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PETITIONER: RABINDRA NATH BOSE & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT: 09/10/1969

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. HIDAYATULLAH, M. (CJ) MITTER, G.K. RAY, A.N. REDDY, P. JAGANMOHAN

CITATION:  1970 AIR  470            1970 SCR  (2) 697  1970 SCC  (1)  84  CITATOR INFO :  R          1972 SC2060  (9)  F          1974 SC 259  (9)  F          1974 SC2077  (11)  R          1975 SC 511  (10)  RF         1975 SC 538  (17,18)  F          1976 SC2617  (6)  R          1981 SC1495  (23)  R          1982 SC 101  (28)  APL        1988 SC 268  (29,31)  RF         1988 SC 654  (7)

ACT: Constitution of India, Arts. 14 and 16-Whether applicable to acts done in pre-Constitution period-Promotion of Income-tax Officers  on  the  basis of Seniority  Rules  made  in  1952 challenged  in writ petition in 1967--Petition is barred  by laches-Confirmed Assistant Commissioners of Income-tax  must not be disturbed by delayed appeal to fundamental rights.

HEADNOTE: In  1943  the Government of India felt it necessary  to  re- organise  the entire service of Income-tax Officers  and  to create  a  Central  ’Service  and  uniform  pay  scales  for different  constituent grades.  The main idea was to  create Class  I Cadre Officers Service and to make selection to  it from  the existing Class II officers.   This  reorganisation scheme  was formulated in a letter dated 29-9-1944 from  the Government  of  India to all  Commissioners  of  Income-tax. According  to  the scheme the cadre  of  Incometax  Officers Class  I  was  to consist of Grades I and It  and  Class  II officers  were to be in Grade III.  Recruitment to  Class  I was to be in the first instance in Grade,II.  Recruitment to Grade  II was to be from two sources : (a) to the extent  of 80%  directly  through competitive examination  (b)  to  the extent  of  20% by promotion from Class  II.   On  26-5-1945 Government  framed statutory rules governing recruitment  to the  service.  The petitioners were recruited-as income  Tax Officers Class I Grade II by competitive examination and the

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respondents  were recruited to it by promotion in  the  pre- Constitution period 1945 to 1950.  A Departmental  Promotion Committee met in 1948.  Certain Seniority Rules were  framed in  September  1949, The  Departmental  Promotion  Committee aforesaid  prepared a Seniority List of Income-tax  Officers as  on 1-1-50 and circulated it on 24-1-1950 along with  the Seniority Rules which had by then been modified.  Objections to  the List-in respect of data only-were invited  by  28-2- 1950.  In 1951 by new statutory rules the ’quota’ of  direct recruits  was  fixed at 662/3% and that of promotees  at  33 1/3%.   In  1952 a committee met to finalise  the  Seniority List.  It also modified the Seniority Rules in that year.  A revised  Seniority List was issued in 1953.  As a result  of the seniorities thus allotted and by operation of  the.Seni- ority Rules the respondents became senior to the petitioners in the rank of confirmed Assistant Commissioners of  Income- tax.   The petitioners made various representations  to  the Government  but  without success.  In 1962  one  Jaisinghani filed  a  petition in the High Court under Art. 226  of  the Constitution  challenging  promotions  made  in  the   post- Constitution  period  in violation of the  statutory  rules. The High Court dismissed the petition, In appeal this  Court held  the promotions in violation of the ,quota rule’ to  be invalid but expressly exempted those promotees who had  been confirmed as Assistant Commissioners of Income-tax from  the operation of the Court’s order.  Shortly after the  decision of  this  Court in Jaisinghani’s case in  1967  the  present petitions were filed under Art. 32 of the Constitution.  The petitioners did not attack the validity of the  respondents’ appointments  but  urged that for the purpose  of  seniority their  appointments should be postdated in  conformity  with the  ’quota rule’ laid down in para 2(d) of  the  Government letter dated 29-9-1944. 698 They  relied  on Arts. 14 and 16 of the  Constitution.   The Attorney-General   however   raised   certain    preliminary objections  to the petition and contended inter alia that  : (i)  all  acts  which had been challenged  in  the  petition happened  before the advent of the Constitution,  and  could not be challenged under Arts. 14 and 16 of the Constitution, (ii) the petition must be dismissed on the ground of laches; (iii)  the relief claimed would be against the  decision  in Jaisinghani’s case. HELD : The petition must be dismissed. (i)  It  is  settled  law  that  the  Constitution  has   no retrospective  operation.  The petitioners  therefore  could not   complain  of  breach  of  Arts.  14  and  16  of   the Constitution in respect of acts done before the Constitution came  into force.  These acts in the present case  were  (1) appointments  of respondents to Income-tax Officers Class  I Grade  II  service; (2) Seniority List as existing  on  1-1- 1950; and (3) Seniority Rules of 1949 and 1950 in so far  as they had effect up to January 26, 1950.  The first seniority list  was  prepared as on January 1, 1950, and even  if  the seniority  list was finally settled after  the  Constitution came into force, the Rules to be applied were the  Seniority Rules  of  1949  and 1950.  If the  list  had  been  finally settled  on January 1, 1950 clearly no appeal could be  made to  Arts.  14 and 16.  The fact that the list  was  prepared after the Constitution came into force would not enable  the petitioners to appeal to Arts. 14 and 16. [711 A-C] Pannalal Binjraj v. Union of India, [1957] S.C.R. 233,  266, Sri  Jagadguru  Nari Basava Rajendra Swami of  Govimutt  v., Commissioner  of  Hindu  Religious  Charitable  Endorwments. Hyderabad, [1964] 8 S.C.R. 252,Guru Datta Sharma v. State of

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Bihar, [1962] 2 S.C.R. 292, applied. Shanti  Sarup  v.  Union of India,  A.I.R.  1955  S.C.  624, distinguished. (iii)     In  so  far as the attack was based  on  the  1952 rules,  it must fail on the ground that this petition  under Art. 32 of the Constitution had been brought about 15  years after  the 1952 Rules were promulgated and effect  given  to them in the Seniority List prepared on August 1, 1953.  Even though Art. 32 is a guaranteed right it does not follow that it  was the intention of the Constitution makers  that  this Court  should  discard all principles and  grant  relief  in petitions  filed after inodinate delay.  It would be  unjust to  deprive the respondents of the rights which had  accrued to them.  Every person ought to be entitled to sit back  and consider that his appointment and promotion effected a  long time ago would not be set aside after the lapse of a  number of years. [711 E-712 G] M/s.   Tilokchand Moti Chand’s case, [1969] S.C.  Cases  110 and  Laxmanappa  Hanumantappa Jamkhandi v. Union  of  India, [1955] S.C.R. 769, applied. (iii)     In Jaisinghani’s case this Court observed what the order  in that case would not affect Class II  Officers  who had  been appointed permanently as Assistant  Commissioners. In that case the Court was only considering the challenge to appointments and promotions made after 1950.  In the present case  the Court was being asked to consider the validity  of appointments and promotions made during the period 1945  and 1950.   Thus  there was all the more reason in  the  present case  that  officers  who  had  become  permanent  Assistant Commissioners  of  Income-tax  and who  were  appointed  and promoted to their original posts during 1945 to 1950  should be left alone. [712 H]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 146 of 1967. 699 Petition  under  Art. 32 of the Constitution  of  India  for enforcement of the fundamental rights. S.   Mohan  Kumaramangalam  and R.  Gopalakrisnan,  for  the petitioners. Niren De, Attorney-Gereral, N. S. Bindra, R. N. Sachthey and S.   P. Nayar, for respondent No. 1. C.   K.  Daphtary,  H.  K.  Puri  and  B.  N.  Kirpal,   for respondents Nos. 6 to 10, 30 to 34 and 39. C.   K. Daphtary and P. C. Bhartari, for respondent No. 11. G.   R. Rajagopal, S. K. Dholakia and Vineet Kumar, for res- pondents Nos. 12 to 14 and 1 5 to 24. A.   J.   Raja,  B.  R.  Agarwala  and  Janandra  Lal,   for respondent No. 25. S.   S. Javali and M. Veerappa, for respondent No. 28. C.   K.  Daphtary and Mohan Behari Lal, for  respondent  No. 29. Yogeshwar Prasad and S. Bagga, for intervener No. 2. H.   L.  Sibbal,  B. P. Maheshwari, A. N. Pareek and  R.  K. Maheshwari, for interveners Nos. 3 to 5. R. Gopalakrishnan, for interveners Nos. 6 to 13. The Judgment of the Court was delivered by Sikri,  J.  16 Officers of the  Income-tax  Department  have tiled  this  petition  under Art.  32  of  the  Constitution praying for various reliefs on the ground that their  rights under  Arts.  14 and 16 have been infringed.  They  are  all confirmed  Assistant  Commissioners of the  Income  tax  and respondents   6   to  39  are   also   confirmed   Assistant

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Commissioners  of  Income tax.  Respondents 1 to 5  are  the Union  of  India, Secretary, Ministry  of  Finance,  Central Board of Direct Taxes, Secretary,, Ministry of Home Affairs, and  the  Union Public Service  Commission.   The  practical object  of  the petition is to gain some seniority  so  that they can be promoted as Commissioners of Income tax  earlier than  the  respondents  6-39.   The  petitioners  were   all confirmed  as  Asstt.  Commissioners ;In 1959.   Apart  from respondents  28,  29  and 30,  all  other  respondents  were confirmed  in  earlier  years.  In brief, the  case  of  the petitioners is this : The Government in breach of the  rules governing the service of Income tax officers Class 1,  grade II, appointed respondents 6 to 39.  Their initial,  appoint- ments  were  irregular and illegal being outside  the  quota prescribed  by Government for regulating recruitment to  the service.   Not only were they thus illegally  absorbed  into service but were also L3Sup.  CI./70-4 700 given  preferential treatment in the matter of seniority  in Class I Grade II itself and for further promotion to  higher grades by framing rules which were discriminatory and  which made hostile discrimination against Class I direct  recruits like the petitioners.  It is urged before us that their case is  covered by the principle laid down by this Court in  the case  of  S. G. Jaisinghani v. Union of India  and  Ors.(1). These contentions are controverted by the respondents.   The learned Attorney General further contends that (1) all  acts which have been challenged in this petition happened  before the  advent  of the Constitution and  cannot  be  challenged under Arts. 14 and 16 of the Constitution; (2) the  petition merits  dismissal  on the ground that there has  been  gross delay in bringing the petition; and (3) the relief which has now   been  claimed  would  be  against  the   decision   in Jaisinghani’s case(4). In  order to appreciate the above contentions and the  other points  raised  before us, it is necessary to  set  out  the relevant facts chronologically. Before  Sept. 29, 1944, when the re-organisation scheme  was launched, the conditions of service and pay-scales of Income tax  officers were different and the method  of  recruitment was also different in different Provinces.  By letter  dated 23-3-43,  it  was decided that pending the  constitution  of Class  I  and Class II Service of Income tax  officers,  the latter  of which will include also officers hitherto  called Asstt.   Income Tax officers, the existing grade  of  Asstt. Income  tax  officers  should be designated  as  Income  tax officers, Grade II.  There was disparity not only in pay but also   in   prospects  and  conditions  of   service.    The Government,  therefore, felt it necessary to reorganise  the entire service, and to create a Central service and  uniform pay-scales for different constituent grades.  The main  idea was  to  create Class I cadre officers Service and  to  make selection  to it from the existing Class II officers.   This re-organisation  scheme  was formulated in  a  letter  dated 29-9-44  from  the  Government of India,  addressed  to  all Commissioners  of income tax.  The Central Service  Class  I was to consist of Commissioners of Income tax-(No. of  posts 87  permanent and 1 temporary).  Assistant Commissioners  of Income  tax-(No.  of posts 378-360 permanent and  18  tempo- rary).  Income tax officers Grade I : (No. of posts  151-125 permanent and 26 temporary).  Income tax officers Grade II : (No. of posts 183-125 permanent and 63 temporary).  Class II was  to consist of Income tax officers Grade III :  (No.  of posts 83-9 permanent and 74 temporary).

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Regarding Income tax officers Grade I Class I Service it was stated  that these officers will be appointed  by  selection from (1)  (1967] 2 S.C.R. 703. 701 Grade II which will come into being under the new scheme and till the re-organisation is complete from the existing Grade I of Income tax officers in Class II Service, Regarding Income tax officers Grade II (Class I  Service)-it was provided that-               2(d)-"Recruitment  to  Grade II will  be  made               partly  ’by  promotion and  partly  by  direct               recruitment.  80  per cent  of  the  vacancies               arising in this Grade will be filled by direct               recruitment via the Indian Audit and  Accounts               and  Allied  Services  Examination.   The  re-               maining  20  per  cent of  vacancies  will  be               filled by promotion on the basis of  selection               from Grade HI (Class It Service) provided that               suitable  men  up to the number  required  are               available   for  appointment.    Any   surplus               vacancies which cannot be filled by  promotion               for want of suitable candidates will be  added               to  the  quota of vacancies to  be  filled  by               direct  recruitment via the Indian  Audit  and               Accounts etc.  Services Examination.               All  direct appointment via the  Indian  Audit               and Accounts and Allied Service Examination to               Grade  II will, during the period of the  war,               be  subject  to such general  orders  as  have               already been or may hereafter be issued by the               Government   of   India   with   a   view   to               safeguarding the interest of ’war service’                X       X               candidates."               It is necessary also to set out Para 3 of  the               letter which is headed-General’-               "The  new  classification  (in so  far  as  it               relates  to Income tax officers, Grade  I  and               II) indicated in paragraph I above will  apply               to  officers who are recruited under  the  new               scheme  including those who are selected  from               the  existing  Grade  I  Income-tax  officers,               Class II Service.  The present Grade I  Income               tax officers in Class II Service, who are  not               thus  selected, and the officers who  will  be               appointed    to   this   grade   before    the               introduction of the new scheme, will remain in               Class II service.  This service of Income  tax               officers will be ultimately abolished as  soon               as these officers leave their posts either  by               substantive promotion to Class I Service or by               retirement  or  through other causes  and  the                             Class II Service will essentially cons ist  only               of Income tax officers, Grade Ill." We may at this stage consider the question mooted at the Bar whether  recruitment to the Service under the scheme was  to be   confined  only  to  direct  recruitment   through   the Examination 702 and  promotion  from Grade I Class II service.  As  we  read this scheme, it is quite clear that the intention was not to confine  recruitment  to the Service through  these  sources because  from  Para 3 ’General’, which  we  have  reproduced

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above,  it is quite evident that selections were to be  made also from the existing Grade I Income tax officers Class  II Service.   This  method of recruitment did not  come  within Para  2(d)  of the Scheme set out above as  it  was  neither direct recruitment through combined competitive  examination nor  promotion from Class II Grade III Service.   Therefore, the statement in the counter-affidavit of Mr. M. G.  Thomas, Ministry of Finance, "Recruitment to Grade II of Class I was to  be  made  Partly  by  direct  recruitment  (through  the combined  Competitive  Examination as  also  selection  from existing  Grade  I  of  Class  II  Service)  and  partly  by promotion  on  the basis of selection from Class  II  (Grade III) Service", is quite correct.  It is further stated  that "80%   of  the  vacancies  were  to  be  filled  by   direct recruitment  and  the  remaining 20% were to  be  filled  by promotion  by selection from Class II (Grade III)  Service." It appears that selection from the existing Grade I of Class II  Service  was  treated as a form  of  direct  recruitment within the quota of 80% mentioned above.  This  constitution of the new Service was by an executive order and there  were no statutory rules governing the Service at this stage.   On 29-9-1944 the Government wrote to the Federil Public Service Commission  to approve of 100 officers  considered  suitable for  selection  to  the new Class I Service  of  Income  tax officers  (Grade  1).   The Government  also  requested  the Commission  to recruit for the Class 1, Grade II Income  tax Service  10  officers  on  the  result  of  the  competitive examination that will be held in October 1944.   Considering that  there  were 183 posts, permanent and temporary  to  be filled  in by Income tax officers Grade II, the  number  was insignificant.   The  idea seems to have been  to  take  the officers  from  existing  grade  I of Class  II  as  far  as possible  as  they had experience and  the  direct  recruits would  not be able to cope with the work for some  years  to come.   On  26.5-1945.  the  Government  framed  rules   for recruitment  to the Income tax officers (Class 1, grade  II) service.   These  were  conceded to be  statutory  rules  in Jaisinghani’s  case(1).   In the opening paragraph,  it  was stated that these rules were liable to alteration from  year to year.  Rules 3 and 4 read as follows               3.    The  services shall be recruited by  the               following methods               (i)   By competitive examination held in India               in accordance with Part II of these Rules.               (ii)  By  promotion on the basis of  selection               from   Grade   III  (Class  It   Service)   in               accordance with Part III of these Rules.               (1) [1967]2 C.R. 70-3.               703               4.    Subject  to  tile provision of  rule  3,               Government  shall.  determine  the  method  or               methods  to  be employed for  the  purpose  of               filling  any  particular  vacancies,  or  such               vacancies  as may require to be tilled  during               any  particular  period,  and  the  number  of               candidates to be recruited by each method. It  is clear that this Service had already been  constituted by  an Order.  It is remarkable that Rule 3 did not  mention the third method of recruitment which was being followed  at that time and which it was intended to follow for some time. It seems to us that the intention was that these rules would come  into  effect  fully only when  the  Service  had  been completely re-organized, because otherwise we are unable  to understand  why  the third method of recruitment  which  was being  followed, was not mentioned.  It may be that at  that

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time sufficient number of men qualified under the other  two categories  were,  not available.  The  Government  probably interpreted  rule  4  to mean that the  recruitment  by  the methods  mentioned  in rule 3 was not exclusive,  and  under rule  4  the  Government  could  decide  whether  particular vacancies  could  also  be  filled  by  selection  from  the existing  Class II grade I service officers.  That this  was the  understanding  both of the Government and  the  Federal Public Service Commission, seems to be quite clear from  the correspondence which has been brought to our notice. On  8th November 1945, the Governments wrote to the  Federal Public Commission that-"In a like manner, it is proposed  to continue promotions to the Grade II of Class I also for  the next  two  or  three years from amongst those  who  were  in service in the pre-existing Class II, grade, 1, on the  date of re-organisation even outside the 20% limit fixed for such promotion  in  the orders regarding.  re-organisation.   The Government  feel  that this will not interfere  with  direct recruitment  via the examination.  It is presumed  that  the Commission  will not have any objection to the proposals  in the  immediately  two preceding  paragraphs...........  This letter  clearly  shows that the  Government  was  recruiting officers to grade II of class I from the pre-existing  class II,  grade 1, and they meant to continue this for  the  next two  or three years.  The Federal Public Service  Commission replied on 23-5-46 as follows               "With reference to paragraphs 8 and 9 of  your               letter  dated the 8th November 1945, 1  am  to               say that the Commission will have no objection               if  during  the next two or  three  years  the               names  of a few more officers are put  forward               for consideration for promotion to grades 704 I  and  II in Class I where special  circumstances  seem  to justify  a course.  They suggest, however, that this  should be exceptional." We may mention here that respondents 31 to 39 were appointed as I.T.0s. Class 1, grade II in 1945, respondents II and  25 in 1946, but the original date of appointment of  respondent No.  25  is  1-6-1947.   All  the  petitioners  were  either appointed  I.T.Os  Class  I  Grade  II  in  1946  or   1947. Respondents 6 to 10, 26, 27 and 28 were appointed in 1947. On  3-1-1947  the  Government  forwarded  to  the  Secretary Federal Public Service Commission the names of officers then considered suitable for appointment to Class 1, Grades I and II.  It was further stated that there were a large number of temporary  posts  in each grade and it may not  be  fair  to limit  promotions to the available permanent posts  only  as that might result in a large number of temporary men who may ’be eligible for higher scales of. pay being kept down. In February 1949, in discussing the draft scheme for regula- ting  the  seniority of Income tax officers, Class I  on  an all-India  basis, the Government explained that  "there  are still  51 old Class II, Grade I officers, who have  not  yet been  selected to Class 1, as almost a II of them have  been found unfit at three successive selections.  As  technically they  still  continue  to  hold  Class  I  posts  and  block promotions  of other deserving officers, It is  proposed  to make  a final selection from them and revert those  who  are not  considered  fit for retention in Class I to  Class  II, grade  III posts.  These persons would be  considered  later for promotion to Class I posts along with others against the 20%  vacancies reserved for departmental candidates."  Thus, it  appears  that it was in 1949 that it  was  decided  that final selections were to be made from the remaining Class II

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grade I officers by interviewing them to find their  fitness for Class I Service. Although  the  appointments, according to  the  petitioners, were  irregular, they do not challenge the validity  of  the appointments  but what they do challenge is the  recognition of  the date of appointments for the purpose  of  seniority. In other words, they say that we may treat an officer having been,  appointed as Class 1, grade II, validity but for  the purpose of seniority his appointment should be post-dated to a  date  when he would have been appointed  had  the  ’quota rule’ mentioned in Para 2(d) of the Scheme dated  29-9-1944, been fully implemented. We may at this stage deal with this particular question.  It seems to us that apart from the above limited concession, we 705 cannot  at  this  time declare that  the  appointments  were invalid  in any respect.  Assuming that  these  appointments were  made contrary to statutory Rules, the petitioners  are incompetent to challenge the validity of these  appointments for various reasons.  Firstly, these appointments were  pre- constitution appointments and they cannot be challenged in a petition under Art. 32 of the Constitution.  Secondly, there has been inordinate delay.  A suit to challenge the validity of the appointment would be hopelessly time-barred, and  the respondents   have  acquired  various  Fights  since   their appointments.  Thirdly, in Jaisinghani’s case(1), this Court said  that  the order in that case"  will  not  affect  such Class  II  officers who have been appointed  permanently  as Assistant  Commissioners of Income Tax." We  will  presently give  our reasons in detail for coming to  this  conclusion. To  resume  the narrative, the petitioners  completed  their probationary  periods  on different dates in 1949  and  were confirmed  as  I.T.Os Class 1, Grade II in  1949  and  1950, except petitioner No. 9 Shri D. N. Pande, who was  confirmed on  22-12-1951.   Most of the respondents had  already  been confirmed on various dates in 1946, 1947 and 1948. On  29-4-1949  a  meeting  of  the  Departmental   Promotion Committee   took  place  and  the  Committee   agreed   that promotions  to  Income  tax officers  Class  I  Service,  of officers recruited in 1944 on the results of the I.A. & A.S. and  Allied Services examination held in 1943, and on  other bases,  should be given effect to from the 1st August  1948. This decision affected respondents Nos. 12 to 24, 29 and 30. On  14-6-49  representations were made  by  direct  recruits including petitioners Nos. 5, 6, 8, 10 and 12 and respondent No. 28 (Shariff who is a petitioner in W.P. No. 242/67 under Art. 32), regarding proposed Seniority Rules. On 9-9-1949 Seniority Rules were framed and a seniority list of  Class  1, Grade II, Income tax officers, as on  the  1st Jan.  1950, was drawn up ’and circulated by a  letter  dated 24-1-1950.  It appears that the seniority rules of 1949  had in the meantime been revised and a copy thereof was enclosed with  the  above mentioned letter dated 24-1-1950.   It  was stated  in  this  letter that  Government  was  prepared  to consider  any representation that they may have to  make  in regard to the accuracy of the data contained therein, up  to the  28th February 1950, but no representation  against  the principles  for  the  determination  of  seniority  will  be entertained. On 18-10-1951, the Government decided on the recommendations of  the  U.P.S.C. and in modification of para  2(d)  of  the Finance  Department  (Central Revenues) letter  dated  29-9- 1944, that for a period of five years in the first instance, 66-2/3%  of  the  vacancies in Class T,Grade  II,  will,  be filled by direct recruit-

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(1)  [1967] 2 S.C.R. 703. 706 ment via Combined Competitive Examination and the  remaining 33-1/3%  by promotion on the basis of selection  from  Grade III (Class II service).  This order was held to be statutory by this Court in Jaisinghani’s case(1). On  1-1-1952  all the petitioners were promoted  as  I.T.0s. Class  1,  Grade 1, and confirmed also as such on  the  same date.   In February 1952, a committee met for four  days  to consider  the  Rules governing the seniority of  Income  tax officers,  Class  1, Grade II and  representations  received against the draft seniority list.  They made alterations  in the  Seniority  rules and in one of these meetings,  it  was decided :               "As  regards the representations made by  some               of this batch of direct recruits regarding the               date  of approval by the Union Public  Service               Commission of the 1948 batch of promotees, the               position is that four of them (S.  Nos. 67  to               70)    were   actually   promoted    on    the               recommendations of the Departmental  Promotion               Committee held on 21-7-48.  Fifteen others (S.               Nos.   72   to  86)  were  promoted   on   the               recommendations of the Departmental  Promotion               Committee  held on 29-4-1949, but the  records               show that the meeting was originally  convened               for  6-9-48  and  the  agenda  etc.  had  been               circulated  in  advance  of  this  date.   The               meeting had, however, to be postponed  several               times due to the personal inconvenience of the               Members  of  the U.P.S.C. and of  the  Central               Board   of   Revenue.    In   these    special               circumstances,  it  was  considered  that  the               proper   thing   would   be   to   treat   the               recommendations of this Departmental Promotion               Committee  as if it had actually been held  in               Sept.  1948.  The result is that both  batches               of promotees of 1948 will remain senior to the               direct recruits from the 1945 Examination  who               joined in 1946." In the serial Nos. 72-86 mentioned above, exist the names of the present respondents 12-24 and respondents 29 and 30.  It is contended before us that this decision was arbitrary  and not  warranted  by any rules or principles.  It  is  further contended  that the decision was made in 1952 and  therefore it is liable to be challenged in a petition under Art. 32 of the Constitution. On  the  material on record it is not possible to  say  that this decision was actually taken in 1952 and not on  29-4-49 or thereabout when The Departmental Promotion Committee  met and the list was prepared on 24th January 1950.  The fact is that the seniority of the respondents (Srl.  Nos. 72 to  86) seems to have been fixed on the basis that the  Departmental Promotion Committee meeting took place on 6-9-1948. [1967] 2 S.C.R.     703. 707 We  may here reproduce the relevant Seniority rules made  in 1949, 1950 and 1952 :- Rules regulating Seniority of Class 1, Grade II, Income  tax Officers. Rule  I (f), I (i) and I (ii) remain the same in  the  three years and read thus               (f)   The   seniority   of   direct   recruits               recruited  on the results of the  examinations               held  by the U.P.S.C. in 1944, and  subsequent

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             years shall be reckoned as follows :-               (i)   Direct    recruits   of    an    earlier               examination  shall rank above those  recruited               from a subsequent examination.               (ii)  The   Direct   recruits   of   any   one               examination shall rank inter se in  accordance               with  the  ranks  obtained  by  them  at  that               examination.               There  was  a change in rule  (iii),  and  the               three different versions are reproduced below               As on 9-9-1949 :               (iii) 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.               As on 24-1-1950 :               (iii) 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.               Provided that a person initially recruited  as               Class IT Income tax officer, but  subsequently               appointed  to  Class  I on the  results  of  a               competitive   examination  conducted  by   the               Federal Public Service Commission shall, if he               has  passed the departmental examination  held                             before  his appointment to Class I Ser vice,  be               deemed  to  be a promotee for the  purpose  of               seniority. As on 5-9-1952 :               (iii) Officers promoted in accordance with the               recommendation  of the Departmental  Promotion               Committee  before the next meeting of the  De-               partmental Promotion Committee shall be senior               708               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. On  1-8-53,  a revised seniority list was  issued.   In  the meantime,  the I.R.S. Association objected to the  weightage principles  and suggested changes in it and also  desired  a revision  of the seniority list to correct the  disadvantage due to excess promotions. Various  representations were made by individual direct  re- cruits  as well as the Indian Revenue Service  (Income  tax) Association.   The  case  of the Government  is  that  these representations  were not acceptable because in  fact  there were no excess promotion during the period 1945-1950. In  1955 and 1956, the petitioners were promoted  as  Asstt. Commissioners on different dates.  Representations continued to  be made in 1954, 1955, 1956, 1958, 1959.  Not only  were the  representations made but an interview with the  Finance Minister  also  took  place  in  1960.   In  spite  of   the Government    rejecting    the    representations,     fresh representations continued to be made. On  25-4-62  Jaisinghani filed a Writ Petition in  the  High Court and the High Court delivered its judgment on  11-3-64. Against  this decision Jaisinghani filed an appeal  to  this Court.   A writ petition was filed by Joshi in  the  Supreme

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Court and this Court delivered its judgment in Jaisinghani’s Appeal and Joshi’s Writ Petition on 22-2-67, and the present Writ Petition was filed in July 1967. It seems to us that there is force in the preliminary points raised  by the Attorney General, and it is not necessary  to decide the various points raised by the petitioners.  It  is settled  law  that  the Constitution  has  no  retrospective operation. In Pannalal Binjrai v. Union of India(1), Bhagwati J. speak- ing for the Court says :               "It   is   settled  that  Art.   13   of   the               Constitution  has no retrospective effect  and               if, therefore, any action was taken before the               commencement of the provisions of any law which               was  a valid law at the time when such  action               was  taken, such action cannot  be  challenged               and the law under which such action was  taken               cannot be               (1)  19571 SC R 33, 266               709               questioned as unconstitutional and void on the               score  of  its  infringing,  the   fundamental               rights   enshrined   in  Part   III   of   the               Constitution  (See Keshavan Madhava  Menon  v.               The State of Bombay)." The decision of this Court in Shanti Sarup v. Union of India and Ors.(1) is distinguishable.  In that case the facts were that the Government of U.P. passed an order purporting to be u/S 3(f), U.P. Industrial Disputes Act. 1947, by which  they appointed  one  of the partners of the firm  as  ’authorised controller’ of the undertaking.  In 1952 the Union of  India passed  an order purporting to be made under sec.  3(4),  of Essential  Supplies (Temporary Powers) Act, 1946,  by  which the  Central  Government appointed the same  person,  as  an authorised  controller under the provisions of that  section and  directed  him  to  run  the  said  undertaking  to  the exclusion of all the other partners.  The petitioner  before the court under Art. 32 contended that both the orders  were illegal  and conflicted with the fundamental rights  of  the petitioner  under  Art.  13(1)  of  the  Constitution.   The Attorney  General  appearing  for  the  Central   Government conceded  before the Court that the impugned orders did  not come within the purview of and     were not warranted by the provisions of the Acts,under which they  purported  to  have been passed.  The only point he took was     that        the petitioner could not come before the Court tinder Art. 32 of the Constitution inasmuch as there was no fundamental  right in existence when the first order of the U.P. Government was passed  in July 1949 and no fresh act of  dispossession  had taken  place since the Constitution came into  force.   This Court  repelled the contention observing that in  the  first place,  the order against which this petition was  primarily directed  was the order of the Central Government passed  in Oct.  1952 and whether or not the earlier order of the  U.P. Government  was formally withdrawn, it was this later  order upon  which  the  respondent 3 based  his  right  to  retain possession  of  the properties.  Tile order of  the  Central Government  must, therefore, be deemed to have deprived  the petitioner of his property within the meaning of Art. 31  of the Constitution as construed by this Court. It was  further observed  :  "But even assuming that  the  deprivation  took place  earlier and at a time when the Constitution  had  not come into force, the order effecting the deprivation which (1)  A.I.R. 1955 S.C. 624, 710

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continued  from  day to day must he held to have  come  into conflict  with the fundamental rights of the  petitioner  as soon as the Constitution came into force and became void  on and from that date under Art. 13(1) of the Constitution." It  is  this  passage which is strongly  relied  on  by  the learned Counsel for the petitioners. In our view this passage has no application to the facts  of this  case.   In a number of subsequent  decisions  of  this Court the passage has been held to be applicable only to the facts in that case. In   Sri   Jagadguru Nari Basava Rajendra Swami of  Gavimutt v.   Commissioner of Hindu Religious Charitable Endowments, Hyderabad,(1)  Gajendragadkar C. J. observed thus  regarding the aforesaid passage               "With  respect,  we are not prepared  to  hold               that  these observations were intended to  lay               down  an unqualified proposition of  law  that               even  if  a  citizen  was,’  deprived  of  his               fundamental  rights by a valid  scheme  framed               under a valid law at a time when the Constitu-               tion was not in force, the mere fact that such               a scheme would continue to operate even  after               the 26th January 1950, would expose it to  the               risk of having to face a challenge under  Art.               19.  If the broad and unqualified  proposition               for  which Mr. Sastri contends is accepted  as               true,   then  it  would  virtually  make   the               material  provisions  of the  Constitution  in               respect of fundamental rights retrospective in               operation."               In  Kuru  Datta Sharma v. State of  Bihar  (2)               Shanti  Sarup’s case(3) was  distinguished  in               the following words               "We are unable to construe these  observations               as   affording,   any   assistance   to    the               appellant..........               We have held that the legislation under  which               the  appellant’s  rights  were   extinguished,               subject  to his claim for compensation, was  a               valid law.  It would therefore follow that the               appellant  could  have no rights  which  could               survive  the Constitution so as to enable  him               to invoke the protection of Part III thereof." (1) [1964] 8 S.C.R. 252.     (2) [1962] 2 S.C.R. 292. (3)  A.I.R. 1961 S.C. 624. 711 It  seems to us that the petitioners cannot complain of  the breach of Arts. 14 and 16 of the Constitution in respect  of acts  done before the Constitution came into  force.   These acts  in this case were (1) appointments of the  respondents to  Income  Tax  officers Class I,  Grade  II  Service;  (2) Seniority  List  as  existing  on  1-1-1950;  and  (3)   the Seniority  Rules  of 1949 and 1950, in so far  as  they  had effect  up  to January 26, 1950.  It will be  recalled  that first seniority list was prepared as on January 1, 1950  and even  if  the seniority list was finally settled  after  the Constitution  came into force, the Rules to be applied  were the  Seniority rules of 1949 and 1950.  In other  words,  if the list had been finally settled on January 1, 1950, it  is clear that no appeal could be made to Arts. 14 and 16 of the Constitution.  The fact that the List was prepared after the Constitution   came   into  force  would  not   enable   the petitioners  to appeal to Arts. 14 and 16. The position  is, however,  different  in so far as changes were made  in  the Seniority  List as a result of change in the 1952  Seniority

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Rules.    These  changes were post-constitution and if  they are hit by     Art. 14 and Art. 16 of the Constitution,  the petitioners would have   the right to complain of the breach of their fundamental rights under these Articles. But in so far as the attack- is based on the 1952  Seniority rules,  it  must fail on another around.  The  ground  being that  this  petition under Art. 32 of the  Constitution  has been  brought  about  15 years after  the  1952  Rules  were promulgated  and effect given to them in the Seniority  List prepared  on  August  1,  1953.   Learned  Counsel  for  the petitioners  says  that  this Court has  no  discretion  and cannot dismiss the petition under Art. 32 on the ground that it  has been brought after inordinate delay.  We are  unable to  accept this contention.  This Court by majority in  M/s. Tirlokchand  Moti  Chand’s case(1) held that  delay  can  be fatal  in  certain circumstances.  We may  mention  that  in Laxmanappa  Hanumantappa Jamkhandi v. The Union of  India  & Anr. (2), Mahajan, C. J. observed as follows :-               "From the facts stated above it is plain  that               the  proceedings taken under the impugned  Act               XXX   of   1947  concluded  so  far   as   the               Investigation   Commission  is  concerned   in               September  1952,  more than two  years  before               this  petition  was presented in  this  Court.               The assessment orders under the Income tax Act               itself  were  made against the  petitioner  in               November 1953.               In these circumstances, we are of the  opinion               that  he  is entitled to no relief  under  the               provisions of Art. 32 of the Constitution.  It               was  held by this Court in Ramjilal v.  Income               tax Officer, Mohindergarh that as               (1) [1969] S.C, Cases 110.               (2) [1955] S.C.R. 769               712               there  is a special provision in Art.  265  of               the  Constitution that no tax shall be  levied               or  collected  except  by  authority  of  law,               clause  (1)  of  Art.  31  must  therefore  be               regarded  as  concerned  with  deprivation  of               property  otherwise than by the imposition  or               collection  of tax, and inasmuch as the  right               conferred by Art. 265 is not a right conferred               by Part III of the Constitution, it could  not               be  enforced under Art. 32.  In view  of  this               decision  it has to be held that the  petition               under  Art.  32 is not  maintainable  in  the,               situation  that  has  arisen  and  that   even               otherwise  in the peculiar circumstances  that               have  arisen, it would not be just and  proper               to  direct the issue of any of the  writs  the               issue  of  which is  discretionary  with  this               Court." (emphasis supplied). The learned Counsel for the petitioners strongly urges  that the  decision of this Court in M/s.  Tilokchand  Motichand’s case(1)  needs review.  But after carefully considering  the matter, we are of the view that no relief should be given to petitioners   who,  without  any   reasonable   explanation, approach this Court under Art. 32 of the Constitution  after inordinate  delay.  The highest Court in this land has  been given  Original  Jurisdiction to entertain  petitions  under Art.  32  of the Constitution.  It could not have  been  the intention that this Court would go into stale demands  after a lapse of years. It is said that Art. 32 is itself a guaranteed right.  So it

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is,  but  it  does  not follow from this  that  it  was  the intention of the Constitution makers that this Court  should discard  all principles and grant relief in petitions  filed after inordinate delay. We  are not anxious to throw out petitions on  this  ground, but  we must administer justice in accordance with  law  and principles of equity, justice and good conscience.  It would be  unjust to ,deprive the respondents of the  rights  which have  accrued to them.  Each person ought to be entitled  to sit  back  and consider that his appointment  and  promotion effected  a long time ago would not be set aside  after  the lapse of a number of years.  It was on this ground that this Court  in-Jaisinghani’s case ( 2 ) observed that  the  order in-that  case  would not affect Class II officers  who  have been  appointed permanently as Assistant Commissioners.   In that  case, the Court was only considering the challenge  to appointments and promotions made after 1950.  In this  case, we  are asked to consider the validity of  appointments  and promotions  made  during the periods of 1945  to  1950.   If there was adequate reason in that case to leave out Class II officers,  who  had  been  appointed  permanently  Assistant Commissioners,  there is much more reason in this case  that the officers who are (1)  [1961] SC Cases 110. (2) [1967] 2 S.C.R. 703. 713 now permanent Assistant Commissioners of Income tax and  who were  appointed and promoted to their original posts  during 1945 to 1950, should be left alone. Learned  Counsel  for the petitioners,  however,  says  that there   has  been  no  undue  delay.   He  says   that   the representations  were being received by the  Government  all the  time.   But there is a limit to the time which  can  be considered  reasonable for making representations.   If  the Government has turned down one representation, the making of another representation on similar lines would not enable the petitioners  to explain the delay.  Learned Counsel for  the petitioners  says  that  the  petitioners  were  under   the impression  that  the Departmental Promotion  Committee  had held  a meeting in 1948 and not on April 29, 1949,  and  the real  true  facts  came  to  be  known  in  1961,  when  the Government  mentioned  these  facts in  their  letter  dated December   28,   1961.   We  are  unable  to   accept   this explanation.  This fact has been mentioned in the minutes of the  meeting of the Committee which met in Feb. 1952 and  we are  unable to believe that the petitioners did not come  to know all these facts till 1961.  But even assuming that  the petitioners came to know all these facts only in Dec.  1961, even then there has been inordinate delay in presenting  the present  petition.  The fact that Jaisinghani’s case(1)  was pending  before  the High Court and later in this  Court  is also,  no  excuse  for the delay in  resenting  the  present petition.   In  the  result,  the  petition  fails  and   is dismissed.  There will be no order as to costs. G.C.                        Petition dismissed. (1) [1967] 2 S.C.R. 703. 714