess from the years 1953 to 1956 but from 1952 to 1956
At the end of 1956 the progressive total of the excess over the quota will be known and this excess as already pointed out is liable to be absorbed in the quota of the years succeed ing 1956 Emphasis supplied This is apart from the fact that as we have shown earli er in fact the actual vacancies worked out by the Court approximated the actual appointments
And in any case the quota for the promotees worked out on the basis of the said vacancies and the calculation of the excess of promotions on the basis of the said quota was very nearly correct and the so called new material would not have made any difference to the conclusion which was arrived at in that case
The other contention of the petitioners namely that while calculating the vacancies the Government had calculated only the permanent posts and not the temporary posts has also no substance in it
It is not suggested that the figures of the sanctioned and the working 1014 strength of and the vacancies in Grade II posts of Group A Class I shown by the petitioners on page 32 of their petition or in the new chart do not include temporary posts
What is more in fact in the 1st Gupta case supra one of the contentions of the direct recruits was that the quota rule should relate to vacancies only in permanent posts and not temporary posts
That contention was not accepted in that case either by the promotees or the Government
The court also pointed out in that case that there was nothing in the Rules of 1945 or the quota Rule of 1951 which said that the vacancies must be vacancies in permanent posts
The Court observed that indeed the whole cadre had consisted of permanent and temporary posts for years and there was a difference between permanent vacancies in permanent and temporary posts on the one hand and the permanent and tempo rary posts on the other
It was also pointed out that a11 the direct recruits from 1948 onwards were initially ap pointed against temporary posts
The Court had therefore rejected in that case the direct recruits  contention that the vacancies referred to in the quota Rule were vacancies only in the permanent posts
This shows that the Government had always counted the vacancies both in the permanent and the temporary posts and the promotees had accepted this as a fact then
There is no material placed before us to show that this was not so then
On the contrary whatever materi al the petitioners have annexed to their petition and to which our attention was invited shows that in fact the Government had always calculated the vacancies on the basis of the sanctioned strength of both the permanent and tempo rary posts
We may refer only to two Annexures in this connection
The extract from File No 202256Ad
VI which is Annexure 7 on page 125 of the petition shows that as on 1st July 1956 the total sanctioned strength of Grade II posts of ITO Class I were calculated as 248 consisting of 207 permanent and 41 temporary posts
So also the nothing from File No 22458Ad
VI which are Annexure 11 on page 155 of the petition mention the actual strength of Grade II posts of ITO Class I as 248 which consists of 207 perma nent and 41 temporary posts
Both the charts produced by the petitioners which we have discussed earlier show the sanc tioned strength of the said cadre for the years 1957 and 1958 each as 248
The vacancies and the quota of the direct recruits and promotees have also been worked out by the petitioners on the basis of this strength in both the said charts
This material therefore belies the petitioners  contention that the Government had not taken into considera tion the temporary posts for working out the vacancies during the relevant period
In his affidavit dated January 31 1967 filed in Jaisinghani case 1015 supra Shri RC Dutta the then Finance Secretary had further clearly stated that the vacancies were calculated with reference to the following information i addition to cadre strength temporary or permanent as the case may be and ii vacancies arising during a particular period as a result of death retirement promotion resignation removal etc
of the officers in particular posts
This has been the stand of the respondent Union of India from the beginning and beyond making a bare allegation to the contrary the petitioners have not placed any material in support of their said contention
The Chart produced by them on the contrary proceeds on the footing that the vacancies in both the temporary and the permanent posts had to be calculated
Much has also been made of the fact that the Parlia mentary Committee on Subordinate Legislation had as pointed out above recommended the reconsideration of the Seniority Rules and the Seniority List of 1973 as allegedly they had done injustice to the promotees
Apart from the fact that the said recommendations have not legally binding effect they were also not accepted by the Government
In his letter of October 31 1976 addressed to the Chairman of the Commit tee on Subordinate Legislation the then Minister of Finance had stated as follows I have gone through the Eighth Report of the Committee on Subordinate Legislation submitted to the Lok Sabha on 7th May 1986
I am afraid however there is hardly any scope for the Government to take any significant action in the matter as the alleged grievances of the promotee officers of the Income tax Department are unreal and imaginary
In the past the prospects position and power enjoyed by the promotees happened to be better only because of a systematic and persistent violation of Rules
The said violation of Rules itself led to prolonged litigation which repeatedly went upto the Supreme Court
It was finally laid to rest in BS Gupta s case when the Supreme Court approved the Seniority Rules 1973 and Seniority List
These Rules and the Seniori ty List were prepared in accordance with the Supreme Court s own directive and were approved by it after giving ample opportunities to both the sides to present their case
These Rules were declared by the Supreme Court to be just and fair 
It is significant that 1016 the promotees themselves admittedly could not propose a better alternative
The Seniority Rules therefore call for no change
As for quota originally the promotees were given only 20 of the Group A  vacancies
Unfilled vacancies were to be carned over as part of direct recruitment quota for the subsequent year
The intention obviously was to maintain certain standard of quality in the personnel sanctioned to the service
Between 1951 to 1958 the quota was raised to 13rd in favour of the promotees
In 1973 the promotion quota was raised to 30 which is the highest in any service under the Central Government
The question of weightage is inextricably linked with that of quota
The weightage allowed to the promotees earli er was in view of the low quota of 20 or 33 12 available to them at that time
When the Rules were revised and thee quota of promotees was enhanced to 50 the weightage given in the matter of promotion was simultaneousIy withdrawn
The Supreme Court itself upheld its abolition and observed that the promotees could not after obtaining the benefit of a higher percentage of recruitment to Class I service legiti mately object to the abolition of weightage enjoyed formerly in the matter of seniority
 The letter is annexed to the additional Affidavit of Ravi Kumar supra
It will thus be seen that even the Government had inde pendently come to the conclusion as early as in 1986 that neither the Rules of Seniority nor the Seniority List of 1973 had done injustice to the promotees
In fact the Rules of 1973 had raised the quota of the promotees from 33 13 to 50
The seniority of the promotees was adjusted upto 15th January 1959 on the basis of the earlier quota Rule and the seniority of those who were appointed later and of those who were found in excess of their quota upto that date were adjusted according to the new Rules
Two other contentions advanced on behalf of the petitioners on the basis of the alleged new material were that firstly while calculating the vacancies in the post of Grade II Officers in Group A the vacancies in all the posts above the said post were not taken into 1017 account and secondly the number of vacancies should not have been equated with the number of posts the Government filled but should have been calculated on the basis of their actual existence
According to the petitioners if both these factors had been taken into consideration at the time of the decision in the 1st Gupta case supra the Court would not have found promotees in excess of their quota
To some extent these contentions are interlinked
The first contention proceeds firstly on the basis that the notings in the relevant files made by the Officer con cerned have an intrinsic evidentiary value to prove the actual vacancies in the different categories and secondly presumes that the number of vacancies as calculated in Grade II posts of Group A there did not already reflect the vacancies in the higher posts
In the absence of sufficient material before us it is not possible to accept such pre sumption
The second contention need not even be considered in the present case for as has been pointed out earlier the actual vacancies approximated the appointments made during the relevant period
Hence whether the quota was calculated on the basis of the actual vacancies or on the basis of the appointments made it would have made no difference to the conclusion that this Court had arrived at in the 1st Gupta case supra that the promotions were in excess of the quota
What is more even this argument has been answered by this Court in that case as shown above and we see no reason to differ from the view taken there on the point
There appears to be an obvious confusion on the part of the peti tioners with regard to what this Court has stated in the earlier part of the judgment in the 1st Gupta case supra
Read with the passage which we have quoted from the said judgment what this Court wanted to convey in the earlier part of the judgment was that when the Government decides to fill in the vacancies it is not necessary to defer the appointments from one source pending the appointments from the other source
But that is when the Government decides to fill in the vacancies and not before it
In the result we find no substance in the petition and dismiss the same
The Rule stands discharged
In the circumstances however there will be no order as to costs
WRIT PETITION NOS
546 47 OF 1983
As stated earlier while narrating the facts of the earlier petition these petitions are filed by two Income Tax Officers for them 1018 selves and as the representatives of the All India Federa tion of Income Tax Gazetted Service Association
The Federa tion represents all the Group B ITOs and all ITOs in Group A Assistant Commissioners and Commissioners promoted from Group B Among the parties to the petitions is respondent No 4 the Indian Revenue Service Association representing directly recruited Group A Officers and Assistant Commis sioners and Commissioners promoted from directy recruited Group A ITOs
The main grievance of the petitioners is that the classification of ITOs into two classes namely Group A and Group B is discriminatory and violative of Articles 14 and 16 of the Constitution because a the classification is not made on an intelligible differentia and b the differentia has no relationship to the object sought to be achieved by the Income Tax Act 1961 inasmuch as the Officers belonging to the two Groups do identical work and perform identical functions
It is also the contention of the petitioners that their work and posts are interchangeable and in practice they form one cadre
By maintaining the differentiation allege the petitioners the Government in effect is denying equal opportunity equal pay and equal status to Officers doing identical work and performing identical functions
To attack the classification the petitioners had also chal lenged the constitutional validity of Section 117 of the Income Tax Act 1961 before its amendment by the Direct Tax Laws Amendment Act 1987
After the amendment of the said section by the amending Act of 1987 they have amended their petition and have challenged not only the amended provision of the said section but also the amendment made to Section 116 118 and 120 and the Recruitment Rules of 1988 and the notifications circulars and orders issued pursuant thereto
The attack against the amended sections and the Rules of 1988 notifications etc
is on the ground that they are violative of Articles 14 and 16 of the Constitution
In addition they have also challenged the amended provisions on the ground that they are mala fide and are enacted to destroy the cause of action in their petition
In this context they have also attacked the Seniority Rules and Seniority List of 1973
In support of their contention that the amended provisions of the Act are mala fide they contend that by amending the Act the Government took the power to itself to frame the new Recruitment Rules of 1988 and to issue the relevant notifications circulars and orders whereby the classification of the Income Tax Officers in Class I and Class II could be justified
In this connection it is pointed out that it is by virtue of these new powers that the Government for the first 1019 time got an authority to demarcate the jurisdiction of the powers of Class A and Class B ITOs and thus to justify the said classification
In the absence of the amendment and the Rules Notifications Circulars and Orders issued pursuant thereto the said classification was unjustifiable in law and was liable to be struck down
It is therefore also contended that the said classification assuming it is justi fied can only act prospectively from 1st April 1988 from which date it is brought into operation and would not justify the classification of Officers prior to the said date and hence those Officers who belonged to Group B on the day prior to the coming into operation of the amended provisions should be treated as belonging to Group A 35
We are not impressed by this contention
In the first instance the presumption underlying this contention is that the provisions of the Act prior to its amendment by the amending Act of 1987 did not permit such classification which presumption is patently incorrect
While the provi sions of sub section 1 of Section 117 prior to its amend ment gave power to the Central Government to appoint among others the Income Tax Officers of Class I service the provisions of sub section 2 thereof vested power in the Commissioner to appoint as many ITOs of Class II service as might be sanctioned by the Central Government
It was however contended that in spite of these clear provisions of sub sections 1 and 2 of the unamended Section 117 they had to be read down to deny the power to appoint ITOs of Class II or Group B
This was so because according to the petitioners the provisions of Sections 116 118 and 124 as they stood then only referred to Income Tax Officers as one class and did not make a distinction between them as Class I and Class II Officers
In the first instance it is an elementary rule of the interpretation of Statutes that no provision of a statute should be read as redundant
No reason is ascribed by the petitioners to ignore the specific provisions of Section 1171 and 2 except that the two classes of officers mentioned therein were not referred to in the other provisions of the Act
Secondly when the legislature had made a special provision for the two classes vesting in two different authorities the power to appoint them it must be presumed that the legislature had a defi nite objective in view
While making the provision for Class II ITOs the legislature seemed to be aware of the fact that there may be different categories of assessees and assessments requiring different standards of equipment skill and talent to deal with them and it was therefore necessary to invest the Central Government with the power to appoint and to sanction the appointment of the different classes of officers to meet the requirement
This power vested by the legislature to appoint different classes 1020 of officers carried with it also the power to demarcate the duties functions and responsibilities of the two
Whether in fact there is such a division of powers functions and responsibilities or not has nothing to do with the validity of the power to make the classification
If in spite of such classification the different classes in fact exercised the same powers and performed the same duties and functions it may invite abolition of the classification
But it cannot invalidate the power to classify
Hence we are not im pressed by the contention that the legislature had no power to classify the Income Tax Officers into two classes under the unamended provisions of the Act
If therefore the legislature had itself classified the Officers into two grades or categories and given the power to the Government to appoint andor to sanction their appointments as the case may be under the unamended provi sions of the Act it can hardy be argued that the amending Act was passed mala fide to destroy the cause of action in the present petitions
This is apart from the fact that no legislation can be challenged on the ground that it is mala fide
Hence the challenge to the amended provisions of the Act and the Rules notifications circulars and orders issued pursuant to it must fail
1t is not further suggest ed that the Rules notifications circulars orders etc
are ultra vires the Act
There is therefore no merit in this attack
Coming now to the second contention which is the main foundation of the present petitions namely that the Officers of the two classes in fact perform the same func tions and duties and exercise the same powers and have the same jurisdiction and therefore there is no justification for the said classification it is first necessary to exam ine the facts relied upon by the petitioners in support of this contention
According to the petitioners the Officers of the two classes were always performing the same duties and function and exercising the same power and jurisdic tion
Their posts were also interchangeable
In fact many of the Officers belonging to Group B functioned as Officers belonging to Group A Even after the amendment which has demarcated the jurisdiction of the two classes on the basis of income the basic function of making the assessment remain the same and there is no change in the nature of job performed by them
It is also submitted that once a case comes under the jurisdiction of an Income Tax Officer the Officer continues to exercise his jurisdiction over the said case even if in subsequent years the same assesee files a return of higher income
Hence the very classification of Officers based on the return of income is totally arbitrary and violative of the petitioners  fundamental rights under Articles 14 and 16 of the Constitution
It is 1021 further pointed out that in fact the number of regular promotions from Group B to Group A during the period 1973 to 1982 were only 585 as against the ad hoc promotions of 1197 during the same period
Similarly during the period 1982 to 1985 the number of regular promotions were 262 as against the further ad hoc promotions of 200 during the same period
This shows that the Income Tax Officers of Group B were doing the work of Officers belonging to Group A in a large number though on an ad hoc basis
This further shows that although there was a need for regular promotion of the Officers from Group B to Group A the Government was using Group B Officers in a large number to perform the duties of Group A Officers without giving them regular promotion and was thus maintaining an artificial distinction between the two groups without justification
As has been stated in the affidavit filed on behalf of respondents 1  2 although both Group A and Group B Officers have equal powers the ITOs of Group A are general ly placed in charge of important wards and cases carrying higher responsibilities whereas the Officers belonging to Group B are normally entrusted with less important wards and cases
A large majority of them have to deal with summary assessments only
It is further pointed out that under the Act prior to its amendment of 1987 the power to appoint the Officers belonging to Group A ie Class I was vested in the Central Government while the power to appoint Offi cers belonging to Group B ie Class II was vested in the Commissioner of Income Tax
The same distinction in the appointing authorities continues even after the amendment
The Assistant Commissioner ie the former ITOs of Group A are appointed by the Central Government whereas the power to appoint Income Tax Officers ie the former Group B Offi cers can be vested by the Central Government in the Board or a Director General or a Chief Commissioner or a Director or Commissioner
The respondents further deny that there was ever an interchangeability of the two posts and contend that they always remained separate
They point out that in fact the post of Group A Officers has two grades ie Grade I and Grade II
Grade II post of Group A has always been a promotional post for Group B Officers
Their scales of pay have also been different and have been fixed keeping in view the distinction between the two Groups which belong to two different cadres
This Court had in fact in KM Bakshi vs Union of India AIR 1962 SC 1139 gone into the matter pertaining the distinction between the two Groups of Officers and had upheld the said classification
There is further no dispute that the posts of Income Tax 1022 Officer Group A junior scale or Grade II are filled 50 by direct recruitment through the Civil Service Examination held by the Union Public Service Commission and 50 by promotion on the basis of selection by the Departmental Promotion Committee from Income Tax Officers Group B who have rendered not less than 5 years  service in that post
The appointments to the posts of Income Tax Officers Group B are made 100 by promotion from Income Tax Inspectors who belong to Grade C or Class I11 service
The appointment to the posts of Income Tax Inspectors are made 33 13 by direct recruitment and 66 23 by promotion from the lower group of Class C service
The result has been that the present strength of about 2500 ITOs of Group B consists of all but 185 promotees who were recruited ad hoc only in one year ie in 1969 from the lower GroupC posts
What is more as pointed out above the Income Tax Officers Group B and Income Tax Officers Group A junior scale belong to two different cadres and not to the same cadre of Income Tax Officer
Hence those who joined the lower Group C service cannot claim equality in conditions of service with Group A Officers who are either recruited directly on the basis of the Civil Services Examination or are promoted from Group B on the basis of seniority cum merit
It is also pointed out on behalf of the respondents that after changing the designation of the Income Tax Au thorities and designating the former ITOs of Group A and Group B as Assistant Commissioners and ITOs respectively their jurisdictions have been regulated
The basic principle followed in demarcating the jurisdiction of the two classes of Officers is the quantum of the return of incomeloss as on 1st April of the Financial Year
If the return of incomeloss is of Rs5 lakhs and above it goes to the Deputy Commissioner if of Rs2 lakhs and above but below Rs5 lakhs it goes to the Assistant Commissioner ie the former Group A Officers and if it is below Rs2 lakhs it goes to the Income Tax Officers the former Group B Offi cers
It is also pointed out that the Government has since issued a notification on March 30 1988 making the Income Tax Officers and Tax Recovery Officers subordinate to the Assistant Director or Assistant Commissioner
Further whereas Assistant Commissioners of Income Tax former ITOs of Group A are now empowered to writ off a sum upto Rs 1000 if they are convinced that the amount is irrecovera ble in similar circumstances the ITOs ie former Offi cers belonging to Group B are empowered to writ off an amount upto Rs500 only
When the assessment is made under sub section 3 of Section 143 or Section 147 for the rele vant assessment year the power to issue notice under Sec tion 148 is vested only in an Assessing Officer of the rank of 1023 Assistant Commissioner or Deputy Commissioner
Section 2742 of the Act prescribes monetary limits regarding the powers of the Income Tax Officer and Assistant Commissioner for imposing penalty
That provision shows that Income Tax Officer ie the former Group B Officer has authority to impose penalty upto Rs 10000 whereas the Assistant Com missioner former Group A Officer has the authority to impose penalty upto Rs20000 without the prior approval of the Deputy Commissioner
The material placed on record by the respondents thus shows that the distinction between Group A and Group B Officers has been in existence from the very beginning
The distinction has been maintained statutorily with distinct powers and jurisdiction hierarchical position and eligibil ity qualifications
The sources of their appointment and the authorities vested with the power to appoint them have also been different
The distinction between the two further has been made on the basis of the class of work and the respon sibility entrusted to each
The work which is of more than a routine nature and which involves a detailed investigation either on account of the class of the assessees or of the complexities of the returns filed is entrusted to the Officers belonging to Group A now Assistant Commissioners while the assessment work of a summary or routine nature or of the assessees filing routine returns or returns involving simple transactions is entrusted to Officers belonging to Group B now ITOs
Although therefore apparently the outfit of the function and its procedural part is the same in practice the assessments differ from assessees to asses sees summoning different degrees of knowledge application of mind resourcefulness acumen and taken to scrutinize them
Hence merely because sometimes on account of the exigencies of work the Officers belonging to Group B were entrusted with the work of the Officers of Group A it cannot be claimed that the two posts are of an equal rank
The handling of the higher category of work may entitle an Officer of the lower rank to emoluments of the higher post
But that cannot obliterate the distinction between the two posts
To accept the plea of the petitioners to equate the two posts or to merge them on that account is to negate the whole statutory scheme and also to ignore the fact that the Group B post ie the present post of the ITO is an intermediate post between that of the Income Tax Inspector and the Group A post ie the present post of Assistant Commissioner which is a promotional post for Officers belonging to Group B
The Group A post is further a selec tion post and the promotee has to satisfy certain qualifica tions to be eligible for being considered for the said post
The two posts therefore always belonged to 1024 two different cadres carrying different scales of pay and other service conditions
Thus this is not a case of the two posts being equal in status or of belonging to the same class
The distinction between the two is ordained by the Statute and is necessary for its proper implementation
By the very nature of the operation involved the administra tion has to have the power to classify the work and to appoint personnel with different skill and talent to execute the different types of work
The legislature being mindful of this need has deliberately created the two classes of officers as is evident from the provisions of Section 117 even prior to its present amendment
Even after the amend ment the said distinction has been maintained
The fact that this distinction has all along been real and not nominal is clear from the difference in the power and jurisdiction statutorily vested in the two classes of Officers
Hence the intention of the legislature to have the two classes of Officers to discharge different types of work is manifest and in practice the distinction has always been maintained
It is only when the exigencies of the work required that some officers belonging to Group B were promoted on ad hoc basis to the posts of Group A officers
Such exigencies occur in every organisation and to cope up with them the authorities have to improvise
That however cannot equate the two unequal posts
The very same argument for equating these two class es of Officers was advanced in KM Bakshi vs Union of India supra
It was pointed out by this Court in that case that the Income Tax services were reconstituted by an order of the Government of India dated September 29 1944 and later on in 1953 Section 5 of the Income Tax Act was amended to give effect to this reconstitution
One of the features of the reconstitution was that in place of one class of Income Tax Officers two classes came into exist ence namely Class I and Class II ITOs
Class I Officers were eligible to be promoted to the higher post of Commis sioners and Assistant Commissioners and Class II Officers could obtain such promotion only after having first reached the status of Class I Officers
A percentage of the vacan cies in the posts of Class I Officers was to be filled by promotion of Class II Officers and the rest by direct recruitment
It was also pointed out that Class I post being a promotional post for Class II Officers the two posts were not equal
Dealing with the argument of equal pay for equal work the Court pointed out that if that argument were to be accepted literally even the incremental scales of pay fixed dependent upon the duration of an Officer s service could not be justified
It appears that in that case the Court was called upon to deal with a bland assertion that the two posts were equal and it was not contended that 1025 the duties and functions discharged by them were equal in nature and hence the Court had no occasion to deal with the said contention
We have already pointed out above that there is a difference in the nature scope and responsibili ty of the duties entrusted to the two Officers justifying the differentiation
This is apart from the fact that the matter has now been set at rest by the Rules notifications circulars and orders which have been issued demarcating clearly the functions and jurisdiction of the two
As has been held in Federation of All India Customs and Central Excise Stenographers Recognised  Ors
vs Union of lndia  Ors
  the differentiation in two classes can be justified on the basis of the nature and the type of the work done  
The same amount of physical work may entail different quality of work some more sensitive some requiring more tact some less it varies from nature and culture of employment
The problem about equal pay cannot always be translated into a mathemat ical formula
If it has a rational nexus with the object sought for   a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scales has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or in fact
The Court there found that in the light of the averments made and the facts point ed out it was not possible to say that the differentiation there was based on no rational nexus with the object sought to be achieved
The Court noted that the differentiation was justified on the dissimilarity of the responsibility confi dentiality and the relationship with public etc
though there was similarity in the functional work
The court further observed there that often the difference in the functions and the responsibilities is a matter of degree and the administration is required to make a value judgment while classifying the posts and fixing the different condi tions of service for them
So long as the value judgment is made bona fide it is not questionable
The same view has been reiterated by this Court in V Markendeya  Ors
vs State of Andhra Pradesh  Ors
  44
At the cost of repetition we may state that in the present case the distinction between the two posts is made by the statute itself and that distinction has been in existence since long
The appointing authorities of the two posts are different
In fact the Group A post the present post of the Assistant Commissioner had two grades viz Grade I and Grade II and Grade II post was a promotional post for 1026 officers belonging to Group B the present ITO
The nature of work entrusted to the two classes of posts the responsi bility which goes with it and the power and jurisdiction vested in them vary
The mere fact that some Group B offi cers are capable of performing the work of Group A officers and in fact on some occasions in the past they were appoint ed ad hoc or otherwise to discharge the work of Group A officers cannot equate the two posts
Such a demand to say the least is irrational for if this contention is accepted in no organisation the hierarchy of posts can be justified
After the 1987 Amendment further the situation has changed and the duties functions jurisdiction and power of the officers have been rationalised clearly demarcating the spheres of work of the two
In an organisation of this kind with contrywide offices dealing with various categories of assessees and incomes some dislocation functional overlap ping and want of uniformity in the assignment of work during some period is not unexpected and it does appear that during some period the situation in the Department was out of joint
That is why steps were taken to straighten it out by amending the Act and making the rules and issuing the relevant notifications
circulars and orders
If during this period on account of the exigencies of service some ad hoe appointments of Group B officers were made to Group A posts Grade II or Group B officers were required to perform the same functions and discharge the same duties as Group A officers they can at best claim the emoluments of Group A officers but certainly not the equalisation of the two posts on that account
Since the alleged equality of posts was the founda tion of the other contentions raised in the petitions the said contentions must also fail and need not be dealt with separately
The contentions which are common to the earlier petition have already been dealt with
In the circumstances we find no substance in these petitions
The petitions are therefore dismissed and the rule granted in each is discharged with no order as to costs
Before parting with these petitions we cannot help observing that although the issues raised in a11 these petitions were set at rest by this Court conclusively earli er the petitioners thought it necessary to tax the precious time of the Court by approaching it once again on grounds which were least justified
We hope and trust that this decision puts a final lid on the alleged grievances of the petitioners and no new pretexts are found hereafter to take up the same contentions under other garbs
YLaI Petitions dismissed


Summary:
The petitioner company had obtained three mining leases from the Government of Assam to extract sillimanite in the Khasi and Jaintia Hills District for a period of 15 years
Negotiations between the Union of India and the peti tioner for having the mining leases transferred to the public sector companies Hindustan Steel Ltd and Bokaro Steel Ltd having failed the Government of Meghalaya on the request of the Central Government passed an order dated 7th December 1972 prematurely terminating the mining leases in terms of section 4 A1 of the Mines and Minerals Regu lation  Development Act 1957 as amended by the Mines  Minerals Regulation and Development Amendment Act 1972
Thereupon the petitioner company filed the present petition under Article 32 of the Constitution
On behalf of the petitioner it was inter alia contended that since no notice had been issued by the State Government before terminating the leases prematurely it amounted to denial of natural justice thus vitiating the order of termi nation
State of Haryana vs Ram Kishan  Ors 1988 3 SCC 416 relied upon
It was further submitted that having regard to the comparatively long periods of leases and the lapse of time the petitioner would not pray for being put back in posses sion of the leased premises but would be content with an award for compensation for wrongful premature termination to be determined by any arbitrator appointed by the Court
On behalf of the respondents it was submitted that the decision of 984 this Court in Ram Kishan s case was distinguishable that the rules of natural justice could be statutorily excluded either expressly or by necessary implication that grant of an opportunity to the lessee would be totally meaningless and futile that the object and purpose of the statute clearly excluded the provision of an opportunity to the lessee before termination of the leases that amendment of section 4 A of 1986 specifically providing for an opportuni ty of hearing became necessary because the grounds for premature termination set out in the new subsection 1 of section 4 A were made wider and more comprehensive that in the writ petition the only prayer made was for quashing the order of premature termination and that it was open to the petitioner to file a suit or take other appropriate remedies for obtaining compensation in respect of the unlawful termi nation
The Barium Chemicals Ltd and Anr
vs Company Law Board and Others 1966 Supp
SCR 311 and RS Dass vs Union of India and Others 1985 Supp
SCC 617 referred to Disposing of the writ petition this Court HELD 1 The order dated 7121972 passed under section 4A of the Act whereby the leases were terminated prematurely was null and void as it violated the principles of natural justice and was passed without giving an opportunity to the lessee of being heard
State of Haryana vs Ram Kishan  Ors   followed
Dharam Veer vs Union of India AIR 1989 Delhi 227 re ferred to
2 Though it is true that the scope of section 4 A 1 has been widened the insertion of sub section 4 A3 clear ly reflects a statutory intention that an opportunity of hearing must be given before the order of termination is passed presumably as such an order widely effects the rights of the lessees
992A 3 It is difficult to accept the contention that be cause an order under section 4 A is to be passed in order to give effect to a policy of the Government it is not neces sary or useful to provide the lessees whose leases are about to be terminated an opportunity of hearing
992D 4 It is true that the petitioner could have filed a suit or taken 985 other appropriate remedies for obtaining compensation in respect of the unlawful termination
But in the facts and circumstances of this case it is not fair to ask the peti tioner to go hack and file a suit for compensation or dam ages which may be barred by limitation
The writ petition was filed by the petitioner company in 1973 and has been pending in this Court for about 17 years
After a lapse of such a long time the proper course is to adopt some method for deciding the quantum of compensation and damages which can at once be simple and expeditious and which will avoid further unnecessary litigation
992G H 993A 5 The request made on behalf of the petitioner that the matter may be referred to arbitration is a fair one and indeed this course is also not seriously resisted by the respondents
The issue of compensation damages is accord ingly referred to Arbitration
993B 6 Having regard to the circumstances of the case the compensationdamages should be restricted to a period of five years from the date of termination of the leases or upto the date of expiry of the original lease deeds whichev er is less and not for the entire unexpired period of all the leases
993C