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PETITIONER: HUNDRAJ KANYALAL SAJNANI ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT16/03/1990

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. RAMASWAMY, K. MUKHARJI, SABYASACHI (CJ) RAY, B.C. (J) SHARMA, L.M. (J)

CITATION:  1990 AIR 1106            1990 SCR  (1) 994  1990 SCC  Supl.  577     JT 1990 (2)   145  1990 SCALE  (1)492

ACT:     Indian Income-Tax,  1961/1. T. 0.  Group A and  Group-B- Recruitment  Rules 1988 and Seniority Rules, 1973.  Sections 116,  117,  118 and 120---Group A and Group  B  Officers  of Income Tax Department--Classification--Whether constitution- al--Seniority List of 1973--Whether valid.

HEADNOTE:     The  main  petition  has been filed  by  the  Income-tax Officers  Group-A, challenging the Seniority Rules of  1973, which  were framed by the Department pursuant to the  direc- tions  given by this Court in an earlier case B.S. Gupta  v. Union of India, [1975] Supp. SCR 491. The circumstances that led  to  the filing of the instant petitions may  be  stated thus:     The Government by virtue of the Rules propounded in  its letter  dated 29th September 1944, re-organised the  Income- tax services into Class I and Class II. The said Rules inter alia  laid down that recruitment to the cadre of  Income-tax Officers  Group-A  shall  be from two  sources  i.e.  direct recruitment  and promotion, the quota for the two being  80% and  20% respectively. In 1945, the Government framed  fresh recruitment rules wherein it was provided that the  recruit- ment  from the said sources will be made as per  the  direc- tions of the Government, in effect, keeping the  recruitment quotas  in  abeyance.  In September,  1949,  the  Government framed Seniority Rules and it was laid down that the  promo- tees  who had been certified by the Federal  Public  Commis- sion,  in any calendar year, shall be senior to  all  direct recruits  who completed their probation during that year  or after  and are confirmed with effect from the date  in  that year  or after. In the year 1950, the Seniority  Rules  were again revised and the concerned Rule 1(f)(iii) was  amended. By  its letter dated 18.10.1951, the Government revised  the quotas  of  direct recruits and promotees, in that,  in  the case  of direct recruits the quota was reduced from  80%  to 66-2/3%  while in the case of promotees, the quota  was  en- hanced  from  20%  10  33-1/3% and  also  amended  the  Rule

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1(f)(iii)  of 1950 Rules. This revision, in effect,  gave  3 years’ weightage in seniority to the promotees. These  rules continued to 995 operate  till  1959. Between 1959 and 1960, 114  posts  were upgraded  to those of Income Tax Officers Group ’A’ and  the promotees  were  appointed  to the said  posts  during  that period.     One Jaisinghani, a direct recruit challenged the consti- tutional  validity of Rule 1(f)(iii) and (iv) of 1952,  Sen- iority Rules by means of a writ petition in the High  Court, which gave 3 years’ weightage to the promotees in the matter of  fixation  of their seniority and the  implementation  of quota. The High Court rejected the writ petition. In appeal, this  Court  held that the quota having been  fixed  by  the Government  in exercise of the powers conferred on it  under Rule 4 of the 1945 Rules, the same was valid. The Court also upheld  the weightage given to the promotees under the  1952 Rules. The Court further directed that roster system  should be  adopted by framing an appropriate rule for  working  out the quota system between the direct recruits and  promotees. It  may  be  mentioned that the court  gave  this  direction because it was of opinion that the promotees were in  excess of the prescribed quota for each of the years 1951 to  1956, and that they had been illegally appointed. It was therefore directed that the seniority of Jaisinghani and others  simi- larly  placed be re-adjusted and the Government should  pre- pare a fresh seniority list in accordance with law.     Pursuant  to the direction given by the Court, the  gov- ernment prepared seniority list which was challenged in  the Delhi High Court by two separate writ petitions one by  B.S. Gupta,  a  promotee  of 1962 and another by  M.C.  Joshi,  a direct  recruit. The High Court dismissed the writ  petition of  Gupta but substantially allowed the one filed by  Joshi. In appeal this court by its order dated 16.8.1972 in Gupta’s case  AIR  1972 SC 262, held that seniority list  was  valid with regard to the promotions made upto January 15, 1959 but the same was not valid for the period thereafter. The  court accordingly  set aside the list to the extent  it  concerned the  period  from 16.1.1959 and directed the  Department  to prepare a fresh seniority list in accordance with the obser- vations and directions of this Court. The court came to  the conclusion that with the upgrading of large number of  posts and  appointments of the promotees, the quota rule had  col- lapsed and with that seniority rule giving weightage to  the promotees had collapsed. The court held that quota rule came to an end on 16.1.1959. In pursuance of the aforesaid direc- tion,  the  government  frame the impugned  1973  Rules  and prepared  a  fresh seniority List on February  1973,  giving retrospective  effect to the Rules from 15.1.1959. The  Gov- ernment  also  challenged the quota of direct  recruits  and promotees, making it 50% for each of them i.e. 1:1. Seniori- ty  of officers upto 15.1.59 was fixed as per old Rules  and the 996 seniority  from  16.1.1959 was fixed as per  new  rules;  73 promotees  though  promoted  between 1956-58  could  not  be accommodated under the old rules, their seniority was  fixed under the new rules.     In  the present petitions, the petitioners contend  that this Court gave its direction in Gupta’s case [1975] 1,  SCR 104;  because for want of sufficient material the court  had come  to  the conclusion that the quota for  recruitment  of direct recruits and promotees had broken down as the  promo- tees  were appointed in excess of their  entitlement  though

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the  requisite material showing the contrary was in  posses- sion of the government, which was suppressed. It is asserted by them that the material shows that in fact the appointment of the promotees was short of their quota. Hence they  claim that  not only the 1973 Rules be set aside but the  appoint- ments of the promotees be made and their seniority be  fixe- daccording to the rules prevailing prior of the said  Rules. In the connected writ petitions, besides these  contentions, validity of amendment of Sec. 117 of the Income Tax Act; and classification of Income Tax Officers in Group A and Group B officers have also been questioned. Dismissing the writ petitions this Court held:     HELD:  It is clear from the table that  the  petitioners promotees  have  calculated  the  posts  in  the  sanctioned strength not only in Grade II but also in Grade I Posts when the posts available to them for promotion were only in grade I1.  Hence,  their  further  calculations  of  the   working strength,  the vacancies and the quota available to them  in the  vacancies and of the dificiencies or the excess in  the quota are erroneous. [1009F]     Even  the Government had independently come to the  con- clusion  as early as in 1986 that neither the Rules of  sen- iority nor the Seniority List of 1973 had done injustice  to the  promotees.  In fact, the Rules of 1973  had  rised  the quota of the promotees from 33-1/3% to 50%. The seniority of the  promotees was adjusted upto 15th January, 1959  on  the basis  of the earlier quota Rule and the Seniority of  those who  were  appointed later and of those who  were  found  in excess of their quota upto that date, were adjusted  accord- ing to the new Rule. [1016F-G]     What this Court wanted to convey in the earlier part  of its judgment was that when the Government decides to fill in the vacancies, it is not necessary to defer the appointments from  one  source pending the appointments  from  the  other source. But that is when the Government 997 decides to fill in the vacancies and not before it. [1017F]     Power is vested in the legislature to appoint  different classes of officers and this carries with it also the  power to  demarcate their duties, functions and  responsibilities. Whether  in fact there is such a division of  powers,  func- tions  and responsibilities or not, has nothing to  do  with the  validity  of  the power  to  make  the  classification. [1019H; 1020 A]     The distinction between Group-A and Group-B Officers has been  in existence from the very beginning. The  distinction has  been  maintained statutorily with distinct  powers  and jurisdiction, hierarchical position and eligibility qualifi- cations.  The sources of their appointment and the  authori- ties  vested with the power to appoint them have  also  been different. The distinction between the two further has  been made on the basis of the class of work and the responsibili- ty  entrusted  to  each. The work which is of  more  than  a routine  nature and which involves a detailed  investigation either  on account of the class of assessees or of the  com- plexities of the returns filed, is entrusted to the officers belonging  to Groups Group-A (now  Assistant  Commissioners) while the assessment work of a summary nature or of  returns involving  simple  transactions  is  entrusted  to  Officers belonging to Group-B (now ITOs). [1023C-E]     By the very nature of the operation involved, the admin- istration has to have the power to classify the work and  to appoint personnel with different skill and talent to execute the  different types of work. The legislature being  mindful of  this  need has deliberately created the two  classes  of

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officers  as is evident from the provisions of  Section  117 even  prior to its present amendment. Even after the  amend- ment  the said distinction has been maintained.  After  1987 amendment the situation has further changed and the  duties, functions, jurisdiction and powers of the officers have been rationalised clearly demarcating the spheres of work. In  an organisation of this kind, with country wide offices dealing with  various  categories  of assessees  and  incomes,  some dislocation functional overlapping and want of uniformity in the assignment of work during some period is not unexpected; and it does appear that during some period, the situation in the  Department  was out of joint. That is  why  steps  were taken  to straighten it out by amending the Income  Tax  Act and making the rules and issuing the relevant notifications, circulars and orders. [1024B; 1026B-C]     If  during this period on account of the  exigencies  of service,  some ad hoc appointments of Group B officers  were made to Group A posts, 998 and  Grade 1I or Group B officers were required  to  perform the same functions and discharge the same duties as Group  A officers,  they can at best claim the emoluments of Group  A officers,  but  certainly not the equalisation  of  the  two posts of that account. [1026D-E]     S.G.  Jaisinghani v. Union of India and Ors.,  [1967]  2 SCR  703;  B.S Gupta etc. v. Union of India and  Ors/  etc., [1975]  1  SCR 104; Kamal Kanti Dutta and Ors. v.  Union  of India  and Ors., [1980] 3 SCR III; K.M. Bakshi v.  Union  Of India, AIR 1962 SC 1139; Federation of A11 India Customs and Central Excise Stenographers (Recognised) and )rs. v.  Union of  India and Ors., [1988] 3 SCC 91; V. Markandeya and  Ors. v.  State  of Andhra Pradesh and Ors., [1989]  3,  SCR  191, referred to.

JUDGMENT:     ORIGINAL  JURISDICTION: Writ Petition Nos. 4146 of  1978 and 546-47 of 1983. (Under Article 32 of the Constitution of India .)     Rajinder  Sachhar, Govind Das, T.S. Krishnamurthy  lyer, A.K. Sanghi, Ravinder Bana, R.B. Misra, Miss A.  Subhashini, Bhisamber  Lai  and Miss Gitanjali Mohan for  the  appearing parties. The Judgment of the Court was delivered by     SAWANT,  J.  These  three petitions  raise  some  common issues, and hence they are being disposed of by this  common judgment. W.P. No. 4146of 1978.     This petition is filed by the promotee Income Tax  Offi- cers  Group-A  seeking to challenge the Seniority  Rules  of 1973  on  the  ground that they were framed  pursuant  to  a direction  given by ,this Court in Bishan Sarup v. Union  of India  & Ors., [1975] Suppl. SCR 491 decided on  August  16, 1972.  According to the petitioners, the said direction  was given because for want of sufficient material, the Court had come to the conclusion that the quota for recruitment of the direct  recruits  and the promotees had broken down  as  the promotees  were appointed in excess of their entitlement  in the  quota.  According  to the  petitioners,  the  requisite material  showing the contrary was in the possession of  the Government  but did not come forth, then. The said  material shows  that in fact the appointments of the  promotees  were short of their quota. The petitioners, therefore, claim that not only the

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999 Seniority  Rules  of 1973 should be set aside, but  the  ap- pointments  of the promotees be made and their seniority  be fixed,  according to the Rules prevailing prior to the  said Rules.     2. The relevant facts necessary to dispose of the  peti- tion are as follows.     Pursuant  to  the Rules propounded in  their  letter  of September 29, 1944, the Government reorganised the  existing Income  Tax services into Class-I and Class-II.  The  Rules, among  other things, laid down that the recruitment  to  the cadre  of  Income  Tax Officers--Group-A will  be  from  two sources,  viz., direct recruitment and promotion, the  quota for the two being 80%--20% respectively.     In  1945, the Government framed fresh Recruitment  Rules for  the said cadre of Class-I and Class-II ITOs. Rule 3  of the  said Rules reiterated that the recruitment to the  said cadre will be from the two sources, viz., direct recruitment and  promotion. Rule 4 of the said Rules, however,  provided that  the recruitment from the said sources will be made  as per the discretion of the Government. This provision had the effect  of  virtually keeping in  abeyance  the  recruitment quotas  for the direct recruits and the promotees laid  down in the Recruitment Rules of September 29, 1944.     On  September 9, 1949, the Government  framed  Seniority Rules.  Rule 1(f)(iii) thereof provided that  the  promotees who had been certified by the Federal Public Service Commis- sion  in  any calendar year shall be senior  to  all  direct recruits  who completed their probation during that year  or after,  and are confirmed with effect from the date in  that year or after. On January 1, 1950, the Seniority Rules  were revised  and  the aforesaid Rule 1(f)(iii)  was  amended  as follows: "(f)  The  seniority  of direct recruits  recruited  on  the results  of  the  examinations held by  the  Federal  Public Service  Commission in 1944, and subsequent years, shall  be reckoned as follows: (i)  Direct  recruits of an earlier examination  shall  rank above those recruited from subsequent examination. (ii) Direct recruits of any one examination shall rank inter se  in  accordance with the ranks obtained by them  at  that examination. 1000 (iii)  The promotees who have been certified by the  Commis- sion  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-II  Income Tax Officer, but subsequently appointed  to Class I on the results of a competitive examination conduct- ed by the Federal Public Service Commission shall, if he has passed the departmental examination held before his appoint- ments  to Class I service, be deemed to be promotee for  the purpose of seniority."     3.  By  its letter of October 18, 1951,  the  Government revised  the quotas of direct recruits and promotees  (which was  earlier  laid  down in their letter  of  September  29, 1944), from 80% and 20% to 66-2/3% and 33-1/3%. On September 5,  1952 the Government also revised further  the  Seniority Rule 1(f)(iii) of January 24, 1950 as follows: "(f)  The  seniority  of direct recruits  recruited  on  the results  of  the  examinations held by  the  Federal  Public Service  Commission in 1944, and subsequent years, shall  be reckoned as follows:

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(i)  Direct  recruits of an earlier examination  shall  rank above those recruited from a subsequent examination. (ii) Direct recruits of any one examination shall rank inter se  in  accordance with the ranks obtained by them  at  that Examination. (iii)  Officers promoted in accordance with the  recommenda- tion 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."     It  will thus be clear that this  revision,,among  other things, gave to the promotees, a weightage of three years in seniority. These Rules continued to operate till 1959. 1001     4.  It  appears that between 1959 and  1960,  about  114 posts were upgraded to those of Income Tax Officers Group-A, and  the promotees were appointed to the said  posts  during the relevant period.     5.  One  Jaisinghani, a direct  recruit  challenged  the constitutional validity of Seniority Rule 1(f)(iii) and (iv) of  1952  Seniority Rules which had in  effect  given  three years’ weightage to the promotees in the matter of  fixation of their seniority, and also the improper implementation  of the  quota  by  the Government, by filing  a  writ  petition before  the Punjab High Court. The High Court  rejected  the writ  petition,  and in the appeal filed  against  the  said decision, this Court, by its decision in S.G. Jaisinghani v. Union of India & Ors., [1967] 2 SCR 703 held that the  quota was  fixed  by the Government by its letter of  October  15, 1951  in exercise of the power given to it under Rule  4  of the  Recruitment  Rules of 1945 and hence it was  valid  and proper.  The  Court also upheld the weightage given  to  the promotees  under  the Seniority Rules of  1952.  The  Court, however,  directed 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 percentage fixed under the statutory  Rules for each source of recruitment.  The  Court gave these directions because the Court came to the  conclu- sion  that  the promotees were in excess of  the  prescribed quota  for each of the years 1951 to 1956 and  onwards,  and that they had been illegally so promoted. The Court  further held  that the appellant Jaisinghani was entitled to a  writ commanding  the respondents 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 Government-letter of October 18, 1951. The Court, howev- er, made it clear that the said order would not affect  such Class  II  officers who had been  appointed  permanently  as Assistant Commissioners of Income Tax.     6.  Pursuant  to the direction given by the  Court,  the Government prepared a Seniority List on July, 15, 1968. This Seniority  List  was challenged in Delhi High Court  in  two separate  writ  petitions, one filed by one  B.S.  Gupta,  a promotee  of  1962 and another by one M.C. Joshi,  a  direct recuit.  The  Delhi High Court by its decision of  July  29, 1970  dismissed Gupta’s petition and  substantially  allowed Joshi’s  petition  and gave directions to  prepare  a  fresh seniority List. Against the

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1002 decision  in  both the petitions, Gupta filed  two  separate civil appeals. By its decision dated August 16, 1972 in  the said appeals in B.S. Gupta case (supra) briefly known as 1st Gupta  case,  this Court held that the  Seniority  List  was valid  with regard to the promotions made upto  January  15, 1959,  since it was prepared on the basis of the quota  rule of October 18, 1951 and the Seniority Rule 1(f)(iii) of 1952 Seniority Rules. The Court, however, held that the said List would  not  be valid for the period thereafter.  The  Court, therefore,  set  aside the said list to the extent  it  con- cerned  the period from 16.1. 1959 onwards and directed  the Department  to prepare a fresh seniority list, in the  light of  the  observations made in the judgment. The  Court  also directed  that  the  seniority list from  January  15,  1959 should be prepared in accordance with a seniority rule to be framed afresh by the Government. The Court observed that the proceedings will have to be kept pending till such seniority list  was prepared and filed before the Court. It is  neces- sary to state here that the Court had given the said  direc- tion  because  it had come to the conclusion that  with  the upgrading of a large number of posts and the appointments of the  promotees made to them, the quota rule  had  collapsed, and  with that, the seniority Rule giving weightage  to  the promotees  had also collapsed. The decision to  upgrade  100 posts was taken in January 1959 and the remaining 114  posts in the year 1960. The Court, therefore, held that the  quota rule  came  to an end on January 16, 1959 when  sanction  to upgrade  100 temporary posts was given by the President  and with that went the seniority Rule.     7.  In pursuance of the above direction, the  Government framed the impugned Seniority Rules of 1973, and prepared  a fresh seniority list on February 9, 1973, giving  retrospec- tive  effect  to the said Rules from January 15,  1959.  The gist  of the 1973 Seniority Rules was that the seniority  of the  direct  recruits and promotees appointed  on  and  from January 16, 1959 was to be fixed as follows: First  promotee and then direct recruit and so on. The result of these Rules was  that not only the seniority Rule but also the quota  of the  direct recruits and the promotees was changed from  66- 2/3% and 33.1/3% to 50% and 50% or 1: 1. It may be mentioned here that the new seniority list was prepared by fixing  the seniority  upto  15th  January, 1959 according  to  the  old Seniority Rules, and the seniority from 16th January 1959 on the basis of the new Rules. However, 73 of the promotees who were promoted in excess of their quota between 1956-58 could not  be accommodated as per the earlier quota rule,  in  the list  of  seniority prepared upto 15th  January,  1959,  and hence  the  seniority  of the said 73  promotees  was  fixed according to the new seniority Rules which 1003 applied  to the appointments made from 16th  January,  1959. Both the new Rules and the new Seniority List were filed  in this Court as per the earlier direction.     8. The same Shri B.S. Gupta challenged both the validity of  the new Seniority Rules of 1973 and as well as  the  new Seniority List. This Court by its decision dated 16th April, 1974  in  Bishan Sarup Gupta etc. etc. v. Union of  India  & Ors.  etc. etc., [1975] 1 SCR 104, known as 2nd Gupta  case, upheld  both  the Seniority Rules as well as  the  Seniority List.     9.  It  further appears that one Kamal Kanti  Dutta  and others had also filed an independent writ petition challeng- ing the Seniority List of February 9, 1973. It was dismissed by  this  Court by its decision dated 23rd  April,  1980  in

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Kamal Kanti Dutta & Ors. v. Union of India & Ors., [1980]  3 SCR  811 upholding the validity of the said Seniority  List. While  disposing of the said writ petition, this Court  made the  following  observations on which a strong  reliance  is placed by the present petitioners: "It  shall have been noticed that we have refused to  recon- sider our decisions not so much because of the view taken in the  various cases cited by the learned  Solicitor  General, like  Sajjan Singh v. State of Rajasthan, [1965] 1 SCR  933, 947,948 that this Court should not review its decisions  too readily,  as because on merits, we see no justification  for reconsidering  the judgment 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  reconsid- eration  of  the decisions already rendered  by  this  Court after the most careful examination of the competing  conten- tions. The Report of the Rajya Sabha Committee on  petitions shows,  as  already indicated that the  relevant  files  are still’not traceable" That  judgment  was by a majority with  Justice  D.A.  Desai delivering a dissenting judgment. Since the petitioners here are relying also upon some observations made in the dissent- ing judgment, we may reproduce them here: "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 1004 necessary  material has been placed on record making  out  a strong case for reconsideration of these decisions."     The  Committee referred to in the aforesaid  observation is the Rajya Sabha Petition Committee.     10.  The present petition had also come to be  dismissed erroneously  along  with the Writ Petition  of  Kamal  Kanti Dutta  (supra). It was restored for hearing on September  9, 1980.     11.  On  July 28, 1982, the Parliamentary  Committee  on Subordinate Legislation published its 12th Report wherein it referred  to a letter of February 4, 1976 from the  Minister of State for Finance. The Committee stated that the Seniori- ty  Rules  of  1973 were unfair and  hence  they  should  be scrapped  with effect from January 15, 1959 and  that  fresh equitable  seniority rules be framed. The  Committee  recom- mended  that  the  artificial distinction  between  the  ITO Group-A  and Group-B should be abolished as they  were  per- forming identical functions and were working on interchange- able posts. The Committee also recommended the grant of  the same  weightage  in  seniority to the  promotees  from  15th January, 1959 as was available to them before that date. The Committee,  further recommended an increase in the quota  of promotions from Group-B to Group-A on account of an unprece- dented stagnation of Group-B service, as a direct result  of the  Seniority Rules of 1973. It does not appear that  these recommendations  were  accepted. We are referring  to  these recommendations  of  the Committee because  the  petitioners have  made  a  reference to them and not  because  they  are legally binding.     12.  Thereafter, on February 16, 1983, the  accompanying Writ  Petitions, viz., Nos. 546-47 of 1983 were filed  chal- lenging  (i) the validity of Section 117 of the  Income  Tax Act, 1961, (ii) the classification of Income Tax Officers in GroUp-A  and Group-B Officers, (iii) the Seniority Rules  of 1973 and (iv) the Seniority List prepared on their basis.     The  last two reliefs claimed in the said petitions  are common  to the present petition and hence they will be  dis- posed  of along with the judgment in the present  case.  The

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first two reliefs and the reliefs claimed incidental thereto will be dealt with separately.     13. It is further necessary to note that while admitting the accompanying petitions, the Court had passed the follow- ing order: 1005 "Subject  to  the specific condition  that  the  petitioners shall not be permitted to reopen whatever classification was made  in  the cadre of ITOs, in the past as  also  inter  se seniority  between direct recruits and promotees  which  had been upheld by the decisions of this Court in S.C.  Jaising- hani,  B.S. Gupta and KK Dutta’s case, rule nisi limited  to the  question  whether  the  classification  of  ITOs,  into Group-A  and Group-B u/s. 117 of the IT Act, 1961 is  viola- tive of Articles 14 and 16 of the Constitution. Even if  the issue  is answered in affirmative, the petitioners  will  be entitled  to  the  relief, if any,  only  prospectively  for future implementation of the decisions from the date of  the judgment  in the Petition. This order will not preclude  any contention  that can and may be raised in the Writ  Petition No.  4 146/78-H.K. Sajnani v. UOI & Ors., to be examined  on merits."     14.  On May 3, 1983, this Court passed an order  in  CMP Nos.  13200  and 6762 of 1983 in both the  present  and  the accompanying writ petitions as follows: "In  allowing prayer (i) of CMP No. 6762/83, we direct  Writ Petition Nos. 546-47/83 be heard alongwith Writ Petition No. 4146/78  and  that the grounds challenging the  validity  of seniority  rule 1973 as taken in Writ Petition Nos.  546-47/ 83  are allowed to be taken in Writ Petition No. 4146/78  in so  far as the prayer (iii) of CMP is concerned,  we  direct the Government to file a statement in this Court before July 15,  1983 as to the result of the examination of the  recom- mendation  of the Committee on Subordinate  Legislation  and decision   and  other  measures  taken  by  the   Government thereon."     15.  On February 27, 1985, the Court gave  direction  to the  Government in CMP No. 1903 of 1983 in the present  Writ Petition  to allow the petitioners inspection of  the  files relating  to the vacancies. The inspection was completed  on October 7, 1985 which according to the petitioners shows the following  facts: (i) that the relevant record is  available and  was always available with the Government and  that  its production  was deliberately withheld from this Court,  (ii) that the promotions were all within quota and that there was no  excess.  Rather there was a  deficiency  in  promotions, (iii)  that the quota rule was adhered to from year to  year right  from the year 1951 upto the date of the  judgment  in the 1st Gupta case (supra), (iv) that the quota rule did 1006 not  collapse  on  15.1.1959, (v) that as  required  by  the exigencies  of the service, the quota rule  was  amended/re- laxed in the years 1958 and 1959, (vi) that in applying  the quota  rule in pursuance of the man˜ damus,  the  Government did  not follow the principles decided by this Court in  1st Gupta case (supra) and committed the following errors: (a) The Government did not apply the quota to the  vacancies existing at a particular point of time. Instead of doing so. it  misinterpreted the quota rule of 66-2/3% and 33.1/3%  as if  it required that a ratio of 2:1 had to be maintained  in the  cadre of Income Tax Officers and as if there had to  be one   promottee  against  every  2  direct  recruits.   This erroneous interpretation was applied in clear breach of  the principle  laid  down by this Court in the  1st  Gupta  case (supra).

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(b)  Another error committed by the Government  in  applying the  quota  rule in violation of the principles  decided  by this  Court in the 1st Gupta Case (supra) was that the  sub- stantive  vacancies  in  the temporary posts  which  were  a regular part of the cadre and which eventually became perma- nent  were not taken into account while applying  the  quota rule,  with the result that the promotees were denied  their share in such vacancies. The most harmful thing done by  the Government was that it did not take into account substantive vacancies  in  temporary posts till 1963  for  applying  the quota rule and worked out the excess in promotions  ignoring such vacancies. But, they started taking into account  those very vacancies for direct recruitment from 1963 onwards.  If such vacancies were taken into account prior to 1963 and the quota  rule  was applied to them, there would have  been  no excess  in promotions as was erroneously worked out. On  the contrary,  there was a deficiency in promotions  because  of the incorrect application of the quota rule. (c)  The promotees were not given their full quota  even  in the permanent vacancies which should have bee given to  them inrespective  of whether the direct recruitment was made  in full.  There  was under utilisation of quota of  direct  re- cruits with the result that the promotees were denied  their legitimate  share  even  in permanent  vacancies.  In  these circumstances, the actual appointments were taken as  vacan- cies  and  were bound to result inevitably  into  excess  of promotions. 16.  On  the basis of these facts, which  according  to  the petition- 1007 ers  were revealed in their inspection, their case  is  that their allegation, that the relevant files were available and yet  were  not  produced before the Court  and  the  further allegation  that there were no excess promotions were  borne out.  This shows that the direction given in the  1st  Gupta case (supra) to frame new rules and, hence, the new Seniori- ty  Rules of 1973 framed pursuant to these directions,  were unwarranted, unjust and illegal.     17.  The petitioners further contend that the  principle that  the vacancies mean those the Government wants to  fill is  not compatible with the principle laid down in  the  1st Gupta case (supra) that the promotees should get their share of  the quota irrespective of whether the  direct  recruits’ quota  is filled, or not. But in the present case, the  con- trary has happened, viz., the promotees’ quota is calculated on  the  basis of the appointments of  the  direct  recruits causing  thereby injustice to the promotees by depriving  so many of them of their chances of promotion which were other- wise available.     18. It is also the contention of the petitioners that in fact, there were vacancies and the Government wanted to fill those vacancies. This is evidenced by the fact that when new posts  were created for the purpose of assessment work,  the direct recruits were not available and hence, the promotions were made from Group-B to Group-A, and even Group-B Officers were  appointed  against Group-A posts  and  they  performed identical functions as of Group-A Officers. This  contention has  also a bearing on the issue involved in Writ  Petitions Nos.  546-47 of 1983 and we will deal with it in  that  con- text, later.     19.  While these petitions were pending, the  Government on  January 24, 1988 amended the Income Tax Act,  1961  with effect  from April 1, 1988 and, among other things,  changed the designation of Income Tax Officers and Assistant Commis- sioners as follows:

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        Pre-Amendment            Post-Amendment    (a)    Income Tax Officers      Income Tax Officers           (Group-B)    (b)    Income Tax Officers      Assistant Commissioners           (Group A)    (c)    Assistant Commisioners    Deputy Commissioner. The  amendment also substituted Sections 116, 117,  118  and 120 with 1008 effect  from the same date, i.e., April 1, 1978  and  autho- rised  the Central Board of Direct Taxes to issue  notifica- tions  authorising Chief Commissioners and Commissioners  of Income  Tax to classify the work of newly designated  Income Tax Officers and Assistant Commissioners, and to provide for the  jurisdiction of the Income Tax Officers  and  Assistant Commissioners  on the basis of quantum of income.  According to  the petitioners, this was done to destroy the  cause  of action Writ Petition Nos. 546-47 of 1983.     20. On May 12, 1988, the Government framed New Rules  of Recruitment, among other things, providing for quota of  50% each  to the promotees and direct recruits. In  consequence, an  application for amendment of Writ Petitions Nos.  546-47 of 1983 was filed raising additional grounds.     21.  It will thus be apparent that the whole  foundation of  the  case  of the petitioner-promotees  in  the  present petition  is that the Seniority Rules of 1973 were  made  by the  Government pursuant to the direction of this  Court  in the  1st  Gupta  case (supra) on August 16,  1972  and  that direction  was given by this Court because on the  basis  of the material produced by the Government, this Court had come to the conclusion that the promotees were promoted in excess of their quota. According to them, however, the new material which they have discovered shows that in fact there were not only  no excess promotees but in fact there was a  shortfall in their promotions as per their entitlement in the quota.     22.  Both  on behalf of the Government as  well  as  the respondent  Union  of India and the direct recruits,  it  is pointed  out to us that the so-called new material  produced on behalf of the petitioner-promotees far from proving their allegation, supports the conclusion to which this Court  had arrived  at in the 1st Gupta case (supra). In  this  connec- tion,  it is pointed out that admittedly, there were at  the relevant time Class-I and Class-II posts of Income Tax Offi- cers corresponding to Group-A and Group-B posts. Class-I  or Group-A  consisted of Grade-I and Grade-II Officers  whereas Class-II or Group-B consisted of Grade-II Officers.  Group-B Officers  were  entitled  to be promoted  first  to  Group-A Grade-II posts. Hence, the vacancies available for promotion to the promotees which ought to be taken into  consideration at any point of time are the vacancies in Grade-II posts  of Class-I  or Group-A. However, it is obvious from page 32  of Volume-II  of their petition, that the  petitioner-promotees have taken into consideration vacancies not only in Grade-II posts but also in Grade-I posts to show 1009 that  in fact not only they were not promoted in excess  but their  promotions  were short of the  vacancies  which  were available  to them in their quota. We may  reproduce  herein below  the  relevant table of the sanctioned  strength,  the vacancies,  the  quota for promotees, the actual  number  of promotions  made  and their deficit or excess in  the  quota since  1951 to 1958 as calculated by the petitioners on  the said  page 32. According to the petitioners, the figures  in the table are taken from the newly discovered files: -----------------------------------------------------------

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            VACANCY POSITION FROM 1951-- 1958 ------------------------------------------------------------ Year          Total Working  Total     Quota   Actual Def- Sanctioned          Strength Vacancies of pro- No. of icit Strength            Gr.I Gr.II         motions promo-  (-)                                                tions.  or Grade I Grade II                                      Exc-                                                       ess(+) ----------------------------------------------------------- 1951  216+200 = 416    77 + 98 = 175 241   80     - 1952  224+221 = 445    83 +113 = 196 249   83     49  (-) 34 1953  224+221 = 445   130 +129 = 259 186   62     38  (-) 24 1954  224+221 = 445   169 +157 = 326 119   40     31  (-)  9 1955  224+221 = 445   154 +217 = 371  74    25    24  (-)  1 1956  224+221 = 445   187 +214 = 401  44    15    25  (+) 10 1957  287+248 = 535   224 +184 = 408 127    42    26  (-) 16 1958  290+248 = 538   213 +202 = 415 123    41    28  (-) 13 97-10=87 Net Deficiency -----------------------------------------------------------     23. It is clear from the above table that the  petition- er-promotees  have  calculated the posts in  the  sanctioned strength  not  only in Grade II posts but  also  in  Grade-I posts.  When the posts available to them for promotion  were only  in Grade-II. Hence, their further calculations of  the working  strength, the vacancies and the quota available  to them in the vacancies and of the deficiencies or the  excess in the quota are erroneous. On behalf of the Government, the following  calculations  have  been made  for  the  relevant period  from 1951 to 1958 on the basis of the actual  vacan- cies in the sanctioned strength of Grade-II posts of Group-A (Class-I).  These calculations show that in fact during  the said  period, the promotees were promoted to Grade-II  posts of  Group-A (Class-T) in excess to the extent of 93.  There- fore,  the deficiency of 97 which they have shown  in  their appointments during the said period is obviously wrong.  The said table first handed over to us by Shri Govind 1010 Das, Counsel for the Government is prepared on the basis  of the  very same figures on page 32 of the Writ Petition.  It, now,  forms an annexure  to the additional  affidavit  dated 23rd January, 1990 filed by one Ravi Kumar, Under Secretary, Department of Revenue, Ministry of Finance. The table is  as follows: Year   Sanctioned  Working  Vacancies  Quota  Actual  Excess        Grade II    Strength            of pro- promo-        Class I     Gr.II,Cl.I          motion  tion as                                        33%     stated                                                at 32. ----------------------------------------------------------- 1951      200          98       102      34 1952      221         113       108      36      49       13 1953      221         129        92      31      38        7 1954      221         157        64      21      31       10 1955      221         217         4       1      24       23 1956      221         214         7       2      25       23 1957      248         184        64      22      26        4 1958      248         202        46      15      28       13                                                       --------                                                           93 ------------------------------------------------------------        24.  The  figures shown in the above table  are  self explanatory. Confronted with these figures, the  petitioners came out with another . chart the relevant extract of  which is as follows: -----------------------------------------------------------

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 Total Vacancies           Direct Recruits     Promotees Year  Sanc- Work-  Va-  Quo- Actu-  Excess/ Quota Act- Exce-       tion- ing    can- ta   als    Shortage      tual ss/       ed    Stren- cies                           pro- Shor-       in Gr. in Gr. in Gr.                      motio- tage        II      II     II                        ns. 1      2        3     4   5    6       7      8   9     10 ----------------------------------------------------------- 1952   221    113   108   72   33    (-)39   36   49  (+) 13 1953   221    129    92   61   28    (-)33   31   38  (+)  7 1954   221    157    64   43   52    (+) 9   21   31  (+) 10 1955   221    217     4    3   53    (+)50    1   24  (+) 23 1956   221    214     7    5   48    (+)43    2   25  (+) 23 1957   248    184    64   43   27    (-)16   21   26  (+)  5 1958   248    202    46   31   99    (+)68   15   28  (+) 13 -----------------------------------------------------------                     385  258  340     + 82  127  221   + 94 ----------------------------------------------------------- 1011 By  producing this chart the attempt of the petitioners,  is to show that the direct recruits were appointed in excess of their quota to the extent of 82 during the relevant  period. The interesting feature of this chart, however, is that  the petitioners admit that they were also appointed in excess of their quota during the period to the extent of 94 as against 93  shown in the chart prepared on behalf of the  respondent Union  of India (the difference of one being on  account  of the  calculation  of the excess as 5 for the  year  1957  as against 4 calculated by the respondents for the same  year). On the basis of this chart, it is contended that in view  of the  fact that both direct recruits and promotees  were  ap- pointed in excess of their quota, it could not be said  that the quota had broken down.     25.  In  the first instance, the chart prepared  by  the petitioners  themselves shows that the conclusion which  was arrived  at  by this Court in the 1st Gupta  case  that  the promotees  were appointed in excess of their quota  is  cor- rect,  and demolishes the very foundation of their  case  in the  present  petition  namely, that  the  newly  discovered material  shows  that not only they were  not  appointed  in excess of their quota, but were in fact short of it. Second- ly, assuming that their figures of the appointment of direct recruits  during the relevant period are correct  (since  so far, it was never their contention that the direct  recruits were appointed in excess of their quota and, therefore,  the respondents  had  no  opportunity to  meet  it),  that  only strengthens  the conclusion of this Court in the  1st  Gupta case  that  the quota-rule had broken down.  The  quota-rule does not collapse only when the appointments from one source alone are disproportionately deficient or in excess.     26.  It was then contended on behalf of the  petitioners that  the Government’s method of working out  the  vacancies was wrong. It is not necessary for us to go into this  alle- gation  and to find out the correct way of working  out  the vacancies. This is so because firstly, the petitioners  have come  to this Court by the present petition on the basis  of the vacancies worked out by the Government but which  vacan- cies according to the petitioners, were suppressed.  Second- ly, their own chart shows that the vacancies were worked out by  the Government by deducting the annual working  strength from  the sanctioned strength, every year. The quota of  the promotees shown by the petitioners in their chart is further on  the basis of the vacancies so arrived at and is  not  on the  basis of the appointment of the direct recruits  as  is alleged by them which allegation is the basis of their other

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contention in the petition. Thirdly, it is to be  remembered that in the present petition it 1012 is the petitioners’ contentions that the new figures of  the deficiencies  in the promotions have been worked out by  the petitioners on the basis of the notings made in the  missing files which were not available at the time this Court decid- ed  the  1st Gupta case (supra). Hence, even  assuming  that these  notings have an intrinsic evidentiary value to  prove the  annual vacancies available on the relevant  dates,  the petitioners’  contentions stand disproved even on the  basis of the said notings. Lastly, and this according to us is  an equally  damaging  fact as far as the  petitioners’  present case  is concerned, the figures of the  sanctioned  strength and the vacancies which are worked out by this Court in  the 1st Gupta case (supra) are almost identical with the figures shown by the petitioners themselves in their new chart  with only  a  negligible  difference at some  points.  This  fact strikes at the very root of the present petition because the only  ground on which the petitioners have  approached  this Court  by  way of this petition is that the figures  of  the annual  vacancies  were suppressed by the  respondents  from this  Court  and it is this suppression which had  led  this Court  to come to the conclusion that the promotees were  in excess  of their quota and to give a direction to frame  the new Seniority Rule and to prepare the fresh Seniority  List. The  so called new material, on the other hand, proves  that the  directions  given in the 1st Gupta  case  (supra)  were based on proper calculations and were justified.     27.  It is also not correct to say that this  Court  had given  the direction in question only because there  was  an absence of material to show the annual vacancies in a  year. This is clear from the following passage in the decision  in the 1st Gupta case (supra) at pp 501-502:          "In the absence of any material which gives us  the actual vacancies in a year, we think that in order to imple- ment  the  mandamus as far as it can possibly  be  done,  it would be reasonable to accept the figures of appointments in those years as substantially representing the actual  vacan- cies.  There is’ also a subsidiary reason why those  figures may  reasonably be accepted. It is true that the quota  rule refers  to vacancies but the vacancies are  those  vacancies which the Government wants to fill. It is the prerogative of the  Government,  reflected further in Rule  4  referred  to above, whether any vacancy may be filled at all or not. Even if there are 100 vacancies in a particular year the  Govern- ment  is not bound to fill all those vacancies. It may  fill only  90 of them and nobody can insist that  the  Government shall fill up all the vacancies. Therefore, when 1013 the  quota  rule refers to vacancies it is implicit  in  the rule  that the vacancies are vacancies which the  Government wants  to fill, whatever may be the actual number of  vacan- cies. The actual appointments are, therefore, in the absence of any evidence to the contrary, the correct measure of  the vacancies  which  the Government wanted to fill.  From  that point of view also it will be permissible to proceed on  the footing  that the actual appointments represent  the  actual vacancies which the Government wanted to fill. For  example, if in the year 1953, 53 posts were filled by direct recruits and 38 by promotees the total vacancies sought to be  filled would be 91 in which case the promotees would be entitled to 30  vacancies. That is how the Government has  proceeded  to determine  the  excess for each year from 1953  to  1957  as shown  at  Annexure ’N’ (p. 26 Vol. 1 in  C.A.  No.  2060(n)

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1971).  In our opinion the procedure adopted by the  depart- ment in determining the excess number of promotees appointed in the several years is substantially correct. Annexure  ’N’ begins  with  the year 1953. It should begin with  the  year 1952 and not 1953. Indeed the 5 year period starts from 1951 and ends with 1956 but since there was no promotion in  1951 the question of excess in that year does not arise. For  the purposes of the mandamus the seniority list will have to  be resettled  from the year 1952 showing not merely the  excess from  the years 1953 to 1956 but from 1952 to 1956.  At  the end  of  1956 the progressive total of the excess  over  the quota will be known and this excess, as already pointed out, is liable to be absorbed in the quota of the years  succeed- ing 1956." (Emphasis supplied)     This is apart from the fact that as we have shown earli- er,  in  fact the actual vacancies worked out by  the  Court approximated  the actual appointments. And in any case,  the quota for the promotees worked out on the basis of the  said vacancies and the calculation of the excess of promotions on the basis of the said quota was very nearly correct and  the so called new material would not have made any difference to the conclusion which was arrived at in that case.     28.  The  other contention of the  petitioners,  namely, that  while  calculating the vacancies, the  Government  had calculated  only the permanent posts and not  the  temporary posts has also no substance in it. It is not suggested  that the figures of the sanctioned and the working 1014 strength  of and the vacancies in Grade-II posts of  Group-A (Class-I)  shown  by  the petitioners on page  32  of  their petition or in the new chart do not include temporary posts. What  is more, in fact in the 1st Gupta case (supra) one  of the  contentions of the direct recruits was that  the  quota rule should relate to vacancies only in permanent posts  and not  temporary  posts. That contention was not  accepted  in that  case  either by the promotees or the  Government.  The court  also pointed out in that case that there was  nothing in  the Rules of 1945 or the quota Rule of 1951  which  said that the vacancies must be vacancies in permanent posts. The Court observed that indeed the whole cadre had consisted  of permanent  and  temporary posts for years, and there  was  a difference  between  permanent vacancies  in  permanent  and temporary posts on the one hand and the permanent and tempo- rary  posts on the other. It was also pointed out  that  a11 the  direct  recruits from 1948 onwards were  initially  ap- pointed  against temporary posts. The Court had,  therefore, rejected  in that case the direct recruits’ contention  that the  vacancies referred to in the quota Rule were  vacancies only in the permanent posts. This shows that the  Government had  always counted the vacancies both in the permanent  and the temporary posts and the promotees had accepted this as a fact  then.  There is no material placed before us  to  show that this was not so then. On the contrary, whatever materi- al  the  petitioners have annexed to their petition  and  to which  our  attention  was invited shows that  in  fact  the Government had always calculated the vacancies on the  basis of the sanctioned strength of both the permanent and  tempo- rary  posts.  We  may refer only to two  Annexures  in  this connection. The extract from File No. 20(22)56/Ad. VI  which is  Annexure 7 on page 125 of the petition shows that as  on 1st  July,  1956 the total sanctioned strength of  Grade  II posts of ITO (Class I) were calculated as 248 consisting  of 207  permanent and 41 temporary posts. So also  the  nothing from  File No. 22/4/58/Ad. VI which are Annexure 11 on  page

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155 of the petition mention the actual strength of  Grade-II posts  of ITO (Class I) as 248 which consists of 207  perma- nent and 41 temporary posts. Both the charts produced by the petitioners  which we have discussed earlier show the  sanc- tioned  strength  of the said cadre for the years  1957  and 1958 each as 248. The vacancies and the quota of the  direct recruits  and  promotees have also been worked  out  by  the petitioners  on the basis of this strength in both the  said charts.  This material, therefore, belies  the  petitioners’ contention that the Government had not taken into considera- tion  the  temporary  posts for working  out  the  vacancies during the relevant period. In his affidavit dated January 31, 1967 filed in Jaisinghani case 1015 (supra),  Shri  R.C. Dutta, the then Finance  Secretary  had further  clearly stated that the vacancies  were  calculated with reference to the following information: (i) addition to cadre  strength, temporary or permanent as the case may  be, and  (ii) vacancies arising during a particular period as  a result of death, retirement, promotion, resignation, removal etc. of the officers in particular posts. This has been  the stand  of the respondent-Union of India from the  beginning, and  beyond  making a bare allegation to the  contrary,  the petitioners have not placed any material in support of their said contention. The Chart produced by them on the  contrary proceeds  on  the  footing that the vacancies  in  both  the temporary and the permanent posts had to be calculated.     29. Much has also been made of the fact that the Parlia- mentary Committee on Subordinate Legislation had, as pointed out above, recommended the reconsideration of the  Seniority Rules and the Seniority List of 1973, as allegedly they  had done  injustice to the promotees. Apart from the  fact  that the  said recommendations have not legally  binding  effect, they were also not accepted by the Government. In his letter of October 31, 1976 addressed to the Chairman of the Commit- tee on Subordinate Legislation, the then Minister of Finance had stated as follows:           "I  have  gone through the Eighth  Report  of  the Committee  on Subordinate Legislation submitted to  the  Lok Sabha on 7th May, 1986. 2.  I am afraid, however, there is hardly any scope for  the Government  to take any significant action in the matter  as the  alleged  grievances  of the  promotee-officers  of  the Income-tax Department are unreal and imaginary. In the past, the  prospects, position and power enjoyed by the  promotees happened  to  be  better only because of  a  systematic  and persistent  violation of Rules. The said violation of  Rules itself  led  to prolonged litigation which  repeatedly  went upto the Supreme Court. It was finally laid to rest in  B.S. Gupta’s  case when the Supreme Court approved the  Seniority Rules, 1973 and Seniority List. These Rules and the Seniori- ty List were prepared in accordance with the Supreme Court’s own  directive  and were approved by it after  giving  ample opportunities to both the sides to present their case. These Rules  were  declared by the Supreme Court to be  ’just  and fair’. It is significant that 1016 the  promotees  themselves admittedly could  not  propose  a better alternative. The Seniority Rules, therefore, call for no change. 3.  As for quota, originally the promotees were  given  only 20%  of the Group ’A’ vacancies. Unfilled vacancies were  to be  carned over as part of direct recruitment quota for  the subsequent  year.  The intention obviously was  to  maintain

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certain  standard of quality in the personnel sanctioned  to the  service. Between 1951 to 1958 the quota was  raised  to 1/3rd  in  favour of the promotees. In 1973,  the  promotion quota was raised to 30% which is the highest in any  service under the Central Government. 4.  The  question of weightage is inextricably  linked  with that of quota. The weightage allowed to the promotees earli- er was in view of the low quota of 20% or 33-1/2%  available to  them at that time. When the Rules were revised and  thee quota  of promotees was enhanced to 50% the weightage  given in the matter of promotion was simultaneousIy withdrawn. The Supreme Court itself upheld its abolition and observed  that the  promotees could not "after obtaining the benefit  of  a higher percentage of recruitment to Class I service, legiti- mately object to the abolition of weightage enjoyed formerly in the matter of seniority."     The  letter  is annexed to the additional  Affidavit  of Ravi Kumar (supra).     It will thus be seen that even the Government had  inde- pendently  come to the conclusion as early as in  1986  that neither  the  Rules of Seniority nor the Seniority  List  of 1973 had done injustice to the promotees. In fact, the Rules of  1973 had raised the quota of the promotees from  33-1/3% to  50%.  The seniority of the promotees was  adjusted  upto 15th  January, 1959 on the basis of the earlier  quota  Rule and  the seniority of those who were appointed later and  of those  who  were found in excess of their  quota  upto  that date, were adjusted according to the new Rules.     30.  Two  other contentions advanced on  behalf  of  the petitioners  on the basis of the alleged new  material  were that firstly, while calculating the vacancies in the post of Grade-II Officers in Group-A, the vacancies in all the posts above the said post were not taken into 1017 account,  and secondly, the number of vacancies  should  not have  been equated with the number of posts  the  Government filled but should have been calculated on the basis of their actual  existence.  According to the  petitioners,  if  both these factors had been taken into consideration at the  time of  the  decision in the 1st Gupta case (supra),  the  Court would not have found promotees in excess of their quota.  To some extent these contentions are interlinked.     The first contention proceeds firstly on the basis  that the  notings in the relevant files made by the Officer  con- cerned  have  an intrinsic evidentiary value  to  prove  the actual  vacancies in the different categories  and  secondly presumes  that  the  number of vacancies  as  calculated  in Grade-II posts of Group-A there did not already reflect  the vacancies in the higher posts. In the absence of  sufficient material  before us, it is not possible to accept such  pre- sumption.     The second contention need not even be considered in the present  case,  for  as has been pointed  out  earlier,  the actual  vacancies approximated the appointments made  during the relevant period. Hence, whether the quota was calculated on the basis of the actual vacancies or on the basis of  the appointments  made, it would have made no difference to  the conclusion  that this Court had arrived at in the 1st  Gupta case  (supra)  that  the promotions were in  excess  of  the quota. What is more, even this argument has been answered by this Court in that case as shown above, and we see no reason to  differ  from the view taken there on  the  point.  There appears to be an obvious confusion on the part of the  peti- tioners  with  regard to what this Court has stated  in  the earlier part of the judgment in the 1st Gupta case  (supra).

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Read  with  the passage which we have quoted from  the  said judgment,  what this Court wanted to convey in  the  earlier part of the judgment was that when the Government decides to fill  in  the vacancies, it is not necessary  to  defer  the appointments  from one source pending the appointments  from the other source. But that is when the Government decides to fill in the vacancies and not before it.     31. In the result, we find no substance in the  petition and  dismiss  the same. The Rule stands discharged.  In  the circumstances, however, there will be no order as to costs. WRIT PETITION NOS. 546-47 OF 1983.     32.  As stated earlier while narrating the facts of  the earlier  petition, these petitions are filed by  two  Income Tax Officers for them- 1018 selves  and as the representatives of the All India  Federa- tion of Income Tax Gazetted Service Association. The Federa- tion represents all the Group-B ITOs and all ITOs in  Group- A,  Assistant Commissioners and Commissioners promoted  from Group-B.  Among the parties to the petitions  is  respondent No.  4  the Indian Revenue Service Association  representing directly  recruited Group-A Officers and  Assistant  Commis- sioners  and Commissioners promoted from  directy  recruited Group-A ITOs.     33.  The main grievance of the petitioners is  that  the classification of ITOs into two classes, namely, Group-A and Group-B  is discriminatory and violative of Articles 14  and 16 of the Constitution because (a) the classification is not made on an intelligible differentia and (b) the  differentia has  no relationship to the object sought to be achieved  by the Income Tax Act, 1961 inasmuch as the Officers  belonging to  the two Groups do identical work and  perform  identical functions. It is also the contention of the petitioners that their  work and posts are interchangeable, and  in  practice they  form  one cadre. By maintaining  the  differentiation, allege the petitioners, the Government in effect is  denying equal  opportunity, equal pay and equal status  to  Officers doing identical work and performing identical functions.  To attack  the classification, the petitioners had  also  chal- lenged  the  constitutional validity of Section 117  of  the Income Tax Act, 1961 before its amendment by the Direct  Tax Laws (Amendment) Act, 1987. After the amendment of the  said section by the amending Act of 1987, they have amended their petition and have challenged not only the amended  provision of  the said section but also the amendment made to  Section 116, 118 and 120, and the Recruitment Rules of 1988 and  the notifications, circulars and orders issued pursuant thereto. The  attack  against the amended sections and the  Rules  of 1988,  notifications  etc. is on the ground  that  they  are violative  of  Articles 14 and 16 of  the  Constitution.  In addition,  they have also challenged the amended  provisions on  the  ground that they are mala fide and are  enacted  to destroy  the  cause  of action in their  petition.  In  this context,  they  have also attacked the Seniority  Rules  and Seniority List of 1973.     34.  In  support of their contention  that  the  amended provisions  of  the Act are mala fide they contend  that  by amending the Act, the Government took the power to itself to frame  the  new Recruitment Rules of 1988 and to  issue  the relevant  notifications,  circulars and orders  whereby  the classification  of  the Income Tax Officers in  Class-I  and Class-II  could  be  justified. In this  connection,  it  is pointed  out that it is by virtue of these new  powers  that the Government for the first 1019

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time  got an authority to demarcate the jurisdiction of  the powers  of Class-A and Class-B ITOs and thus to justify  the said classification. In the absence of the amendment and the Rules,  Notifications, Circulars and Orders issued  pursuant thereto,  the said classification was unjustifiable  in  law and  was  liable to be struck down. It is,  therefore,  also contended that the said classification assuming it is justi- fied,  can only act prospectively from 1st April, 1988  from which  date  it  is brought into operation,  and  would  not justify  the  classification of Officers prior to  the  said date,  and hence those Officers who belonged to  Group-B  on the  day prior to the coming into operation of  the  amended provisions, should be treated as belonging to Group-A.     35.  We  are not impressed by this  contention.  In  the first  instance, the presumption underlying this  contention is that the provisions of the Act prior to its amendment  by the amending Act of 1987 did not permit such classification, which  presumption is patently incorrect. While  the  provi- sions of sub-section (1) of Section 117 prior to its  amend- ment gave power to the Central Government to appoint,  among others,  the  Income Tax Officers of  Class-I  service,  the provisions  of sub-section (2) thereof vested power  in  the Commissioner to appoint as many ITOs of Class-II service  as might  be  sanctioned  by the Central  Government.  It  was, however,  contended that in spite of these clear  provisions of  sub-sections (1) and (2) of the unamended  Section  117, they  had to be read down to deny the power to appoint  ITOs of  Class-II or Group-B. This was so because,  according  to the petitioners, the provisions of Sections 116, 118 and 124 as they stood then, only referred to Income Tax Officers  as one  class  and did not make a distinction between  them  as Class-I and Class-II Officers. In the first instance, it  is an elementary rule of the interpretation of Statutes that no provision  of  a  statute should be read  as  redundant.  No reason is ascribed by the petitioners to ignore the specific provisions  of  Section 117(1) and (2) except that  the  two classes  of officers mentioned therein were not referred  to in  the  other  provisions of the Act.  Secondly,  when  the legislature had made a special provision for the two classes vesting  in two different authorities the power  to  appoint them,  it must be presumed that the legislature had a  defi- nite  objective  in  view. While making  the  provision  for Class-II  ITOs,  the legislature seemed to be aware  of  the fact that there may be different categories of assessees and assessments  requiring  different  standards  of  equipment, skill  and  talent to deal with them, and it  was  therefore necessary to invest the Central Government with the power to appoint  and  to sanction the appointment of  the  different classes  of  officers to meet the  requirement.  This  power vested by the legislature to appoint different classes 1020 of officers carried with it also the power to demarcate  the duties,  functions and responsibilities of the two.  Whether in  fact there is such a division of powers,  functions  and responsibilities or not, has nothing to do with the validity of the power to make the classification. If in spite of such classification, the different classes in fact exercised  the same powers and performed the same duties and functions,  it may  invite abolition of the classification. But  it  cannot invalidate  the  power to classify. Hence, we  are  not  im- pressed by the contention that the legislature had no  power to  classify the Income Tax Officers into two classes  under the unamended provisions of the Act.     36.  If therefore the legislature had itself  classified the  Officers  into two grades or categories and  given  the

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power to the Government to appoint, and/or to sanction their appointments, as the case may be, under the unamended provi- sions  of the Act, it can hardy be argued that the  amending Act  was passed mala fide to destroy the cause of action  in the  present petitions. This is apart from the fact that  no legislation can be challenged on the ground that it is  mala fide.  Hence the challenge to the amended provisions of  the Act  and  the  Rules, notifications,  circulars  and  orders issued pursuant to it, must fail. 1t is not further suggest- ed that the Rules, notifications, circulars, orders etc. are ultra  vires the Act. There is, therefore, no merit in  this attack.     37.  Coming now to the second contention ’which  is  the main  foundation of the present petitions, namely, that  the Officers  of the two classes in fact perform the same  func- tions and duties, and exercise the same powers and have  the same jurisdiction and, therefore, there is no  justification for the said classification, it is first necessary to  exam- ine  the facts relied upon by the petitioners in support  of this contention. According to the petitioners, the  Officers of  the two classes were always performing the  same  duties and  function, and exercising the same power  and  jurisdic- tion.  Their posts were also interchangeable. In fact,  many of the Officers belonging to Group-B functioned as  Officers belonging  to Group-A. Even after the amendment,  which  has demarcated the jurisdiction of the two classes on the  basis of  income,  the  basic function of  making  the  assessment remain the same and there is no change in the nature of  job performed  by  them. It is also submitted that once  a  case comes  under the jurisdiction of an Income Tax Officer,  the Officer continues to exercise his jurisdiction over the said case  even if in subsequent years the same assesee  files  a return  of higher income. Hence, the very classification  of Officers based on the return of income is totally  arbitrary and  violative of the petitioners’ fundamental rights  under Articles 14 and 16 of the Constitution. It is 1021 further  pointed  out  that in fact the  number  of  regular promotions from Group-B to Group-A during the period 1973 to 1982 were only 585 as against the ad hoc promotions of  1197 during the same period. Similarly, during the period 1982 to 1985,  the number of regular promotions were 262 as  against the further ad hoc promotions of 200 during the same period. This  shows  that the Income Tax Officers  of  Group-B  were doing  the work of Officers belonging to Group-A in a  large number  though on an ad hoc basis. This further  shows  that although  there  was  a need for regular  promotion  of  the Officers  from Group-B to Group-A, the Government was  using Group-B Officers in a large number to perform the duties  of Group-A  Officers without giving them regular promotion  and was  thus maintaining an artificial distinction between  the two groups without justification.     38. As has been stated in the affidavit filed on  behalf of  respondents  1 & 2, although both  Group-A  and  Group-B Officers have equal powers, the ITOs of Group-A are general- ly  placed in-charge of important wards and  cases  carrying higher  responsibilities, whereas the Officers belonging  to Group-B are normally entrusted with less important wards and cases.  A large majority of them have to deal  with  summary assessments  only. It is further pointed out that under  the Act,  prior to its amendment of 1987, the power  to  appoint the  Officers belonging to Group-A, i.e. Class-I was  vested in  the Central Government while the power to appoint  Offi- cers belonging to Group-B, i.e., Class-II was vested in  the Commissioner  of  Income Tax. The same  distinction  in  the

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appointing  authorities continues even after the  amendment. The Assistant Commissioner, i.e., the former ITOs of Group-A are appointed by the Central Government whereas the power to appoint Income Tax Officers, i.e., the former Group-B  Offi- cers,  can be vested by the Central Government in the  Board or a Director General or a Chief Commissioner or a  Director or Commissioner. The respondents further deny that there was ever  an  interchangeability of the two posts,  and  contend that  they always remained separate. They point out that  in fact,  the post of Group-A. Officers has two  grades,  i.e., Grade-I  and Grade-II. Grade-II post of Group-A  has  always been  a promotional post for Group-B Officers. Their  scales of pay have also been different and have been fixed  keeping in view the distinction between the two Groups which  belong to-two  different  cadres. This Court had in  fact  in  K.M. Bakshi  v.  Union of India, AIR 1962 SC 1139 gone  into  the matter pertaining the distinction between the two Groups  of Officers, and had upheld the said classification. 39. There is further no dispute that the posts of Income Tax 1022 Officer Group-A junior scale or Grade-II, are filled 50%  by direct  recruitment  through the Civil  Service  Examination held  by  the  Union Public Service Commission  and  50%  by promotion  on  the basis of selection  by  the  Departmental Promotion  Committee  from Income Tax Officers  Group-B  who have  rendered not less than 5 years’ service in that  post. The appointments to the posts of Income Tax Officers Group-B are  made 100% by promotion from Income Tax  Inspectors  who belong  to Grade-C or Class-I11 service. The appointment  to the  posts  of  Income Tax Inspectors are  made  33-1/3%  by direct  recruitment and 66-2/3% by promotion from the  lower group  of  Class-C  service. The result has  been  that  the present strength of about 2,500 ITOs of Group-B consists  of all but 185 promotees (who were recruited ad hoc only in one year,  i.e., in 1969) from the lower GroupC posts.  What  is more, as pointed out above, the Income Tax Officers Group-B, and Income Tax Officers Group-A junior scale, belong to  two different  cadres  and not to the same cadre of  Income  Tax Officer.  Hence those who joined the lower  Group-C  service cannot claim equality in conditions of service with  Group-A Officers  who are either recruited directly on the basis  of the Civil Services Examination or are promoted from  Group-B on the basis of seniority-cum-merit.     40. It is also pointed out on behalf of the  respondents that  after changing the designation of the Income  Tax  Au- thorities  and  designating the former ITOs of  Group-A  and Group-B  as Assistant Commissioners and  ITOs  respectively, their jurisdictions have been regulated. The basic principle followed in demarcating the jurisdiction of the two  classes of  Officers is the quantum of the return of income/loss  as on  1st  April  of  the Financial Year.  If  the  return  of income/loss  is  of  Rs.5 lakhs and above, it  goes  to  the Deputy  Commissioner; if of Rs.2 lakhs and above  but  below Rs.5 lakhs, it goes to the Assistant Commissioner (i.e., the former Group-A Officers); and if it is below Rs.2 lakhs,  it goes  to the Income Tax Officers (the former  Group-B  Offi- cers). It is also pointed out that the Government has  since issued  a notification on March 30, 1988 making  the  Income Tax  Officers and Tax Recovery Officers subordinate  to  the Assistant  Director  or  Assistant  Commissioner.   Further, whereas  Assistant Commissioners of Income Tax (former  ITOs of  Group-A)  are now empowered to writ off a sum  upto  Rs. 1,000  if they are convinced that the amount is  irrecovera- ble, in similar circumstances, the ITOs, i.e., former  Offi- cers  belonging  to Group-B, are empowered to  writ  off  an

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amount  upto Rs.500 only. When the assessment is made  under sub-section (3) of Section 143 or Section 147 for the  rele- vant  assessment year, the power to issue notice under  Sec- tion 148 is vested only in an Assessing Officer of the  rank of 1023 Assistant  Commissioner  or  Deputy  Commissioner.   Section 274(2)  of the Act prescribes monetary limits regarding  the powers of the Income Tax Officer and Assistant  Commissioner for  imposing penalty. That provision shows that Income  Tax Officer (i.e., the former Group-B Officer) has authority  to impose  penalty upto Rs. 10,000, whereas the Assistant  Com- missioner  (former  Group-A Officer) has  the  authority  to impose penalty upto Rs.20,000 without the prior approval  of the Deputy Commissioner.     41.  The material placed on record by  the  respondents, thus, shows that the distinction between Group-A and Group-B Officers has been in existence from the very beginning.  The distinction  has been maintained statutorily  with  distinct powers and jurisdiction, hierarchical position and eligibil- ity qualifications. The sources of their appointment and the authorities vested with the power to appoint them have  also been different. The distinction between the two further  has been made on the basis of the class of work and the  respon- sibility entrusted to each. The work which is of more than a routine  nature and which involves a detailed  investigation either  on account of the class of the assessees or  of  the complexities  of  the  returns filed, is  entrusted  to  the Officers belonging to Group-A (now Assistant  Commissioners) while the assessment work of a summary or routine nature  or of the assessees filing routine returns or returns involving simple  transactions is entrusted to Officers  belonging  to Group-B  (now  ITOs). Although,  therefore,  apparently  the outfit of the function and its procedural part is the  same, in practice the assessments differ from assessees to  asses- sees, summoning different degrees of knowledge,  application of  mind,  resourcefulness, acumen and taken  to  scrutinize them.  Hence,  merely because sometimes, on account  of  the exigencies  of work the Officers belonging to  Group-B  were entrusted  with  the  work of the Officers  of  Group-A,  it cannot  be claimed that the two posts are of an equal  rank. The  handling of the higher category of work may entitle  an Officer of the lower rank to emoluments of the higher  post. But  that cannot obliterate the distinction between the  two posts.  To accept the plea of-the petitioners to equate  the two posts or to merge them on that account, is to negate the whole statutory scheme and also to ignore the fact that  the Group-B  post  (i.e.,  the present post of the  ITO)  is  an intermediate  post between that of the Income Tax  Inspector and  the  Group-A post (i.e, the present post  of  Assistant Commissioner)  which  is  a promotional  post  for  Officers belonging  to Group-B. The Group-A post is further a  selec- tion post and the promotee has to satisfy certain qualifica- tions to be eligible for being considered for the said post. The two posts, therefore, always belonged to 1024 two  different cadres carrying different scales of  pay  and other  service conditions. Thus, this is not a case  of  the two posts being equal in status or of belonging to the  same class.  The distinction between the two is ordained  by  the Statute  and is necessary for its proper implementation.  By the  very nature of the operation involved, the  administra- tion  has  to  have the power to classify the  work  and  to appoint personnel with different skill and talent to execute the  different types of work. The legislature being  mindful

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of  this  need has deliberately created the two  classes  of officers  as is evident from the provisions of  Section  117 even  prior to its present amendment. Even after the  amend- ment the said distinction has been maintained. The fact that this distinction has all along been real and not nominal  is clear  from  the difference in the  power  and  jurisdiction statutorily  vested in the two classes of  Officers.  Hence, the intention of the legislature to have the two classes  of Officers  to discharge different types of work  is  manifest and in practice the distinction has always been  maintained. It  is  only when the exigencies of the work  required  that some  officers belonging to Group-B were promoted on  ad-hoc basis  to  the posts of Group-A  officers.  Such  exigencies occur  in every organisation, and to cope up with  them  the authorities have to improvise. That, however, cannot  equate the two unequal posts.     42. The very same argument for equating these two class- es  of  Officers  was advanced in K.M. Bakshi  v.  Union  of India,  (supra).  It was pointed out by this Court  in  that case  that the Income Tax services were reconstituted by  an order  of the Government of India dated September 29,  1944, and  later on in 1953, Section 5 of the Income Tax  Act  was amended  to give effect to this reconstitution. One  of  the features  of  the reconstitution was that in  place  of  one class  of Income Tax Officers two classes came  into  exist- ence,  namely, Class-I and Class-II ITOs.  Class-I  Officers were  eligible to be promoted to the higher post of  Commis- sioners  and Assistant Commissioners, and Class-II  Officers could obtain such promotion only after having first  reached the  status of Class-I Officers. A percentage of the  vacan- cies  in the posts of Class-I Officers was to be  filled  by promotion  of  Class-II  Officers, and the  rest  by  direct recruitment. It was also pointed out that Class-I post being a promotional post for Class-II Officers, the two posts were not equal. Dealing with the argument of equal pay for  equal work, the Court pointed out that if that argument were to be accepted literally, even the incremental scales of pay fixed dependent  upon the duration of an Officer’s  service  could not be justified. It appears that in that case the Court was called  upon  to deal with a bland assertion  that  the  two posts were equal and it was not contended that 1025 the  duties and functions discharged by them were  equal  in nature and hence the Court had no occasion to deal with  the said  contention.  We have already pointed  out  above  that there is a difference in the nature, scope and responsibili- ty  of the duties entrusted to the two  Officers  justifying the  differentiation. This is apart from the fact  that  the matter has now been set at rest by the Rules, notifications, circulars  and  orders which have  been  issued  demarcating clearly the functions and jurisdiction of the two.     43. As has been held in Federation of All India  Customs and  Central  Excise Stenographers (Recognised)  &  Ors.  v. Union  of lndia & Ors., [1988] 3 SCC 91 the  differentiation in two classes can be justified on the basis of "the  nature and the type of the work done  ..........The same amount  of physical  work  may entail different quality of  work,  some more  sensitive,  some requiring more  tact,  some  less--it varies  from nature and culture of employment.  The  problem about equal pay cannot always be translated into a mathemat- ical  formula.  If it has a rational nexus with  the  object sought  for  ..........  a certain amount of value  judgment of  the  administrative  authorities who  are  charged  with fixing the pay-scales has to be left with them and it cannot be  interfered with by the Court unless it  is  demonstrated

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that either it is irrational or based on no basis or arrived mala  fide either in law or in fact". The Court there  found that in the light of the averments made and the facts point- ed out, it was not possible to say that the  differentiation there was based on no rational nexus with the object  sought to be achieved. The Court noted that the differentiation was justified on the dissimilarity of the responsibility, confi- dentiality  and  the relationship with  public  etc.  though there  was  similarity  in the functional  work.  The  court further  observed  there that often the  difference  in  the functions and the responsibilities is a matter of degree and the  administration  is required to make  a  value  judgment while classifying the posts and fixing the different  condi- tions of service for them. So long as the value judgment  is made  bona fide, it is not questionable. The same  view  has been  reiterated  by this Court in V. Markendeya &  Ors.  v. State of Andhra Pradesh & Ors., [1989] 3 SCC 191.     44. At the cost of repetition, we may state that in  the present  case the distinction between the two posts is  made by  the  statute  itself and that distinction  has  been  in existence since long. The appointing authorities of the  two posts are different. In fact, the Group-A post (the  present post  of the Assistant Commissioner) had two  grades,  viz., Grade-I  and Grade-II, and Grade-II post was  a  promotional post for 1026 officers belonging to Group B (the present ITO). The  nature of work entrusted to the two classes of posts, the responsi- bility  which  goes with it and the power  and  jurisdiction vested  in them vary. The mere fact that some Group B  offi- cers are capable of performing the work of Group-A  officers and in fact on some occasions in the past they were appoint- ed  ad  hoc or otherwise, to discharge the work of  Group  A officers cannot equate the two posts. Such a demand, to  say the least, is irrational for if this contention is accepted, in no organisation the hierarchy of posts can be  justified. After the 1987 Amendment, further, the situation has changed and  the  duties, functions, jurisdiction and power  of  the officers  have  been rationalised  clearly  demarcating  the spheres of work of the two. In an organisation of this kind, with  contrywide offices dealing with various categories  of assessees and incomes, some dislocation, functional overlap- ping and want of uniformity in the assignment of work during some  period  is  not unexpected; and it  does  appear  that during some period, the situation in the Department was  out of joint. That is why steps were taken to straighten it  out by  amending  the Act and making the rules and  issuing  the relevant notifications. circulars and orders. If during this period on account of the exigencies of service, some ad  hoe appointments of Group B officers were made to Group A posts, Grade-II  or Group-B officers were required to  perform  the same  functions  and discharge the same  duties  as  Group-A officers,  they can at best claim the emoluments of Group  A officers,  but  certainly not the equalisation  of  the  two posts on that account.     45. Since the alleged equality of posts was the  founda- tion  of the other contentions raised in the petitions,  the said  contentions must also fail and need not be dealt  with separately. The contentions which are common to the  earlier petition have already been dealt with.     46. In the circumstances, we find no substance in  these petitions.  The petitions are, therefore, dismissed and  the rule  granted  in  each is discharged with no  order  as  to costs.     47. Before parting with these petitions, we cannot  help

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observing  that  although  the issues raised  in  a11  these petitions were set at rest by this Court conclusively earli- er, the petitioners thought it necessary to tax the precious time  of the Court by approaching it once again  on  grounds which  were  least justified. We hope and  trust  that  this decision  puts a final lid on the alleged grievances of  the petitioners and no new pretexts are found hereafter to  take up the same contentions under other garbs. Y.LaI                                              Petitions dismissed. 1027