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PETITIONER: MALOON LAWRENCE CECIL D’ SOUZA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT01/05/1975

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ RAY, A.N. (CJ) BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1975 AIR 1269  CITATOR INFO :  R          1982 SC 101  (28)  R          1986 SC2086  (9)  RF         1988 SC 654  (16)  RF         1991 SC1872  (15)

ACT: Constitution  of  India, 1950, Article  16--Seniority  List, validity   of--Promotion   of   petitioner   as    Assistant Commissioner  of  Income-Tax  prior  to  respondents  4   to 26--Petitioner, if could claim seniority over respondents in subsequent seniority list.

HEADNOTE: On  July  1, 1947 the petitioner  was  appointed  Income-Tax Officer  Class  II.  On August 12, 1949 the  petitioner  was appointed  Income-Tax Officer Class I Grade 11 in  post-1945 vacancy  reserved  for  candidates  with  war  service.   On January  24,  1950 a seniority list of  Income-Tax  Officers Class  I  Grade II as on January 1, 1950 was issued  on  the basis of 1947 Seniority Rules.  The petitioner was shown  in that list senior to respondents 4 to 26.  The same  position was  reflected  in  a seniority list issued  in  1958.   The petitioner was prompted as Income Tax Officer Class I  Grade I  with  effect from January 1, 1951 and confirmed  in  that post from the said date.  The Rules of 1974 were revised and in supersession of them 1952 Seniority Rules were issued  by the  Ministry  of Home Affairs.  The  Income-Tax  department took  some time to revise the seniority list  of  Income-tax Officers Class I in accordance with 1952 Seniority Rules and finally  on  November  26, 1956 revised  seniority  list  of Income-tax  Officers Class I Grade I as on October, 1  1956, was  issued.   In this list respondents 4 to 26  were  shown senior to the petitioner and were entitled to be promoted to higher posts earlier than the petitioner.  Another seniority list of Assistant Commissioners was issued as on January  1, 1958 in conformity with the earlier list of 1956 showing the petitioner  to  be junior to respondents 4 to 26.   By  this time  the  petitioner and respondents 4 to 26 had  all  been promoted Assistant Commissioners. This  Court  in Karnik’s case 78 I.T.R. 243  held  that  the following principles emerge from 1952 Rules for  determining

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the  seniority. (i) Between Income-tax officers promoted  at the same meeting, their seniority inter se will be reflected in  the list of Assistant Commissioners of Income-tax;  (ii) Between  an  officer promoted earlier  and  another  officer senior to him but who was not considered in the meeting when the former was promoted, seniority in the list of Income-tax Officers will be reflected in the higher cadre; (iii)  Where the senior officer was considered and not promoted, and  the junior  officer was promoted at that meeting, the  order  of promotion will govern seniority in the higher grade and (iv) Where  senior  officer is promoted and confirmed  and  at  a later  meeting  a  junior officer is  promoted,  the  latter cannot  claim to be placed above the senior officer  in  the higher cadre relying upon the circumstance that he could not be considered for promotion at the earlier meeting,  because he had not to his credit the qualifying minimum service.  In pursuance of the above judgment of this Court, seniority  of Income-tax Assistant Commissioners promoted before April  1, 1964  was  recast  and  new seniority  list  was  issued  on February  1, 1971.  The petitioner filed this writ  petition challenging  the seniority list of Additional  Commissioners of  Income-tax  as  on February 1, 1971  circulated  by  the Government of India, Ministry ,of Finance. It was contended on behalf of the petitioner that, as he was promoted  Assistant  Commissioner on August 19,  1955  while respondents 4 to 26 were promoted to that post subsequent to that  date, the petitioner should be shown senior  to  those respondents. 410 Rejecting the contention and dismissing the writ petition. HELD  :  (i) The fact that the petitioner  was  promoted  as Assistant  Commissioner prior to respondents 4 to  26  would not make him senior to respondents 4 to 26 because according to the seniority list issued on the basis of 1952  Seniority Rules  the  above mentioned respondents were senior  to  the petitioner.   The  seniority  of  the  petitioner  vis-a-vis respondents  4  to 26 has to be determined in the  light  of proposition  No. 2 laid down by this Court in Karniks  case, according  to which between an officer promoted earlier  and another officer senior to him, but who was not considered in the  meeting when the former was promoted, seniority in  the list of Income-tax Officers will be reflected in the  higher cadre.  As respondents 4 to 26 were admittedly shown  senior to the petitioner in the list as on October 1, 1956 prepared ill  accordance  with  1952 Rules, their seniority  qua  the petitioner  would  be  reflected  in  the  higher  cadre  of Assistant Commissioner. [412 GH] (ii) It  has not been shown that the names of respondents  4 to 26 were also considered in the meeting wherein a decision was   taken   to  promote  the   petitioner   as   Assistant Commissioner.    Assuming   that  a  decision   to   promote respondents 4 to 26 to the posts of Assistant  Commissioners was  taken  at the same meeting in which it was  decided  to promote  the petitioner, in that event proposition No. 1  in Karnik’s   case  would  be  attracted.   Even  in   such   a contingency  the  seniority of respondents 4 to 26  qua  the petitioner  would  be  reflected in the  list  of  Assistant Commissioners.    In   the  seniority  list   of   Assistant Commissioners  issued  in  1958, the  petitioner  was  shown junior  to  respondents  4  to 26  in  conformity  with  the seniority  list of 1956.  In the matter of  confirmation  to the post of Assistant Commissioner, six out of respondents 4 to 26 confirmed earlier then the petitioner. while the  rest of  them were confirmed at the same time as the  petitioner. The  impugned  list of seniority circulated in  1971  merely

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reflected the seniority of the petitioner qua respondents  4 to 26 as determined in 1956. [412 H, 413 A-C] S.K. Ghosh & Anr. v. union of India & Ors., [1968] 3 SCR 631 referred to. HELD  FURTHER-(iii)  The  seniority of  the  petitioner  qua respondents  4 to 26 was determined as long ago as  1956  in accordance   with  1952  Rules.   The  said  seniority   was reiterated  in  the  seniority list  issued  in  1958.   The present  writ petition was filed in 1971.   No  satisfactory explanation  has  been furnished by the petitioner  for  the inordinate  delay in approaching the court.  It is no  doubt true  that  he made a representation against  the  seniority list  issued  in 1956 and 1958 but  the  representation  was rejected in 1961.  No cogent ground has been shown as to why the  petitioner became quiescent and took no diligent  steps to  obtain  redress.  The petitioner, therefore,  cannot  be allowed  to challenge the seniority list after lapse  of  so many years. [413EFGH]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 296 of 1971. Under Article 32 of the Constitution of India. Ram Panjawani and B. R. Agarwala, for the petitioner. S. N. Prasad and S. P. Nayar, for respondents Nos.  1 to 3. Memo for the respondents Nos. 4 to 26. The following Judgment of the Court was delivered by KHANNA,  J.-This  is  a petition under  article  32  of  the Constitution  of  India by Malcom  Lawrence  Cecil  D’Souza, Additional  Commissioner  of Income-tax for  an  appropriate writ to quash the seniority list of the Additional Commissioners of Income-tax as  On  February  1, 1971 circulated by  the  Government  of India,, Ministry of Finance.  The petitioner claims that  he is senior to respondents 4 411 to  26, but in the impuged list he is shown junior to  those respondents.   Prayer has also been made by  the  petitioner for  other consequential reliefs.  Apart from respondents  4 to 26, the petitioner has impleaded the Union of India,  the Secretary,  Ministry of Finance, Department of  Revenue  and the Chairman, Central Board of Direct Taxes as respondents I to 3. The petitioner served in the Royal Navy as a  Sub-lieutenant from March 1945 till November 1946 when he was released from the  naval  service because of the end of war.  On  July  1, 1947  the petitioner was appointed Income-tax  Office  Class 11.  On August 12, 1949 the petitioner was appointed Income- tax Officer Class I Grade It ,in post-1945 vacancy  reserved for  candidates  with war service.  On January  24,  1950  a seniority list of Income-tax Officers Class I Grade 11 as on January  1, 1950 was issued on the basis of  1947  Seniority Rules.   The  petitioner was shown in that  list  senior  to respondents  4 to 26.  The same position was reflected in  a seniority list issued in 1953.  The petitioner was  promoted as  Income-tax  Officer  Class I Grade I  with  effect  from January  1,  1951 and confirmed in that post from  the  said date. According  to 1947 Rules, the seniority of candidates  inter se appointed to post-1945 vacancies was to be determined  by age  irrespective  of  the category  from  which  they  were recruited.    The  Rules  of  1947  were  revised   and   in supersession of them 1952 Seniority Rules were issued by the Ministry  of Home Affairs.  According, inter alia,  to  1952

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Seniority  Rules, the break in service was not to  be  taken into  account for determining the seniority of persons  con- firmed  against  post  1945  was  reserved  vacancies.   The Income-tax Department took some time to revise the seniority list of Income-tax Officers Class I in accordance with  1952 Seniority Rules and finally on November 26, 1956 the revised seniority list of Income-tax Officers Class I Grade I as  on October  1, 1956 was issued.  In this list respondents 4  to 26 were shown senior to the petitioner and were entitled  to be  promoted  to higher posts earlier than  the  petitioner. Another seniority list of Assistant Commissioners was issued as on January 1, 1958.  This list was in accordance with the earlier  list of Income-tax Officers as on October  1,  1956 showing the petitioner to be junior to respondents 4 to  26. It  may  be  stated that by this  time  the  petitioner  and respondents  4  to  26  had  all  been  promoted   Assistant Commissioners. The seniority list of Income-tax Assistant Commissioners  as on  August 1, 1965 was challenged by Assistant  Commissioner Vasant  Jayaram Karnik in Gujarat High Court by means  of  a writ  petition filed in 1967.  The High Court  allowed  that petition and issued a writ quashing the seniority list as on August  1,  1965  in  so far as  that  list  showed  several officers  senior  to  Karnik  and  another  officer  B.   S. Nadkarni.  The High Court gave its own interpretation of the 1952 Seniority Rules.  An appeal was filed in this Court  on behalf of the Union of India against the above, judgment  of the Gujarat High Court in 1969.  This Court as per  judgment dated  September 7, 1970, reported in 78 ITR  243  dismissed that appeal.  This Court 412 held  that the following principles emerge from  1952  Rules for determining the seniority :               "(i)  Between Income-tax Officers promoted  at               the  same  meeting, their seniority  inter  se               will  be  reflected in the list  of  Assistant               Commissioners of Income-tax;               (ii)  Between an officer promoted earlier  and               another officer senior to him, but who was not               considered in the meeting when the former  was               promoted, seniority in the list of  Income-tax               Officers  will  be  reflected  in  the  higher               cadre;               (iii) Where the senior officer was  considered               and  not promoted, and the junior officer  was               promoted   at  that  meeting  the   order   of               promotion will govern seniority in the  higher               grade;               (iv)  Where  a senior officer is promoted  and               confirmed  and  at a later  meeting  a  junior               officer  is promoted. the latter cannot  claim               to  be placed above the senior officer in  the               higher  cadre  relying upon  the  circumstance               that he could not be considered for  promotion               at the earlier meeting, because he bad not  to               his credit the qualifying minimum service." In pursuance of the above judgment of this Court,  seniority of Income-tax Assistant Commissioners promoted before  April 1,  1964  was  recast and the impugned  seniority  list  was accordingly issued. The  petition has been resisted by the respondents  and  the affidavit of P. S. Mehra, Under Secretary to the  Government of  India,.  Ministry of Finance, Department of Revenue  and Insurance has been filed in opposition to the petition. It  has  been argued by Mr. Ram Panjwani on  behalf  of  the

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petitioner that as he was promoted Assistant Commissioner on August  19, 1955 while respondents 4 to 26 were promoted  to that post subsequent to that date, the petitioner should  be shown senior to those respondents.  We find it difficult  to accede to this contention.  The fact that the petitioner was promoted as Assistant Commissioner prior to respondents 4 to 26 would not make him senior to respondents 4 to 26  because according to the seniority list issued on the basis of  1952 Seniority Rules the above-mentioned respondent-, were senior to  the petitioner.  The seniority of the petitioner  vis-a- vis respondents 4 to 26 has to be determined in the light of proposition  No. 2 laid down by this Court in Karnik’s  case (supra),  according  to which between  an  officer  promoted earlier  and another officer senior to him, but who was  not considered  in  the meeting when the  former  was  promoted, seniority  in  the  list  of  Income-tax  Officers  will  be reflected in the higher cadre.  As respondents 4 to 26  were admittedly shown senior to the petitioner in the list as  on October  1,  1956 prepared in accordance  with  1952  Rules, their seniority qua the petitioner would be reflected in the higher  cadre of Assistant Commissioners.  It has  not  been shown to us that the names of respondents 4 to 26 were 413 also considered in the meeting wherein a decision was  taken to   promote  the  petitioner  as  Assistant   Commissioner. Assuming  that a decision to promote respondents 4 to 26  to the  posts of Assistant Commissioners was taken at the  same meeting  in which it was decided to promote the  petitioner, in  that  event proposition No. 1 in Karnik’s  case  (supra) would  be  attracted.   Even  in  such  a  contingency   the seniority of respondents 4 to 26 qua the petitioner would be reflected  in the list of Assistant Commissioners.   In  the seniority  list of Assistant Commissioners issued  in  1958, the  petitioner was shown junior to respondents 4 to  26  in conformity with the seniority list of 1956. In the matter of confirmation to the post of Assistant Commissioner, six  out of respondents 4 to 26 were confirmed earlier than the peti- tioner,  while the rest of them were confirmed at  the  same time  as  the petitioner.  The impugned  list  of  seniority circulated  in  1971 merely reflected the seniority  of  the petitioner qua respondents 4 to 26 as determined in 1956. The case of S. K. Ghosh & Anr. v. Union of India & Ors(1) to which reference has been made on behalf. of the  petitioners ran be of no assistance to him as that case related to rules for recruitment to the grade of Directors of Postal Services in  Indian Postal Service.  So far as the seniority  of  the petitioner  vis-a-vis respondents 4 to 26 is concerned,  the matter  is governed by 1952 Seniority Rules and those  rules as  already mentioned have been the subject of the  decision of  this  Court in Karnik’s case (supra).  In  view  of  the direct  decision  of  this Court  relating  to  the  precise question  with which we are concerned, it is not  necessary, in our opinion, to refer to other rules. The  matter can also be looked at from another  angle.   The seniority  of  the petitioner qua respondents 4  to  26  was determined  as  long  ago as 1956 in  accordance  with  1952 Rules.   The said seniority was reiterated in the  seniority list issued in 1958.  The present writ petition was filed in 1971.  The petitioner, in our opinion, cannot be allowed  to challenge  the seniority list after lapse of so many  years. The  fact  that  a  seniority list was  issued  in  1971  in pursuance  of  the decision of this Court in  Karnik’s  case (supra)  would not clothe the petitioner with a fresh  right to challenge, the fixation of his seniority qua  respondents 4  to 26 as the seniority list of 1971 merely reflected  the

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seniority of the petitioner qua those respondents as already determined   in  1956.   Satisfactory   service   conditions postulate  that  there  should be no  sense  of  uncertainty amongst  public servants because of stale claims made  after lapse  of 14 or 15 years.  It is essential that any one  who feels  aggrieved with an administrative  decision  affecting one’s   seniority   should  act  with  due   diligence   and promptitude and not sleep over the matter.  No  satisfactory explanation  has been furnished by the petitioner before  us for the inordinate delay-in approaching the court.  It is no doubt  true  that  he  made  a  representation  against  the seniority   list   issued  in  1956  and   1958   but   that representation  was rejected in 1961.  No cogent ground  has been  shown  as to why the petitioner became  quiescent  and took no diligent steps to obtain redress. Although  security  of service cannot be used  as  a  shield against administrative action for lapse of a public servant, by and large one (1)  [1968] 3 SCR 631. 414 of the essential requirements of contentment and  efficiency in  public  services  is  a  feeling  of  security.   It  is difficult  no  doubt to guarantee such security in  all  its varied  aspects, it should at least be possible,  to  ensure that matters like one’s position in the seniority list after having  been  settled for once should not be  liable  to  be reopened  after  lapse of many years at the  instance  of  a party  who has during the intervening period chosen to  keep quiet.   Raking up old matters like seniority after  a  long time is likely to result in administrative complications and difficulties.  It would, therefore, appear to be in the  in- terest  of  smoothness and efficiency of service  that  such matters should be given a quietus after lapse of some time. The  writ  petition  fails  and  is  dismissed  but  in  the circumstances without costs. V.M.K. Petition dismissed. 415