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 184274 Appeals by Special Leave 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 CWA 334474 and WP No 94774
Civil Appeal No 48575 Appeal by Special Leave from the Judgment and Order dated 24 10 74 of the Gujarat High Court in LPA No 20874
Civil Appeal No 124675 Appeal by Special Leave from the Judgment and Order dated 1 4 75 of the Andhra Pradesh High Court in WA No 90075
Civil Appeal No 204174 Appeal by Special Leave from the Judgment and Order dated 15 10 74 of the Gujarat High Court in LPA No 20574
Niren De Attorney General for India In all appeals Devakinandan
In a11 appeals PP Rao In C As 124575 and CA 204174 RN Sachthey for the appellants in CAs
1837 42 of 74 124675 and 204174 and R 2 in C As
1839 184074 and RR
1 and 2 in CA 48575
33 AK Sen In CA 183774 I N Haldar In CA 183774 KK Singhvi In CA 204174 Yogeshwar Prasad SK Bagga and Mrs section Bagga for RR
1 3 7 11 12 and 14 in CA 183774 and R 1 in CA Nos
1839 184174 and 204174 and RR 2 and 3 in CA
No 124675
Yogeshwar Prasad and Miss Rani Arora for R 1 in CA 1838 74
Yogeshwar Prasadand Miss Rani Arora for R 1 in CA 1842 74
Ram Panjwani Bishamber Lal SK Gupta and Dayal for Appellant in CA
48575 and RR 5 6 and 7 in CA 204174 for the Interverners in CA 1838 1841 204174 and CA No 124675
The Judgment of the Court was delivered by Ray CJ
The principal question in these appeal is whether the selection list for promotion of Income Tax Officers Class Service to the post of Assistant Commission ers of Income Tax is correct or not
The selection list was prepared by the Departmental Promotion 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 2060N of 1971 and gave directions on which the Seniority List was to be prepared
See Bishan Sarup Gupta vs Union of India1
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
vs Union of India  Ors etc
The basis of the preparation of the selection list is the field of choice
The principles for promotion to selec tion 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 should be placed on merit as criterion for promotion
Appointments to selection posts and selection grades should be made on the basis of merit having regard to seniority only to the extent indicat ed there Second the Departmental Promotion Committee or other selecting authority should first decide the field of choice namely the number of eligible officers awaiting promotion who should be considered for inclusion in the selection list provided however that an officer of 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 re maining officers should be classified as outstanding very good and good on the basis of merit as determined by their respective records of service
The selection list should then be pre 11975Supp
SCR491 2  4 1458SCI76 34 pared by placing the names in the order of these three categories without disturbing the seniority inter se within each category
Fifth promotions should strictly be made from the selection list in the order in which their names are finally arranged
The selection list should be periodi cally reviewed
The names of those officers who have already been promoted otherwise than on a local or purely temporary basis and continue 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 the 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 judg ments
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 the 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 the 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 the selection list is correct or not
The Gujarat High Court held that the requirement of 10 years  experience as Income Tax Officer for promotion to the post of Assistant Commissioner as laid down in the Govern ment of India letter No C 3317 Admn
II49 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  experi ence 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 available in the seniority list of Class I Income Tax Officers
What the High Court said was that if such people with 10 years  experience 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 persons but have less than 10 years  experi ence 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 1957 the field of choice should have been 5 times the number of vacancies whereas the actual field of choice contained a much lesser number
The third ground given by the High Court for holding the selec tion list 35 to be incorrect is that in the field of choice of Com mittee 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 Offi cers 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 IIc 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 com pleted 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 promotion 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 consid ered for promotion to the 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 respondents 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 Commission ers 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 Govern ment 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 senior ity but gave No direction with regard to the rule relating to the recruitment except stating that the said rule might be appropriately included in the relevant recruitment rules
Therefore the respondents contend that the recruitment rule regarding 10 years  experience continued whereas the senior ity rule stood modified in terms of the letter of MC Thomas dated 4 April 1964
The respondents also rely on the affidavit dated 8 March 1968 flied by MC Thomas in the Gujarat High Court in application No 1365 36 of 1965 an affidavit of MC 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 Octo ber 1960 but they had been selected along with others in May 1960
Therefore 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 empow ered to make rules
Pursuant to that power the Government of India made the rule
The letters dated 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 alterna tive the respondents contended that the decision of the Government contained in the letter dated 16 January 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 executive 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 extraordinary 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 circum stances
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 37 of the Ministry of Home Affairs dated 16 May 1957
This contention is expanded by submitting that the 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 336 names for con sideration when the vacancies were more than 120 and the Government also ignored the rule of 10 years  experience
It is also said that 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 RK 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 respondents is that the entire selection was arbitrary and in violation of Article 16 of the Constitution
It is said that if the rule re quiring 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 per sons selected 111 are direct recruits and only 11 are promo tees
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 I 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 Gnutam 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 and 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 in cluded in the field of choice
The seventh contention of the respondents is that the eligibility of Income Tax Officers for the purpose of promo tion to the post of Assistant Commissioner should be consid ered either as on 21 October 1972 or 21 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 Decem ber 1972 permitted the Government to fill in the posts on ad 38 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 basis
These officers were to be replaced by regular selection
The seniority list was confirmed by this Court by judgment dated 16 April 1974
The respondents therefore contend that the Committee had to regularise aforesaid 107 promo tions and the regularisation 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 refer ence 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 case1 that after the finalisation of the seniority list the department should consider the cases of all eligi ble officers for promotion on the basis of their records as on the date when they ought to have been considered by selection but who were not so considered
The first question for consideration is whether the rule of 10 years  experience was modified to 8 years  expe rience
The correspondence between the Central Government and the Union Public Service Commission between 30 January 1963 and 26 June 1969 shows that the principle for promotion as Assistant Commissioner is that no Income Tax Officer should ordinarily be considered unless he has completed 8 years  service as Income Tax Officer
The proposal for this change from 10 years to 8 years emanated from the Finance Ministry
The Home Ministry stated that the rule does not strictly relate to the seniority rules in respect of As sistant Commissioners of Income Tax and should thus be included in the relevant Recruitment Rules that is Rules for selection for the post of Assistant Commissioner of Income Tax
The Union Public Service Commission as will appear from the letter dated 31 May 1963 agreed subject to proposed modification regarding the seniority of Assistant Commissioners of Income Tax
It thus appears that the Finance Ministry the Home Ministry and the Union Public Commission concurred with the change from the requirement of experience for 10 years to that of 8 years
The requirement of 10 years  experience as laid down in the letter dated 16 January 1950 and the Office Manual published  in 1955 thus came to be modified
The only thing which is to be noticed is that no Rules under Article 309 were made
The change from 10 years to 8 years  experience was recorded by means of correspondence as an administrative instruction
It is explicable that the letter dated 16 January 1950 as well as the Office Manual published in 1955 was an administrative instruction
The change from 10 years to
8 years  experience was not only given effect to in the field of choice but also recog nized in the Committee meetings of September 1968 AprilMay 1970 and February 1972
In September 1968 16 persons were over 9 years  experience 1 1975 supp
SCR491506 39 but less than 10 years  experience
None of these persons was however selected to be placed on the selection list
In AprilMay 1970 14 persons were over 9 years experience but less than 10 years  experience and 24 persons were over 8 years  experience only
Out of those only 7 who were all over 9 years  experience were selected to be placed in the selection list
In 1972 the Committee considered 25 persons over 9 years  experience but less than 10 years  in experi ence and 27 persons over 8 years  experience
Out of these only 10 persons who were all over 9 years  experience were selected to be placed in the selection list
In the Committee meeting of July 1974 the selection list prepared did not have any person except 4 emergency commissioned officers who had less than 9 years  experience
The last person in the seniority list selected was MM Joshi bearing No 967 in the seniority list
8 years  experience as a working rule for promotion was publicly announced by the Minister in Parliament on 11 June 1971
It is rightly said by the Attorney General that administrative instructions are followed as a guide line on the basis of executive policy
It is not necessary to put the same on record in so many words
In Bishan Sarup Gupta vs Union of India  Ors
1975 Supp
SCR 491 when the quota rule which was statutory ceased to have statutory effect after 5 years but the Government followed the principles as a guide line it was upheld by this Court in the application of the principle from 1957 to 15 January 1959
In the present case the requirement of 8 years was not only followed as a guide line in practice but was also recorded in the correspondence between the Finance and the Home Ministries
The High Court said that the requirement of 8 years  experience was to be included in the appropriate Recruitment Rules and until that was done the High Court held that 10 years  experience held the field
The High Court failed to consider the true effect of the correspondence between the finance and the Home Ministries and the Union Public Service Commission
The Ministry of Finance by its letter dated 30 January 1963 stated that the condition of 8 years  service for promotion was proposed to be retained
The Home Minis try by its letter dated 20 February 1963 pointed out that the requirement of 8 years  experience for promotion did not strictly relate to seniority rules relating to Assistant Commissioners of Income Tax and should be delinked from such rules and should be appropriately included in the relevant Recruitment Rules
Thus the Home Ministry and the Union Public Service Commission agreed in principle to the re quirement of 8 years  experience and the Finance Ministry in practice changed the requirement of 10 years  to 8 years  experience
The letter of the Finance Ministry proposing the retention of the requirement of 8 years experience was only in Grade I
The minimum experience in Grade I proposed by the Board was approved by the Secretary as well as the Minister
The High Court referred to the affidavits filed by MG Thomas in other proceedings
In one of the affidavits affirmed by Thomas 40 on 8 March 1968 and referred to by the High Court in Special Civil Application No 1365 of 1965 in the Gujarat High Court in paragraph 5 thereof Thomas said as follows The Depart mental Promotion Committee which met sometime in August 1949 recommended that no officers should be promoted as Assistant Commissioners of Income Tax until he had worked for not less than 10 years as Income Tax Officers
The Government of India agreed with the recommendation of the Departmental Promotion Committee that it was necessary in the interest of efficiency that the Assistant Commissioner of Income Tax should at least have 10 years of service as Income Tax Officer so that for the post ok Assistant Commissioner of Income Tax matured and seasoned officer may be obtained
For arriving at the decision the Govern ment of India was also influenced by the recommendation of Income Tax Investigations Commission
The High Court also referred to paragraph 9 in the said affidavit of Thomas where he said as follows It can thus be seen that the seniority rules for Assistant Commissioner of Income Tax were mainly framed due to the situation created by the introduction of Income Tax Service Class I on an All India basis and the requirement of a minimum period of 10 years of service later on reduced to
8 years  service as a requi site condition for promotion this requirement of minimum service resulted in a senior Income Tax Officer who had not completed the required length of service being passed over by a junior Income Tax officers who had completed the required service
To safeguard the interest of such senior Income Tax Officer rule 1 iii b meaning thereby 10 years  rule was introduced which enabled the senior officers to regain their seniority on subsequent promotion
The High Court also referred to the affidavits of Thomas in Civil Writ Petition No 196 of 1970 in the Delhi High Court
MG Thomas was an Under Secretary in the Ministry of Finance in 1964
In the affidavit affirmed by Thomas in Writ Petition No 196 of 1970 in the Delhi High Court he dealt with paragraph 39 of the petition of Bishan Sarup Gupta where it was said that paragraph 18 of section 1 Volume 1 of the Office Manual clause b mentioned about the eligibility of 10 years of minimum service before an Income Tax Officer would be considered for promotion to the post of Assistant Commissioner
The High Court said that Thomas in his affidavit in reply had admitted the said statements and concluded that of 8 years  rule had been introduced Thomas would not have missed to mention the same in his affidavit
The High Court also referred to two features
First that it was not a proposal of anew rule of 8 years in place of existing rule of 10 years secondly it was an assumption that the existing rule prescribed the minimum period of 8 years  service
The High Court further referred to the Delhi High Court proceedings in Writ Petition No 196 of 1970 where Counsel for the Union said that the Government expected new rules to be framed under Article 309 to limit the field of choice to those who had 8 years  service to their credit as Income Tax Officers
The High Court read this argument of counsel for the Union in the High Court to concede that no change in the rule of 10 years  service as Income
Tax Officer was made so as to reduce the period from 10 years to 8 years
41 The Central Board of Revenue as appears in No F 11960 Ad
II at a meeting on 2 May 1959 approved the idea of laying down the
minimum period of service uniformly for the three wings of the Central Board of Revenue for purposes of determining the eligibility of officers for promotion
It was decided that before an officer was promoted to a higher post he must have put in a period of minimum service as follows For promotion to Deputy CollectorAssistant Commissioner Grade Rs 1000 1400 minimum service pre scribed was 8 years  service in Class I posts
For promo tion to Collector Grade Rs 1300 1600 the minimum serv ice prescribed was 12 years in Class I post out of which at least two years should be in the grade of Deputy Collector
For promotion to
the post of Collector Grade Rs 1600 1800 the minimum service prescribed was 14 years in Class I posts provided that for promotion as Collector of Central Excise scale Rs 1600 1800 the officers should have worked at least two years in the scale of Rs 1300 1600
For promotion to Collector Grade ICommissioner Grade I scale Rs 1800 2000 the minimum service prescribed was 16 years in Class I posts
For promotion to Selection Grade posts of CollectorsCommissioners the minimum service prescribed was 20 years in Class I posts
The Secretary in the note mentioned that he would prefer the alternative of keeping the rule and relaxing it in suitable cases
This note of the Secretary shows that he preferred the retention of the rule in the other 4 grades namely
Collector Grade Rs 1300 1600 Collector Grade Rs1600 1800 Collector Grade ICommissioner Grade I Grade Rs1800 2000 and Selection Grade Posts of Collectors Com missioners
That is apparent from the fact that the Board suggested the retention of minimum service in Grade 1Assistant Commissioners but not in the other four grades including the Selection Grade
The Minister preferred the deletion of the rule about Selection Grade
Thus the mini mum experience in Grade I proposed by the Board was approved by the Secretary as well as the Minister
The minutes of the meeting of the Central Board of Revenue of 22 October 1960 show that the Board of Revenue decided that the minimum service of 8 years in Class I Service may be prescribed in the case of Deputy CollectorAssistant Commissioners Grade Rs1100 1400
The affidavit evidence of Thomas shows that the minimum period of 10 years was later reduced to 8 years
The affi davit does not show that the requirement of 10 years  serv ice was maintained
In the Delhi High Court proceedings Bishan Sarup Gupta in his petition made reference to cer tain administrative instructions
Thomas in answer to those paragraphs did not have any occasion to say anything otherwise
Further counsel for the Union in the Delhi High Court merely stated that the Government was expecting rules to be framed under Article 309
This does not mean that the requirement of 8 years  experience as an administrative practice did not prevail
The High Court was in error in treating the affidavit evidence of Thomas in other proceed ings as a statement of fact that 8 years  rule had not been introduced
This affidavit evidence in other proceedings is torn 42 out of context and is misread by the High Court without going into the question as to whether such affidavit evi dence is admissible in evidence
It is apparent that the entire affidavit evidence as well as the submission on behalf of the Union is that the requirement of 10 years  experience be replaced by 8 years
Administrative practice as indicated in the Department Promotion Committee meetings and the Minister s statement in Parliament supported that contention of the Union
It is a question of construction of correspondence as to whether 10 years  rule was replaced by 8 years  rule
The fact that no rules under Article 309 were framed does not detract from the position that the previous administrative instruction of 10 years  experience was modified to 8 years  experience
It was suggested on behalf of the respondents that the various affidavits and documents asserted that the require ment of 10 years  experience had been abrogated and it was not open to the Government to take the stand that require ment of 10 years  rule was modified or changed
The conten tion is without any substance because the consistent posi tion on behalf of the Union has always been that the re quirement of 10 years  experience was modified to 8 years and the Gujarat High Court considered the question whether 10 years  experience was abrogated or modified
The second question is whether the requirement of 10 years  experience was a statutory rule
The High Court held that the requirement of 10 years  experience is not a statutory rule
Counsel for the respondents contended that the requirement of 10 years  experience is statutory because the letter dated 16 January 1950 is by the Government of India and the Government of India has authority to frame rules and one of the letters dated 21 July 1950 referred to it as a formal rule
The contention is erroneous because there is a distinction between statutory orders and adminis trative instructions of the Government
This Court has held that in the absence of statutory rules executive orders or administrative instructions may be made
See Commissioner of Income Tax Gujarat vs
A Raman  Company1
The letter dated 16 January 1950 written by an Under Secretary in the Ministry of Finance does not prove that the requirement of 10 years  experience for promotion to the post of Assistant Commissioner was a rule made by the Gover nor General or any person authorised by him under section 241 2 of the Government of India Act 1935
Furthermore there is no basis for any authentication under section 17 of the 1935 Act in the letter of 16 January 1950
In the preface to the Manual published in 1955 it is specifically stated that Vol
I of the Manual contains statutory rules and Vol
II contains administrative instructions
The requirement of 10 years  experience is in Vol
II of the Manual
In SG Jaisinghani vs Union of India  Ors2 it is stated at pp
717 718 that the quota fixed by the Government in its letter dated 18 October 1951 must be deemed to be fixed in exercise of the statutory 1 2  43 power under Rule 4 of the Recruitment Rules
There is no such statutory rule under which the letter of 16 January 1950 was written Counsel on behalf of the respondents contended that the requirement of 10 years  experience laid down in the letter dated 16 January 1950 had the force of law because of Article 313
Article 313 does not change the legal charac ter of a document
Article 313 refers to laws in force which means statutory laws
An administrative instruction or order is not a statutory rule
The administrative in structions can be changed by the Government by reason of Article 531a itself
The High Court said that even if the requirement of 10 years  service is not statutory it is binding on the Gov ernment and is a condition of service
Counsel for the respondents contended that the word ordinarily in the rule imposes an obligation on the Government not to consider any Income Tax Officer with less than 10 years  experience for promotion except in extraordinary circumstances
The requirement of 10 years  experience on the face of it con fers a discretion on the authorities to consider Income Tax Officers if according to
the authorities the circumstances so require
What the circumstances are or should be are left entirely to the decision of the authorities
The Central Board of Revenue by a letter dated 21 July 1950 a few months after the letter dated 21 July 1950 a few months after the letter dated 16 January 1950 which spoke of 10 years  experience stated that the insistence on a minimum period of experience cannot be regarded as affecting the conditions of service
In the letter dated 21 July 1950 it was said that the requirement as to 10 years  experience is sufficiently elastic and all Income Tax Officers with more than 9 years  experience could be considered for promotion
The letter dated 21 July 1950 was referred to by this Court in Union of India vs Vasant Jaygram Kamik  Ors1
It appears in that case that in November 1951 the case of officers who had completed 9 years  gazetted service were considered and the Committee further decided to consider for promotion in the near future officers who had completed 8 years of service before 31 December 1951
In 1953 officers who had completed 8 years  service were considered for promotion
The expression ordinarily in the requirement of 10 years  experience shows that there can be a deviation from the requirement and such deviation can be justified by reasons
Administrative instructions if not carried into effect for good reasons cannot confer a right
See PC Sethi  Ors
vs Union of India  Ors
The requirement of 10 years  experience cannot be considered by itself
It is to be read along with administrative instructions of 16 May 1957
The reason is that the requirement of 10 years  experience is for being considered for promotion
In para graph 2 of the letter of 16 May 1957 containing the said instructions it is said that the Committee should first decide the field of choice
namely the number of eligible officers awaiting promotion who should be considered to be included in the seniority list provided that an officer of outstanding merit may be included in the list evenif he is outside the normal List
1  2  44 For the foregoing reasons our conclusions are these First 10 years  experience was modified to 8 years  experi ence
Second there was no statutory rule requiring 10 years  experience
Third the facts and circumstances merit ed the exercise of discretion which was bona fide exercised by determining the field of choice
Fourth there was no deviation from 10 years  experience because of the modifica tion to 8 years  experience
Fifth there could not be insistence on 10 years  experience as conditions of service
The next question is what should have been the field of choice
The two groups of Income Tax Officers in Class I namely the direct recruits and the promotees have always found that the field of choice has been prepared strictly on the basis of running seniority in the seniority list of Income Tax Officers Class I
In the three decisions of this Court relating to these officers Jaisinghani s case Bishan Sarup Gupta s case and Bishan Sarup Gupta s case supra it will be seen that since 1962 there has been a long fight between direct recruits and promotees mainly in respect of seniority list of income Tax Officers Class I
This strug gle regarding seniority would have hardly any meaning unless the two groups fought to gain higher positions in the Seniority List only for the purpose of being in the field of choice for consideration for promotion to the post of As sistant Commissioner
if this was not so and if only a cer tain number of years  requirement was the only consideration for being in the field of choice this requirement would have
been fulfilled in any case without a higher place in the seniority list
From 1963 the field of choice has always been in a running order of seniority
This has been the administrative practice for over 10 years
There were 112 vacancies and 10 anticipated vacancies in 1974
The Committee was to make a select panel of 122 offi cers
If the field of choice has to be prepared on the basis of running 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 will entitle the author ities to deviate from the rule of 10 years  experience
By reason of the violation of the quota rule since 1952 benefiting the promotees this Court issued the mandamus in Jaisinghani s case supra
The collapse of the quota rule and seniority rule from 16 January 1959 led to the judgment of this Court dated 16 August 1972 in Bishan Sarup Gupta s case supra
The introduction of the roster system of 1 direct recruit and 1 promotee being placed alternately in the order of seniority with effect from 16 January 1959 was upheld by this Court in the judgment dated 16 April 1974 in Bishan Sarup Gupta s case supra
As a result oF the seniority list being upheld by this Court by the deci sion dated 16 April 1974 many promotees lost their earlier places in the Seniority List
This Court on 16 April 1974 in Bishan Sarup Gupta s case supra at page 114 of the report said In the case before us in the absence of a rule determining inter se seniority between the two classes of Income Tax Officers there is really no integration of the service which is unavoidably necessary for the purpose of effective promotions
One cannot speak 45 of promotions from a cadre unless it is fully integrated
 There was a change in the seniority list from what prevailed at least in 1952
The requirement of 10 years  experience could not be given effect to in such a changed situation and the expression ordinarily would hardly apply to such a changed situation without destroying the integration and restoring to the promotees the position which they had enjoyed in the past with the Quota Rule and the Seniority Rule and which they lost as a result of the last decision of this Court dated 16 April 1974
If the respondents  contention that the field of choice shall be restricted to 10 years  experience only and the field of choice should have been at least five times the number of vacancies the result would have been that out of 560 persons in the field of choice 474 persons would have been promotees and 86 persons would have been direct re cruits and the last direct recruit in the seniority list would have been No 873 and No 874 to No 1922 would have been all promotees
If the above basis suggested by the respondents were followed 429 persons all direct recruits and all senior officers in the seniority list would have been ignored in the field of choice
That would be unjust unfair and upsetting the decision of this Court dated 16 April 1974
In the letter of 16 May 1957 it is stated that the field of choice wherever possible should extend to 5 or 6 times the number of vacancies expected within a year
The letter contained administrative instructions from the Home Ministry generally to all Ministries and was not meant specially for the Board of Revenue
These administrative instructions have been changed in the matter of promotions from Income Tax Officers to Assistant Commissioners at least from 1963 by the administrative practice of having in the field of choice generally three times the number of vacancies
In the Committee meeting held on 16 March 1963 the Committee considered the names of first 33 eligible Income Tax Offi cers in order of existing seniority for 11 vacancies
In the meeting of the Committee held on 26 and 27 August 1963 the Committee decided to consider the cases of 30 officers in order of seniority for 10 vacancies
In the Committee meeting held on 3 March 1964 the Committee considered for 21 vacancies the names of 60 persons in order of seniority
At the Committee meeting held on 5 and 7 December 1964 for 18 vacancies the Committee decided to consider the cases of 60 officers in order of seniority
At the meeting held on 4 July 1965 the Committee considered 60 Income Tax Officers in order of seniority for promotion to 20 vacancies
At the Committee meeting held on 4 and 6 December 1965 the Commit tee considered 122 persons in order of seniority for 45 vacancies
In December 1965 the Committee considered 114 senior most Income Tax Officers and 48 were promoted as Assistant Commissioners
At the meeting held on 17 May 1966 the Committee considered the case of 65 officers and approved the promotion of 48 officers
At the meeting held on 16 and 17 September 1968 the Committee considered 240 persons for promotion to 90 posts
In September 1968 the Committee considered the cases of 16 officers who had less than 10 years  experience
The Committee in February 1969 considered 61 persons for 20 posts
In September 1969 the Committee considered 105 persons for promotion to 35 posts
46 There is a note made by Thomas in the month of February 1970 in F No 202170 Ad
VI to the effect that if officers with less than 8 years  service and their juniors are ex cluded from the list of officers to by considered by the Committee for 90 vacancies arising during the year only 193 officers will be available
This is said to be less than three times the number of vacancies but this could not be helped unless junior officers are considered over the head of their seniors
The number of such juniors officers with 8 years  service is also limited namely 11
In the circum stances the selection was made from 193 officers
In April 1970 the Committee had to select 80 persons for promotion
They desired that 240 names should normally be considered
The Members however stated that the
Ministry had already furnished the names of 193 eligible officers and there were no more eligible officers who could be consid ered
The Committee accordingly considered those 193 offi cers in order of seniority
In April and May 1970 the Committee considered the cases of 38 persons with less than 10 years  experience
In 1972 there were 84 vacancies and 10 more vacancies were likely to arise
Therefore for 94 selection posts the field of choice should normally have been 3 to 5 times the number of vacancies
It was found that there should have been at least 300 officers
There were 213 officers with 8 years  experience
There were some promotees with more than 8 years  experience but they were junior to the direct recruits
As the direct recruits had not completed 8 years  service their juniors were not considered for promotion over them
In the background of these facts and circumstances it was not possible to have 5 or 6 times the number of vacan cies in the field of choice for the simple reason that the Committee required 8 years  experience for promotion to the post of Assistant Commissioner
If the field of choice had to be based on running seniority the Committee could rightly only have 276 officers in the field of choice in the present case
The next question is whether the Committee evaluated the merit of persons in the field of choice
The High Court held that in the field of choice the evaluation of merit of persons was not properly done
The decision of the High Court is wrong for the following reasons
The letter dated 16 May 1957 indicates that the Committee was first to decide the field of choice
The cardinal feature which is to be kept in the forefront is that the field of choice is based on running seniority in the seniority list and evalua tion of merit does not come into picture for deciding the field of choice
Paragraph 3 of the said letter states that those in the field of choice who are considered unfit should excluded from consideration
Under paragraph 4 of the letter evaluation of the remaining officers on the basis of merit has to be done by classifying the officers under three different categoriesnamely outstanding  very good  and good 
Paragraph 4 of the letter states that the selection list is to be prepared by placing the names of officers in the said three categories without disturbing the seniority inter se within each category
47 In the present case in view of 112 actual vacancies the Government sent 336 names for the field of choice that is three times the number of vacancies
Since 1963 the Commit tee has been receiving from the Government the names of persons forming three times the number of vacancies
The 336 names sent by the Government were in the running order of seniority between SM Islam No 155 in the seniority list and RN Dave No 1186 in the seniority list
Under paragraph 2 of the letter dated 16 May 1957 it is the function of the Committee to decide the field of choice
The Committee proceeded on the basis of 8 years  experience and thus could not possibly have in the field of choice any name from No 1131 onwards because every alternate number thereafter had less than 8 years  experience
The Committee stopped at No 1123
The Committee at the meeting held on 23 24 and 25 July 1974 assessed the merits of 145 persons in order of seniori ty first
After such assessment the Committee found three officers No 1 30 and 109 in the list as not yet fit and excluded them
The Committee also excluded 4 officers whose findings were in sealed cover or whose reports were not yet complete No 2 3 6 and 138 in the Committee List
These 7 officers were excluded from further consid eration for the selection list
In accordance with para graph 3 of the letter 16 May 1957 the Committee considered the remaining 138 officers and assessed their merits and put them in three categories
The Committee found only one officer outstanding namely No 16 in the list 114 offi cers very good and 7 Scheduled CastesScheduled Tribes officers were good 
These 7 Scheduled Castes and Sched uled Tribes officers were No 21 24 26 90 91 93 and 94 in the list
The respondents contended that these 7 Sched uled CastesScheduled Tribes officers should have been given a grade higher than the grade assessed by the Committee because of the Home Ministry Instructions dated 11 July 1968
The respondents  contentions are incorrect for these reasons
In paragraph 2 of the Home Ministry instructions dated 26 March 1970 on the subject Concessions to Sched uled Castes and Scheduled Tribes in posts filled by promo tion Class I Services posts it was laid down inter alia that the Scheduled CastesScheduled Tribes officers who were senior enough in the zone of consideration for promo tion so as to be within the number of vacancies for which the selection list has to be drawn would be included in that list provided they are not considered unfit for promo tion
In paragraph 1 of these instructions reference was made to the Home Ministry instructions dated 11 July 1968
It would be found from those instructions as also the Home Ministry instructions dated 26 March 1970 that the July 1968 instructions applied in the case of promotions from Class III to Class II and Within Class II and from Class II to the lowest rank or category to Class I but had no appli cation in respect of promotion within Class I
The Committee found No 16 to be outstanding  114 No 2 to 115 very good  and 7 Scheduled CastesScheduled Tribes officers good  and they were to be included in the selection list vide Home Ministry instructions dated 26 March 1970
The Committee next assessed the merit of the rest of the 276 officers to ascertain whether 48 any of them was out standing 
If any one among these remaining officers was not found outstanding  but was only very good  he would not come within the selection list because the selection list was prepared after evaluating the merits of the officers on the basis of seniority in the seniority list in accordance with the fetter dated 16 May 1957
Paragraph 4 of that letter was followed by the Committee along with the Home Ministry instructions
It would not be necessary for the Committee after having con sidered 145 to put the others in the category of very good  when the Committee assessed their merits and found them to be not outstanding 
After 122 senior officers were as sessed and the Committee found that no other officers junior to them could be assessed to the higher category namely outstanding  it would be fruitless exercise to find out who among these officers were very good  or good  or not yet fit 
The reason is obvious
Those in the selection list of 122 who had been found to be very good  could not be supplanted by others who were very good  Only outstand ing  persons who would be junior to the category of 122 very good  would surpass the category of very good 
Therefore the Committee rightly considered the cases only to find  out whether there was any one outstanding and the Committee found none of them to be outstanding 
The Government sent the names of 336 officers in the running order of seniority
Out of 336 the Committee found 276 to be fit for the field of choice
The Committee found 1 outstanding  114 very good  and 7 Scheduled CastesTribes good 
The respondents contended that the rest 59 were not at all considered by the Committee
This contention is not acceptable for these reasons
From No 1131 in the seniority list every alternate number was an officer with less than 8 years  experience
Under the letter of 16 May 1957 it is the Committee and not the Gov ernment which decides the field of choice
When the Commit tee found according to the running seniority No 1131 onwards could not be in the field of choice the Committee did not put the names of the 59 officers in the field of choice
The question of the evaluation of the merits of these 59 officers did not therefore arise because first the seniority list was Considered by the Committee and second the Committee took into consideration only those who were in the seniority list and fulfilled 8 years  experi ence
It is wrong to hold that because the Government sent the names of 336 persons for consideration by the Committee the field of choice consisted of 336 persons
The field of choice is to be determined by the Committee
The Committee considered 276 names as fit to be included in the field of choice
It is erroneous to suggest that there were 336 names in the field of choice
The field of choice consist ed
of 276 names as determined by the Committee whose juris diction it was to determine
The Committee considered upto No 1123 in the seniority list to be in the field of choice
Officers from 1124 to 1130 were not included by the Commit tee either because they had retired or joined the Indian Administrative Service and in any event no complaint has been made on their behalf
The Committee found that from 49 No 1131 onwards every alternate officer had not completed 8 years  service and therefore they could not be put in the field of choice according to the Committee
The contention of the respondents that there were 336 officers in the field of choice and the Committee did not consider all the 336 persons unmeritorious
The respondents next contended that persons bearing No 877 879 881 and 883 in the seniority list had been put on the selection list although they had less than 8 years  experience
There is no substance in the  contention for the following reason
These 4 officers were taken on the ground that they were ex military officers recruited to the Income Tax Department in 1968 and were deemed to have been recruited in 1964 by virtue of the Ministry of Home Affairs Notification dated 4 October 1967
Another submission was made on behalf of the respondents that after the Committee had put different persons in three categories outstanding  very good  and good  the Commit tee should have further evaluated the merit of all officers inter se within each of the said three categories
This submission is contrary to the specific provision of para graph 4 of the letter dated 16 May 1957
Further within the category of very good  there could not be any further intra specific assessment of those who were very good 
A criticism was made by the respondents that the assess ment was to be only on merit and not seniority cure merit
This contention is wrong
Paragraph 2 of the letter of 16 May 1957 states that the field of choice is to be decided by the Committee
No question of merit arises in deciding the field of choice
The field of choice is only on the basis of running seniority
The question of merit arises after the field of choice is decided
The selection was correctly done strictly on merit in accordance with para graphs 3 and 4 of the letter dated 16 May 1957
The Commit tee decides the field of choice in the running order of seniority
The Committee excludes names from the field of choice who are considered unfit for promotion
The remaining officers are classified as outstanding  very good  and good  on the basis of merit
The selection list is pre pared by placing the names in the order of these three categories
That inter se seniority of officers in the selection list under each category is not disturbed
These are the instructions in the aforesaid letter
It will thus be seen that seniority is the sole criterion for determin ing the field of choice in the running order of seniority and merit is the sole criterion for putting the officers in the selection list in each category according to merit
Finally the contention of the respondents is that the date for determining the eligibility of officers for promo tion to the posts as Assistant Commissioners should have been decided by the Committee by bearing in mind the two dates namely 21 December 1972 and 29 November 1973
21 December 1972 is the date when this Court permitted the Union Government to make ad hoc promotions
21 March 1973 and 29 November 1973 are the two dates when the Central Board of Direct Taxes promoted 59 and 48 officers respec tively
This Court in the order dated 21 December 1972 stated that the Government would be entitled to appoint people in order of seniority determined according to the date 5 1458SCI76 50 Of continuous officiating appointment in Class I subject to the suitability which would be decided by the Central Board or Direct Taxes
This order was made without prejudice to the contentions of the parties or their rights in the ap peals
Pursuant to the interim order of this Court the Government made two orders dated 21 March 1973 and 29 Nov ember 1973 provisionally promoting 59 and 48 officers re spectively
In each of the Government orders it is specifi cally stated as follows The above promotions are purely ad hoc and have been made on the basis of the suitability as decided by the Central Board of Direct Taxes in terms of directions issued by this Court in their order dated 21 December 1972
These promotions will not confer any claim for continued officiation sic in the grade of Assistant Commissioner of Income Tax or for seniority in that grade
Appointments against these posts will eventually be made on the basis of the revised list of seniority of Income Tax Offices Class I as finally approved by this Court and on selection by a duly constituted Departmental Promotion Committee to be convened in accordance with the prescribed procedure
The promotions ordered will not establish any claim for eligibility or for selection on merit by a proper ly constituted Departmental Promotion Committee when the same is convened
It is manifest from the order of this Court and the two orders made by the Government pursuant to this Court s order that these 107 promotions were purely provisional or ad hoc and were made by the Central Board of Direct Taxes and not by the Committee which is the authority for determining promotions
Further these provisional promotions were not made in conformity with the letter of 16 May 1957
It is distinctly stated in the aforesaid two Government orders that appointments against these posts will eventually be made on the basis of revised seniority of Income Tax Offi cers Class I as finally approved by this Court and on selec tion by a duly constituted Departmental Promotion Committee to be convened in accordance with the prescribed procedure
On 9 February 1973 the Income Tax Officers Class I Service Regulation of Seniority Rules 1973 were made under Article 309 See Bishan Sarup Gupta s case supra
The revised seniority list of Income Tax Officers Class I was made on the basis of the Income Tax Officers Class I Service Regulation of Seniority Rules 1973 and was ap proved by this Court on 16 April 1974
See Bishan Sarup Gupta s case supra
The selection list was made by the Committee after it met on 23 24 and 25 July 1974
Under paragraph 2 of the letter dated 16 May 1957 the Committee was to decide the field of choice by including therein eligible officers awaiting promotion
This means that whether an officer is eligible or not should be decided with reference to the date of the Committee meeting
This has always been done at all the Committee meetings
The respondents contended that the regularisation of 107 promotees had to be done from the date of original promo tions on ad hoc basis
In this connection the respondents relied on the observations of this Court in Bishan Sarup Gupta s case supra at p 506 of the report
The observa tions relied on are that after the fresh seniority 51 list is made in accordance with the directions given by this Court in Bishan Sarup Gupta s case supra it would be open to any direct recruit or promotee to point out to the de partment that in the selection made to the post of Assistant Commissioner from 1962 onwards he being otherwise eligible is entitled on account of the new seniority given to him to be considered for promotion to the post of Assistant Commis sioner
The observations of this Court in Bishan Sarup Gupta s case supra are that if as a result of the fresh seniority list it is found that any officer was eligible for promotion to the post of Assistant Commissioner on account of his place in the new seniority list the department might have to consider his case for promotion on his record as on the date when he ought to have been considered and if he would be selected his position will be adjusted in the seniority list of Assistant Commissioners
The object is to see that the position of such a person is not affected in the senior ity list of Assistant Commissioners because he is actually promoted later pursuant to the new seniority list although according to the new seniority list itself he should have been promoted earlier
The observations do not mean that although the Committee can meet for the selection of offi cers for promotion to the post of Assistant Commissioner only after the seniority list is approved by this Court the selection would be deemed to be made at the time when a vacancy in the post of Assistant Commissioner occurred and the eligibility of officers for selection will be determined by such deemed date of selection
No employee has any right to have a vacancy in the higher post filled as soon as the vacancy occurs
Government has the right to keep the vacancy unfilled as long as it chooses
In the present case such a position does not arise because of the controversy between two groups of officers for these years
The seniority list which is the basis for the field of choice for promotion to the post of Assistant Commissioner was approved by this Court on 16 April 1974
Promotions to the post of Assist ant Commissioners are on the basis of the selection list prepared by the Committee and are to be made prospectively and not retrospectively
For the foregoing reasons the judgments and orders appealed against are set aside
The selection list made by the Departmental Promotion Committee forming the subject matter of these appeals is held to be correct lawful and valid
Parties will pay and bear their own costs
VPS Appeals allowed


Summary:
The Government of India in 1950 framed a rule for promotion of an Income Tax Officer as Assistant Commis sioner and it was published as rule 18 in Vol
I1 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 com pleted at least ten years service as Income Tax Officer
In 1957 a memorandum was issued by the Central Board of Reve nue containing the following principles for proration of Income Tax Officers Class I as Assistant Commissioners
Greater emphasis should be laid on merit as a criterion
The Departmental Promotion Committee should first decide the field of choice namely the number of eligible officers awaiting promotion who should be considered for inclusion in the selection list
An officer of outstanding merit may be included in the list even if he is outside the normal field of choice
The field of choice wherever possible should extend to 5 to 6 times the number of vacancies expected
From among such officers those who are considered unfit for promotion should be excluded and the remaining should be classified as outstanding  very 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 games in the order of these three categories without disturbing the seniority inter se within each category
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 promoted 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 59 and 48 Income Tax Officers respectively as Assistant Commissioners
It was distinctly stated in those two orders that the ad hoc appointments made against 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 Depart mental 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 Sarup Gupta Case  From such seniority list the Depart mental Promotion Committee made a selection list in July 1974 for proration of Income Tax
Officers Class I as Assistant Commissioners
There were 112 vacancies and the Government sent 336 names in the running order of seniority for consideration of the field of 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 Sched uled CastesTribes officers good according to the instruc tions
The Selection list was challenged in various High Courts
Two of the High Courts held in favour of the peti tioners and the other High Courts gave interim orders stay ing 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 mean ing of article 36610 of the Constitution and also because it was incorporated in the Office Manual issued by the Govern ment of India in exercise of its executive power under article 53
3 The rule constitutes one of the conditions of serv ice and therefore should be followed
4 The rule imposes an obligation on the Union Govern ment 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 considered
5 The selection has been made in complete violation of the principles 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 permis sion to make ad hoc appointments and on the two dates when the Government actually made 107 59 1 48 ad hoc promotions and it Was the duty of the Committee to regularise the 107 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 1a The requirement Of 10 years experience in r 18 was modified to 8 years experience
The correspond ence between the Finance Ministry and Home Ministry and the UPSC shows that there was concurrence with the change
The High Court was in err or when it said that the require ment 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 guide line 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 affida vit 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 as the submissions made on behalf of the Union Government is that the 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 article 309 were 30 framed does not detract from the position that previous administrative instruction of 10 years experience was modi fied 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 2 The rule is not a statutory rule
42D 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 and administrative instructions of the Government
The change was recorded by means of correspondence as an administrative instruction In the absence of statutory rules executive orders or administra tive instruction may be made
42E F Commissioner of Income Tax Gujarat vs A Raman  Compa ny  referred to
b The letter of 16th January 1950 written by an Under Secretary in the Ministry of Finance does not prove that it is a rule made by the Governor General or any person autho rised by him under section 2412 Government of India Act 1935
Furthermore there is no basis for any authentication under section 17 of the 1935 Act in the letter
42G c In the preface to the Office Manual published in 1955 it is specifically stated that Vol
I contains statuto ry rules and Vol
II in which r 18 occurs contains only administrative instructions
42G SC Jaisinghani vs Union of India  ors
1967 2 SCR 70 referred to
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 administrative instruc tions can be changed by the Government by reason of article 631
Article 313 does not change the legal character of a document
43B 3 The High Court erred in holding that the 10 year 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 10 years experience for promotion
The rule on the face of it confers a discretion on the authorities to consider Income Tax Officers of lesser years experience if the circumstances so require and whether such circumstances exist should be left to the decision of the authorities
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 the conditions of service
In that letter
it was stated that the requirement of 10 years experience is sufficiently elastic and all Income Tax Officers with more than 9 years experience could also be considered for promotion
This letter was referred to by this Court in Union of India vs Vasant Jayarama Karnik 43C F 4 It cannot be said that there is a deviation from the requirement of 10 years experience in preparing the Selec tion list
That requirement was modified to one of 8 years experience
The expression ordinarily  in the rule shows that there can be deviation and such deviation can be justi fied by reasons
Administrative instructions if not carried into effect for good reasons cannot confer a right
43G PC Sethi  ors
vs Union of India  Ors
1975 3 SCR 201 referred to
5 The facts and circumstances in the present case merited the exercise of discretion which was bona fide exercised by determining the field of choice and from 1963 the field of choice has always been in a running order of seniority
31 a There were in the present case112 vacancies and 10 anticipated vacancies and the Departmental Promotion Commit tee was to make a panel of 122 officers
If the field of choice has to be prepared on the basis of running 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 also because in the second Bishan Sarup Gupta case this Court had directed that the two classes of Income Tax Officers direct recruits and promotees should first be fully integrated before determining inter se sen iority
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 of 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 choice 474 persons would have been promotees and only 86 persons would have been direct recruits and 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 vacancies
The evidence shows that in the circumstances of this case it was 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 o merit of persons was not properly done
The 1957 Memorandum 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 sole crite rion for putting the officers in the Selection list
46G In present case the instructions in the 1957 memoran dum were strictly followed
e The 7 Scheduled CasteTribes officers were not entitled to a grade higher than the grade assessed by the Committee because the Home Ministry instructions regard ing concessions to Scheduled Castes and Tribes applied in the case of promotions from Class III to Class II and within Class II and from Class II to the lowest rank of Class I but had no application in respect of promotion within Class I 47E 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
There fore 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 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 certain 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 rightly con sidered 276 names as fit to be included
48F 32 h There is no substance in the contention that 4 of the officers had less than 8 years experience because they were ex military officers recruited by virtue of a notifi cation 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 se 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
49D 6 The date for determining the eligibility of officers has nothing to do with the dates on which ad hoc appoint ments were permitted and ad hoe 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 as on the date when he ought to have been considered and his position adjusted in the seniority list of Assistant Commis sioners
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 deemed to be made at the time when a vacancy in the post occurred and the eligi bility of officers for seleCtiOn should be determined by such deemed date of selection
No employee has any right to a vacancy in the higher post as soon as the vacancy occurs
The Government has 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
Promo tions 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
51 C D