Case: Kamal Kanti Dutta and Ors Vs. Union of India and Ors

No sooner does one round of litigation come to a decision than is another round started by one party or the other, sometime s alleging, as in these Writ Petitions, that important facts and circumstances were not taken into consideration in the earlier proceedings either because they were suppressed or because, though cited, they were overlooked or misunderstood. A virtual review is thus asked for, opening flood gates to fresh litigation. There are few other litigative areas than disputes between members of various services inter se, where the principle that public policy requires that all litigation must have an end can apply with greater force. Public servants ought not to be driven or required to dissipate their time and energy inbattles. Thereby their attention is diverted from public to private affairs and their inter se disputes affect their sense of oneness without which no n institution can function effectively. The constitution of Service Tribunals by State Governments with an apex Tribunal at the Centre, which, in the generality of cases, should be the final arbiter of controversies relating to conditions of service, including the vexed question of seniority, may save the courts from the avalanche of writ petitions and appeals in serviceThe proceedings of such Tribunals can have the merit of informality and if they will not be tied down to strict rules of evidence, they might be able to produce solutions which will satisfy many and displease only a few. There are always a few whom nothing canthree petitioners in Writ Petition No. 66 of 1974 are all promotees. Petitioner No. 1, Kamal Kanti Dutta, was appointed as an Inspector ofon December, 7, 1950 and after passing the departmental examination he was promoted anofficer, Class II on June 21, 1954. On January 1, 1966 he was promoted asofficer, Class I, which post he was holding on the date of the petition, February 8, 1974. Petitioners 2 and 3, Bikash Mohan Das Gupta and Sushil Ranjan Das, were promoted as Inspectors ofin April, 1955. The former was promoted as I.T.O., Class II in December, 1957 and as I.T.o., Class I, in May, 1971 while the latter was promoted as I.T.o., Class II, in August,1 to 5 to the petition are the Union of India, Secretary to the Ministry of Finance, the Central Board of Direct Taxes, Secretary to the Ministry of Home Affairs and the Union Public Service Commission respectively. Respondents 6 to 357 who were recruited directly as I.T.Os., Class I, were appointed on probation as Class I officers after Petitioner No. 1 was promoted to that cadre on January, 1, 1966. Respondents 280 to 357 were appointed on probation as I.T.os., Class I, after Petitioner No. 2 was promoted to that cadre in MayNo. 358, S. G. Jaisinghani, who was recruited directly as I.T.O., Class I, in 1951 was holding the rank of Assistant Commissioner ofon the date of the petit ion. He was posted at the relevant time as the Deputy Director of Investigation, New Delhi. Respondent 359, Mohan Chandra Joshi, who was recruited directly as I.T.O., Class L in 1953 was also holding a similar rank and was working as Deputy Secretary, Ministry of Defence, Government ofWrit Petition No. 4146 of 1978 the Petitioner, Hundraj Kanyalal Sajnani, was appointed directly on the recommendation of the Union Public Service Commission as I.T.o., Class II (Trainee) on July 1, 1947. After successfully completing the period of probation, he passed the departmental examination for I.T.Os. in July 1950. Inhe was promoted as I.T.O., Class I, and was confirmed in that cadre with effect from December 9, 1960. He was promoted as an Assistant Commissioner ofwith effect from December 17, 1969.Respondents 1 to 3 to that petition are the Union of India, the Chairman of the Central Board of Direct Taxes and the Union P ublic Service Commission respectively. Respondents 4 to 8 are B. D. Roy, S. G. Jaisinghani, M. C. Joshi, B. S. Gupta and M. Jangamayya respectively. These officers have figured in certaindecisions of this Court, as a result of which their names have become house hold words in service jurisprudence. In fact, Shri B. S. Gupta figures in twoknown as the first Gupta case and the Second Gupta case. Respondents 4, 7 and 8 are Assistant Commissioners o fwhile respondents 5 and 6 are workings Deputy Directors ofwill be difficult to appreciate the nature of the relief sought in these Writ Petitions without a proper understanding of the history of the litigation leading to these petitions. That history is quite checkered. one of the principal grievances of the petitioners is that some of the previous decisions rendered by this Court are erroneous and that some have not been properly understood and interpreted while framing rules of seniority. That makes it necessary to refer to the previous proceedings leading to the presenta view to improving theadministration, the Government of India, in consultation with the Federal Public Service Commission, decided to reconstitute and classify the then existingServices, Classes I and II. The scheme of reorganisation of the Services was set out in a letter dated September 29, 1944 of the Government of India, Finance Department (Central Revenues), which was sent to all the Commissioners ofThe Central Service, Class I was to consist of (1) Commissioners of(2) Assistant Commissioners ofax officers, Grade I and (4)officers, Grade II. The Central Service, Class II comprisedofficers, Grade III. Thusofficers, Class I were to be of two grades, Grades I and II, whileOfficers, Class II, were to consist of one grade, namely, Grade Ill. A Clauses (a) to (e) of paragraph 2 of the aforesaid letter prescribed modes of recruitment to the various posts in Class I and Class II. Clause (d) which prescribed the mode of recruitment to the post ofofficer, Class I, Gradehave carefully gone through the Judgment prepared by My Lord the Chief Justice but I regret my inability to agree with thehistory, chronology of events, contentions canvassed and the three decisions of this Court disposing of the contentions have been so succinctly drawn up in the main judgment that its repetition would merely be an idle formality. I would, therefore, straightaway deal with the points raised in thesepetitioners who are promote Income Tax officers Class I, Grade II, pray for reconsideration of the three decisions specifically S.G. Jaisinghani v. Union of India &O.r.s.. Bishan Satup Gupta v. Union of India &o.r.s..(2) (1st Gupta case for short) and, Bishan Sarup Gupta etc. etc. v. Union of India &ors. etc. etc. (13) (2nd Gupta case for short), and to the extent the first mentioned case is relied upon in Union of India etc. v. Malji Jangamayya etc., (4) on the followingThe conclusion that rule 4 of the Income Tax officers (Class l, Grade II) Service Recruitment Rules is statutory and, therefore, the quota prescribed by the Government of India for recruitment to Income Tax officers Class I, Grade II in exercise of the power conferred by rule 4 would be statutory, proceeds on an assumption not warranted by the provisions of law bearing on the point and if both rule 4 and the quota presumably prescribed in exercise of the power conferred by rule 4 are not shown to be statutory, the foundation on which the edifice in Jaisinghanis case rests is knocked out because it can be demonstrably established that neither rule 4 nor the quota prescribed there under was statutory in character but was at best an administrative instruction.2. After the Court on an interpretation of the quota rule A held that the quota was related to vacancies arising in the grade every year, the conclusion reached did not conform to this finding but accommodated the so called inability (now shown to be factually incorrect) of the Government of India to give information to the Court about the vacancies in the grade every year wit h the result that the whole calculation of spill over is vitiated.3. The mandamus issued in Jaisinghanis case was minister pretend by the Government because even if the quota was statutory it was operative only between 1951 and 1956 but the Government interpreted the mandamus to be operative beyond 1956 and upto 1967 which misinterpretation has been pointed out in the first Gupta case.4 . In the 1st Gupta case while holding that the mandamus directing to treat the quota as statutory beyond 1956 was not justified yet till January 16, 1959, the Court itself in, directly accepted the quota rule as a guideline and treated that there was a spill over of 73 promotes. If rule 4 was not statutory and consequently the quota prescribed in exercise of the power which had outlived its prescribed span of life in 1956 could not be brought in to treat any appointment as invalid on the ground that there was no allocated post for those appointees treated as spill over because under rule 4 itself the Government had power to determine the method or methods to be employed for the purpose of filling in particular vacancies or such vacancies as may be required to be filled in during any particular period and the number of candidates to be recruited by each method.5. The action of the Government in upgrading 214 posts between 1959 and 1962 from Class II, Grade III to Class I. Grade II was not open to question as at that stage there was no quota rule and rule 4 enabled the Government to make recruitment from either of the two sources in exercise of its executive power. In upholding the seniority rules in 2nd Gupta case the Court introduced quota rule retrospectively by the back door which is impermissible and its operation manifestly establishes its utter unfairness inasmuch as a direct recruit not any where in the Department or may be a student may secure a march over a promote who has been working in Class 1, Grade II.

Reasoning:
Since there was no seniority or quota rule in existence for determining the seniority of promotes Que the direct recruits, the natural seniority linked with the earlier date of appointment must be respected. lt could not be altered to the detriment of the promotes since to do so would violate Article 16 of the Constitution. This contention was rejected by the Court on the ground That when the 73 spillover appointments were made, there were no allocated or earmarked posts to which those promotes could have been validly appointed, the ordinary consequence of which would have been their reversion to Class II posts which they originally held. So long as the quota rule was in existence, appointments in excess of the quota, though invalid when made, were at least liable to be regularized in subsequent years when vacancies were available to the promotes as a consequence of the quota rule. But once the quota rule ceased to exist on January 16, 1959, any possibility of the excess appointments of the promotes being regularized vanished. It was in order to overcome this injustice to the promotes, that the new rule was framed by the Government. The new rule was thus not only the direct outcome of the judgment of the Court in the 1st Gupta case, but it was founded on the very principles on which the Income tax Service had been constituted. The Court finally said that it had also to be remembered that promotes appointed from January 16, 1959 onwards were appointed on an officiating orbasis with notice that the question of their seniority was still undecided. This circumstance, coupled with the absence of clear allocations of posts, made it impossible for the promotes to lay claim to seniority and contend that they were deprived of their natural seniority in violation of Articleshall have been noticed that we have refused to reconsider our decision s not so much because of the view taken in the various cases cited by the learned Solicitor General, like Sajja Singh v. State of Rajasthan, (l) that this Court should not review its decisions too readily, as because, on merits, we see no justification for reconsidering the judgments already rendered by this Court. No fresh facts are brought to our notice, by way of discovery of new and important evidence, which would justify reconsideration of the decisions already rendered by this Court after the most careful examination of the competing contentions. The report of the Rajya Sabha Committee on Petitions shows, as already indicated, that the relevant files are still notrule violates another important rule well recognised in the service jurisprudence that in the absence of any valid rule of seniority date of continuous officiation provides a valid rule of seniority. This rule is completely crucified under two unsustainable assumption that a quota rule having guideline sanction is made imperative in character and assumed to be in force between 1956 and 1959, and that even though Government in exercise of power conferred by rule 4 for its own necessity promoted 214 promotees to the upgraded posts yet they must yield place to some future direct recruits who may come to the department at a later date. This Court sustained the position holding that these were ad hoc appointments, and there were no regular posts for those promotees. This approach wholly overlooks the effect and the force of ruleand continuity demand that thi s Court should not reopen settled decisions or reopen closed questions unless under a compelling necessity. It may be that the fate of Income Tax officers, promotees and direct recruits, may rest with the three decisions of this Court. Unfairness to some of them may itself not provide a good and compelling reason for reopening and reconsidering the decisions. Therefore, if that were the only point for our consideration I would have unhesitatingly agreed with the decision rendered by My Lord the Chief Justice. But there is a further compelling necessity which impels me to pen these fewis not for a moment suggested and I say so with utmost respect that the aforementioned three decisions are incorrect. In the light of the materials now placed especially the files which were withheld from the Court and the Committee the only view that I express is that enough compelling and necessary material has been placed on record making out a strong case for reconsideration of these decisions. Accordingly, in my view the present two petitions deserve to be placed before a larger Bench to be constituted by the Honble Chief Justice ofview of the majority opinion the Writ Petitions are dismissed with no order as to