vil Appeal Nos
4447 48 of 1988
From the Judgment and Order dated 1011
1987 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Appeal No EStayNo
4587 A  EAppeal No 188 of 1987 A Order No 681  682 of 1987 A Soli J Sorabjee Attorney General Ms Nisha Bagchi and Mrs Sushma Suri for the Appellant
Debi Pal and PK Chakraborty for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI CJ
This is an appeal under section 35Lb of the Central Excises  Salt Act 1944 hereinafter called the Act 
The appeal by the appellant before the tribunal was dismissed on the ground that provisions of rule 92 of the Customs Excise and Gold Control Appellate Tribunal Procedure Rules 1982 had not been complied with
The documents which are to accompany the memorandum of appeal are prescribed by rule 9 of the said rules which provides as follows 91 Every memorandum of appeal shall be filed in quadru plicate and shall be accompanied by four copies at least one of which shall be a certified copy of the order ap pealed against and where such order is an order passed in appeal or revision four copies at least one of which shall be a certified copy of the order appealed against and where such order is an order passed in appeal or revision four copies at least one of which shall be a certified copy also of the order of the adjudicating authority
2 In an appeal filed under the direction of the Collector or the Administrator the memorandum of appeal shall also be accompanied by an attested copy of the order containing such direction
 The tribunal was of the opinion that the purpose and the spirit of rule 92 aforesaid was to ensure that the appeal was authorised by the collector to be filed
Our attention was drawn to the authority in the instant case which was annexed to the further affidavit filed in these proceedings
The said authority dated 24th September 1986 read as fol lows 1029 I hereby authorise Assistant Collector Tribunal  Review Collectorate of Central Excise Calcutta II Calcutta to act on my behalf in the matter of filing appeal applica tionscross objectionsstatement of reference before the Customs Excise  Gold Control Appellate TribunalCollec tor Appeals in terms of Section 35B2 and 35B4 35B5 35E2 35E4 35G1 and 35G2 of the Central Excises  Salt Act 1944 and Section 813 815 816 822 824 and 8231  8232 of Gold Control Act 1968
 Pursuant to this authority the appeal was filed and our attention was also drawn to the orders passed by the Collec tor in respect of this specific appeal
The relevant portion of the same may be noted from the Order sheet
The note dated 4th December 1986 reads as follows Under the OA date 14886 as at page 19C Collector Appeals has set aside the OO of the Divisional AC Vide P 197C of linked file marked FA
In the OO the AC CE Howrah South Division has disallowed abetment on account of I Special Rebate on Addl
Trade Discount and 2 cost of secondary packing purported to be used for protec tion and to facilitate transportation for reasons stated in detail in the adjudication order
Collector Appeals has however allowed the assessee s appeal on the ground that arguments put forward by the Asstt
Collector for disallowing the party s claim as not tenable
In view of Supreme Court s Judgment dated 71083 in the case of Ms Bombay Tyre International vs UOI and clari ficatory Order date 14151183 it appears that the OA passed by the Collector Appeals is not legal and proper and appeal to CEGAT against the same may be considered
The arguments advanced by the Asstt
Collector in her OO dated 28286 pages 16 1 197C of linked file portions marked X   Y  at Pages 17 1 173  163 165 C of linked file may very well form our grounds of appeal as well
Submitted for consideration please
 1030 Thereafter it appears that the Collector desired to have a look on the judgment in Godfrey Philip s case and following are the orders noted by the Collector Godfrey Philips Judgment of the Supreme Court may be pe rused in ELT placed below
P306 of Oct 1985 issue
 Seen the judgment
This judgment covers a different materi al namely cigarette
For a classification from CEGAT
We can appeal on this issue
However Collector may kindly see the side linked portions of page 323 of the book   The tribunal was of the opinion that there was nothing in the rules to justify acceptance of the kind of general authorisation or the notesheet orders which authorised filing of appeal without referring to a specified officer as being in consonance with rule 92 of the said rules
Having regard to the purpose of these rules as we con ceive it namely to ensure that there was an application of mind to the points in respect of which the question for filing an appeal arose and that the appeal was duly autho rised by the Collector and was filed by the person autho rised by the Collector in order to ensure that frivolous and unnecessary appeals are not filed we are of the opinion that in the present context and in view of the terms of the rules and the purpose intended to be served the appeal was competent and was duly filed in compliance with the proce dure as enjoined by the rules
It has to be borne in mind that the rules framed therein were to carry out the purposes of the Act
By reading the rules in the manner canvassed by Dr Pal counsel for the respondent before us which had prevailed over the tribunal in our opinion would defeat the purposes of the rules
The language of the relevant Section and the rules as we have noticed do not warrant such a strained construction
In the aforesaid view of the matter we are of the opin ion that the tribunal was in error in dismissing the appeal on the ground that it did
In the premises the judgment and order of the tribunal cannot be sustained
We accordingly set aside the judgment and order of the tribunal dated 10th November 1987
In as much as however the tribunal has not disposed of the appeal on merits we remand the matter to the tribunal for consideration of the appeal on merits and in accordance with law
The appeal herein is disposed of as aforesaid
TNA Appeal dis posed of


Summary:
The main petition has been filed by the Income tax Officers Group A challenging the Seniority Rules of 1973 which were framed by the Department pursuant to the direc tions given by this Court in an earlier case BS Gupta vs Union of India 1975 Supp
SCR 491
The circumstances that led to the filing of the instant petitions may be stated thus The Government by virtue of the Rules propounded in its letter dated 29th September 1944 re organised the Income tax services into Class I and Class II
The said Rules inter alia laid down that recruitment to the cadre of Income tax Officers Group A shall be from two sources ie direct recruitment and promotion the quota for the two being 80 and 20 respectively
In 1945 the Government framed fresh recruitment rules wherein it was provided that the recruit ment from the said sources will be made as per the direc tions of the Government in effect keeping the recruitment quotas in abeyance
In September 1949 the Government framed Seniority Rules and it was laid down that the promo tees who had been certified by the Federal Public 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
In the year 1950 the Seniority Rules were again revised and the concerned Rule 1fiii was amended
By its letter dated 18101951 the Government revised the quotas of direct recruits and promotees in that in the case of direct recruits the quota was reduced from 80 to 66 23 while in the case of promotees the quota was en hanced from 20 10 33 13 and also amended the Rule 1fiii of 1950 Rules
This revision in effect gave 3 years  weightage in seniority to the promotees
These rules continued to 995 operate till 1959
Between 1959 and 1960 114 posts were upgraded to those of Income Tax Officers Group A  and the promotees were appointed to the said posts during that period
One Jaisinghani a direct recruit challenged the consti tutional validity of Rule 1fiii and iv of 1952 Sen iority Rules by means of a writ petition in the High Court which gave 3 years  weightage to the promotees in the matter of fixation of their seniority and the implementation of quota
The High Court rejected the writ petition
In appeal this Court held that the quota having been fixed by the Government in exercise of the powers conferred on it under Rule 4 of the 1945 Rules the same was valid
The Court also upheld the weightage given to the promotees under the 1952 Rules
The Court further directed that roster system should be adopted by framing an appropriate rule for working out the quota system between the direct recruits and promotees
It may be mentioned that the court gave this direction because it was of opinion that the promotees were in excess of the prescribed quota for each of the years 1951 to 1956 and that they had been illegally appointed
It was therefore directed that the seniority of Jaisinghani and others simi larly placed be re adjusted and the Government should pre pare a fresh seniority list in accordance with law
Pursuant to the direction given by the Court the gov ernment prepared seniority list which was challenged in the Delhi High Court by two separate writ petitions one by BS Gupta a promotee of 1962 and another by MC Joshi a direct recruit
The High Court dismissed the writ petition of Gupta but substantially allowed the one filed by Joshi
In appeal this court by its order dated 1681972 in Gupta s case AIR 1972 SC 262 held that seniority list was valid with regard to the promotions made upto January 15 1959 but the same was not valid for the period thereafter
The court accordingly set aside the list to the extent it concerned the period from 1611959 and directed the Department to prepare a fresh seniority list in accordance with the obser vations and directions of this Court
The court came to the conclusion that with the upgrading of large number of posts and appointments of the promotees the quota rule had col lapsed and with that seniority rule giving weightage to the promotees had collapsed
The court held that quota rule came to an end on 1611959
In pursuance of the aforesaid direc tion the government frame the impugned 1973 Rules and prepared a fresh seniority List on February 1973 giving retrospective effect to the Rules from 1511959
The Gov ernment also challenged the quota of direct recruits and promotees making it 50 for each of them ie 11
Seniori ty of officers upto 15159 was fixed as per old Rules and the 996 seniority from 1611959 was fixed as per new rules 73 promotees though promoted between 1956 58 could not be accommodated under the old rules their seniority was fixed under the new rules
In the present petitions the petitioners contend that this Court gave its direction in Gupta s case   because for want of sufficient material the court had come to the conclusion that the quota for recruitment of direct recruits and promotees had broken down as the promo tees were appointed in excess of their entitlement though the requisite material showing the contrary was in posses sion of the government which was suppressed
It is asserted by them that the material shows that in fact the appointment of the promotees was short of their quota
Hence they claim that not only the 1973 Rules be set aside but the appoint ments of the promotees be made and their seniority be fixe daccording to the rules prevailing prior of the said Rules
In the connected writ petitions besides these contentions validity of amendment of Sec 117 of the Income Tax Act and classification of Income Tax Officers in Group A and Group B officers have also been questioned
Dismissing the writ petitions this Court held HELD It is clear from the table that the petitioners promotees have calculated the posts in the sanctioned strength not only in Grade II but also in Grade I Posts when the posts available to them for promotion were only in grade I1
Hence their further calculations of the working strength the vacancies and the quota available to them in the vacancies and of the dificiencies or the excess in the quota are erroneous
1009F Even the Government had independently come to the con clusion as early as in 1986 that neither the Rules of sen iority nor the Seniority List of 1973 had done injustice to the promotees
In fact the Rules of 1973 had rised 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 accord ing to the new Rule
1016F G What this Court wanted to convey in the earlier part of its 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 997 decides to fill in the vacancies and not before it
1017F Power is vested in the legislature to appoint different classes of officers and this carries with it also the power to demarcate their duties functions and responsibilities
Whether in fact there is such a division of powers func tions and responsibilities or not has nothing to do with the validity of the power to make the classification
1019H 1020 A 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 eligibility qualifi cations
The sources of their appointment and the authori ties 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 responsibili ty 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 assessees or of the com plexities of the returns filed is entrusted to the officers belonging to Groups Group A now Assistant Commissioners while the assessment work of a summary nature or of returns involving simple transactions is entrusted to Officers belonging to Group B now ITOs
1023C E By the very nature of the operation involved the admin istration 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
After 1987 amendment the situation has further changed and the duties functions jurisdiction and powers of the officers have been rationalised clearly demarcating the spheres of work
In an organisation of this kind with country wide offices dealing with various categories of assessees and incomes some dislocation functional overlapping 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 Income Tax Act and making the rules and issuing the relevant notifications circulars and orders
1024B 1026B C If during this period on account of the exigencies of service some ad hoc appointments of Group B officers were made to Group A posts 998 and Grade 1I 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 of that account
1026D E SG Jaisinghani vs Union of India and Ors   BS Gupta etc
vs Union of India and Ors etc
   Kamal Kanti Dutta and Ors
vs Union of India and Ors
 1980 3 SCR III KM Bakshi vs Union Of India AIR 1962 SC 1139 Federation of A11 India Customs and Central Excise Stenographers Recognised and rs
vs Union of India and Ors
   V Markandeya and Ors
vs State of Andhra Pradesh and Ors
   referred to