Case: Rabindranath Bose &amp; Others Vs. Union of India &amp; Others

are hit by Article 14 and Article 16 of the Constitution, the petitioners would have the right to complain of the breach of their fundamental rights under these Articles.33. But in so far as the attack is based on the 1952 Seniority Rules, it must fail on another ground. The ground being that this petition under Article 32 of the Constitution has been brought about 15 years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Learned Counsel for the petitioners says that this Court has no discretion and cannot dismiss the petition under Article 32 on the ground that it has been brought after inordinate delay. We are unable to accept this contention. This Court by majority in M/s. Trilokchand and Moti Chands case, (1969) 1 SCC 110 held that delay can be fatal in certain circumstances. We may mention that in Laxmanappa Hanumantappa Jamkhandi v. Union of India, 1955 SCR 769 = (AIR 1955 SC 3 ), Mahajan, C. J. observed as follows:-"From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income-tax Act itself were made against the petitioner in November 1953.In these circumstances, we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax Officer, Mohindergarh, AIR 1951 SC 97 that as there is a special provision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law, Clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under Article 32. In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen, it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court" (emphasis here in supplied).34. The learned counsel for the petitioners strongly urges that the decision of this Court in Trilokchand and Motichands case, (1969) 1 SCC 110 (Supra) needs review.But after carefully considering the matter, we are of the view that no relief should be given to petitioners who without any reasonable explanation, approach this Court under Article 32 of the Constitution after inordinate delay. The highest Court in this land has been given Original Jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay.35. We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience.It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.It was on the ground that this Court in Jaisinghanis case, 1967-2 SCR 703 = (AIR 1967 SC 1427 ) observed that Class II officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income-tax and who were appointed and promoted to their original posts during 1945 to 1950, should be left alone.36. Learned Counsel for the petitioners, however, says that there has been no undue delay. He says that the representations were being received by the Government all the time.But there is a limit to the time which can be considered reasonable for making representations. If the Government has turned down one representation, the making of another representation on similar lines would not enable the petitioners to explain the delay. Learned counsel for the petitioners says that the petitioners were under the impression that the Departmental Promotion Committee had held a meeting in 1948 and not on April 29, 1949, and the real true facts came to be known in 1961, when the Government mentioned these facts in their letter dated December 28, 1961.We are unable to accept this explanation. This fact has been mentioned in the minutes of the meeting of the Committee which met in February 1952 and we are unable to believe that the petitioners did not come to know all these facts till 1961. But even assuming that the petitioners came to know all these facts only in December 1961, even then there has been inordinate delay in presenting the present petition. The fact that Jaisinghanis case, 1967-2 SCR 703 = (AIR 1967 SC 1427 ) was pending before the High Court and later in this Court is also no excuse for the delay in presenting the present petition.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]As we read, this scheme, it is quite clear that the intention was not to confine recruitment to the Service through these sources because from Para 3 General, which we have reproduced above, it is quite evident that selections were to be made also from the existing Grade I Income-tax Officers Class II Service. This method of recruitment did not come within Para 2 (d) of the Scheme set out above as it was neither direct recruitment through combined competitive examination nor promotion from Class II Grade III Service. Therefore, the statement in the counter-affidavit of Mr. M. G. Thomas Ministry of Finance, "Recruitment to Grade II of Class I was to be made partly by direct recruitment (through the combined Competitive Examination as also selection from existing Grade I of Class II Service) and partly by promotion on the basis of selection from Class II (Grade III) Service", is quite correct. It is further stated that, 80 per cent of the vacancies were to be filled by direct recruitment and the remanining 20 per cent were to be filled by promotion by selection from Class II (Grade III) Service".It appears that selection from the existing Grade I of Class II Service was treated as a form of direct recruitment within the quota of 80 per cent mentioned above. This constitution of the New Service was by an executive order and there were no statutory rules governing the Service at this stage. On 29-9-1944 the Government wrote to the Federal Public Service Commission to approve of 100 officers considered suitable for selection to the new Class I Service of Income-tax Officers (Grade I). The Government also requested the Commission to recruit for the Class I, Grade II Income-tax Service 10 Officers on the result of the competitive examination that will be held in October 1944. Considering that there were 183 posts, permanent and temporary to be filled in by Income-tax officers Grade II, the number was insignificant. The idea seems to have been to take the officers from existing Grade I of Class II as far as possible as they had experience and the direct recruits would not be able to cope with the work for some years to come. On 26-5-1945, the Government framed rules for recruitment to the Income-tax Officers (Class I, Grade II)seems to us that apart from the above limited concession, we cannot at this time declare that the appointments were ivalid in any respect. Assuming that these appointments were made contrary to statutory Rules, the petitioners are incompetent to challenge the validity of these appointments for various reasons. Firstly these appointments were pre-Constitution appointments and they cannot be challenged in a petition under Article 32 of the Constitution. Secondly, there has been inordinate delay. A suit to challenge the validity of the appointments would be hopelessly time-barred, and the respondents have acquired various rights since their appointments. Thirdly, in Jaisinghanis case, 1967-2 SCR 703   = (AIR 1967 SC 1427  ) (Supra), this Court said that the order in thatnot affect such Class II officers who have been appointed permanently as Assistant Commissioners of Income Tax."We will presently give our reasons in detail for coming to this conclusion. To resume the narrative, the petitioners completed their probationary periods on different dates in 1949 and were confirmed as I. T. Os Class I, Grade II in 1949 and 1950, except petitioner No. 9 Shri D. N. Pande, who was confirmed on 22-12-51. Most of the respondents had already been confirmed on various dates in 1946, 1947 and 1948.It seems to us that the petitioners cannot complain of the breach of Articles 14 and 16 of the Constitution in respect of acts done before the Constitution came into force. These acts in this case were (1) appointments of the respondents to Income Tax Officers Class I, Grade II Service; (2) Seniority List as existing on 1-1-1950; and (3) the Seniority Rules of 1949 and 1950, in so far as they had effect upto January 26, 1950. It will be recalled that the first seniority list was prepared as on January 1, 1950 and even if the seniority list was finally settled after the Constitution came into force, the Rules to be applied were the Seniority Rues of 1949 and 1950.In other words, if the list had been finally settled on January 1, 1950, it is clear that no appeal could be made to Articles 14 and 16 of the Constitution. The fact that the List was prepared after the Constitution came into force would not enable the petitioners to appeal to Articles 14 and 16. The position is however, different in so far as changes were made in the seniority List as a result of change in the 1952 Seniority Rules.These changes were post-Constitution and if they are hit by Article 14 and Article 16 of the Constitution, the petitioners would have the right to complain of the breach of their fundamental rights under these Articles.33. But in so far as the attack is based on the 1952 Seniority Rules, it must fail on another ground. The ground being that this petition under Article 32 of the Constitution has been brought about 15 years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Learned Counsel for the petitioners says that this Court has no discretion and cannot dismiss the petition under Article 32 on the ground that it has been brought after inordinate delay. We are unable to accept this contention. This Court by majority in M/s. Trilokchand and Moti Chands case, (1969) 1 SCC 110     held that delay can be fatal in certain circumstances. We may mention that in Laxmanappa Hanumantappa Jamkhandi v. Union of India, 1955 SCR 769 = (AIR 1955 SC 3  ), Mahajan, C. J. observed asthe facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income-tax Act itself were made against the petitioner in November 1953.In these circumstances, we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax Officer, Mohindergarh, AIR 1951 SC 97   that as there is a special provision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law, Clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under Article 32. In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen, it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court" (emphasis here in highest Court in this land has been given Original Jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay.We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience.It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.It was on the ground that this Court in Jaisinghanis case, 1967-2 SCR 703   = (AIR 1967 SC 1427  ) observed that Class II officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income-tax and who were appointed and promoted to their original posts during 1945 to 1950, should be leftare unable to accept this explanation. This fact has been mentioned in the minutes of the meeting of the Committee which met in February 1952 and we are unable to believe that the petitioners did not come to know all these facts till 1961. But even assuming that the petitioners came to know all these facts only in December 1961, even then there has been inordinate delay in presenting the present petition. The fact that Jaisinghanis case, 1967-2 SCR 703   = (AIR 1967 SC 1427  ) was pending before the High Court and later in this Court is also no excuse for the delay in presenting the present petition.