IN-Abs/train-data/summary/3634.txt

The Government of India, in 1950, framed a rule for promotion of an Income Tax Officer as Assistant Commis sioner and it was published as rule 18 in Vol.
I1 of the Office Manual published in 1955.
The rule provided that promotion shall be strictly on merit and that no one should ordinarily be considered for promotion unless he has com pleted at least ten years service as Income Tax Officer.
In 1957, a memorandum was issued by the Central Board of Reve nue containing the following principles for proration of Income Tax Officers Class I as Assistant Commissioners.
Greater emphasis should be laid on merit as a criterion.
The Departmental Promotion Committee should first decide the field of choice, namely, the number of eligible officers awaiting promotion who should be considered for inclusion in the selection list.
An officer of outstanding merit may be included in the list even if he is outside the normal field of choice.
The field of choice wherever possible should extend to 5 to 6 times the number of vacancies expected.
From among such officers those who are considered unfit for promotion should be excluded and the remaining should be classified as 'outstanding ' very good ' and 'good ' on the basis of merit as determined by their respective records" of service.
The selection list should then be prepared by placing the games in the order of these three categories without disturbing the seniority inter se within each category.
Promotions should strictly be made from such selection list in the order in which the names are finally arranged.
The selection list should be periodically reviewed removing from the list names of persons who have been promoted and including fresh names.
On 16th August 1972 this Court set aside the seniority list in the first Bishan Sarup Gupta case [1975] Supp.
SCR 491 and gave directions for preparing a fresh list.
On 21 December 1972, the Government applied to this Court for making ad hoc promotions and the court permitted them to do so.
Accordingly, in March 1973 and November 1973 the Board promoted 59 and 48 Income Tax Officers respectively as Assistant Commissioners.
It was distinctly stated in those two orders that the ad hoc appointments made against those posts were provisional and that the appointments eventually be made on the basis of the revised seniority list of Income Tax Officers Class I as finally approved by this Court, and on selection by a duly constituted Depart mental Promotion Committee in accordance with the prescribed procedure.
In February 1973, the Income Tax Officers (Class I) Service (Regulation of Seniority) Rules, 1973, were made and a revised seniority list of Income Tax Officers Class I was made on the basis of those rules.
The list as well as the Rules were approved in the second Bishan Sarup Gupta Case ; From such seniority list the Depart mental Promotion Committee made a selection list in July 1974, for proration of Income .Tax
Officers, Class I, as Assistant Commissioners.
There were 112 vacancies and the Government sent 336 names in the running order of seniority for consideration of the field of 29 choice.
The Committee followed the instructions in the 1957 Memorandum an.d found 276 to be fit for the field of choice, assessed the merits of 145 persons in order of seniority, found one officer outstanding, 114 very good, and 7 Sched uled Castes/Tribes officers good, according to the instruc tions.
The Selection list was challenged in various High Courts.
Two of the High Courts held in favour of the peti tioners and the other High Courts gave interim orders stay ing the operation of the Selection List.
In appeals by the Union of India to this Court, the respondents sought to support the judgments in their favour on the following contentions : (1) The requirement in the rule regarding 10 years experience was not abrogated as contended by the Government and the affidavits field in the various proceedings on behalf of the Union as well as the petitioners show that the 10 year rule was in force and was followed (2) Rule 18 has the force of law under the Government of India Act, 1935, and hence is existing law within the mean ing of article 366(10) of the Constitution and also because it was incorporated in the Office Manual issued by the Govern ment of India in exercise of its executive power under article 53.
(3) The rule constitutes one of the conditions of serv ice and, therefore, should be followed.
(4) The rule imposes an obligation on the Union Govern ment to Consider 'ordinarily ' only Officers of ten years service, but the selection list was prepared in violation of the rule in that officers of 8 years experience were considered.
(5) The selection has been made in complete violation of the principles set out in the 1957 memorandum and was entirely arbitrary.
(6) The promotion should be considered as on 21 December 1972 when the Government applied to this Court for permis sion to make ad hoc appointments, and on the two dates when the Government actually made 107 (59 1 48) ad hoc promotions and it Was the duty of the Committee to regularise the 107 promotions as from the dates of the original promotion and to consider the eligibility of an officer for promotion as on those dates, and this not having been done.
the selection list was illegal being contrary to the observations in the first Bishan Sarup Gupta 's case.
Rejecting these contentions of the respondents, allowing the appeals, and upholding the Selection List, HELD: (1)(a) The requirement Of 10 years experience in r. 18 was modified to 8 years experience.
The correspond ence between the Finance Ministry and Home Ministry and the U.P.S.C. shows that there was concurrence with the change.
The High Court was in err, or when it said that the require ment of 8 years experience must first be included in the appropriate recruitment rules and that until that was done 10 years experience held the field.
8 years experience as a working rule for promotion was publicly announced by the Minister in Parliament.
Administrative instructions are followed as a guide line on the basis of executive policy.
The requirement of 8 years was followed as a guide line in practice in 1968, 1970 and 1972.
The requirement was thus not only modified but was given effect to.
[39F] (b) The High Court was in error in treating the affida vit evidence of an officer of the Government, in other proceedings, as a statement of fact that the 8 years rule had not been introduced.
This affidavit evidence is torn out of context and is misread by the High Court without going into the question as to whether such evidence is admissible.
The entire affidavit evidence as well as the submissions made on behalf of the 'Union Government is that the requirement of 10 years experience is replaced by one of 8 years.
It is a question of construction of.
the correspondence as to whether the 10 years rule was replaced by 8 years rule.
The fact that no rules under article 309 were 30 framed does not detract from the position that previous administrative instruction of 10 years experience was modi fied to 8 years experience.
The various affidavits and documents show that the consistent position on behalf of the Union has always been that the requirement of 10 years experience was modified to one of 8 years.
[41H; 42A B] (2) The rule is not a statutory rule.
[42D] (a) The contention that because Government of India has authority to frame rules the letter of 16th January 1950 in which the rule was framed should, therefore, be treated as a formal ' rule is erroneous since there is a distinction between statutory orders and administrative instructions of the Government.
The change was recorded by means of correspondence as an administrative instruction. 'In the absence of statutory rules, executive orders or administra tive instruction may be made.
[42E F] Commissioner of Income Tax Gujarat vs A. Raman & Compa ny. , referred to.
(b) The letter of 16th January 1950 written by an Under Secretary in the Ministry of Finance does not prove that it is a rule made by the Governor General or any person autho rised by him under section 241(2), Government of India Act, 1935.
Furthermore, there is no basis for any authentication under section 17 of the 1935 Act in the letter.
[42G] (c) In the preface to the Office Manual published in 1955 it is specifically stated that Vol.
I contains statuto ry rules and Vol.
II, in which r. 18 occurs, contains only administrative instructions.
[42G] S.C. Jaisinghani vs Union of India & ors.
[1967] 2 S.C.R. 70, referred to.
(d) Article 313 refers to laws in force which mean statutory laws.
An administrative instruction or order is not a statutory rule or law.
The administrative instruc tions can be changed by the Government by reason of article 63(1).
Article 313 does not change the legal character of a document.
[43B] (3) The High Court erred in holding that the 10 year rule is a condition of service.
The word "ordinarily" in the rule does not impose an obligation on the Government not to consider any Income Tax Officer with less than 10 years experience, for promotion.
The rule on the face of it, confers a discretion on the authorities to consider Income Tax Officers of lesser years experience if the circumstances so require, and whether such circumstances exist should be left to the decision of the authorities.
Even the Central Board of Revenue, in a letter written a few months after the rule was framed, stated that the insistence of a minimum period of experience cannot be regarded as affecting the conditions of service.
In that letter.
it was stated that the requirement of 10 years experience is sufficiently elastic and all Income Tax Officers with more than 9 years experience could also be considered for promotion.
This letter was referred to by this Court in Union of India vs Vasant Jayarama Karnik [43C F] (4) It cannot be said that there is a deviation from the requirement of 10 years experience in preparing the Selec tion list.
That requirement was modified to one of 8 years experience.
The expression 'ordinarily ' in the rule shows that there can be deviation and such deviation can be justi fied by reasons.
Administrative instructions if not carried into effect for good reasons, cannot confer a right.
[43G] P.C. Sethi & ors.
vs Union of India & Ors.
[1975] 3 S.C.R. 201, referred to.
(5) The facts and circumstances in the present case merited the exercise of discretion which was bona fide exercised by determining the field of choice and from 1963, the field of choice has always been in a running order of seniority.
31 (a) There were, in the present case,112 vacancies and 10 anticipated vacancies and the Departmental Promotion Commit tee was to make a panel of 122 officers.
If the field of choice has to be prepared on the basis of running seniority and if 10 years experience had been adhered to, there would not have been more than 95 officers in the field of choice although the number of vacancies was 122.
This fact alone entitled the authorities to deviate from the rule of 10 years experience.
[44E F] (b) The requirement of 10 years experience could not be given effect to also because in the second Bishan Sarup Gupta case, this Court had directed that the two classes of Income Tax Officers, direct recruits and promotees, should first be fully integrated before determining inter se sen iority.
The expression 'ordinarily ' would hardly apply to such a changed situation without destroying the integration.
If the respondents ' contention that the field of choice shall be restricted to 10 years experience only and the field of choice should have been at least 5 times the number of vacancies the result would have been that out of 560 persons in the field of choice 474 persons would have been promotees and only 86 persons would have been direct recruits and 429 senior officers, who were direct recruits, would have been ignored.
That obviously would be unjust and unfair and also contrary to the decision of this Court in the second Bishan Sarup Gupta 's case.
[47BC] (c) As a result of administrative instructions issued, at least since 1963, for promotion of Income Tax Officers as Assistant Commissioners, the administrative practice is to take the field of choice generally of 3 times the number of vacancies.
The evidence shows that in the circumstances of this case, it was not possible to have 5 or 6 times the number of vacancies in the field of choice.
[46E] (d) The High Court was wrong in holding that in the field of choice, the evaluation o{ merit of persons was not properly done.
The 1957 Memorandum requires that the field of choice is based on running seniority and evaluation of merit does not come into picture for deciding the field of choice.
The question of merit comes in only in the preparation of the selection list.
Seniority is the sole criterion for determining the field of choice and merit is the sole crite rion for putting the officers in the Selection list.
[46G] In present case, the instructions in the 1957 memoran dum were strictly followed.
(e) The 7 Scheduled Caste/Tribes officers were not entitled to a grade higher than the grade assessed by the Committee, because, the Home Ministry instructions, regard ing concessions to Scheduled Castes and Tribes applied in the case of promotions from Class III to Class II and within Class II and from Class II to the lowest rank of Class I, but had no application in respect of promotion within Class I. [47E] (f) After 122 senior officers were assessed and 114 were found to be 'very good ', they could not be supplanted by other who were also 'very good '.
Only 'outstanding ' persons who would be junior to the 122 could surpass them.
There fore, the Committee rightly considered the cases of the officers remaining out of the 276 only to find out whether there was any one 'outstanding" as it would be a fruitless exercise to find out who among them was 'very good '.
[48B] (g) The contention of the respondents that the officers remaining out of the 336 sent up, were not at all considered by the Committee is not also acceptable.
When the Committee found, according to running seniority, that certain persons beyond a certain number could not be in the field of choice, the Committee did not put the names in the field of choice.
The question of the evaluation of their merits did not, therefore, arise.
It is wrong to hold that because the Government sent the names of 336 persons the field of choice consisted of all 336 persons.
The field is to be determined by the Committee and the Committee rightly con sidered 276 names as fit to be included.
[48F] 32 (h) There is no substance in the contention that 4 of the officers had less than 8 years experience, because, they were ex military officers recruited by virtue of a notifi cation of the Ministry of Home Affairs.
[49B C] (i) The contention that after putting the officers in the three categories they should further be evaluated on merit inter se within each category is contrary to the specific provision of the 1957 memorandum, and further, there could not be any further intra specific assessment of those who are already considered to be "very good".
[49D] (6) The date for determining the eligibility of officers has nothing to do with the dates on which ad hoc appoint ments were permitted and ad hoe appointments were, in fact, made.
The observations Of this Court in the first Bishan Sarup Gupta case, are that if as a result of the fresh seniority list, it is found that any officer was eligible for promotion on account of his place in the new seniority list, the Committee might have to consider his case as on the date when he ought to have been considered and his position adjusted in the seniority list of Assistant Commis sioners.
The observations did not mean that although the Committee can meet only after the seniority list is approved by this Court, the selection would be deemed to be made at the time when a vacancy in the post occurred and the eligi bility of officers for seleCtiOn should be determined by such deemed date of selection.
No employee has any right to a vacancy in the higher post as soon as the vacancy occurs.
The Government has a right to keep it unfilled as long as it chooses.
The seniority list which is a basis for the field of choice for promotion was approved by this Court on 16th April 1964 in the second Bishan Sarup Gupta case.
Promo tions to the post of Assistant Commissioners are on the basis of the Selection List prepared by the Committee and are to be made prospectively and not retrospectively.
[51 C D]