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

2. In order to appreciate the above contentions and the other points raised before us, it is necessary to set out the relevant facts chronologically.3. Before September 29, 1944, when the re-organisation scheme was launched, the conditions of service and pay-scales of Income-tax Officers were different and the method of recruitment was also different in different Provinces. By letter dated 23-3-43, it was decided that pending the constitution of Class I and Class II Service of Income-tax Officers, the latter of which will include also officers hitherto called Assistant Income-tax Officers, the existing grade of Assistant Income-tax Officers should be designated as Income-tax Officers, Grade II. There was disparity not only in pay but also in prospects and conditions of service. The Government therefore felt it necessary to re-organise the entire service and to create a Central Service and uniform payscales for different constituent grades. The main idea was to create Class I cadre Officers Service and to make selection to it from the existing Class II officers. This re-organisation scheme was formulated in a letter dated 29-9-44 from the Government of India, addressed to all Commissioners of Income-tax. The Central Service Class I was to consist of Commissioners of Income-tax - (No. of posts 8 - 7 permanent and 1 temporary). Assistant Commissioners of Income-taxof posts 378 - 360 permanent and 18 temporary).Income-tax Officers Grade I:(No. of posts 151 - 125 permanent and 26 temporary).Income-tax Officers Grade II:(No. of posts 183 - 125 permanent and 63 temporary).Class II was to consist of Income-tax Officers Grade III: (No. of posts 83 - 9 permanent and 74 temporary).Regarding Income-tax Officers Grade I (Class I Service) it was stated that these officers will be appointed by selection from Grade II which will come into being under the new scheme and till the re-organisation is complete from the existing Grade I of Income-tax Officers in Class IIxxx xxx xxxx xxx xxx xxRegarding Income-tax Officers Grade II (Class I Service) - it was provided that -2 (d) " Recruitment to Grade II will be made partly by promotion and partly by direct recruitment. 80 per cent of the vacancies arising in this Grade will be filled by direct recruitment via the Indian Audit and Accounts and Allied Services Examination. The remaining 20 per cent of vacancies will be filled by promotion on the basis of selection from Grade III (Class II Service) provided that suitable men upto the number required are available for appointment. Any surplus vacancies which cannot be filled by promotion for want of suitable candidates will be added to the quota of vacancies to be filled by direct recruitment via the Indian Audit and Accounts etc. Services Examination.All direct appointment via the Indian Audit and Accounts and Allied Service Examination to Grade II will, during the period of the war, be subject to such general orders as have already been or may hereafter be issued by the Government of India with a view to safeguarding the interest of war service candidates.It is necessary also to set out Para 3 of the letter which is headed -new classification (insofar as it relates to Income-tax Officers, Grades I and II) indicated in paragraph I above will apply to officers who are recruited under the new scheme including those who are selected from the existing Grade I Income-tax Officers,Class II Service The present Grade I income-tax Officers in Class II Service who are not thus selected, and the officers who will be appointed to this grade before the introduction of the new scheme, will remain in Class II service. This service, of Income-tax Officers will be ultimately abolished as soon as these officers leave their posts either by substantive promotion to Class I Service or by retirement or through other causes and the Class II Service will essentially consist only of Income-tax Officers, Grade III.On 8th November 1945, the Government wrote to the Federal Public Service Commission that -"In a like manner, it is proposed to continue promotions to the grade II of Class I also for the next two or three years from amongst those who were in service in the pre-existing Class II, Grade I, on the date of re-organisation even outside the 20 per cent limit fixed for such promotion in the orders regarding re-organisation. The Government feel that this will not interfere with direct recruitment via the examination. It is presumed that the Commission will not have any objection to the proposals in the immediately two precedingletter clearly shows that the Government was recruiting officers to grade II of class I from the pre-existing class II grade I, and they meant to continue this for the next two or three years. The Federal Public Service Commission replied on 23-5-46 asreference to paragraph 8 and 9 of your letter dated the 8th November, 1945, I am to say that the Commission will have no objection if during the next two or three years the names of a few more officers are put forward for consideration for promotion to grades I and II in Class I where special circumstances seem to justify such a course. They suggest, however, that this should be exceptional"........We may mention here that respondents 31 to 39 were appointed as I. T. Os Class I, grade II in 1945, respondents 11 and 25 in 1946, but the original date of appointment of respondents No. 25 is 1-6-47. All the petitioners were either appointed I. T. Os. Class I Grade II in 1946 or 1947. Respondents 6 to 10, 26, 27 and 28 were appointed in 1947.9. On 3-1-47 the Government forwarded to the Secretary Federal Public Service Commission the names of officers then considered suitable for appointment to Class I, grades I and II. It was further stated that there were a large number of temporary posts in each grade and it may not be fair to limit promotions to the available permanent posts only as that might result in a large number of temporary men who may be eligible for higher scales of pay being kept down.10. In Feb. 1949, in discussing the draft scheme for regulating the seniority of Income-tax officers, Class I, on an all India basis, the Government explained that"there are still 51 old Class II, Grade I officers, who have not yet been selected to Class I, as almost all of them have been found unfit at three successive selections. As technically they still continue to hold Class I posts and block promotions of other deserving officers, it is proposed to make a final selection from them and revert those who are not considered fit for retention in Class I to Class II, grade III posts. These persons would be considered later for promotion to Class I posts along with other against the 20% vacancies reserved for departmental candidates".Thus, it appears that it was in 1949 that it was decided that final selections were to be made from the remaining Class II grade I officers by interviewing them to find their fitness for Class I Service.11. Although the appointments, according to the petitioners, were irregular, they do not challenge the validity of the appointments but what they do challenge is the recognition of the date of appointments for the purpose of seniority. In other words, they say that we may treat an officer having been appointed as Class I, grade II, validly but for the purpose of seniority his appointment should be post-dated to a date when he would have been appointed had the quota rule mentioned in Para 2 (d) of the Scheme dated 29-9-44, been fully implemented.On 29-4-49 a meeting of the Departmental Promotion Committee took place and the Committee agreed that promotions to Income Tax Officers Class I Service, of officers recruited in 1944 on the result of the I. A. and A. S. and Allied Services examination held in 1943, and on other bases, should be given effect to from the 1st August 1948. This decision affected responents Nos. 12 to 24, 29 and 30. On 14-6-49 representations were made by direct recruits including petitioners Nos. 5, 6, 8, 10 and 12 and respondent No. 28 (Sheriff who is a petitioner in W. P. No. 242/67 under Article 32), regarding proposed Seniority Rules.14. On 9-9-1949 Seniority Rules were framed and a seniority list of Class I, Grade II, Income-tax Officers, as on the 1st January 1950, was drawn up and circulated by a letter dated 24-1-50. It appears that the seniority rules of 1949 had in the meantime been revised and a copy thereof was enclosed with the above mentioned letter dated 24-1-1950. It was stated in this letter that Government was prepared to consider any representation that they may have to make in regard to the accuracy of the data contained therein, upto the 28th February 1950, but no representation against the principles for the determination of seniority will be entertained.15. On 18-10-51, the Government decided on the recommendations of the U. P. S. C. and in modification of para 2 (d) of the Finance Department (Central Revenues) letter dated 29-9-44, that, for a period of five years in the first instance, 66.2/3% of the vacancies in Class I, Grade II, will be filled by direct recruitment via Combined Competitive Examination and the remaining 33.1/3% by promotion on the basis of selection from Grade III (Class II service). This order was held to be statutory by this Court in Jaisinghanis case, 1967-2 SCR 703   = (AIR 1967 SC 1427  ).16. On 1-1-52 all the petitioners were promoted as I. T. Os., Class I, Grade I, and confirmed also as such on the same date. In February 1952, a committee met for four days to consider the Rules governing the seniority of Income-tax Officers, Class I, Grade II and representations received against the draft seniority list. They made alterations in the Seniority rules and in one of these meetings, it wasregards the representations made by some of this batch of direct recruits regarding the date of approval by the Union Public Service Commission of the 1948 batch of promotees, the position is that four of them (S. Nos. 67 to 70) were actually promoted on the recommendations of the Departmental Promotion Committee held on 21-7-48. Fifteen others (S. Nos. 72 to 86) were promoted on the recommendations of the Departmental Promotion Committee held on 29-4-1949, but the records show that the meeting was originally convened for 6-9-48 and the agenda etc. had been circulated in advance of this date. The meeting had, however, to be postponed several times due to the personal inconvenience of the Members of the U. P. S. C. and of the Central Board of Revenue. In these special circumstances, it was considered that the proper thing would be to treat the recommendations of this Departmental Promotion Committee as if it had actually been held in September 1948. The result is that both batches of promotees of 1948 will remain senior to the direct recruits from the 1945 Examination who joined in 1946".

Court's reasoning:
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.