Supreme Court of India

Kamal Kanti Dutta And Ors vs Union Of India And Ors on 23 April, 1980

Equivalent citations: 1980 AIR 2056, 1980 SCR (3) 811

Author:
Y.V. Chandrachud

Bench:
Y.V. Chandrachud
,
N.L. Untwalia
,
P.S. Kailasam
,
D.A. Desai
,
E.S. Venkataramiah

PETITIONER:
KAMAL KANTI DUTTA AND ORS.

Vs.

RESPONDENT:
UNION OF INDIA AND ORS.

DATE OF JUDGMENT23/04/1980

BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
UNTWALIA, N.L.
KAILASAM, P.S.
DESAI, D.A.
VENKATARAMIAH, E.S. (J)

CITATION:
1980 AIR 2056 1980 SCR (3) 811
1980 SCC (4) 38
CITATOR INFO :
R 1986 SC1830 (38,58)
RF 1987 SC 386 (14)
RF 1989 SC1972 (11)
RF 1990 SC1106 (9,10)

ACT:
Review of Judgments of the Supreme Court of India under

Article 137
of the Constitution read with Order XXL of the
Supreme Court Rules, 1966-Petitions filed under
Article 32

of the Constitution indirectly invoking the review
jurisdiction and seeking a review of earlier decision of the
Courts Held, there is no substance in the request.

HEADNOTE:
With a view to improving the Income-tax administration,
the Government of India in consultation with the Federal
Public Service Commission decided to reconstitute then
existing income-tax services, Class I and II. Under the
scheme of reorganisation of the services set out in a letter
dated September 29, 1944 of the Government of India Finance
Department, the central service Class I was to consist of
(i) Commissioners of Income-Tax (ii) Assistant Commissioners
of Income-Tax; (iii) Income-Tax Officers Grade I and (iv)
Income-Tax Officers Grade-II. Thus Income-Tax Officers Class
I were to be of two grades, Grade I and II; while Income-Tax
Officers Class II were to consist of one grade, namely,
Grade III. Clauses (a) to (e) of paragraph 2 of the letter
prescribed the mode of recruitment to the various posts in
Class I and Class II. Under Clause (d) recruitment to Class
I Grade II was 20% by promotion from Class II, Grade III and
80% by direct recruitment via Indian Audit and Accounts
Service etc. examination. Rules regulating recruitment to
the Income-Tax Officers (Class I, Grade II) service "liable
to alteration from year to year" were published on May 26,
1945, by a resolution of the Finance (Central Revenues)
Department. Rule 3 provided that recruitment to Class I,
Grade II's service shall be made (1) by competitive
examination held in India in accordance with Part-II of the
Rules and (ii) by promotion on the basis of selection of
Grade III (Class II service, in accordance with Part III of
the Rules. By Rule 4 of the Government was to determine,
subject to the provisions of Rule 3, the method or methods
to be employed for the purpose of filling any particular
vacancies, or such vacancies as may be required to be filled
during any particular period, and the number of candidates
to be recruited by such method. Part III of the Rules called
(Recruitment by Promotion) provided by paragraph 21 that
"recruitment by promotion shall be made by selection from
Grade-III Income-Tax Officers (Class II service) after
consultation with the Federal Public Service and that no
officer shall have any claim to such promotion as of right".
By a letter dated January 24, 1950 the Government of
India laid down certain rules of seniority : (a) as between
direct recruits; (b) as between promotees selected from
Class II and (c) as between direct recruits who completed
their probation in a given year and the promotees appointed
in the same year to Class I.
On October 18, 1951 the Government of India addressed a
letter to all the Commissioners of Income-Tax titled
"Income-Tax Officers, Grade-II (Class- I service)-quota of
vacancies filled by promotions" wherein it was outlined that
for a period of 5 years in the first instance 66 and 2/3 per
cent of the vacancies in Class-I, Grade-II would be filled
by direct recruitment by a combined competitive examination
and the remaining 33 and 1/3 per cent on the basis of
selection by promotion from Grade-III (Class-II service).
Any surplus vacancies which could not be filled by promotion
for want of suitable candidates would be added to the quota
of vacancies to be filled by direct recruitment. By a letter
dated September 5, 1952 the Government of India revised with
a retrospective effect the Rules of Seniority which were
laid down on January 24, 1950. Rule 1 (f)(iii) as framed on
January 24, 1950 which was to the effect that "the promotees
who have been certified by the commission in any calendar
year shall be senior to all direct recruits who complete
their probation during that year or after and are confirmed
with effect from a date in that year or after" was revised
on September 5, 1952 as "officers promoted in accordance
with the recommendations of the Departmental Promotion
Committee before the next sitting of the Departmental
Promotion Committee shall be senior to all direct recruits
appointed on the results of the examinations held by the
Union Public Service Commission during the calendar year in
which the Departmental Promotion Committee met during the
three previous years". Rule 1(f)(iv) of the 1952 Rules dealt
with a special situation in which an officer initially
appointed to Class II service was given seniority in the
same manner as a departmental promotee, if subsequent to his
passing the departmental examination he was appointed to
Class I on the results of the competitive examination. Rule
4 of Chapter IX of the Rules of Promotion of the Central
Board of Revenue Office Procedure Manual states that the
prescribed minimum service for an officer of Class-I, Grade-
II for promotion to Grade-I is 5 years gazetted service
including one year in Class-I, Grade-II. For a promotee from
Class-II the minimum period of service for promotion to
Class-I, Grade-I would be actually 4 years service in Class-
II and one year service in Class-I, Grade-II.
In an appeal arising out of Writ Petition No. 189-D of
1962 filed by one S. G. Jai Singhani (who is respondent No.
358 in Writ Petition No. 66 of 1974 and respondent No. 5 in
Writ Petition No. 4146 of 1978), a constitutional Bench of
this Court held : (i) Rules 1(f)(iii) and (iv) of the
Seniority Rules framed in 1952 did not violate
Articles 14

and
since they were based on a reasonable classification;
(ii) Rule 4 of Chapter IX of the Central Board of Revenue
Office Procedure Manual did not lead to any discrimination
as between direct recruits and promotees, since the object
of the rule was really to carry out the policy of Rule
1(f)(iii) of the Rules of Seniority and not allow it to be
defeated by the recruitment of 5 years' service in Class-I,
Grade-II itself, before a person could be considered for
promotion to Class-I, Grade-I; (iii) Rule 4 of the Income-
Tax Officers (Class-I, Grade-II) Service Recruitment Rules
was a statutory rule to which a statutory duty was cast on
the Government to determine the method or methods to be
employed for the purpose of filling of the vacancies and the
number of candidates to be recruited by each method; and
that though in the letter of the Government of India dated
October 18, 1951 there was no specific reference to Rule 4,
the quota fixed by that letter must be deemed to have been
fixed in exercise of the statutory power given by Rule 4.
There was, therefore, no discretion left to the Government
of
India to alter that quota according to the exigencies of the
situation or to deviate from the quota in any particular
year at its own will and pleasure. The quota rule, according
to the Court, was linked up with the Seniority Rule and
unless it was strictly observed in practice it would be
difficult to hold that the seniority rule contained in rule
l(f)(iii) was not unreasonable and did not offend
Article 16

of the Constitution. The Court suggested that for future
years the roster system should be adopted by framing an
appropriate rule for working out the quota between the
direct recruits and the promotees and that a roster n should
be maintained indicating the order in which appointments
were made by direct recruitment and by promotion in
accordance with the percentages fixed under the statutory
rule for each method of recruitment. Thus the direct
recruits succeeded substantially in their contentions, the
quota rule acquired statutory force, appointments of
promotees in excess of the quota became bad and it became
obligatory for the Government to prepare a fresh seniority
list. Promotees found to have been appointed in excess of
the quota admissible to promoteeS had naturally to go down
in the final gradation of seniority.
On July 15, 1968 the Government prepared a fresh
seniority list and filed it in the Supreme Court. That list
failed to satisfy promotees as well as direct recruits.
Whether this seniority list was collect and in accordance
with the mandamus which was issued by this Court in S. G.
Jai Singhani`s case, [1967] 2 S.C.R. 703 came up for
consideration in four appeals which were disposed of by a
common judgment dated August 16, 1972 reported as Bishan
Sarup Gupta v. Union of India (first Gupta's case) in [1975]
Suppl. S.C.R. 491. The Court was also called upon to examine
the correctness of seven principles enumerated in the
Government letter dated July 15, 1968 governing seniority.
The first principle was accepted as good. The second and the
third principles were held to be partially incorrect in so
for as they excluded reference to all the promotees of 1952.
The Court held that the promotees of 1952 should be referred
to in the seniority list whether they are affected or not,
the object being the ascertainment of excess promotions.
This Court further held that the rule dated October 18, 1951
was not concerned with the Constitution of the cadre but
"was concerned with how permanent vacancies were to be
filled" and, therefore, the promotees would be entitled to
1/3 of the vacancies in any particular year whether or not
there was direct recruitment by competitive examination in
that year. This ratio of 2 :1 between the direct recruits
and the promotees could not be made to depend on whether any
direct recruits were appointed in any particular year. It,
therefore, became essential to determine the actual
vacancies in the cadre but the Government put forward the
plea even in this case as in Jai Singhani's that it was
impossible for them to give the exact figure of vacancies in
any particular year. According to the Court, when the quota
rule referred to vacancies it was implicit that the
vacancies are those which the Government wanted to fill up
whatever may be the actual number of vacancies available for
being filled up. Any number of posts among the promotees
more than 1/3 of the total number of appointments in the
particular year was considered to be in excess of the quota
available for promotees. The Court rejected the argument
that the quota rule which is co-related to vacancies of
permanent posts only and not to those in temporary posts.
While upholding the weightage allowed under Rule I (f) (iii)
to Class-II officers promoted to Class-l, Grade-II, the
Court also held that even after 1956, the Government was
entitled by reason of Rule 4 of the Recruitment Rules of
1945 to follow the quota rule of 1951 as a rough guideline,
"without going through the trouble of putting the same on
record in so many words" and
that in the normal course the Government was entitled to
prepare the seniority list till the end of 1958 in
accordance with the quota rule of 1951. In regard to the
position after year 1958 the Court came to the conclusion
that the quota rule ceased to apply and came to an end on
January 16, 1959, when the sanction to upgrade 100 temporary
posts in Class-II, Grade-III to Class-I, Grade-II was given
by the President. The seniority rule then fell with quota
rule. On these considerations the Court held that the
seniority list. was valid in regard to promotions made up to
January 15, 1959 to the. extent that it was prepared on the
basis of the quota rule dated October 18,1951 read with
Seniority Rule l(f)(iii). As a corollary, the Court set
aside the seniority list of July 15, 1968 and directed the
Government to prepare a fresh seniority list. The List for
the years 1955 to January 15, 1959 was directed to be
prepared in accordance with the quota rule of 1951 read with
Seniority Rule l(f) (iii). The List to be effective from
January ]6, 1959 was directed to be prepared in accordance
with the rules to be made afresh by the Government.
On February 9, 1973 the President made rules called the
Income-Tax (CIass-I) Service (Regulation of Seniority) Rules
1973 under
Article 309
of the Constitution giving
retrospective effect from January 16, 1969. In pursuance of
the liberty reserved to the parties under the Judgment in
the first Gupta's case the validity of the new seniority
rules was challenged by the promotees once again. The
challenge was considered and repelled by the Court in Bishan
Swarup Gupta etc. v. Union of India and Ors.[1975] 1 S.C.R.
104, second Gupta's case., When the new list of seniority
was prepared by the Government, in accordance with these
rules, the Government had on its hand 73 promotees who
though appointed earlier between 1956 and 1958 had no quota
post, for their absorption. The 73 promotees described as
"spill-overs on January 15, 1959", as also those who were
promoted subsequently had to be absorbed in the Service,
which could only be done by a special rule framed in that
behalf. The new seniority rule contained a formula for the
absorption OF all promotees with effect from January 16,
1959 in posts allocated to them, it determined their
seniority inter se and last but not the least it determined
their seniority qua the direct recruits appointed from 1959.
The Court overruled the objection of the '73' spill-over
promotees that since in the first Gupta's case the Court had
directed that they should be absorbed on a "priority basis".
all of them should have been shown in the seniority list as
having been pointed on January 16, 1959 en bloc and the
direct recruits for that year should have been shown
thereafter. It was explained that by use of the expression
"priority basis" what was meant by the Court was that the
position or the spill-over promotees as seniors should not
be prejudiced by claims made by later promotees on the
ground that since the spill-over promotees were recruited in
excess of the quota, the later promotees whose promotion did
not violate the quota rule had higher rights than those 73.
The Court further held that, v he the 73 spill-over
appointments were made, there were no allocated or earmarked
posts to which those promotees could have been validly
appointed. the ordinary consequence of which would have been
their revision 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 atleast
liable to be regularised in subsequent years when vacancies
were available. to the promotees 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 promotees being regularised vanished. It was in order
to overcome this injustice to the promotees, that the new
rule was framed by the Government. The new rule was thus not
only the direct outcome of the judgment or the Court in the
Ist Gupta case, but it was followed 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
promoteeS appointed from January 16, 1959 onwards were
appointed on an officiating or ad hoc basis with notice that
the question of their seniority was still undecided. This
circumstance coupled with the absence of clear allocation of
posts, made it impossible for the promotees to lay claim to
seniority and contend that they were deprived of their
natural seniority in violation of
Article 16.

The petitioners who were promotee Income-Tax officers
Class-I, Grade-II prayed for reconsideration of these three
decisions S. G. Jai Singhani v. Union of India and Anr.
[1967] 2 S.C.R. 703; Bishan Swarup Gupta v. Union of India
and Ors.(First Gupta's case),[1975] Suppl. S.C.R. 495;
Bishan Swarup Gupta etc. v. Union of India and ors. (Second
Guptas case) [1975] S.C.R. 104 and to the extent S. G. Jai
Singhani's case is relied upon in Union of India v. Malji
Jangamayya etc.,[1977] 2 S.C.R. 28. On the following
grounds:
1. The 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 of which the edifice in S. G.
Jai Singhani's case rests is knocked down because it can be
demonstrably established that neither rule 4 nor the quota,
prescribed thereunder was statuary in character but was at
best an administrative instruction.
2. After the Court on an interpretation of the quota
rule 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 with the result that the whole
calculation of spill-over is vitiated.
3. The mandamus issued in Jai Singhani's case was
misinterpreted 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's case.
4. In the first Gupta's case while holding that the
mandamus directing, to treat the quota statutory beyond.
1956 was not justified yet till January 16. 1959, the Court
itself indirectly accepted the quota rule as a guideline and
treated that there was a spill-over of 73 promotees. 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 he recruited by each method.
5. The action of the Government of upgrading 214 posts
between 1959 and 1962 from Class-II, Grade-II 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 regard to the second Gupta's 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 nor any where in the department or may be a student
may secure a march-over a promotee which has been working in
Class-I, Grade-II.
Dismissing the petitions the Court,
^
HELD: Per Chandrachud, C.J. (On behalf of N. L .
Untawalia, P. S Kailasam, E. S. Venkataramaiah, JJ. and
himself). (Majority view)
i. A consideration of certain historic facts in this
case makes it clear that there is no substance in the
request made for a review of the decisions in Jai Singhani
v. Union of India and Ors., [1967] 2 S.C.R. 703; Bishan
Swarup Gupta v. Union of India and ors. (Ist Gupta's case)
[1975] supplementary S.C.R. 491; Bishan Swarup Gupta v.
Union of India & Ors.; Second Gupta's case [1975] 1 S.C.R.
104 and Union of India v. Malji Jangamayya[1977] 2 S.C.R.
28. [840 E-F]
For nearly a. decade after 1950, appointments of
promotees were made far in excess of the quota available to
them. So long as the quota rule operated. it was possible to
regularise their appointments when posts within their quota
became available in later years. But a somewhat
unprecedented situation arose by the upgrading of Class II
posts to Class I grade II-100 of them on January 16, 1959
and 114 on December 9, 1960. This massive upgrading of posts
brought about a collapse of the quota rule. Subsequent
absorption in posts which became available for being filled
up later really means regularisation of appointments, which
is possible provided there is no excessive deviation from
the quota rule. [840 G-H, 841 A]
It is true that no blame can be laid at the doors of
the promotees on the score that they were appointed in
excess of tho quota available to them. Perhaps, their
appointments must even have enabled the administration to
tide over administrative stale-mate. But the tough problem
which the administration has to face is that whereas it is
necessary to recognise and protect the claims of promotees
who were appointed in excess of their quota, is equally
necessary to ensure that the direct recruits do not suffer
an nude set-back in service on account of the appointments
of promotees. The conflicting claims of the two components
of Service, both having an importance of their own, have
therefore to be reconciled. It was with that object that the
rules have been modified from time to time. The judgments
rendered by this Court in the aforesaid four cases show,
without a shadow doubt, how every effort was made to ensure
that no hardship or injustice is caused to the promotees
merely because their appointments exceeded their quota. [841
A-C]
2. It is not correct to say that the judgment in Jai
Singhani was based on a concession or that the Court felt
compelled to draw the particular conclusions
therein because of the inability or refusal of the Finance
Ministry to produce A the relevant files. The Court adopted
what it considered in the circumstances to be a satisfactory
and scientific method of ascertaining the number of
vacancies available for being file up. It came to the
conclusion that the number of actual appointments should
determine the number of vacancies available which was a
perfectly legitimate conclusion to draw. In the grey area
where service rules operate, more than one view is always
possible to take without sacrificing either reason or
commonsense but the ultimate choice has to be necessarily
conditioned by several considerations ensuring justice to as
many as possible and injustice to as few. There was no error
in the conclusion in Jai Singhanni that Rule 4 of the
Recruitment Rules was a statutory rule Subsequent decisions
would show that there was hardly any dispute between the
parties, at later stages at any rate, that Rule 4 was a
statutory rule. [841 D-G]
3. No doubt, the promotees should not be penalised for
the mere reason that those of them who were appointed after
January 16, 1959 were appointed on an officiating or ad hoc
basis and had clear notice that the question of their
seniority was still undecided. The circumstances attendant
upon their appointments cannot, however, be wholly
overlooked in determining whether the constitutional
constraints have been over-stepped. [841 H, 842 A]
4. It is not safe to test the constitutionality of a
service rule on the touch stone of fortunes of individuals.
No matter with what care, objectivity and foresight a rule
is framed, some hardship, inconvenience or injustice is
bound to result to some members of the service. The
paramount consideration is the reconciliation of conflicting
claims of two important constituents of Service, one of
which brings fresh blood and the other mature experience.
[842 A-C]
5. Though the promotees submitted in the Second Gupta
case that the new seniority rule was unfair to them, they
were unable to put forward any rational alternative. On the
contrary the counter-affidavit dated August 31, 1973 file in
the Second Gupta case by Shri Mehra., the Deputy Secretary
Finance, shows the fullness with which the Government had
consulted all possible interests while framing the impugned
rules of seniority. The gamut of reasonable possibilities is
fairly covered by the four alternatives referred to in Shri
Mehra's affidavit. The inconveniences and disadvantages
flowing from the first three alternatives would be far
greater than those flowing from the fourth. That is why the
choice ultimately fell on the fourth alternative under which
the seniority between promotees and direct recruits was
filed alternately on a roster system, vacancies being
equally divided between promotees and direct recruits, for
the entire period from 1959 up-to-date. The observation of
the Court in the Second Gupta's case at page 119 shows how
difficult it is to solve the jig-saw puzzle of service
disputes. [842 C-Hl G
6. The report of the 'Committee on petitions' of the
Rajya Sabha, howsoever, sincerely motivated and fully drawn
cannot be given the importance which the promotees seem to
attach to it. In paragraph 16 of its Report the Committee
does refer to certain files but those files appear to
contain some notions in regard to the direct recruitment
only. The Committee has given a table of comparative
appointments in paragraph 19 of its Report but it had to
speculate on an important aspect of the matter, as is shown
by its own language, that the table shows the member of
direct recruits which the Government wanted to take and "on
the basis of which the promotees must have been given promo-
tions". If indeed the relevant files were produced before
the Committee, it would not have expressed its sense of deep
shock and resentment at the disappearance of the files.
Further para 32 of the Report shows that the Committee had
to grope in the dark and indulge in a certain amount of
speculation on matters under its consideration. In the
circumstances it has done as good a job as a Committee can
and no fault need to found with it. But nevertheless the
said Committee's report cannot displace the Courts
judgments. [842 H, &43 A-C]
Even on merits there is no justification for
considering the judgments already rendered by this Court
inasmuch as no fresh facts were brought to 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 that the relevant files are still not
traceable. [843 E-F, G-H, 844 A]
Per Desai, J. (contra )
1. While, no doubt, the Supreme Court has
constitutional rower lo review its decision, it is a power
to be sparingly exercised because any such review has the
tendency to unsettle questions which may have been finally
determined. The Supreme Court does not lightly undertake
review of its decisions more especially where conflicting
claims have been settled by the decision of this Court and
the whole gamut may have to be gone through over again on a
reconsideration of the decision. While exercising inherent
power to reconsideration and review its earlier decision,
the Supreme Court would naturally like to, impose certain
reasonable limitations and would be reluctant to entertain
plea for reconsideration and review all its earlier
decisions unless it is satisfied that there are compelling
and substantial reasons to do so. It is general judicial
experience that in manners of law involving questions of
construing statutory or constitutional provisions, two views
are often reasonably possible and when judicial approach has
to make a choice between the two reasonable possible views,
the process of decision making is often very difficult and
delicate. [846 A-B, 847 C, G-H. 848 A-B]
In deciding whether a review is necessary when two
views are possible it would not necessarily be an adequate
reason for such review and revision to hold that though the
earlier view is reasonably possible view the alternative
view which is pressed on the subsequent occasion is more
reasonable. The Court's discretion should be guided by such
consideration whether in the interest of public good or for
any other valid or compulsive reason it is necessary that
the: earlier decision should be revised. [848 B-C]
Sajjan Singh v. State of Rajasthan, [1965] 1 S.C.R.
931; Keshav Mills Co. Ltd. v. commissioner of Income Tax,
Bombay North, [1965] 2 S.C.R. 90B & 921; Manganese Ore
(India) Ltd. v. The Regional Assistant Commissioner of Sales
Tax, Jabalpur, [1976] 3 S.C.R. 99 applied,
2. Jai Singhani case proceeds on a concession that Rule
4 and the quota prescribed by the Government referable to
the power conferred by Rule 4 were statutory in character.
[848 D-E]
Income-tax service was reconstituted on September 29,
1974. The Government of India classified the existing
income-tax service as Class I and Class II.
The scheme provided for recruitment of income-tax officers
Class I grade II partly by promotion and partly by direct
recruitment. The scheme was set out in the Government of
India Finance Department (Central Revenues) letter dated
September 29, 1944. The quota prescribed therein has
undergone a revision at a later date. The rules being Pre-
constitution Rules, their source must be traced to the

Government of India Act, 1935
.
Section 241
of the 1935 Act
made provision for recruitment and conditions of service.

Section 241
makes it clear that the power to make
appointments in the case of service of Federation and posts
in connection with the affairs of the Federation was
conferred on the Governor-General or such person as he may
direct. The power to make rules in this behalf was conferred
by sub-section '' on the Governor-General or by some person
or persons authorised by the Governor-General to make the
rules fol the purpose. But, the rules were not made either
by the Governor-General or such person authorised by him.
'The rules were made by the Finance Department and no
material was placed to show that the persons or the persons
who made the rules were authorised by the Governor-General,
under
Section 241(2)
of the 1935 Act in this behalf. The
assumption made therefore, that Rule 4 of the Rules are
statutory and that the quota prescribed in exercise of the
power conferred by Rule 4 must be statutory is ill-founded
This knocks out the entire foundation of the judgment of
this Court in Jai Singhani's case because this Court
proceeded to hold that as the quota was statutory, any
recruitment made in excess of the quota in any given year
would be invalid and at best can be regularised by
relegating such excess appointment to the quota next year.
If Rule 4 and the quota referable to the power conferred by
Rule 4 were not statutory but were merely execute
instructions, its violation would not render any appointment
in excess of it invalid but at best would be irregular and
in this case on a plain reading of Rule 4 it would not even
be irregular. [848 G-H, 849 A-E]
3. In P. C. Sethi & Ors. v. Union of India & Ors. this
Court held that in the absence of any statutory rules it was
open to the, Government in exercise of its executive power
to issue administrative instructions with regard to
constitution and recognition of service as long as there is
no violation of
Articles 14
and
of the constitution. If
the present Rule 4 enables the Government to prescribe
method to be employed for the purpose of filling, in any
particular vacancy 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 arid if the so
called quota is not statutory but merely a guideline, the
Government whenever making appointments would be acting in
exercise of power conferred by Rule 4 which leaves it to the
discretion, of the Government to decide from what Source
recruitment should be made and what must be the quantum of
vacancies that must be filled in at a given point of time
and such appointment could not be said to be invalid. [849
E-H]
Alternatively. even if the assumption made in Jai
Singhani's case that Rule 4 and the quota referable to the
exercise of power conferred by Rule 4 is unquestionable yet
when this Could held that the quota is related to the
vacancies, the decision proceeding on an incorrect plea that
the information about the number of vacancies in a year is
not available, is unsustainable for two reasons, namely,(1)
that the files are now produced; (2) in the absence of
information about the vacancies available the Court could
not have invalidated any appointment on the assumption that
appointment from the source of promotees was in excess of
the quota. [850 A-B]
on a plain levelling of Rules 3,, 4 and 5, it is clear
that the, quota was related to vacancies and at one stage
that was accepted. On this finding unless the fact situation
is clearly established showing vacancies year to year it
would be impossible to hold that in any year there was
excess in either source. Suppose there were 90 vacancies in
a year and the quota was 66-2/3 for direct recruits all 33
1/3 for promotees it would be open to the Government to
promote 30 persons irrespective of the fact whether 60
direct recruits have become available or not. The assumption
made that the recruitment made in a given year from both the
sources would furnish information about the vacancies in a
year would lead to a rather unfair conclusion inasmuch as
the action of the Government in acting in a certain manner
without due regard to the quota rule would work hardship on
appointees even though on a correct calculation of vacancies
the appointments may be valid and legal. [850 C-E]
4 The Government understood the mandamus issued in Jai
Singhani's case as covering, the whole period from 1951 to
1967. When this was questioned in the First Gupta's case
this Court held that the quota rule proprio vigme operated
between 1951 to 1956 and if there were promotions in any
year in excess of the quota. those promotions were merely
invalid for that year but they were not invalid for all time
and they could be regularised by being absorbed in the quota
for the later years. So adjusting the quota at any rate np
to 1956, the quota rule on its own strength evaporated
because it was to be in operation for a period of five years
and no fresh quota rule was issued by the Government.
Therefore, after 1956 Rule 4 remained in force in' all its r
ignore and was not hedged in by any quota. Rule 4 permitted
the Government to make recruitment from either source
without fettering its discretion by any quota rule which it
was not bound to prescribe. On January 16, 1959 Government
hl the Ministry of Finance informed the Commissioner of
Income tax that the resident had sanctioned the upgrading to
Class I of one hundred temporary posts of Income-Tax
officers Class II. On December 19, 1960 there was further
upgrading of 114 posts from Class II to Class I. Between
1959 and 1962 these 214 posts were filled in by promotees.
Now in the First Gupta's case, this Court held even though
the quota expired in 1956 yet the Government of India
adopted it as a guideline. May be it may be so. But, it
cannot be said that. any appointment in breach of the
guideline neither statutory nor even having the fragrance of
any executive instruction becomes invalid more so, when the
Government had power to make appointment from either source
uninhibited by any quota rule under Rule 4. Yet the Court
found that between 1956 and 1959 when one hundred posts came
to be upgraded there was a spill-over of 73 persons and
because of the huge departure from guidelines the weightage
rule giving seniority to the promotees by 2 to 3 years was
crushed under its own debris. Again, Rule 4 is overlooked or
by-passed when saying that. there was a spill-over of 73
promotees between 1956 and 1959, nor could it be said that
the upgrading of 214 posts and filling them up by promotees
would be in any way even irregular much less invalid because
Rule t enables the Government to draw from either source.
[851 A-G]
5. In the Second Gupta's case in view of the decision
in the First Gupta's case, a fresh seniority rule was
prepared and it was made retroactive from January 16, 1959.
lt, inter alia, provides that the relative seniority amongst
the promotees and the direct recruits shall be in the ratio
of 1: 1 and the same shall be so determined and regulated in
accordance with a roster main-
tained for this purpose which shall follow the following
sequence, namely, promotee; direct recruit, promotee; direct
recruit etc. This method of roster undoubtedly introduces a
quota by the back door. Once a roster is introduced promotee
direct recruit, promotee direct recruit etc. even if some
promotees have come in a bulk and if at a later date some
direct recruits are appointed in bulk while preparing roster
an earlier date-promotee will have to yield his place to a
later date direct recruit. Bluntly translated it means that
the direct recruit who was never in service when promotee
was promoted probably he may be a student, he may not have
even passed the competitive examination, yet he may come
into the picture challenge one who has already been serving
in the department for a number of years. To illustrate in
the new seniority list prepared by the Government pursuant
to the order made by this Court in the First Gupta's case
and upheld by this Court in the Second Gupta's case a
promotee of 1962 will have to yield his place to a direct
recruit of 1966. [851 G-H, 852 A-D] C
6. Service jurisprudence hardly permits a situation
where a man not in service comes and challenges something
which has been done much before he came into service and
gets such an advantage which on the face of it appear to be
unfair. But apart from this, even in 1959 there was no quota
rule and assuming that the old service rule giving weightage
to the promotees crushed under weight of large number of
promotees being promoted it would not be open to the
Government to so prepare a fresh seniority list which cannot
be given effect to unless a roster is introduced which
introduces quota by the back door and which is so unfair in
its operation that promotees of 1962 will have to yield
place to direct recruits of 1966. Under the old weightage
rule promotees were given weightage for service of 2 to 3
years over direct recruits because direct recruits were
unable to undertake regular assessment work for a period of
2 to 3 years when they were more or less under training
while promotees have been doing this work for a number of
years and whose experience is reflected in the weightage.
The whole thing now appears to be in the reverse gear in
that an uninitiated direct recruit takes precedence over an
experienced promotee. The unfairness of the new rule is writ
large on the face of the record. [852 E-H]
7. The fresh seniority rule violates another important
rule well-recognised principle 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 upon two unsustainable
assumptions 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 post, yet they must
yield to some future direct recruits who may come to the
department at a later date. This Court sustained the
decision holding that these were ad hoc appointments and
there are no regular posts for these promotees. This
approach wholly overlooks the fact and the force of Rule 4.
[853 A-C]
8. Certainty and continuity demand that this Court
should not reopen settled decisions or reopen closed
questions unless under compelling necessity. It may he that
the fact of Income-Tax officers promotees and direct
recruits may rest with the three decisions of this Court.
Unfairness to some of them H may itself not provide a good
and compelling reason for reopening and reconsidering the
decisions. [853 C-D]
Jai Singhani and the Two Gupta cases are being quoted,
times without number before this Court for the principles
enunciated therein. These decisions, therefore, affected
subsequent decisions of this Court as well as the High
courts and
some of the principles
enunciated in these three cases stand in sharp contrast to
other decisions of this Court and in fact this Court itself
felt it necessary to warn that it may become necessary to
reconcile these conflicting decisions. The three decisions
are incorrect in the light of the materials now placed,
especially the files which were withheld from the Court and
the Committee. A strong case has been made out for
reconsideration of these decisions [853 E-F, 854 C-D]
N. D. Chauhan & Ors. v. State of Rajasthan & Ors.
[1977] 1 S.C.R. 1037 and 1053 referred to.

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition Nos. 66/1974 &
4146/1978.

(Under
Article 32
of the Constitution)
V. M. Tarkunde, J. N. Haldar, Rathin Dass and A. K.
Sanghi, for the Petitioners in WP 66/74.

Dr. Y. S. Chitale, Mukul Mudgal and B. R. Aggarwal for
the Petitioners in WP No. 4146/78.

S. N. Kackar, Sol. Genl. R. N. Sachthey, E. C. Agarwala
and Miss A. Subhashini for RR 1-3 in WP 66 and RR 1-2 in WP
4146.

Ram Panjwani, Raj Panjwani, S. K. Bagga and Mrs. 5.
Bagga for R. 4 in WP 4146 and Intervener (Gujjar Mal.).

Ram Panjwani, Bishamber Lal, Raj Panjwani and Vijay
Panjwani for the R.6 in WP No. 4146 and R,358 in WP 66.

Yogeshwar Prasad and Mrs. Rani Chhabra for the R. 7 in
WP 4146.

A. K Sanghi for the Interveners (Hari Narain and L. S.
Chakravarty).

The Judgment of Y. V. Chandrachud, C.J., N. L.
Untwalia, P. S. Kailasam and E. S. Venkataramiah, JJ. was
delivered by Chandrachud, C.J. D. A. Desai, J. gave a
dissenting opinion.

CHANDRACHUD, C. J.-The disputes between promotees and
direct recruits in various departments of the Government
seem to have no end. No sooner does one round of litigation
come to a decision than is another round started by one
party or the other, sometimes 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 in court-room battles.
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 service
matter-. The 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 can please.

The three petitioners in Writ Petition No. 66 of 1974
are all promotees. Petitioner No. 1, Kamal Kanti Dutta, was
appointed as an Inspector of Income-tax on December, 7, 1950
and after passing the departmental examination he was
promoted an Income-tax officer, Class II on June 21, 1954.
On January 1, 1966 he was promoted as Income-tax officer,
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 of Income-tax in 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, 1973.

Respondents 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 May 1971.

Respondent No. 358, S. G. Jaisinghani, who was
recruited directly as I.T.O., Class I, in 1951 was holding
the rank of Assistant Commissioner of Income-tax on the date
of the petition. 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
of India.

In Writ 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. In
1959-60 he 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 of Income-tax
with 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 Public 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 certain well-known decisions 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 two cause-titles known as 'the first
Gupta case' and the 'Second Gupta case'. Respondents 4, 7
and 8 are Assistant Commissioners of Income-tax while
respondents 5 and 6 are workings Deputy Directors of
Investigation.

It will 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 present
controversy.

With a view to improving the income-tax administration,
the Government of India, in consultation with the Federal
Public Service Commission, decided to reconstitute and
classify the then existing Income-tax Services, 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 of Income-tax. The Central
Service, Class I was to consist of (1) Commissioners of
Income-tax, (2) Assistant Commissioners of Income-tax, (3)
Income-tax officers, Grade I and (4) Income-tax officers,
Grade II. The Central Service, Class II comprised Income-tax
officers, Grade III. Thus Income-tax officers, Class I were
to be of two grades, Grades I and II, while Income-tax
Officers, 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 of Income-tax
officer, Class I, Grade II, said:

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 & Accounts
and Allied Service Examination. The remaining 20 per
cent of vacancies will be filled by pro motion on the
basis of selection from Grade III (Class II Ser vice),
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.
Rules regulating recruitment to the Income-tax officers
(Class I, Grade II) Service, "liable to alteration from year
to year", were published on May 26, 1945 by a resolution of
the Finance Department (Central Revenues). Rule 3 provided
that recruitment to Class I, Grade II Service shall be made

(i) by competitive examination held in India in accordance
with Part II of the Rules and (ii) by promotion on the basis
of selection from Grade III (Class II Service) in accordance
with Part III of the Rules. By rule 4, the Government was to
determine, subject to the provisions of rule 3, the method
or methods to be employed for the purpose of filling any
particular vacancies, or such vacancies as may require to be
filled during any particular period, and the number of
candidates to be recruited by each method. Part III of the
Rules called 'Recruitment by Promotion' provided by
paragraph 21 that recruitment by promotion shall be made by
selection from among Grade I II Income-tax officers (Class
II Service) after consultation with the Federal Public
Service Commission and that no officer shall have any claim
to such promotion as of right.

By a letter dated January 24, 1950 the Government of
India laid down certain rules of seniority (a) as between
direct recruits, (b) as between promotees selected from
Class II, and (c) as between direct recruits who completed
their probation in a given year and the promotees appointed
in the same year to Class I.
On October 18, 1951, the Government of India addressed
a letter to all the Commissioners of Income-tax on the
subject Income-tax officers, 14-463 SCI/80
Grade II (Class I Service) quota of vacancies filled by
promotion . The letter says:

The Government of India have had under
consideration the question of increasing the proportion
of vacancies reserved for promotion from Class II
Income-tax officers in Class I. It has been decided in
consultation with the Union Public Service Commission
and in modification of para 2(d) of the Finance Dept.
(Central Revenues) letter No. 195-Admn. (IT/39 dated
the 29th September, 1944 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% by promotion on the basis of
selection from Grade III (Class II Service). Any
surplus vacancies which cannot be filled by promotion
for want of suitable candidates will be added to the
quota of vacancies to be tilled by direct recruitment.
By a letter dated September S, 1952, the Government of
India revised with retrospective effect the rules of
seniority which were laid down on January 24, 1950.

Rule l(f)(iii) as framed on January 24, 1950 read thus:

The promotees who have been certified by the
Commission in any calendar year shall be senior to all
direct recruits who complete their probation during
that year or after and are confirmed with effect from a
date in that year or after.

The rule as revised on September 5, 1952 read thus:
Officers promoted in accordance with the
recommendation of the Departmental Promotion Committee
before the next meeting of the Departmental Promotion
Committee shall be senior to all direct recruits
appointed on the results of the examinations held by
the Union Public Service Commission during the calendar
year in which the Departmental Promotion. Committee met
and the three previous years.

Rule l(f)(iv) of the 1952 Rules dealt with a special
situation in which an officer initially appointed to Class
II service is given seniority in the same manner as a
departmental promotee, if subsequent to his passing the
departmental examination he is appointed in Class I on the
results of the competitive examination.

Rule 4 of Chapter IX of the "Rules of Promotion of the
Central Board of Revenue office Procedure Manual states,
that the prescribed
minimum service for an officer of Class I, Grade II for
promotion to A Grade I is 5 years gazetted service including
1 year in Class l, Grade II. For a promotee from Class II,
the minimum period of service for promotion to Class I,
Grade I, would be actually 4 years service in Class II and 1
year service in Class I, Grade II.

In 1962, S. G. Jaisinghani (who is respondent No. 358
in Writ Petition No. 66 of 1974 and respondent No. S in Writ
Petition No. 4146 of 1978) filed Civil Writ No. 189-D of
1962 in the High Court of Punjab under
Article 226
of the
Constitution, challenging the validity of the seniority
rules in regard to Income-tax Service, Class I, Grade II as
also the actual implementation of the 'quota' rule, as
infringing
Articles 14
and
16(1)
of the Constitution.
Promotees who were likely to be affected by the decision of
the Writ Petition were added as respondents 4 to 126 to that
Petition. Jaisinghani who was recruited directly as an
Income-tax officer, Class I (Grade II), raised four
principal contentions:

(i) Rule l(f)(iii) of the seniority rules as framed in
1952 was based upon an unjustifiable
classification between direct recruits and
promotees after they had entered Class I, Grade II
Service. On the basis of that classification,
promotees were given seniority over direct
recruits of the same year and with weightage of
three previous years. All officers appointed to
Class I, Grade II Service formed one class and
after being recruited to that class, no
distinction could be made between direct recruits
and promotees.

(ii) Rule 1(f)(iv) was discriminatory because though
the petitioner, Jaisinghani, qualified in the same
competitive examination of 1950 for appointment to
Class I, Grade II Service as respondents 4, 5 and
6 to that petition, they were treated as senior to
him by the operation of the artificial rule by
which they were regarded as "deemed promotees",
since they were appointed to Class II, Grade III
Service in 1947. All the four of them were
appointed to Class I, Grade II Service in 1951 and
therefore the period of service put in by
respondents 4, 5 and 6 in Class II, Grade III
Service cannot be counted for fixing their
seniority vis-a-vis the petitioner.

(iii) Rule 4 of Chapter IX of the 'Central Board of
Revenue office Procedure Manual' leads to
discrimination as between direct recruits and
promotees; and that
(iv) during the years 1951 to 1956, there was excessive
recruitment of 71 promotees, in violation of the
quota rule of 2: 1 contained in Government of
India's letter dated October 18, 1951. The quota
fixed by that letter must be deemed to have been
fixed in exercise of the statutory power given by
rule 4 of the Income-tax officers (Class I, Grade
II) Service Recruitment Rules published on May 26,
1945.

A full Bench of the Punjab High Court, Circuit Bench,
Delhi, rejected the writ petition, holding that the
principles for determining seniority between direct recruits
and promotees laid down in rules 1(f) (iii) and (iv), 1952
were not discriminatory, that the quota rule announced by
the Government of India were merely a policy statement and
had no statutory force, that departure from the quota rule
did not give rise to any justiciable issue and that the
promotion rule governing promotions from Class I, Grade II
to Class I, Grade I was not discriminatory and ultra vires
of
Articles 14
and
of the Constitution.

In appeal, a Constitution Bench of this Court held that
rules l(f)(iii) and (iv) of the seniority rules framed in
1952 did not violate
Articles 14
and
since they were
based on a reasonable classification and that rule 4 of
Chapter IX of the 'Central Board of Revenue office Procedure
Manual' cannot be held to lead to any discrimination as
between direct recruits and promotees, since the object of
the rule was really to carry out the policy of rule
l(f)(iii) of the Rules of Seniority and not allow it to be
defeated by the requirement of five years service in Class
I, Grade II itself, before a person could be considered for
promotion to Class I, Grade I. On the question of excessive
recruitment of promotees from 1951 to 1956 in violation of
quota rule, the Court had directed the Secretary of the
Finance Ministry, during the hearing of the appeal, to
furnish information regarding the number of vacancies which
had arisen from year to year from 1945 onwards, the nature
of the vacancies-permanent or temporary-the chain of
vacancies and such other details which were relevant to the
matters pending before the Court. In his affidavit dated
January 31, 1967 Shri R. C. Dutt, Finance Secretary, said
that he was not able to work out, in spite of his best
endeavours, the number of vacancies arising in a particular
year. However, a statement, Ex. E. was furnished to the
Court showing the number of officers recruited by the two
methods of recruitment to Class I Service during the
relevant years. The Court found that it was not clear from
Shri Dutt's affidavit whether the quota rule was followed
strictly for the years in question and noted that in the
absence of figures of permanent vacancies in Class 1, Grade
II, for the relevant years, the Solicitor General was unable
to say to what extent
there had been deviation from that rule. Rejecting the
submission of the Solicitor General that the quota rule was
merely an administrative direction, the Court held that rule
4 of the Income-tax officers Class I, Grade II) Service
Recruitment Rules was a statutory rule under which a
statutory duty was cast on the Government to determine the
method or methods to be employed for the purpose of filling
the vacancies and the number of candidates to be recruited
by each method; and that, though in the letter of the
Government of India dated October 18, 1951 there was no
specific reference to rule 4, the quota fixed by that letter
must be deemed to have been fixed in exercise of the
statutory power given by rule 4. There was therefore no
discretion left with the Government of India to alter that
quota according to the exigencies of the situation or to
deviate from the quota, in any particular year, at its own
will and pleasure. The quota rule, according to the Court,
was linked up with the seniority rules and unless it was
strictly observed in practice it would be difficult to hold
that the seniority rule contained in rule l(f)(iii) was not
unreasonable and did not offend
Article 16
of the
Constitution. The Court expressed its conclusion thus: D
We are accordingly of the opinion that promotees
from Class II, Grade III to Class I, Grade II Service
in excess of the prescribed quotas for each of the
years 1951 to 1956 and onwards have been illegally
promoted and the appellant is entitled to a writ in the
nature of mandamus commanding respondents ' I to 3 to
adjust the seniority of the appellant and other
officers similarly placed like him and to prepare a
fresh seniority list in accordance with law after
adjusting the recruitment for the period 1951 to 1956
and onwards in accordance with the quota rule
prescribed in the letter of the Government of India No.
F. 24(2)-Admn. I.T./51 dated October 18, 1951. We,
however, wish to make it clear that this order will not
affect such Class II officers who have been appointed
permanently as Assistant Commissioners of Income Tax.
(emphasis supplied).

The Court suggested that for future years the roster system
should be adopted by framing an appropriate rule for working
out the quota between the direct recruits and the promotees
and that a roster should be maintained indicating the order
in which appointments are made by direct recruitment and by
promotion in accordance with the percentages fixed under the
statutory rule for each method of recruitment.

In Writ Petition No. S of 1966 filed by Mohan Chandra
Joshi under
Article 32
of the Constitution, a similar
mandamus was issued by the Court. Mohan Chandra Joshi, like
Jaisinghani, was recruited directly
as Income-tax officer, Class I, Grade II, with the only
difference that he was appointed in 1953 while Jaisinghani
was appointed in 1951.

Thus the direct recruits succeeded substantially in
their contentions. the quota rule acquired statutory force,
appointments of promotees in excess of the quota became bad
and it became obligatory for the Government to prepare a
fresh seniority list. Promotees found to have been appointed
in excess of the quota admissible to promotees had naturally
to go down lin the final gradation of seniority.

The aforesaid decision was given by this Court on
February 2, 1967. But, in spite of the mandamus issued by
it, Government did not prepare a fresh seniority list for
over a year, which led to the filing of a contempt petition
by Jaisinghani and Joshi. Those proceedings were dismissed
by this Court on November 6, 1968. In the meanwhile on July
15, 1968, the Government prepared a fresh seniority list and
filed it in this Court. That list failed to satisfy
promotees as well as direct recruits.

Two writ petitions were filed in the Delhi High Court
to challenge the fresh seniority list: one by B. S. Gupta, a
promotee of 1962 and the other by M. C. Joshi, a direct
recruit who had succeeded in the earlier round of litigation
in this Court. These writ petitions were heard by two
separate Benches of the Delhi High Court. Writ Petition No.
196 of 1970 filed by B. S. Gupta was dismissed whereas Writ
Petition No. 550 of 1970 filed by M. C. Joshi was
substantially allowed. Setting aside the seniority list, the
High Court gave a direction that another seniority list be
prepared in the light of its judgment.

The decision of the Delhi High Court in the aforesaid
two writ petitions was challenged in this Court in four
appeals: one by B. S. Gupta against the dismissal of his
writ petition and the other three by (i) the Government,

(ii) M. C. Joshi and (iii) S promotees.
In all these
appeals, the only question or consideration was whether the
seniority list prepared on July 15, 1968 was correct and in
accordance with the mandamus issued by this Court in

Jaisinghani v. Union of India and Ors.
(1).

These appeals
were heard together and were disposed of by a judgment dated
August 16, 1972 which is reported in
Bishan Sarup Gupta v.
Union of India and Ors.
(2).

While preparing the seniority list the Government
understood the mandamus issued in Jaisinghani(l) as covering
the entire period from 1951 to 1967. For doing that it could
not be blamed, since the mandamus issued in Jaisinghani(1)
directed the Government to adjust the
seniority of various officers for the period 1951 to 1956
"and onwards", A though the argument regarding excessive
recruitment of the promotees was confined to the years 1951
to 1956. Palekar, J. speaking for the Court in
Bishan Sarup
Gupta
(Supra) observed in the first instance that this Court
could not possibly have in mind a seniority list which took
in promotees after 1956 and that therefore under the
mandamus issued by this Court, appointments of promotees in
excess of the quota could only be taken into consideration
in relation to the period 1951 to 1956. The reason for the
use of the words "and onwards" was explained to be that
Government should be able to push down excess promotions to
later years in order that such promotions could be absorbed
in the lawful quota available for later years. C
In Bishan Sarup Gupta-the Court was called upon to
examine the correctness of seven principles enumerated in
the Government letter dated July 15, 1968 governing
seniority. The first principle was accepted as good. The
second and the third principles were held to be partially
incorrect in so far as they excluded reference to all the
promotees of 1952. The Court held that the promotees of 1952
should be referred to in the seniority list whether they are
affected or not, the object being the ascertainment of
excess promotions.

The fourth principle set out in the letter of July 15,
1968 which is important for our purpose reads thus: E
In view of the difficulty in working out the
vacancies arising in each year the total number of
direct recruits and promotees in each year have been
taken into account for the purpose of implementing the
quota rule.

This Court held that the rule dated October 18, 1951 was not
concerned with the constitution of the cadre but "was
concerned with how permanent vacancies were to be filled"

and therefore the promotees would be entitled to 1/3 of the
vacancies in any particular year whether or not there was
direct recruitment by competitive examination in that year.
This ratio of 2: 1 between the direct recruits and the
promotees could not be made to depend on whether any direct
recruits were appointed in any particular year. It therefore
became essential to determine the actual vacancies in the
cadre but even in B. S. Gupta the Government put forward the
plea that it was impossible for them to give the exact
figure of vacancies in any particular year. Counsel 11 who
appeared for the promotees
in that case
filed a chart marked
Annexure 1 which, according to him, showed the correct
number of
vacancies in the particular years. The Court, however, found
it impossible to determine the actual vacancies on the basis
of the figures given in that chart. In the circumstances,
the Court considered it reasonable to accept the number of
appointments made in the particular years as substantially
representing the actual vacancies available for being filled
up. One of the reasons which the Court gave in support of
this conclusion was that when the quota rule referred to
vacancies, it was implicit that the vacancies are those
which the Government wanted to fill up, whatever may be the
actual number of vacancies available for being filled up.
Thus, if in the year 1953, 53 posts were filled by direct
recruits and 38 by promotees, the total number of vacancies
which were intended by the Government to be filled in would
be 91. Promotees would be entitled to hold 1/3 of these
namely, 30. 8 promotees therefore could be said to have been
appointed in excess of the quota available for promotees.
This was in fact what the Government had done while
preparing the fresh seniority list, though it had wrongly
calculated the vacancies with effect from the year 1953
instead of doing so w.e.f. the beginning of the year 1952.
There were no promotions in 1951 and therefore, the question
of appointment of promotees in excess of their quota did not
arise for that year.

The argument advanced on behalf of the direct recruits
that the quota rule should be co-related to vacancies in
permanent posts only and not to those in temporary posts was
rejected by the Court.

The Court upheld the 5th principle under which Class II
officers promoted to Class I, Grade II, were allowed
weightage under rule 1(f)(iii).

The Court then considered the question whether the
quota rule could be applied after the year 1956. It held
that even after 1956, the Government was entitled by reason
of rule 4 of the Recruitment Rules of 1945 to follow the
quota rule of 1951 as a rough guideline, "without going to
the trouble of putting the same on record in so many words".

The Court observed that if the rule is followed as a
guideline, a slight deviation from the quota would be
permissible but if there was an "enormous deviation", other
considerations may arise. Taking into consideration the
relevant circumstances, the Court came to the conclusion
that in the normal course the Government was entitled to
prepare the seniority list till the end of 1958 in
accordance with the quota rule of 1951.

In regard to the position after the year 1958, the
Court came to the conclusion that the quota rule ceased to
apply and came to an end on January 16, 1959 when the
sanction to upgrade 100 temporary posts in
class II, grade III to class I, grade II was given by the
President. The seniority rule then fell with the quota rule.
On these considerations it was held that the seniority list
was valid in regard to promotions made upto January 15, 1959
to the extent that it was prepared on the basis of the quota
rule dated October 18, 1951 read with the seniority rule
1(f) (iii).

This position made it necessary for the Court to
consider as to how the inter seniority between the direct
recruits and the promotes was to be fixed after January 16,
1959, if the seniority rule l(f)(iii) ceased to be operative
from that date. Several suggestions were made to the Court
with a view to evolving a fair and just seniority rule. The
Court declined to be drawn into any such exercise and
preferred to leave it to the Government to devise a fair and
just seniority rule, if necessary, in consultation with the
U.P.S.C. As a corollary, the Court set aside the seniority
list of July 15, 1968 and directed the Government to prepare
a fresh seniority list. The list for the years 1955 to
January 15, 1959 was directed to be prepared in accordance
with the quota rule of 1951 read with seniority rule
l(f)(iii). The list to be effective from January 16. 1959
was directed to be prepared in accordance with rules to be
made afresh by the Government.

Principles (6) and (7) did not survive for
consideration separately in view of the position mentioned
above. E
The Court kept the proceedings pending on its file to
enable the Government to prepare a fresh seniority list in
the light of the directions given by it within six months
from the date of the order. Liberty was given to the parties
to apply to the Court after the list was filed.

The judgment in
B.S. Gupta
(supra) was given on August
16, 1972. On February 9, 1973, the President made rules
called the Income-tax (Class 1) Service (Regulation of
Seniority) Rules, 1973. These Rules were made under
Article
of the Constitution and were given retrospective effect
from January 16, 1959. In pursuance of the liberty reserved
to the parties under the judgment in B.S. Gupta, the
validity of the new Seniority Rules was challenged by the
promotes. That challenge was considered and repelled by this
Court in Bishan Sarup Gupta etc. v. Union of India & ors.
etc.

etc.,(l) the 2nd
Gupta
case.

Rule 3 of the new Seniority Rules of 1973 reads thus:

"3. Seniority of officers- The seniority of the Income-
tax officers in the Class I service shall be regulated
as from the
date of commencement of these rules in accordance with
the provisions hereinafter contained namely:-

(i) the seniority among the promotes inter se shall be
deter mined in the order of selection for such
promotion and the officers promoted as a result of
any earlier selection shall rank senior to those
selected as a result of any subsequent selection;

(ii) the seniority among the direct recruits inter se
shall be deter- mined by the order of merit in
which they are selected for such appointment by
the Union Public Service Commission and any person
appointed as a result of an earlier select ion
shall rank senior to all other persons appointed
as a result of any subsequent selection; and

(iii) the relative seniority among the promotes and the
direct recruits shall be in the ratio of 1: 1 and
the same shall be so determined and regulated in
accordance with a roster maintained for the
purpose, which shall follow the following
sequence, namely:-

(a) promote;

(b) direct recruit;

(c) promote;

(d) direct recruit; and so on
When the new list of seniority was prepared by the
Government in accordance with these rules, the Government
had on its hands 73 promotes who, though appointed earlier
between 1956 and 1958, had no quota posts for their
absorption. The 73 promotes, described as "spillovers on
January 16, 1959" as also those who were promoted
subsequently had to be absorbed in the Service, which could
only be done by a special rule framed in that behalf.

The method adopted in the preparation of this list was,
according to Palekar, J., who spoke again for the
Constitution Bench in the 2nd
Gupta
case, "simple enough",
though the wording of the rule "19 not happy". The simple
method adopted by the Government was like this: The
seniority list from serial No. 1 to serial No. 485 relating
to the period from 1951 to January 16, 1959 was prepared in
accordance with the quota rule read with the seniority rule
which prevailed until January 16, 1959. At serial numbers
486 to 1717 are officers who had to be accommodated from
January 16, 1959 in accordance with the new seniority rules.
Since under rule 3 (iii), the first post in the roster has
to go to a promote and the next to a direct recruit
serial No. 486 goes to a promote, serial No. 487 to a direct
recruit A. and so on. Promotes whose ranking is below serial
No. 485 are either out of the 73 spillovers as on January
1959, or are those who were appointed later. Thus, the new
seniority rule contains a formula for the absorption of all
Promotes with effect from January 16, 1959 in posts
allocated to them, it determines their seniority inter se
and last but not the least, it determines their seniority
qua the direct recruits appointed from 1959.

The Court over-ruled the objection of the 73 spillover
Promotes that since, in the
Ist Gupta
case, the Court had
directed that they should be absorbed on a "priority basis",
all of them should have been shown in the seniority list as
having been appointed on January 16, 1959 embolic and the
direct recruits for that year should have been shown
thereafter. It was explained that by the use of the
expression "priority basis", what was meant by the Court was
that the position of the spillover promotes as seniors
should not be prejudiced by claims made by later promotes on
the ground that since the spillover promotes were recruited
in excess of the quota, the later promotes whose promotion
did not violate the quota rule had higher rights than those

73.
The principal contention of the promotes in the 2nd GPA
case was this: As the quota rule collapsed on January 16,
1959 the spillover promotes as also those who were promoted
thereafter must be deemed to have been validly appointed in
accordance with rule 4 of the Recruitment Rules of 1945.
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 or ad-hoc basis 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
Article 16.

Shri V.M. Tarkunde who appears on behalf of the
petitioners in Writ Petition No. 66 of 1974 has made a fresh
challenge to the new seniority list prepared in pursuance of
the rules dated February 9, 1973 the validity of which was
upheld by this Court in the 2nd
Gupta
case (Supra).
According to the learned counsel, the decision in
Jaisinghani. (Supra) suffers from the following three
infirmities:

(i) It was assumed
in that case
that the appointments
of promotes were in excess of the quota available
to them because the relevant files were not made
available to the Court, nor indeed was the
necessary data placed before the Court, even
though during the hearing of the appeal the Court
had asked the Secretary of the Finance Ministry to
furnish information in that behalf. In the absence
of such information, the Court made an assumption
which was unjustified, that the total number of
vacancies available for promotes was equal to the
total number of appointments actually made. If,
for example, 10 direct recruits and 20 promotes
are appointed in a particular year it cannot be
assumed either that only 30 vacancies are
available for being filled up in that year or that
only 30 appointments are intended to be made by
the Government during that year. The proper
inference for the Court to draw, in the absence of
material which ought to have been produced by the
Government, was that if appointments were to be
made of direct recruits and promotes in the
proportion of 2: 1, and if 20 promotes were in
fact appointed, the Government desired to appoint
40 direct recruits but could only appoint 10,
probably because of the non- availability of
suitable candidates for direct recruitment.

(ii) It was wrongly assumed or held that rule 4 of the
Income tax officers (Class I. Grade ll) Service
Recruitment Rules was a statutory rule.
(iii) lt was wrongly assumed that 100 posts in Class
11, Grade III, and 114 posts in the same cadre
which were upgraded as Class I, Grade II posts on
January 16, 1959 and December 9, 1960 respectively
were exclusively allotted to promotes and were in
fact filled in by the appointment of promotes.

In regard to the decision in the 2nd
Gupta
case (Supra)
it is contended that the decision suffers from the following
infirmities:

(i) It was wrongly held therein that the 73 spillover
promotes as on January 16, 1959 could not be given
priority en bloc, even though it was directed in
the judgment in the 1st
Gupta
Case (supra) that
they should be dealt with on a "priority basis".

(ii) It was wrongly held that 214 promotes were
appointed in excess of the quota available to the
promotes.

(iii) The conclusion that no distinction can be made
between promotes and direct recruits once they
belong to a com- mon cadre was erroneous, as a
result of which the promotes were unjustly
deprived of their right to weightage.

(iv) The provision in rule 3 (iii) of the new Rules of
seniority of 1973 that direct recruits and
promotes will be appointed in the ratio of SO: SO
cannot work to the advantage of the promotes
because the measure of SO percent is fixed by the
new rules in relation to the actual appointments
made, whereas the old proportion of 2: 1 was in
relation to the actual number of vacancies
available for being filled in.

Learned counsel has demonstrated with the help of some
of the instances in the new seniority list, as to how
promotes have been treated unfairly and unjustly in
comparison with direct recruits. One such instance is that a
direct recruit, Hrushikesh Mishra, who was appointed on July
3, 1966 is placed at serial No. 1001 while one of the
petitioners, Kamal Kanti Dutta, who was appointed six months
earlier on January 1, 1966 is placed at serial No. 1318.
Another instance cited is that of a promote, V. R. Hiremath,
who was appointed on March 1, 1956 but is placed at serial
No. 486, the first 485 officers having been ranked according
to the quota rule read with the seniority rule which
prevailed till January 16, 1959. Hiremath, it is contended,
not having been appointed in excess of the quota should have
been given his seniority, on account of the three years'
weightage, with effect from March 1, 1953. In the process,
he has lost a benefit spread
Over not only three but six years, because his ranking has
been made according to the new rule in relation to the date
January 16, 1959.

These contentions were adopted by Dr. Y.S. Chitale who
appears on behalf of the petitioner H.K. Sajnani in Writ
Petition No. 4146 of 1978. It may be mentioned that in Writ
Petition No. 66 of 1974 of K.K. Dutta and others which was
filed on February 8, 1974 no demand was made for the review
of the decisions earlier given by this Court on the points
under consideration. The request for review of those
decisions was made for the first time by the petitioners by
paragraph 3 of their supplementary affidavit in rejoinder
which was filed in this Court in April 1978. By paragraph 45
of his Writ Petition, which was filed on June 27, 1978
Sajnani did contend that the aforesaid judgments be reviewed
since they were wrongly decided. Sajnani asked by paragraph
Sl of his petition, and so did the petitioners in, the
companion petitions asked by, their supplementary rejoinder,
that the decision of this Court in
Union of India v. M.
Jangamayya
(1) should also be reviewed.

In his writ petition, Sajnani has cited several
specific instances in support of his contention that under
the new seniority rules, the promotes have been treated with
an evil eye and an uneven hand. His complaint is that direct
recruits who are "15 years junior in age and 15 years junior
in experience had been placed above him"; and that the
seniority list dated April 15, 1978 of Assistant
Commissioners of Income- tax, which is the basis of further
promotion to the post of Commissioner of Income- tax, does
not include his name at all, though he has been working as
an Assistant Commissioner ever since 1969 when he was
selected by the competent authority with the concurrence of
the U.P.S.C., after putting in 22 years of service as an
I.T.O., out of which 10 years' service was rendered in Class
I itself. Sajnani also prays that the seniority list dated
April 15, 1978 for the cadre of Assistant Commissioners be
set aside as violating
Articles 14
and
16(1)
of the
Constitution.

In addition to these grounds which are pressed upon us
for reviewing our decisions in
Jaisinghani, Ist Gupta
case,
2nd
Gupta
case and
Jangamayya
, (supra) the petitioners have
placed strong reliance on the findings of the 49th Report of
the Committee on Petitions of the Rajya Sabha, which was
presented on January 9, 1976. A full text of that Report is
extracted at pages 242 to 363 of the compilation filed by
the writ petitioners in this Court.

It appears from that report that at the sitting of the
Rajya Sabha held on the 23rd August, 1974, Shri Kali
Mukherjee, M.P., presented
a petition signed by Shri R.C. Pandey, General Secretary,
All India A Federation of Income-tax Gazetted Services
Associations, New Delhi, praying for the repeal of the
Income-tax officers (Class I Service) 4 Regulation of
Seniority Rules, 1973) and for the framing of fresh
seniority rules in lieu thereof. The Committee heard the
representatives of (i) promotes on whose behalf the petition
was presented to The Rajya Sabha; (ii) the Ministry of
Finance and (iii) the direct recruits who were represented
by the Indian Revenue Service Association. After going
through the evidence, the memoranda and the files- supplied
by the Ministry of Finance the Committee observed:

".... the Department from 1944 till today has been
working in a very haphazard, irregular and unscientific
way. They made policies, rules, etc. and then went on
deviating from them to suit certain exigencies. Instead
of meeting the new situation or the demands of the
Department in a scientific or rational way, ad-hocism
prevailed. This led to litigation for nearly two
decades. Since the year 1944, the Department has made
so many commissions and omissions in its long working.
thereby it has provided arguments to both the direct
recruits and promotes which have been advocated by them
force fully. 'This has created bitterness and a picture
of civil war in the Department. It would facilitate our
understanding if we look at the various points, like
vacancies, quota, seniority, weightage, confirmations,
recruitments or promotions to temporary and permanent
vacancies, etc. in a proper perspective."

The Committee examined the files produced before it by the
Ministry, expressed its sense of "shock" at the plea of the
Ministry that files of vital matters were not traceable and
concluded that the new seniority rules of 1973 should be
scrapped. The Committee recommended, inter alia,:

"The entire concept of a common seniority list should
be given up. The existing common seniority list of 1973
be replaced by two sets of seniority lists consisting
of direct recruits and promotes respectively, on the
basis of the dates of their appointment. The
integration of the two channels which may be turned
into two cadres should not be done at the level of
I.T.Os. but after the level of Assistant
Commissioners."

The Committee hoped that with the separation of the two
seniority lists, the controversy of inter se, seniority will
be resolved and the hardship caused to the 434 officers
promoted between 1956 to 1966 will be relieved. The
Committee made certain calculations according to which, the
correct number of spill-over promotes as on Jan-
uary 16, 1959 was 15 and not 73. Observing in paragraph 7(i)
that the Parliament owes responsibility in service matters
too and that the executive is answerable to the Parliament
for its actions, the Committee concluded its Report with the
observation:

".... if necessary, a special law could be enacted and
in corporated in the Ninth Schedule of the Constitution
so that no further scope is left for disputes and
litigation and the Department would start functioning
as an efficient and well- knit unit and fulfil its
intended role in combating the evils of black money and
tax evasion and ensuring the stability and progress of
our country."

It is not necessary to go into complications arising out of
the random placement of statutes, rules and notifications in
the 9th Schedule, but we do hope that, some day, the
promised millennium will come.

The Solicitor General and the other learned counsel who
appear for the respondents resisted with great stoutness the
attempt of the petitioners to reopen decisions rendered by
this Court in disputes between promotes and direct recruits
of the Income-tax Service. The respondents contend that
everyone of the arguments now presented before us has been
already considered carefully in the earlier decisions and
the petitioners' demand for review is only yet another
attempt to retrieve a lost cause. The learned Solicitor
General also pressed upon us the need for treating the
matter as closed. Reviews, he contends, should not be
granted save in exceptional circumstances and at any rate,
he says, no solution in service matters can ever satisfy
both the promotes and direct recruits in an equal measure.

Having considered these rival submissions carefully we
are of the opinion that there is no substance in the request
made on behalf of the petitioners for a review of the
decisions in Jaisinghani, the 1st
Gupta
case, the 2nd
Gupta

case and
Jangamayya
(supra).

Certain historic facts have to be borne in mind while
considering the points raised before us. It is necessary to
recall that for nearly a decade after 1950, appointments of
promotes were made far in excess of the quota available to
them. So long as the quota rule operated, it was possible to
regularize their appointments when posts within their quota
became available in later years. But a somewhat
unprecedented ed situation arose by the upgrading of Class
II posts to Class I, Grade II,- 100 of the month January 16,
1959 and 114 on December 9, 1960. This massive upgrading of
posts brought about a collapse of the quota rule. Subsequent
absorption in posts which become available for being filled
up later really means regularization of appointments, which
is
possible provided there is no excessive deviation from the
quota rule. A We quite appreciate that no blame can be laid
at the doors of the promotes on the score that they were
appointed in excess of the quota available to them. Perhaps,
their appointments must even have enabled the administration
to tide over administrative stalemate. But the tough problem
which the administration has to face is that whereas it is
necessary to recognize and protect the claims of promotes
who are appointed in excess of their quota, it is equally
necessary to ensure that the direct recruits do not suffer
an undue set back in service on account of the excessive
appointments of promotes. The conflicting claims of the two
components of Service, both having an importance of their
own, have therefore to be reconciled. It was with that
object that the rules have been modified from time to time.
The judgments rendered by this Court in matters which the
petitioners want to be reopened show, without a shadow of
doubt, how every effort was made to ensure that no hardship
or injustice is caused to the promotes merely because their
appointments exceeded their quota.

It is not correct to say that the judgment in

Jaisinghani
(supra) was based on a concession or that the
Court felt compelled to draw the particular conclusions
therein because of the inability or refusal of the Finance
Ministry to produce the relevant files. The Court adopted
what it considered in the circumstances to be a satisfactory
and scientific method of ascertaining the number of
vacancies available for being filled up. It came to the
conclusions that the number; of actual appointments should
determine the number of vacancies available which, with
great respect, was a perfectly legitimate conclusion to
draw. In the grey area where service rules operate, more
than one view is always possible to take without sacrificing
either reason or commonsense but the ultimate choice has to
be necessarily conditioned by several considerations
ensuring justice to as many as possible and injustice to as
few.

We also find it impossible to hold that there was any
error in the conclusions in
Jaisinghani
(supra) that rule 4
of the Recruitment Rules was a statutory rule. Subsequent
decisions would show that there was hardly any dispute
between the parties, at later stages at any rate, that rule
4 was a statutory rule.

The other objections raised against the judgments in
the various cases partake more or less of the same character
and must be overruled for similar reasons.

We appreciate that the promotes should not be penalized
for the mere reasons that those of them who were appointed
after January 16, 1959 were appointed on an officiating or
ad-hoc basis and had clear notice that the question of their
seniority was still undecided. The
circumstances attendant upon their appointments cannot,
however, be wholly over-looked in determining whether the,
constitutional constraints have been over- stepped.

In regard to the individual instances cited before us
as exemplifying the injustice caused to the Promotes, it is
not scare to test the constitutionality of a service rule on
the touchstone of fortunes of individuals. No matter with
what care, objectivity and foresight a rule is framed, some
hardship, inconvenience or injustice is bound to result to
some members of the service. The paramount consideration is
the reconciliation of conflicting claims of two important
constituents of Service, one of which brings fresh blood and
the other mature experience.

The counter-affidavit dated August 31, 1973, filed in
the 2nd
Gupta
case (supra) by Shri Mehra, Deputy Secretary,
Ministry of Finance, shows the fullness with which the
Government had consulted all possible interests while
framing the impugned rules of seniority. The gamut of
reasonable possibilities is fairly covered by the four
alternatives referred to in Shri Mehra's affidavit. The
inconveniences and disadvantages flowing from the first
three alternatives would be far greater than those flowing
from the 4th. That is why the choice ultimately fell on the
4th alternative, under which the seniority between Promotes
and direct recruits was fixed alternately on a roster
system, vacancies being equally divided between Promotes and
direct recruits, for the entire period from 1959 up-to-date.

Though the promotes submitted in the 2nd
Gupta
case (supra)
that the new seniority rule was unfair to them, they were
unable to put forward any rational alternative, a fact which
is noted at page 119 of the Report. That led the Court to
remark:

"They are indeed pleased with the increase in the
promotional chances. But they are sore that the
artificial rule of seniority which gave them weightage,
has been removed. They do not dispute that by the
increase in their ratio in Class I service, a larger
number of Class II officers will, in course of time get
a chance to be appointed by promotion as Assistant
Commissioners. But they are sorry that their chances to
be promoted to posts higher than that of the Assistant
Commissioner are now retarded by the removal of the
weightage."

This shows how difficult it is to solve the jig-saw
puzzle of service disputes.

The Report of the 'Committee on Petitions' of the Rajya
Sabha, howsoever sincerely motivated and fully drawn, cannot
be given the
importance which the promotes seem to attach to it. It is
urged that the findings of the Committee are authentic
because the Finance Ministry had made the relevant files
available to it. We do not think that this argument is well-
founded. In paragraph 16 of its Report, the Committee does
refer to certain files but those files appear to contain
some noting in regard to the direct recruitment only. The
Committee has given a table of comparative appointments in
paragraph 19 of its Report, but it had to speculate on an
important aspect of the matter, as is shown by its own
language, that the table shows the number of direct recruits
which the Government wanted to take and " on the basis of
which the promotes must have been given promotions".
(emphasis supplied). If indeed the relevant files were
produced before the Committee, it would not have expressed
its sense of deep shock and resentment at the -
disappearance of the files. We share the concern of the
Committee which is expressed in paragraph 32 of its Report
thus .

"It is strange that many of the files which could
probably have thrown light on the question of excess
promotion, are reported `missing' or `not available'.
The conclusion is inescapable that these losses of
files are far from being accidental. We can only
conclude that important information was deliberately
withheld from the Supreme Court as well as from the
Committee. Had the Committee been allowed access to the
file relating to the Seniority Rules framed in 1973, we
could have known some more facts".

This shows that the Committee, too? had to grope in the dark
and indulge in a certain amount of speculation on matters
under its consideration. In the circumstances, it has done
as good a job as a Committee can and we desire to find no
fault with its Report. But we can- not accept the submission
pressed upon us by the petitioners that the Committee's
Report must displace our judgments.

It shall have been noticed that we have refused to
reconsider our decisions 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 not traceable.

The petitions are accordingly dismissed but there will
be no order as to costs.

DESAI, J.-I have carefully gone through the Judgment
prepared by My Lord the Chief Justice but I regret my
inability to agree with the same.

The history, 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 these petitions.

The petitioners 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 following grounds;

1. The 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 Jaisinghani's
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 with the
result that the whole calculation of spill over is
vitiated.

3. The mandamus issued in
Jaisinghani
's 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.
While no doubt this Court has constitutional power to
review its decision, it is a power to be sparingly exercised
because any such review has the tendency to unsettle
questions which may have been finally determined. In fact,
learned Solicitor-General appearing for the Union of India
warned us that the credibility of this Court is at stake if
it goes on re-opening and reviewing propositions which have
been finally determined by this Court. Whose credibility is
at stake would be presently pointed out because the
examination of this ugly aspect could have been spared if
such a contention was not canvassed. Repeatedly the
Government of India kept back material from this Court
filing affidavit after affidavit showing its inability to
provide such important information on which the decision of
the Court would turn even though it can now be demonstrably
established that such mate rial and information was with the
Government. If the Government of India Had not withheld such
material information' which has been rather adversely
commented upon not by the Court but by the Legislature, the
credibility of the department would be exposed. Reference
may be made in this connection to the 49th Report of
Committee on Petitions presented on January 9, 1976, to
Rajya Sabha Secretariat, set up to dispose of a petition
filed by one R.C. Pandey, General Secretary, All India
Federation of Income Tax Gazetted Services Associations,
praying for repeal of the Income Tax officers (Class I
Service) (Regulation of Seniority) Rules, 1973, and for the
framing of fresh seniority rules in lieu thereof. While
disposing of this petition, the observation pertinent to the
point under discussion may be extracted:

"The Committee is shocked at the pleas of loss of
vital records taken by the administration. In response
to the committee's requests relating to important files
the administration has taken a similar plea. The
Committee asked for a file which could possibly show
the correct position on the question whether the 80: 20
quota during the period 1945-50 was really operative.
The file is reported missing. Another file reported mis
sing is that relating to the framing of the recruitment
rules, 1945. The file relating to Shri R.C. Dutt's
affidavit (filed in Jaisinghani's case) is also not
available. Even the very recent file relating to the
framing of Seniority Rules, 1970, is reported as 'not
available'. On our insistence they have produced a
thick sheaf of papers said to be 'reconstructed file'.
It is strange that many of the files which could
probably have that own light on the question of excess
promotion, are reported 'missing' or 'not available'.
The conclusion is Inescapable that these losses of
files are far from being accident. We can only
conclude that important information was deliberately
withheld from the Supreme Court as well as from the
Committee".

(emphasis supplied)
On these observations the credibility submission would not
only stand squarely answered, but need not deter us from
going into the points made in these petitions.

However, this Court does not lightly undertake review
of its decisions, more especially where conflicting claims
have been settled by a decision of the Court and the whole
gamut may have to be gone through over again on a
reconsideration of the decision. The approach of the Court
on a plea of reconsideration has been spelt out in
Sajan
Singh v. State of Rajasthan
,(l) where a plea for
reconsideration of the decision of this Court in
Sri Sankari
Prasad Singh Deo v. Union of India & State of Bihar
,(2) was
repelled observing as under:

"It was, however, urged before us during the
course of the hearing of these writ petitions that we
should reconsider the matter and review our earlier
decision in
Sankari Prasad
's case. It is true that the
Constitution does not place any restriction on our
powers to review our earlier decisions or even to
depart from them and there can be no doubt that in
matters relating to the decision of constitutional
points which have a significant impact on the
fundamental rights of citizens, we would be prepared to
review our earlier decisions in the interest of public
good. The doctrine of stare decisions may not strictly
apply in this context and no one can dispute the
position that the said doctrine should not be permitted
to perpetuate erroneous decisions pronounced by this
Court to the detriment of general welfare. Even so, the
normal principle that judgments pronounced by this
Court would be final, cannot be ignored and unless
considerations of a substantial and compelling
character make it necessary to do so, we should be slow
to doubt the correctness of previous decisions or to
depart from them".

G
Similarly, in the
Keshav Mills Co. Ltd. v. Commissioner of
Income Tax Bombay North
,(3) it was held that while
exercising inherent power to reconsider and review its
earlier decisions this Court would naturally like to impose
certain reasonable limitations and would be reluctant
to entertain plea for reconsideration and review of its
earlier decisions, unless it is satisfied that there are
compelling and substantial reasons to do so. It is general
judicial experience that in matters of law involving
questions of construing statutory or constitutional
provisions, two views are often reasonably possible and when
judicial approach has to make a choice between the two
reasonably possible views, the process of decision-making is
often very difficult and delicate. In deciding whether a
review is necessary when two views are possible it would not
necessarily be an adequate reason for such review and
revision to hold that though the earlier view is a
reasonably possible view, the alternative view which is
pressed on the subsequent occasion is more reasonable. The
Court's discretion should be guided by such consideration
whether in the interest of public good or for any other
valid or compulsive reasons it is necessary that the earlier
decision should be revised.

This view was re-affirmed in

Manganese Ore (India) Ltd. v. The Regional Assistant
Commissioner of Sales Tax, Jabalpur
.(l)
Bearing these principles in mind, it is necessary to
examine whether a case for reconsideration of the three
earlier decisions is made out by the petitioners or not.

Jaisinghani
's case proceeds on a concession that rule 4
and the quota prescribed by the Government referable to the
power conferred by rule 4 were statutory in character. This
is borne out by the observation of the Court which may be
extracted:

"It is not disputed that rule 4 of the Income Tax
officers, Class I, Grade II Service Recruitment Rules
is a statutory rule and there is a statutory duty cast
on the Government under ' this Rule to determine the
method or methods to be employed for the purpose of
filling the vacancies or number of candidates to be
recruited by each method".

Income Tax Service was reconstituted on September 29,
1944 The Government of India classified the existing Income
Tax Service as Class I and Class II. The scheme provided for
recruitment of Income Tax officers Class I, Grade II partly
by promotion and partly by direct recruitment. The scheme
was set out in the Government of India, Finance Department
(Central Revenues) letter dated September 29, 1944. The
quota prescribed therein has undergone a revision at a later
date. It thus appears that the rules were pre-constitution
Rules and, therefore, their source must be traced to the

Government of India Act, 1935
('1935 Act' for short).

Section 241
of the.
1935 Act made provision for recruitment and conditions of
service. A bare perusal of the section would show that the
power to make appointments in the case of service of
Federation and posts in connection with the affairs of the
Federation was conferred on the Governor-General or such
person as he may direct. The power to make rules in this
behalf was conferred by sub-s. (2) on the Governor-General
or by some person or persons authorized by the Governor-
General to Make the rules for the purpose. On an examination
of the rules under discussion no material was placed on
record to show that the rules were made either by the
Governor-General or such person as authorized by him. As
pointed out a little while ago, the rules were made by the
Finance Department and no material was placed to show that
the person or the persons who made the rules were authorized
by the Governor-General under
s. 241(2)
of the 1935 Act in
this behalf. The assumption made, therefore, that rule 4 of
the Rules was statutory and that the quota prescribed in
exercise of the power conferred by rule 4 must be statutory,
is ill- founded. This knocks out the entire foundation of
the judgment of this Court in
Jaisinghani
's case because
this Court proceeded to hold that as the quota was statutory
any recruitment made in excess of the quota in any given
year would be invalid and at best can be regularized by
relegating such excess appointments to the quota next year.
If rule 4 and the quota referable to the power conferred by
rule 4 were not statutory but were merely executive
instructions, its violation would not render any appointment
in excess of it invalid, but at best would be irregular and
in this case on a plain reading of rule 4 it would not even
be irregular.

In
P.C. Sethi & Ors. v. Union of India & Ors.
, this
Court held that in the absence of any statutory rules it was
open to the Government in exercise of its executive power to
issue administrative instructions with regard to
constitution and reorganization of service as long as there
is no violation of
Articles 14
and
of the Constitution.
If the parent rule 4 enables the Government to prescribe
method to be employed for the purpose of filling in any
particular vacancy {. 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 and if the so
called quota is not statutory but merely a guideline, the
Government whenever making appointment would be acting in
exercise of power conferred by rule 4 which leaves it to the
discretion of the Government to decide from what source
recruitment should be made and what must be the quantum of
vacancies that must be filled in at a given point of time
and such appointment could not be said Hi to be invalid.
Alternatively, even if the assumption made in

Jaisinghi
's case that rule 4 and the quota referable to the
exercise of power conferred by rule 4 is unquestionable yet
when this Court held that the quota is related to the
vacancies, the decision proceeding on an incorrect plea that
the information about the number of vacancies in a year is
not available, is unsustainable for two reasons, namely, (I)
that the files are now produced; and (2) in the absence of
information about the vacancies available the Court could
not have invalidated any appointment on the assumption that
appointment from the source of promotes was in excess of the
quota. On a plain reading of rules 3, 4 and S it appears
crystal clear that the quota was related to vacancies and at
one stage that was accepted. On this finding unless the fact
situation is clearly established showing vacancies year to
year it would be impossible to hold that in any year there
was in excess in either source. Suppose there were 90
vacancies in a year and the quota was 66-2/3 for direct
recruits and 33-1/3 for promotes, it would be open to the
Government to promote 30 persons irrespective of the fact
whether 60 direct recruits have become available or not. The
assumption made that the recruitment made in a given year
from both the sources would furnish information about the
vacancies in a year would lead to a rather unfair conclusion
inasmuch as the action of the Government in acting in a
certain manner without due regard to the quota rule would
work hardship on appointees even though on a correct
calculation of vacancies the appointments may be valid and
legal.

The mandamus issued in
Jaisinghani
's case was as under:

"We are accordingly of the opinion that promotes
from class II, grade III to class I, grade II service
in excess of the prescribed quotas for each of the
years 1951 to 1956 and on wards have been illegally
promoted and the appellant is entitled to a writ in the
nature of mandamus commanding respondents 1 to 3 to
adjust the seniority of the appellant and other
officers similarly placed like him and to prepare a
fresh seniority list in accordance with law after
adjusting the recruitment for the period 1951 to 1956
and onwards in accordance with the quota rule
prescribed in the letter of the Government of India No.
F. 24(2)-Admn. I.T./51 dated October 18, 1951. We,
however, wish to make it clear that this order will not
affect such class II officers who have been appointed
permanently as Assistant Commissioners of Income-Tax.
But this order will apply to all other officers
including those who have been ap-
pointed Assistant Commissioners of Income Tax
provisionally pursuant to the orders of the High
Court".

The Government understood the mandamus as covering the
whole period from 1951 to 1967. When this was questioned in
the 1st
Gupta
case, this Court held that the quota rule
Proprio vigor operated between 1951 to 1956 and if there
were promotions in any year in excess of the quota those
promotions were merely invalid for that year but they were
not invalid for all time and they could be regularized by
being absorbed in the quota for the later years. So
adjusting the quota at any rate upto 1956, the quota rule on
its own strength evaporated because it was to be in
operation for a period of five years and no fresh quota rule
was issued by the Government. Therefore, after 1956 rule 4
remained in force in all its rigour and was not hedged in by
any quota. Rule 4 permitted the Government to make
recruitment from either source without lettering its
discretion by any quota rule which it was not bound to
prescribe. On January 16, 1959, Government in the ministry
of Finance informed the commissioners of Income tax that the
President had sanctioned the upgrading to class I of 100
temporary Posts of Income Tax officers, Class II. On
December 19, 1960, there was further upgrading of 114 posts
from class II to class I. Between 1959 and 1962 these 214
posts were filled in by promotes.

Now, in the
Ist Gupta
case
this court held that even though the quota rule expired in
1956, yet the Government of India adopted it as a guideline.
May be, it may be so. Does any appointment in breach of the
guideline neither statutory nor even having the fragrance of
any executive instruction become invalid more so when the
Government had power to make appointment from either source
uninhibited by any quota rule under rule 4 ? Yet the Court
found that between 1956 and 1959 when 100 pasts came to be
upgraded there was a spillover of 73 persons and because of
the huge departure from guidelines the weightage rule giving
seniority to the promotes by 2- 3- years was crushed under
its own debris. Again, with respect it must be confessed
that rule 4 is overlooked or bypassed when saying that there
was a spillover of 73 promotes between 1956 and 1959. Nor
could it be said that the upgrading of 214 posts and filling
them up by promotes would be in any way even irregular much
less invalid because rule 4 enables Government to draw from
either source.

In the 2nd
Gupta
case in view of the decision in 1st

Gupta
case a fresh seniority rule was prepared and it was
made retroactive from 11 January 16, 1959. If, the inter
alia provides that the relative seniority amongst the
promotes and the direct recruits shall be in the ratio of
1: 1 and the same shall be so determined and regulated in
accordance with a roster maintained for the purpose, which
shall follow the following sequence, namely:

(a) Promote;

(b) direct recruit,

(c) Promote,

(d) direct recruits, and so on.

This method of roster undoubtedly introduces a quota by
the back door. Once a roster is introduced Promote direct
recruit, Promote direct recruit etc. even if some promotes
have come in a bulk and if at a later date some direct
recruits are appointed in bulk, while preparing roster an
earlier date promote will have to yield his place to a later
date direct recruit. Bluntly translated it means that the
direct recruit who was never in service when promote was
promoted, probably he may be a student. May be he may not
have even passed the competitive examination, yet he may
come into the picture and challenge one who has already been
serving in the Department for a number of years. To
illustrate, in the new seniority list prepared by the
Government pursuant to the order made by this Court in the
1st
Gupta
case and upheld by this Court in 2nd
Gupta
case a
promote of 1962 will have to yield his place to a direct
recruit of 1966. With utmost hesitation I must say that
service jurisprudence hardly permits a situation where a man
not in service comes and challenges some thing which has
been done much before he came in to service and gets such an
advantage which on the face of it appears to be unfair. But
apart from this, even in 1959 there was no quota rule and
assuming that the old service rule giving weightage to the
promotes crushed under that weight of large number of
promotes being promoted, it would not be open to the
Government to so prepare a fresh seniority list which cannot
be given effect to unless a roster is introduced which
introduces quota by the back door and which is so unfair in
its operation that promotes of 1962 will have to yield place
to direct recruits of 1966. Now under the old weightage rule
promotes were given a weightage for service of 2-3 years
over direct recruits because direct recruits were unable to
undertake regular assessment work for a period of 2-3 years
when they were more or less under training while promotes
have been doing this work for a number of years and their
experience is rejected in the weightage. The whole thing now
appears in the reverse gear in that an uninitiated direct
recruit takes precedence over an experienced promote.
The
unfairness of the new rule is writ large on the face of it.
This rule 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 rule 4.

Certainty and continuity demand that this 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
few lines.

Jaisinghani and the two Gupta cases are being quoted
times without number before this Court for the principles
enunciated therein. These decisions, therefore, affect
subsequent decisions of this Court as well as the High
Courts. And some of the principles enunciated in these three
cases stand in sharp contrast to other decisions of this
Court and in fact this Court itself felt it necessary to
warn that it may become necessary to reconcile these
conflicting decisions. In this connection reference may be
made to N.K. Chauhan and ors. v. State of Gujarat and ors.
where this Court after referring to two sets of decisions
charting two different courses, observed as under:

"After all, we live in a judicial system where
earlier curial wisdom, unless competently over-ruled,
binds the Court. The decisions cited before us start
with the leading case in Mervyn Coutindo & ors. v.
Collector of Customs, Bombay and close with the last
pronouncement in
Badami v. State of Mysore
and ors.
This time-span has seen dicta go zigzag but we see no
difficulty
in tracing a common thread of reasoning.

However, there
are divergencies in the ratiocination between Mervyn
Coutindo (supra) and Govind Dattatray Kelkar and ors.
v. Chief Controller of Imports and Exports and ors.,
on the one hand and
S. G. Jaisinghani v. Union of India

(
supra) Bishan Sarup Gupta v. Union of India
(supra)
Union of India and ors. v. Bishan Sarup Gupta , and A.
K. Subraman and ors. v. Union of India on the other,
especially on the rota system and the year being
regarded as a unit, that this Court may one day have to
harmonize the discordance unless Government wakes up to
the need for properly drafting its service rules so as
to eliminate litigative waste of its servants'
energies".

It is 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 Hon'ble Chief Justice of India.

ORDER
In view of the majority opinion the Writ Petitions are
dismissed with no order as to costs.

S.R. Petitions dismissed.