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PETITIONER: KAMAL KANTI DUTTA AND ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT23/04/1980

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

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

ACT:      Review of Judgments of the Supreme Court of India under Article 137  of the  Constitution read with Order XXL of the Supreme Court  Rules, 1966-Petitions  filed under Article 32 of  the   Constitution  indirectly   invoking   the   review jurisdiction and seeking a review of earlier decision of the Courts Held, there is no substance in the request.

HEADNOTE:      With a view to improving the Income-tax administration, the Government  of India  in consultation  with the  Federal Public  Service  Commission  decided  to  reconstitute  then existing income-tax  services, Class  I and  II.  Under  the scheme of reorganisation of the services set out in a letter dated September  29, 1944 of the Government of India Finance Department, the  central service  Class I  was to consist of (i) Commissioners of Income-Tax (ii) Assistant Commissioners of Income-Tax;  (iii) Income-Tax  Officers Grade  I and (iv) Income-Tax Officers Grade-II. Thus Income-Tax Officers Class I were to be of two grades, Grade I and II; while Income-Tax Officers Class  II were  to consist  of one  grade,  namely, Grade III.  Clauses (a)  to (e) of paragraph 2 of the letter prescribed the  mode of  recruitment to the various posts in Class I  and Class II. Under Clause (d) recruitment to Class I Grade II was 20% by promotion from Class II, Grade III and 80% by  direct recruitment  via Indian  Audit  and  Accounts Service etc.  examination. Rules  regulating recruitment  to the Income-Tax  Officers (Class I, Grade II) service "liable to alteration  from year  to year" were published on May 26, 1945, by  a resolution  of the  Finance  (Central  Revenues) Department. Rule  3 provided  that recruitment  to Class  I, Grade  II’s   service  shall  be  made  (1)  by  competitive examination held  in India in accordance with Part-II of the Rules and  (ii) by  promotion on  the basis  of selection of

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Grade III  (Class II service, in accordance with Part III of the Rules.  By Rule  4 of  the Government  was to determine, subject to  the provisions  of Rule 3, the method or methods to be  employed for  the purpose  of filling  any particular vacancies, or such vacancies as may be required to be filled during any  particular period,  and the number of candidates to be recruited by such method. Part III of the Rules called (Recruitment by  Promotion) provided  by paragraph  21  that "recruitment by  promotion shall  be made  by selection from Grade-III  Income-Tax  Officers  (Class  II  service)  after consultation with  the Federal  Public Service  and that  no officer shall have any claim to such promotion as of right".      By a  letter dated  January 24,  1950 the Government of India laid  down certain rules of seniority : (a) as between direct recruits;  (b) as  between  promotees  selected  from Class II  and (c)  as between  direct recruits who completed their probation  in a given year and the promotees appointed in the same year to Class I. 812      On October 18, 1951 the Government of India addressed a letter  to   all  the  Commissioners  of  Income-Tax  titled "Income-Tax Officers,  Grade-II (Class-  I service)-quota of vacancies filled by promotions" wherein it was outlined that for a period of 5 years in the first instance 66 and 2/3 per cent of  the vacancies  in Class-I, Grade-II would be filled by direct  recruitment by a combined competitive examination and the  remaining 33  and 1/3  per cent  on  the  basis  of selection by  promotion from  Grade-III (Class-II  service). Any surplus vacancies which could not be filled by promotion for want  of suitable candidates would be added to the quota of vacancies to be filled by direct recruitment. By a letter dated September 5, 1952 the Government of India revised with a retrospective  effect the  Rules of  Seniority which  were laid down  on January 24, 1950. Rule 1 (f)(iii) as framed on January 24, 1950 which was to the effect that "the promotees who have  been certified  by the  commission in any calendar year shall  be senior  to all  direct recruits  who complete their probation  during that year or after and are confirmed with effect  from a  date in that year or after" was revised on September  5, 1952  as "officers  promoted in  accordance with  the  recommendations  of  the  Departmental  Promotion Committee  before  the  next  sitting  of  the  Departmental Promotion Committee  shall be  senior to all direct recruits appointed on  the results  of the  examinations held  by the Union Public  Service Commission during the calendar year in which the  Departmental Promotion  Committee met  during the three previous years". Rule 1(f)(iv) of the 1952 Rules dealt with a  special situation  in  which  an  officer  initially appointed to  Class II  service was  given seniority  in the same manner as a departmental promotee, if subsequent to his passing the  departmental examination  he was  appointed  to Class I  on the results of the competitive examination. Rule 4 of  Chapter IX  of the  Rules of  Promotion of the Central Board of  Revenue Office  Procedure Manual  states that  the prescribed minimum service for an officer of Class-I, Grade- II for  promotion to  Grade-I is  5 years  gazetted  service including one year in Class-I, Grade-II. For a promotee from Class-II the  minimum period  of service  for  promotion  to Class-I, Grade-I would be actually 4 years service in Class- II and one year service in Class-I, Grade-II.      In an  appeal arising out of Writ Petition No. 189-D of 1962 filed  by one S. G. Jai Singhani (who is respondent No. 358 in  Writ Petition No. 66 of 1974 and respondent No. 5 in Writ Petition  No. 4146  of 1978), a constitutional Bench of this Court  held :  (i) Rules  1(f)(iii)  and  (iv)  of  the

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Seniority Rules  framed in  1952 did not violate Articles 14 and 16 since they were based on a reasonable classification; (ii) Rule  4 of  Chapter IX  of the Central Board of Revenue Office Procedure  Manual did  not lead to any discrimination as between  direct recruits  and promotees, since the object of the  rule was  really to  carry out  the policy  of  Rule 1(f)(iii) of  the Rules  of Seniority and not allow it to be defeated by  the recruitment of 5 years’ service in Class-I, Grade-II itself,  before a  person could  be considered  for promotion to  Class-I, Grade-I;  (iii) Rule 4 of the Income- Tax Officers  (Class-I, Grade-II)  Service Recruitment Rules was a  statutory rule  to which a statutory duty was cast on the Government  to determine  the method  or methods  to  be employed for the purpose of filling of the vacancies and the number of  candidates to  be recruited  by each  method; and that though  in the  letter of the Government of India dated October 18,  1951 there was no specific reference to Rule 4, the quota  fixed by  that letter must be deemed to have been fixed in  exercise of  the statutory  power given by Rule 4. There was,  therefore, no  discretion left to the Government of 813 India to alter that quota according to the exigencies of the situation or  to deviate  from the  quota in  any particular year at its own will and pleasure. The quota rule, according to the  Court, was  linked up  with the  Seniority Rule  and unless it  was strictly  observed in  practice it  would  be difficult to  hold that the seniority rule contained in rule l(f)(iii) was not unreasonable and did not offend Article 16 of the  Constitution. The  Court suggested  that for  future years the  roster system  should be  adopted by  framing  an appropriate rule  for working  out  the  quota  between  the direct recruits and the promotees and that a roster n should be maintained  indicating the  order in  which  appointments were  made   by  direct  recruitment  and  by  promotion  in accordance with  the percentages  fixed under  the statutory rule  for  each  method  of  recruitment.  Thus  the  direct recruits succeeded  substantially in  their contentions, the quota  rule   acquired  statutory   force,  appointments  of promotees in  excess of  the quota  became bad and it became obligatory for  the Government  to prepare a fresh seniority list. Promotees  found to  have been  appointed in excess of the quota  admissible to  promoteeS had naturally to go down in the final gradation of seniority.      On July  15,  1968  the  Government  prepared  a  fresh seniority list  and filed it in the Supreme Court. That list failed to  satisfy promotees  as well  as  direct  recruits. Whether this  seniority list  was collect  and in accordance with the  mandamus which  was issued  by this Court in S. G. Jai Singhani‘s  case,  [1967]  2  S.C.R.  703  came  up  for consideration in  four appeals  which were  disposed of by a common judgment  dated August  16, 1972  reported as  Bishan Sarup Gupta v. Union of India (first Gupta’s case) in [1975] Suppl. S.C.R. 491. The Court was also called upon to examine the  correctness  of  seven  principles  enumerated  in  the Government letter  dated July  15, 1968 governing seniority. The first principle was accepted as good. The second and the third principles  were held  to be partially incorrect in so for as they excluded reference to all the promotees of 1952. The Court held that the promotees of 1952 should be referred to in  the seniority  list whether they are affected or not, the object  being the  ascertainment of  excess  promotions. This Court further held that the rule dated October 18, 1951 was not  concerned with  the Constitution  of the  cadre but "was concerned  with how  permanent  vacancies  were  to  be

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filled" and,  therefore, the  promotees would be entitled to 1/3 of  the vacancies  in any particular year whether or not there was  direct recruitment  by competitive examination in that year.  This ratio  of 2  :1 between the direct recruits and the promotees could not be made to depend on whether any direct recruits  were appointed  in any particular year. It, therefore,  became   essential  to   determine  the   actual vacancies in  the cadre  but the  Government put forward the plea even  in this  case as  in Jai  Singhani’s that  it was impossible for them to give the exact figure of vacancies in any particular  year. According to the Court, when the quota rule  referred   to  vacancies  it  was  implicit  that  the vacancies are  those which  the Government wanted to fill up whatever may be the actual number of vacancies available for being filled  up. Any  number of  posts among  the promotees more than  1/3 of  the total  number of  appointments in the particular year  was considered to be in excess of the quota available for  promotees. The  Court rejected  the  argument that the  quota rule  which is  co-related to  vacancies  of permanent posts  only and  not to  those in temporary posts. While upholding the weightage allowed under Rule I (f) (iii) to Class-II  officers promoted  to  Class-l,  Grade-II,  the Court also  held that  even after  1956, the  Government was entitled by  reason of  Rule 4  of the  Recruitment Rules of 1945 to  follow the quota rule of 1951 as a rough guideline, "without going  through the  trouble of  putting the same on record in so many words" and 814 that in  the normal  course the  Government was  entitled to prepare  the   seniority  list  till  the  end  of  1958  in accordance with  the quota  rule of  1951. In  regard to the position after  year 1958  the Court  came to the conclusion that the  quota rule  ceased to  apply and came to an end on January 16, 1959, when the sanction to upgrade 100 temporary posts in  Class-II, Grade-III to Class-I, Grade-II was given by the  President. The  seniority rule  then fell with quota rule. On  these  considerations  the  Court  held  that  the seniority list. was valid in regard to promotions made up to January 15,  1959 to the. extent that it was prepared on the basis of  the quota  rule dated  October 18,1951  read  with Seniority Rule  l(f)(iii). As  a corollary,  the  Court  set aside the  seniority list  of July 15, 1968 and directed the Government to  prepare a  fresh seniority list. The List for the years  1955 to  January 15,  1959  was  directed  to  be prepared in accordance with the quota rule of 1951 read with Seniority Rule  l(f) (iii).  The List  to be  effective from January ]6,  1959 was  directed to be prepared in accordance with the rules to be made afresh by the Government.      On February 9, 1973 the President made rules called the Income-Tax (CIass-I) Service (Regulation of Seniority) Rules 1973  under   Article  309   of  the   Constitution   giving retrospective effect  from January 16, 1969. In pursuance of the liberty  reserved to  the parties  under the Judgment in the first  Gupta’s case  the validity  of the  new seniority rules was  challenged  by  the  promotees  once  again.  The challenge was considered and repelled by the Court in Bishan Swarup Gupta  etc. v. Union of India and Ors.[1975] 1 S.C.R. 104, second  Gupta’s case.,  When the  new list of seniority was prepared  by the  Government, in  accordance with  these rules, the  Government had  on its  hand  73  promotees  who though appointed  earlier between 1956 and 1958 had no quota post, for  their absorption.  The 73  promotees described as "spill-overs on  January 15,  1959", as  also those who were promoted subsequently  had to  be absorbed  in the  Service, which could  only be  done by  a special rule framed in that

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behalf. The  new seniority  rule contained a formula for the absorption OF  all promotees  with effect  from January  16, 1959  in  posts  allocated  to  them,  it  determined  their seniority inter  se and last but not the least it determined their seniority qua the direct recruits appointed from 1959. The Court  overruled the  objection of  the ’73’  spill-over promotees that since in the first Gupta’s case the Court had directed that they should be absorbed on a "priority basis". all of  them should have been shown in the seniority list as having been  pointed on  January 16,  1959 en  bloc and  the direct  recruits  for  that  year  should  have  been  shown thereafter. It  was explained  that by use of the expression "priority basis"  what was  meant by  the Court was that the position or  the spill-over  promotees as seniors should not be prejudiced  by claims  made by  later  promotees  on  the ground that since the spill-over promotees were recruited in excess of the quota, the later promotees whose promotion did not violate  the quota rule had higher rights than those 73. The  Court  further  held  that,  v  he  the  73  spill-over appointments were made, there were no allocated or earmarked posts to  which those  promotees  could  have  been  validly appointed. the ordinary consequence of which would have been their revision to Class II posts which they originally held. So long  as the  quota rule was in existence appointments in excess of  the quota, though invalid when made, were atleast liable to  be regularised in subsequent years when vacancies were available.  to the  promotees as  a consequence  of the quota rule  But. Once  the quota  rule ceased  to  exist  on January 16, 1959, any possibility of the excess appointments of the promotees being regularised vanished. It was in order 815 to overcome  this injustice  to the  promotees, that the new rule was framed by the Government. The new rule was thus not only the  direct outcome of the judgment or the Court in the Ist Gupta  case, but  it was followed on the very principles on which  the Income-tax  Service had  been constituted. The Court finally  said that  it had  also to be remembered that promoteeS appointed  from  January  16,  1959  onwards  were appointed on an officiating or ad hoc basis with notice that the question  of their  seniority was  still undecided. This circumstance coupled with the absence of clear allocation of posts, made  it impossible for the promotees to lay claim to seniority and  contend that  they  were  deprived  of  their natural seniority in violation of Article 16.      The petitioners  who were  promotee Income-Tax officers Class-I, Grade-II  prayed for reconsideration of these three decisions S.  G. Jai  Singhani v.  Union of  India and  Anr. [1967] 2  S.C.R. 703;  Bishan Swarup Gupta v. Union of India and  Ors.(First  Gupta’s  case),[1975]  Suppl.  S.C.R.  495; Bishan Swarup  Gupta etc. v. Union of India and ors. (Second Guptas case)  [1975] S.C.R.  104 and to the extent S. G. Jai Singhani’s case  is relied  upon in  Union of India v. Malji Jangamayya  etc.,[1977]   2  S.C.R.  28.  On  the  following grounds:      1.  The  Conclusion  that  Rule  4  of  the  Income-Tax officers (Class-l.  Grade-II) Service  Recruitment Rules  is statutory  and,  therefore,  the  quota  prescribed  by  the Government of  India for  recruitment to Income-Tax officers Class-I, Grade-II in exercise of the power conferred by Rule 4  would   be  statutory,  proceeds  on  an  assumption  not warranted by  the provisions of law bearing on the point and if both  Rule 4  and  the  quota  presumably  prescribed  in exercise of  the power  conferred by Rule 4 are not shown to be statutory;  the foundation  of which the edifice in S. G. Jai Singhani’s  case rests is knocked down because it can be

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demonstrably established  that neither rule 4 nor the quota, prescribed thereunder  was statuary  in character but was at best an administrative instruction.      2. After  the Court  on an  interpretation of the quota rule held that the quota was related to vacancies arising in the grade every year, the conclusion reached did not conform to this  finding but  accommodated the  so-called  inability (now shown  to be  factually incorrect) of the Government of India to  give information  to the Court about the vacancies in the  grade every  year with  the result  that  the  whole calculation of spill-over is vitiated.      3. The  mandamus issued  in  Jai  Singhani’s  case  was misinterpreted by  the Government  because even if the quota was statutory  it was  operative only  between 1951 and 1956 but the  Government interpreted the mandamus to be operative beyond 1956  and upto  1967 which misinterpretation has been pointed out in the first Gupta’s case.      4. In  the first  Gupta’s case  while holding  that the mandamus directing,  to treat  the quota  statutory  beyond. 1956 was  not justified yet till January 16. 1959, the Court itself indirectly accepted the quota rule as a guideline and treated that there was a spill-over of 73 promotees. If Rule 4 was not statutory and consequently the quota prescribed in exercise of the power which had outlived its prescribed span of life  in 1956  could not  be  brought  in  to  treat  any appointment as  invalid on  the ground  that  there  was  no allocated post  for those  appointees treated  as spill-over because under  Rule 4  itself the  Government had  power  to determine the  method or  methods to  be  employed  for  the purpose of 816 filling in  particular vacancies or such vacancies as may be required to  be filled  in during  any particular period and the number of candidates to he recruited by each method.      5. The  action of the Government of upgrading 214 posts between 1959  and 1962  from Class-II,  Grade-II to Class I, Grade II was not open to question as at that stage there was no quota  rule and  Rule 4  enabled the  Government to  make recruitment from  either of  the two  sources in exercise of its executive  power. In  regard to  the second Gupta’s case the Court  introduced quota rule retrospectively by the back door which  is impermissible  and its  operation  manifestly establishes  its  utter  unfairness  inasmuch  as  a  direct recruit nor  any where in the department or may be a student may secure a march-over a promotee which has been working in Class-I, Grade-II.      Dismissing the petitions the Court, ^      HELD: Per  Chandrachud, C.J.  (On  behalf  of  N.  L  . Untawalia, P.  S Kailasam,  E. S.  Venkataramaiah,  JJ.  and himself). (Majority view)      i. A  consideration of  certain historic  facts in this case makes  it clear  that there  is  no  substance  in  the request made  for a  review of the decisions in Jai Singhani v. Union  of India  and Ors.,  [1967] 2  S.C.R. 703;  Bishan Swarup Gupta  v. Union  of India and ors. (Ist Gupta’s case) [1975] supplementary  S.C.R. 491;  Bishan  Swarup  Gupta  v. Union of  India &  Ors.; Second Gupta’s case [1975] 1 S.C.R. 104 and  Union of  India v.  Malji Jangamayya[1977] 2 S.C.R. 28. [840 E-F]      For  nearly  a.  decade  after  1950,  appointments  of promotees were  made far in excess of the quota available to them. So long as the quota rule operated. it was possible to regularise their  appointments when posts within their quota became  available   in   later   years.   But   a   somewhat

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unprecedented situation  arose by  the upgrading of Class II posts to  Class I  grade II-100  of them on January 16, 1959 and 114 on December 9, 1960. This massive upgrading of posts brought about  a collapse  of  the  quota  rule.  Subsequent absorption in  posts which became available for being filled up later  really means regularisation of appointments, which is possible  provided there  is no  excessive deviation from the quota rule. [840 G-H, 841 A]      It is  true that  no blame  can be laid at the doors of the promotees  on the  score that  they  were  appointed  in excess of  tho  quota  available  to  them.  Perhaps,  their appointments must  even have  enabled the  administration to tide over  administrative stale-mate.  But the tough problem which the  administration has  to face is that whereas it is necessary to  recognise and  protect the claims of promotees who were  appointed in  excess of  their quota,  is  equally necessary to  ensure that  the direct recruits do not suffer an nude  set-back in  service on account of the appointments of promotees.  The conflicting  claims of the two components of Service,  both having  an importance  of their  own, have therefore to be reconciled. It was with that object that the rules have  been modified  from time  to time. The judgments rendered by  this Court  in the  aforesaid four  cases show, without a  shadow doubt, how every effort was made to ensure that no  hardship or  injustice is  caused to  the promotees merely because their appointments exceeded their quota. [841 A-C]      2. It  is not  correct to  say that the judgment in Jai Singhani was  based on  a concession  or that the Court felt compelled to draw the particular conclusions 817 therein because  of the  inability or refusal of the Finance Ministry to  produce A the relevant files. The Court adopted what it considered in the circumstances to be a satisfactory and  scientific   method  of   ascertaining  the  number  of vacancies available  for being  file  up.  It  came  to  the conclusion that  the number  of actual  appointments  should determine the  number of  vacancies available  which  was  a perfectly legitimate  conclusion to  draw. In  the grey area where service  rules operate,  more than  one view is always possible  to  take  without  sacrificing  either  reason  or commonsense but  the ultimate  choice has  to be necessarily conditioned by several considerations ensuring justice to as many as possible and injustice to as few. There was no error in the  conclusion in  Jai Singhanni  that  Rule  4  of  the Recruitment Rules  was a statutory rule Subsequent decisions would show  that there  was hardly  any dispute  between the parties, at  later stages  at any  rate, that  Rule 4  was a statutory rule. [841 D-G]      3. No  doubt, the promotees should not be penalised for the mere  reason that those of them who were appointed after January 16,  1959 were appointed on an officiating or ad hoc basis and  had clear  notice  that  the  question  of  their seniority was  still undecided.  The circumstances attendant upon  their   appointments  cannot,   however,   be   wholly overlooked  in   determining  whether   the   constitutional constraints have been over-stepped. [841 H, 842 A]      4. It  is not  safe to  test the constitutionality of a service rule  on the touch stone of fortunes of individuals. No matter  with what  care, objectivity and foresight a rule is framed,  some hardship,  inconvenience  or  injustice  is bound  to  result  to  some  members  of  the  service.  The paramount consideration is the reconciliation of conflicting claims of  two important  constituents of  Service,  one  of which brings  fresh blood  and the  other mature experience.

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[842 A-C]      5. Though  the promotees  submitted in the Second Gupta case that  the new  seniority rule  was unfair to them, they were unable  to put forward any rational alternative. On the contrary the counter-affidavit dated August 31, 1973 file in the Second  Gupta case  by Shri Mehra., the Deputy Secretary Finance, shows  the fullness  with which  the Government had consulted all  possible interests while framing the impugned rules of seniority. The gamut of reasonable possibilities is fairly covered  by the four alternatives referred to in Shri Mehra’s  affidavit.  The  inconveniences  and  disadvantages flowing from  the first  three  alternatives  would  be  far greater than  those flowing from the fourth. That is why the choice ultimately fell on the fourth alternative under which the seniority  between promotees  and  direct  recruits  was filed  alternately  on  a  roster  system,  vacancies  being equally divided  between promotees  and direct recruits, for the entire  period from  1959 up-to-date. The observation of the Court  in the  Second Gupta’s case at page 119 shows how difficult it  is to  solve the  jig-saw  puzzle  of  service disputes. [842 C-Hl G      6. The  report of  the ’Committee  on petitions’ of the Rajya Sabha,  howsoever, sincerely motivated and fully drawn cannot be  given the  importance which the promotees seem to attach to  it. In  paragraph 16  of its Report the Committee does refer  to certain  files  but  those  files  appear  to contain some  notions in  regard to  the direct  recruitment only.  The  Committee  has  given  a  table  of  comparative appointments in  paragraph 19  of its  Report but  it had to speculate on  an important aspect of the matter, as is shown by its  own language,  that the  table shows  the member  of direct recruits  which the Government wanted to take and "on the basis of which the promotees must have been given promo- 818 tions". If  indeed the  relevant files  were produced before the Committee, it would not have expressed its sense of deep shock and  resentment at  the disappearance  of  the  files. Further para  32 of  the Report shows that the Committee had to grope  in the  dark and  indulge in  a certain  amount of speculation on  matters  under  its  consideration.  In  the circumstances it  has done  as good a job as a Committee can and no  fault need  to found  with it.  But nevertheless the said  Committee’s   report  cannot   displace   the   Courts judgments. [842 H, &43 A-C]      Even  on   merits  there   is  no   justification   for considering the  judgments already  rendered by  this  Court inasmuch as  no fresh facts were brought to notice by way of discovery of  new and important evidence which would justify reconsideration of  the decisions  already rendered  by this Court after  the most  careful examination  of the competing contentions. The  report of  the Rajya  Sabha  Committee  on petitions shows  that  the  relevant  files  are  still  not traceable. [843 E-F, G-H, 844 A]      Per Desai, J. (contra )      1.   While,   no   doubt,   the   Supreme   Court   has constitutional rower  lo review  its decision, it is a power to be  sparingly exercised  because any  such review has the tendency to  unsettle questions  which may have been finally determined. The  Supreme Court  does not  lightly  undertake review of  its decisions  more especially  where conflicting claims have  been settled  by the decision of this Court and the whole  gamut may have to be gone through over again on a reconsideration of  the decision.  While exercising inherent power to  reconsideration and  review its  earlier decision, the Supreme  Court would  naturally like  to, impose certain

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reasonable limitations  and would  be reluctant to entertain plea  for   reconsideration  and   review  all  its  earlier decisions unless  it is  satisfied that there are compelling and substantial  reasons to  do so.  It is  general judicial experience that  in manners  of law  involving questions  of construing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make  a choice between the two reasonable possible views, the process  of decision  making is often very difficult and delicate. [846 A-B, 847 C, G-H. 848 A-B]      In deciding  whether a  review is  necessary  when  two views are  possible it  would not necessarily be an adequate reason for  such review and revision to hold that though the earlier view  is reasonably  possible view  the  alternative view which  is pressed  on the  subsequent occasion  is more reasonable. The  Court’s discretion should be guided by such consideration whether  in the interest of public good or for any other  valid or  compulsive reason  it is necessary that the: earlier decision should be revised. [848 B-C]      Sajjan Singh  v. State  of Rajasthan,  [1965] 1  S.C.R. 931; Keshav  Mills Co.  Ltd. v.  commissioner of Income Tax, Bombay North,  [1965] 2  S.C.R. 90B  &  921;  Manganese  Ore (India) Ltd. v. The Regional Assistant Commissioner of Sales Tax, Jabalpur, [1976] 3 S.C.R. 99 applied,      2. Jai Singhani case proceeds on a concession that Rule 4 and  the quota  prescribed by  the Government referable to the power  conferred by  Rule 4 were statutory in character. [848 D-E]      Income-tax service  was reconstituted  on September 29, 1974.  The  Government  of  India  classified  the  existing income-tax service as Class I and Class II. 819 The scheme  provided for  recruitment of income-tax officers Class I  grade II  partly by  promotion and partly by direct recruitment. The  scheme was  set out  in the  Government of India Finance  Department (Central  Revenues)  letter  dated September  29,   1944.  The  quota  prescribed  therein  has undergone a  revision at  a later date. The rules being Pre- constitution Rules,  their source  must  be  traced  to  the Government of  India Act,  1935. Section 241 of the 1935 Act made provision  for recruitment  and conditions  of service. Section  241   makes  it   clear  that  the  power  to  make appointments in  the case of service of Federation and posts in  connection  with  the  affairs  of  the  Federation  was conferred on  the Governor-General  or such person as he may direct. The power to make rules in this behalf was conferred by sub-section  ’’ on the Governor-General or by some person or persons  authorised by  the Governor-General  to make the rules fol  the purpose.  But, the rules were not made either by the  Governor-General or  such person  authorised by him. ’The rules  were made  by  the  Finance  Department  and  no material was  placed to show that the persons or the persons who made  the rules were authorised by the Governor-General, under Section  241(2) of  the 1935  Act in  this behalf. The assumption made  therefore, that  Rule 4  of the  Rules  are statutory and  that the  quota prescribed in exercise of the power conferred  by Rule  4 must be statutory is ill-founded This knocks  out the  entire foundation  of the  judgment of this  Court  in  Jai  Singhani’s  case  because  this  Court proceeded to  hold that  as the  quota  was  statutory,  any recruitment made  in excess  of the  quota in any given year would  be   invalid  and  at  best  can  be  regularised  by relegating such  excess appointment  to the quota next year. If Rule  4 and the quota referable to the power conferred by Rule  4   were  not   statutory  but   were  merely  execute

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instructions, its violation would not render any appointment in excess  of it  invalid but at best would be irregular and in this  case on a plain reading of Rule 4 it would not even be irregular. [848 G-H, 849 A-E]      3. In  P. C. Sethi & Ors. v. Union of India & Ors. this Court held that in the absence of any statutory rules it was open to  the, Government  in exercise of its executive power to  issue   administrative  instructions   with  regard   to constitution and  recognition of service as long as there is no violation  of Articles  14 and 16 of the constitution. If the present  Rule 4  enables  the  Government  to  prescribe method to  be employed  for the  purpose of  filling, in any particular vacancy  or such  vacancies as may be required to be filled  in during any particular period and the number of candidates to  be recruited  by each  method arid  if the so called quota  is not  statutory but  merely a guideline, the Government whenever  making appointments  would be acting in exercise of power conferred by Rule 4 which leaves it to the discretion, of  the Government  to decide  from what  Source recruitment should  be made  and what must be the quantum of vacancies that  must be  filled in  at a given point of time and such  appointment could  not be said to be invalid. [849 E-H]      Alternatively. even  if  the  assumption  made  in  Jai Singhani’s case  that Rule  4 and the quota referable to the exercise of  power conferred by Rule 4 is unquestionable yet when this  Could held  that the  quota  is  related  to  the vacancies, the decision proceeding on an incorrect plea that the information  about the  number of vacancies in a year is not available,  is unsustainable for two reasons, namely,(1) that the  files are  now produced;  (2) in  the  absence  of information about  the vacancies  available the  Court could not have  invalidated any appointment on the assumption that appointment from  the source  of promotees  was in excess of the quota. [850 A-B] 820      on a  plain levelling of Rules 3,, 4 and 5, it is clear that the,  quota was  related to  vacancies and at one stage that was accepted. On this finding unless the fact situation is clearly  established showing  vacancies year  to year  it would be  impossible to  hold that  in any  year  there  was excess in  either source. Suppose there were 90 vacancies in a year  and the  quota was 66-2/3 for direct recruits all 33 1/3 for  promotees it  would be  open to  the Government  to promote 30  persons irrespective  of  the  fact  whether  60 direct recruits have become available or not. The assumption made that the recruitment made in a given year from both the sources would  furnish information  about the vacancies in a year would  lead to  a rather  unfair conclusion inasmuch as the action  of the  Government in acting in a certain manner without due  regard to the quota rule would work hardship on appointees even though on a correct calculation of vacancies the appointments may be valid and legal. [850 C-E]      4 The  Government understood the mandamus issued in Jai Singhani’s case  as covering,  the whole period from 1951 to 1967. When  this was  questioned in  the First  Gupta’s case this Court  held that  the quota rule proprio vigme operated between 1951  to 1956  and if  there were  promotions in any year in  excess of  the quota.  those promotions were merely invalid for that year but they were not invalid for all time and they could be regularised by being absorbed in the quota for the  later years.  So adjusting the quota at any rate np to 1956,  the quota  rule on  its  own  strength  evaporated because it was to be in operation for a period of five years and no  fresh quota  rule  was  issued  by  the  Government.

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Therefore, after 1956 Rule 4 remained in force in’ all its r ignore and  was not hedged in by any quota. Rule 4 permitted the  Government  to  make  recruitment  from  either  source without fettering  its discretion by any quota rule which it was not  bound to  prescribe. On January 16, 1959 Government hl the  Ministry of  Finance informed  the  Commissioner  of Income tax that the resident had sanctioned the upgrading to Class  I  of  one  hundred  temporary  posts  of  Income-Tax officers Class  II. On  December 19,  1960 there was further upgrading of  114 posts  from Class  II to  Class I. Between 1959 and  1962 these  214 posts were filled in by promotees. Now in  the First  Gupta’s case, this Court held even though the quota  expired in  1956  yet  the  Government  of  India adopted it  as a  guideline. May  be it  may be  so. But, it cannot be  said that.  any  appointment  in  breach  of  the guideline neither statutory nor even having the fragrance of any executive  instruction becomes invalid more so, when the Government had  power to make appointment from either source uninhibited by  any quota  rule under  Rule 4. Yet the Court found that between 1956 and 1959 when one hundred posts came to be  upgraded there  was a  spill-over of  73 persons  and because of  the huge departure from guidelines the weightage rule giving  seniority to  the promotees by 2 to 3 years was crushed under its own debris. Again, Rule 4 is overlooked or by-passed when  saying that.  there was  a spill-over  of 73 promotees between  1956 and  1959, nor could it be said that the upgrading  of 214 posts and filling them up by promotees would be in any way even irregular much less invalid because Rule t  enables the  Government to  draw from either source. [851 A-G]      5. In  the Second  Gupta’s case in view of the decision in the  First Gupta’s  case,  a  fresh  seniority  rule  was prepared and  it was made retroactive from January 16, 1959. lt, inter alia, provides that the relative seniority amongst the promotees  and the direct recruits shall be in the ratio of 1: 1 and the same shall be so determined and regulated in accordance with a roster main- 821 tained for  this purpose  which shall  follow the  following sequence, namely, promotee; direct recruit, promotee; direct recruit etc.  This method of roster undoubtedly introduces a quota by the back door. Once a roster is introduced promotee direct recruit,  promotee direct  recruit etc.  even if some promotees have  come in  a bulk  and if at a later date some direct recruits are appointed in bulk while preparing roster an earlier  date-promotee will  have to yield his place to a later date  direct recruit. Bluntly translated it means that the direct  recruit who  was never  in service when promotee was promoted  probably he  may be a student, he may not have even passed  the competitive  examination, yet  he may  come into the  picture challenge one who has already been serving in the  department for  a number  of years. To illustrate in the new  seniority list  prepared by the Government pursuant to the  order made  by this  Court in the First Gupta’s case and upheld  by this  Court in  the  Second  Gupta’s  case  a promotee of  1962 will  have to  yield his place to a direct recruit of 1966. [851 G-H, 852 A-D] C      6. Service  jurisprudence hardly  permits  a  situation where a  man not  in service  comes and challenges something which has  been done  much before  he came  into service and gets such  an advantage which on the face of it appear to be unfair. But apart from this, even in 1959 there was no quota rule and assuming that the old service rule giving weightage to the  promotees crushed  under weight  of large  number of promotees being  promoted  it  would  not  be  open  to  the

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Government to so prepare a fresh seniority list which cannot be given  effect to  unless a  roster  is  introduced  which introduces quota  by the back door and which is so unfair in its operation  that promotees  of 1962  will have  to  yield place to  direct recruits  of 1966.  Under the old weightage rule promotees  were given  weightage for  service of 2 to 3 years over  direct recruits  because  direct  recruits  were unable to  undertake regular assessment work for a period of 2 to  3 years  when they  were more  or less  under training while promotees  have been  doing this  work for a number of years and  whose experience  is reflected  in the weightage. The whole  thing now  appears to  be in  the reverse gear in that an  uninitiated direct recruit takes precedence over an experienced promotee. The unfairness of the new rule is writ large on the face of the record. [852 E-H]      7. The  fresh seniority rule violates another important rule well-recognised  principle in the service jurisprudence that in  the absence  of any valid rule of seniority date of continuous officiation  provides a  valid rule of seniority. This rule  is completely  crucified upon  two  unsustainable assumptions that  a quota  rule having guideline sanction is made imperative  in character  and assumed  to be  in  force between 1956  and 1959,  and that  even though Government in exercise of  power conferred by Rule 4 for its own necessity promoted 214  promotees to  the upgraded post, yet they must yield to  some future  direct recruits  who may  come to the department  at  a  later  date.  This  Court  sustained  the decision holding  that these  were ad  hoc appointments  and there  are  no  regular  posts  for  these  promotees.  This approach wholly  overlooks the fact and the force of Rule 4. [853 A-C]      8. Certainty  and continuity  demand  that  this  Court should  not   reopen  settled  decisions  or  reopen  closed questions unless  under compelling necessity. It may he that the  fact   of  Income-Tax  officers  promotees  and  direct recruits may  rest with  the three  decisions of this Court. Unfairness to  some of  them H may itself not provide a good and compelling  reason for  reopening and  reconsidering the decisions. [853 C-D] 822      Jai Singhani  and the Two Gupta cases are being quoted, times without  number before  this Court  for the principles enunciated therein.  These  decisions,  therefore,  affected subsequent decisions  of this  Court as  well  as  the  High courts                                                   and                                       some of the principles enunciated in  these three  cases stand in sharp contrast to other decisions  of this Court and in fact this Court itself felt it  necessary to  warn that  it may become necessary to reconcile these  conflicting decisions.  The three decisions are incorrect  in the  light of  the materials  now  placed, especially the  files which were withheld from the Court and the  Committee.   A  strong  case  has  been  made  out  for reconsideration of these decisions [853 E-F, 854 C-D]      N. D.  Chauhan &  Ors. v.  State of  Rajasthan  &  Ors. [1977] 1 S.C.R. 1037 and 1053 referred to.

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition  Nos.  66/1974  & 4146/1978.                       (Under Article 32 of the Constitution)      V. M.  Tarkunde, J.  N. Haldar,  Rathin Dass  and A. K. Sanghi, for the Petitioners in WP 66/74.

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    Dr. Y.  S. Chitale, Mukul Mudgal and B. R. Aggarwal for the Petitioners in WP No. 4146/78.      S. N. Kackar, Sol. Genl. R. N. Sachthey, E. C. Agarwala and Miss  A. Subhashini for RR 1-3 in WP 66 and RR 1-2 in WP 4146.      Ram Panjwani,  Raj Panjwani,  S. K.  Bagga and  Mrs. 5. Bagga for R. 4 in WP 4146 and Intervener (Gujjar Mal.).      Ram Panjwani,  Bishamber Lal,  Raj Panjwani  and  Vijay Panjwani for the R.6 in WP No. 4146 and R,358 in WP 66.      Yogeshwar Prasad  and Mrs. Rani Chhabra for the R. 7 in WP 4146.      A. K  Sanghi for the Interveners (Hari Narain and L. S. Chakravarty).      The  Judgment   of  Y.  V.  Chandrachud,  C.J.,  N.  L. Untwalia, P.  S. Kailasam  and E.  S. Venkataramiah, JJ. was delivered by  Chandrachud, C.J.  D.  A.  Desai,  J.  gave  a dissenting opinion.      CHANDRACHUD, C.  J.-The disputes  between promotees and direct recruits  in various  departments of  the  Government seem to  have no end. No sooner does one round of litigation come to  a decision  than is  another round  started by  one party or  the other,  sometimes alleging,  as in these Writ- Petitions, that  important facts  and circumstances were not taken into  consideration in  the earlier proceedings either because they  were suppressed or because, though cited, they were overlooked  or misunderstood.  A virtual review is thus asked for, opening flood 823 gates to  fresh litigation.  There are  few other litigative areas than  disputes between  members  of  various  services inter se,  where the  principle that  public policy requires that all  litigation must have an end can apply with greater force. Public servants ought not to be driven or required to dissipate their  time  and  energy  in  court-room  battles. Thereby their  attention is  diverted from public to private affairs and  their inter  se disputes  affect their sense of oneness  without   which  no   n  institution  can  function effectively. The  constitution of Service Tribunals by State Governments with  an apex  Tribunal at the Centre, which, in the generality  of cases,  should be  the final  arbiter  of controversies relating  to conditions  of service, including the vexed  question of  seniority, may  save the courts from the avalanche  of writ  petitions  and  appeals  in  service matter-. The  proceedings of  such Tribunals  can  have  the merit of  informality and  if they  will not be tied down to strict rules  of evidence,  they might  be able  to  produce solutions which  will satisfy many and displease only a few. There are always a few whom nothing can please.      The three  petitioners in  Writ Petition No. 66 of 1974 are all  promotees. Petitioner No. 1, Kamal Kanti Dutta, was appointed as an Inspector of Income-tax on December, 7, 1950 and  after  passing  the  departmental  examination  he  was promoted an  Income-tax officer,  Class II on June 21, 1954. On January  1, 1966  he was  promoted as Income-tax officer, Class I,  which post  he was  holding on  the  date  of  the petition, February  8, 1974.  Petitioners 2  and  3,  Bikash Mohan Das  Gupta and  Sushil Ranjan  Das, were  promoted  as Inspectors of  Income-tax in  April, 1955.  The  former  was promoted as  I.T.O., Class  II  in  December,  1957  and  as I.T.o., Class  I, in May, 1971 while the latter was promoted as I.T.o., Class II, in August, 1973.      Respondents 1  to 5  to the  petition are  the Union of India, Secretary  to the  Ministry of  Finance, the  Central Board of  Direct Taxes,  Secretary to  the Ministry  of Home Affairs   and    the   Union   Public   Service   Commission

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respectively.  Respondents  6  to  357  who  were  recruited directly as I.T.Os., Class I, were appointed on probation as Class I officers after Petitioner No. 1 was promoted to that cadre on  January, 1,  1966. Respondents  280  to  357  were appointed on probation as I.T.os., Class I, after Petitioner No. 2 was promoted to that cadre in May 1971.      Respondent  No.   358,  S.   G.  Jaisinghani,  who  was recruited directly  as I.T.O.,  Class I, in 1951 was holding the rank of Assistant Commissioner of Income-tax on the date of the  petition. He  was posted at the relevant time as the Deputy Director of Investigation, New Delhi. Respondent 359, Mohan Chandra  Joshi, who  was recruited directly as I.T.O., Class L in 1953 was also holding a similar rank and was 824 working as Deputy Secretary, Ministry of Defence, Government of India.      In Writ  Petition No.  4146  of  1978  the  Petitioner, Hundraj Kanyalal  Sajnani, was  appointed  directly  on  the recommendation of  the Union  Public Service  Commission  as I.T.o.,  Class   II  (Trainee)   on  July   1,  1947.  After successfully completing  the period  of probation, he passed the departmental  examination for  I.T.Os. in  July 1950. In 1959-60  he  was  promoted  as  I.T.O.,  Class  I,  and  was confirmed in  that cadre  with effect from December 9, 1960. He was  promoted as  an Assistant Commissioner of Income-tax with effect from December 17, 1969.      Respondents 1  to 3  to that  petition are the Union of India, the Chairman of the Central Board of Direct Taxes and the   Union    Public   Service   Commission   respectively. Respondents 4  to 8  are B. D. Roy, S. G. Jaisinghani, M. C. Joshi, B.  S. Gupta  and M.  Jangamayya respectively.  These officers have  figured in  certain well-known  decisions  of this Court,  as a  result of  which their  names have become house hold  words in service jurisprudence. In fact, Shri B. S. Gupta  figures in  two cause-titles  known as  ’the first Gupta case’  and the  ’Second Gupta  case’. Respondents 4, 7 and  8  are  Assistant  Commissioners  of  Income-tax  while respondents  5  and  6  are  workings  Deputy  Directors  of Investigation.      It will  be difficult  to appreciate  the nature of the relief sought  in these  Writ  Petitions  without  a  proper understanding of  the history  of the  litigation leading to these petitions. That history is quite checkered. one of the principal grievances  of the petitioners is that some of the previous decisions  rendered by this Court are erroneous and that some  have not been properly understood and interpreted while framing rules of seniority. That makes it necessary to refer to  the previous  proceedings leading  to the  present controversy.      With a view to improving the income-tax administration, the Government  of India,  in consultation  with the Federal Public  Service  Commission,  decided  to  reconstitute  and classify the  then existing  Income-tax Services,  Classes I and II. The scheme of reorganisation of the Services was set out in  a letter  dated September 29, 1944 of the Government of India,  Finance Department  (Central Revenues), which was sent to  all the  Commissioners of  Income-tax. The  Central Service, Class  I was  to consist  of (1)  Commissioners  of Income-tax, (2)  Assistant Commissioners  of Income-tax, (3) Income-tax officers,  Grade I  and (4)  Income-tax officers, Grade II. The Central Service, Class II comprised Income-tax officers, Grade  III. Thus Income-tax officers, Class I were to be of two grades, Grades I and II, while Income-tax 825 Officers, Class  II, were  to consist  of one grade, namely,

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Grade Ill.  A Clauses  (a) to  (e) of  paragraph  2  of  the aforesaid letter  prescribed modes  of  recruitment  to  the various posts  in Class  I and  Class II.  Clause (d)  which prescribed the mode of recruitment to the post of Income-tax officer, Class I, Grade II, said:           Recruitment to  Grade-II will  be made  partly  by      promotion and partly by direct recruitment. 80 per cent      of the  vacancies arising  in this Grade will be filled      by direct  recruitment via  the Indian Audit & Accounts      and Allied  Service Examination.  The remaining  20 per      cent of  vacancies will  be filled by pro motion on the      basis of  selection from Grade III (Class II Ser vice),      provided that suitable men upto the number required are      available for  appointment. Any surplus vacancies which      cannot be  filled by  promotion for  want  of  suitable      candidates will  be added  to the quota of vacancies to      be filled  by direct  recruitment via  the Indian Audit      and Accounts etc. Services examination.      Rules regulating recruitment to the Income-tax officers (Class I, Grade II) Service, "liable to alteration from year to year",  were published on May 26, 1945 by a resolution of the Finance  Department (Central  Revenues). Rule 3 provided that recruitment  to Class I, Grade II Service shall be made (i) by  competitive examination  held in India in accordance with Part II of the Rules and (ii) by promotion on the basis of selection from Grade III (Class II Service) in accordance with Part III of the Rules. By rule 4, the Government was to determine, subject  to the  provisions of rule 3, the method or methods  to be  employed for  the purpose  of filling any particular vacancies, or such vacancies as may require to be filled during  any particular  period,  and  the  number  of candidates to  be recruited  by each method. Part III of the Rules  called   ’Recruitment  by   Promotion’  provided   by paragraph 21  that recruitment by promotion shall be made by selection from  among Grade  I II Income-tax officers (Class II Service)  after  consultation  with  the  Federal  Public Service Commission  and that no officer shall have any claim to such promotion as of right.      By a  letter dated  January 24,  1950 the Government of India laid  down certain  rules of  seniority (a) as between direct recruits,  (b) as  between  promotees  selected  from Class II,  and (c)  as between direct recruits who completed their probation  in a given year and the promotees appointed in the same year to Class I.      On October  18, 1951, the Government of India addressed a letter  to all  the Commissioners  of  Income-tax  on  the subject Income-tax officers, 14-463 SCI/80 826 Grade II  (Class I  Service) quota  of vacancies  filled  by promotion . The letter says:           The   Government   of   India   have   had   under      consideration the question of increasing the proportion      of vacancies  reserved  for  promotion  from  Class  II      Income-tax officers  in Class I. It has been decided in      consultation with  the Union  Public Service Commission      and in  modification of  para 2(d) of the Finance Dept.      (Central Revenues)  letter No.  195-Admn. (IT/39  dated      the 29th  September, 1944  that for  a period  of  five      years in  the first  instance 66/2-3 % of the vacancies      in  Class  I,  Grade  II,  will  be  filled  by  direct      recruitment via  combined competitive  examination  and      the  remaining   33%  by  promotion  on  the  basis  of      selection  from  Grade  III  (Class  II  Service).  Any      surplus vacancies  which cannot  be filled by promotion      for want  of suitable  candidates will  be added to the

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    quota of vacancies to be tilled by direct recruitment.      By a  letter dated September S, 1952, the Government of India  revised   with  retrospective  effect  the  rules  of seniority which were laid down on January 24, 1950.      Rule l(f)(iii) as framed on January 24, 1950 read thus:           The promotees  who  have  been  certified  by  the      Commission in  any calendar year shall be senior to all      direct recruits  who complete  their  probation  during      that year or after and are confirmed with effect from a      date in that year or after. The rule as revised on September 5, 1952 read thus:           Officers   promoted   in   accordance   with   the      recommendation of  the Departmental Promotion Committee      before the  next meeting  of the Departmental Promotion      Committee  shall  be  senior  to  all  direct  recruits      appointed on  the results  of the  examinations held by      the Union Public Service Commission during the calendar      year in which the Departmental Promotion. Committee met      and the three previous years.      Rule l(f)(iv)  of the  1952 Rules  dealt with a special situation in  which an  officer initially appointed to Class II service  is given  seniority in  the  same  manner  as  a departmental promotee,  if subsequent  to  his  passing  the departmental examination  he is  appointed in Class I on the results of the competitive examination.      Rule 4  of Chapter IX of the "Rules of Promotion of the Central Board  of Revenue  office Procedure  Manual  states, that the prescribed 827 minimum service  for an  officer of  Class I,  Grade II  for promotion to A Grade I is 5 years gazetted service including 1 year  in Class  l, Grade II. For a promotee from Class II, the minimum  period of  service for  promotion to  Class  I, Grade I, would be actually 4 years service in Class II and 1 year service in Class I, Grade II.      In 1962,  S. G.  Jaisinghani (who is respondent No. 358 in Writ Petition No. 66 of 1974 and respondent No. S in Writ Petition No.  4146 of  1978) filed  Civil Writ  No. 189-D of 1962 in  the High  Court of  Punjab under Article 226 of the Constitution, challenging  the  validity  of  the  seniority rules in  regard to Income-tax Service, Class I, Grade II as also the  actual implementation  of  the  ’quota’  rule,  as infringing  Articles  14  and  16(1)  of  the  Constitution. Promotees who  were likely to be affected by the decision of the Writ Petition were added as respondents 4 to 126 to that Petition. Jaisinghani  who  was  recruited  directly  as  an Income-tax  officer,   Class  I   (Grade  II),  raised  four principal contentions:      (i)  Rule l(f)(iii) of the seniority rules as framed in           1952   was    based    upon    an    unjustifiable           classification   between   direct   recruits   and           promotees after they had entered Class I, Grade II           Service. On  the  basis  of  that  classification,           promotees  were   given  seniority   over   direct           recruits of  the same  year and  with weightage of           three previous  years. All  officers appointed  to           Class I,  Grade II  Service formed  one class  and           after  being   recruited   to   that   class,   no           distinction could  be made between direct recruits           and promotees.      (ii) Rule 1(f)(iv)  was discriminatory  because  though           the petitioner, Jaisinghani, qualified in the same           competitive examination of 1950 for appointment to           Class I,  Grade II Service as respondents 4, 5 and           6 to that petition, they were treated as senior to

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         him by  the operation  of the  artificial rule  by           which they  were regarded  as "deemed  promotees",           since they  were appointed  to Class II, Grade III           Service  in  1947.  All  the  four  of  them  were           appointed to Class I, Grade II Service in 1951 and           therefore  the   period  of   service  put  in  by           respondents 4,  5 and  6 in  Class II,  Grade  III           Service  cannot   be  counted   for  fixing  their           seniority vis-a-vis the petitioner.       (iii) Rule  4 of  Chapter IX  of the ’Central Board of           Revenue  office   Procedure   Manual’   leads   to           discrimination  as  between  direct  recruits  and           promotees; and that 828      (iv) during the years 1951 to 1956, there was excessive           recruitment of  71 promotees,  in violation of the           quota rule  of 2:  1 contained  in  Government  of           India’s letter  dated October  18, 1951. The quota           fixed by  that letter  must be deemed to have been           fixed in  exercise of the statutory power given by           rule 4  of the Income-tax officers (Class I, Grade           II) Service Recruitment Rules published on May 26,           1945.      A full  Bench of  the Punjab High Court, Circuit Bench, Delhi,  rejected   the  writ   petition,  holding  that  the principles for determining seniority between direct recruits and promotees  laid down  in rules 1(f) (iii) and (iv), 1952 were not  discriminatory, that  the quota  rule announced by the Government  of India  were merely a policy statement and had no  statutory force,  that departure from the quota rule did not  give rise  to any  justiciable issue  and that  the promotion rule  governing promotions  from Class I, Grade II to Class  I, Grade  I was not discriminatory and ultra vires of Articles 14 and 16 of the Constitution.      In appeal, a Constitution Bench of this Court held that rules l(f)(iii)  and (iv)  of the  seniority rules framed in 1952 did  not violate  Articles 14  and 16  since they  were based on  a reasonable  classification and  that rule  4  of Chapter IX of the ’Central Board of Revenue office Procedure Manual’ cannot  be held  to lead  to any  discrimination  as between direct  recruits and  promotees, since the object of the rule  was  really  to  carry  out  the  policy  of  rule l(f)(iii) of  the Rules  of Seniority and not allow it to be defeated by  the requirement  of five years service in Class I, Grade  II itself, before a person could be considered for promotion to  Class I, Grade I. On the question of excessive recruitment of  promotees from  1951 to 1956 in violation of quota rule,  the Court  had directed  the Secretary  of  the Finance Ministry,  during the  hearing  of  the  appeal,  to furnish information  regarding the number of vacancies which had arisen  from year  to year from 1945 onwards, the nature of  the   vacancies-permanent  or   temporary-the  chain  of vacancies and  such other details which were relevant to the matters pending  before the  Court. In  his affidavit  dated January 31,  1967 Shri  R. C.  Dutt, Finance Secretary, said that he  was not  able to  work out,  in spite  of his  best endeavours, the  number of vacancies arising in a particular year. However,  a statement,  Ex. E.  was furnished  to  the Court showing  the number  of officers  recruited by the two methods  of  recruitment  to  Class  I  Service  during  the relevant years.  The Court  found that it was not clear from Shri Dutt’s  affidavit whether  the quota  rule was followed strictly for  the years  in question  and noted  that in the absence of  figures of permanent vacancies in Class 1, Grade II, for the relevant years, the Solicitor General was unable

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to say to what extent 829 there had  been deviation  from  that  rule.  Rejecting  the submission of  the Solicitor General that the quota rule was merely an administrative direction, the Court held that rule 4 of  the Income-tax  officers Class  I, Grade  II)  Service Recruitment  Rules  was  a  statutory  rule  under  which  a statutory duty  was cast  on the Government to determine the method or  methods to be employed for the purpose of filling the vacancies  and the  number of candidates to be recruited by each  method; and  that, though  in  the  letter  of  the Government of  India dated  October 18,  1951 there  was  no specific reference to rule 4, the quota fixed by that letter must be  deemed to  have  been  fixed  in  exercise  of  the statutory power  given by  rule 4.  There was  therefore  no discretion left  with the  Government of India to alter that quota according  to the  exigencies of  the situation  or to deviate from  the quota,  in any particular year, at its own will and  pleasure. The  quota rule, according to the Court, was linked  up with  the seniority  rules and  unless it was strictly observed  in practice it would be difficult to hold that the  seniority rule contained in rule l(f)(iii) was not unreasonable  and   did  not   offend  Article   16  of  the Constitution. The Court expressed its conclusion thus: D           We are  accordingly of  the opinion that promotees      from Class  II, Grade  III to Class I, Grade II Service      in excess  of the  prescribed quotas  for each  of  the      years 1951  to 1956  and onwards  have  been  illegally      promoted and the appellant is entitled to a writ in the      nature of  mandamus commanding  respondents ’ I to 3 to      adjust  the   seniority  of  the  appellant  and  other      officers similarly  placed like  him and  to prepare  a      fresh seniority  list  in  accordance  with  law  after      adjusting the  recruitment for  the period 1951 to 1956      and  onwards   in  accordance   with  the   quota  rule      prescribed in the letter of the Government of India No.      F. 24(2)-Admn.  I.T./51 dated  October  18,  1951.  We,      however, wish to make it clear that this order will not      affect such  Class II  officers who have been appointed      permanently as  Assistant Commissioners  of Income Tax.      (emphasis supplied). The Court  suggested that for future years the roster system should be adopted by framing an appropriate rule for working out the  quota between the direct recruits and the promotees and that  a roster should be maintained indicating the order in which  appointments are made by direct recruitment and by promotion in accordance with the percentages fixed under the statutory rule for each method of recruitment.      In Writ  Petition No.  S of 1966 filed by Mohan Chandra Joshi under  Article  32  of  the  Constitution,  a  similar mandamus was  issued by the Court. Mohan Chandra Joshi, like Jaisinghani, was recruited directly 830 as Income-tax  officer, Class  I, Grade  II, with  the  only difference that  he was  appointed in 1953 while Jaisinghani was appointed in 1951.      Thus the  direct recruits  succeeded  substantially  in their contentions.  the quota rule acquired statutory force, appointments of  promotees in excess of the quota became bad and it  became obligatory  for the  Government to  prepare a fresh seniority list. Promotees found to have been appointed in excess of the quota admissible to promotees had naturally to go down lin the final gradation of seniority.      The aforesaid  decision was  given  by  this  Court  on February 2,  1967. But,  in spite  of the mandamus issued by

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it, Government  did not  prepare a  fresh seniority list for over a  year, which led to the filing of a contempt petition by Jaisinghani  and Joshi.  Those proceedings were dismissed by this  Court on November 6, 1968. In the meanwhile on July 15, 1968, the Government prepared a fresh seniority list and filed  it  in  this  Court.  That  list  failed  to  satisfy promotees as well as direct recruits.      Two writ  petitions were  filed in the Delhi High Court to challenge the fresh seniority list: one by B. S. Gupta, a promotee of  1962 and  the other  by M.  C. Joshi,  a direct recruit who had succeeded in the earlier round of litigation in this  Court. These  writ  petitions  were  heard  by  two separate Benches  of the Delhi High Court. Writ Petition No. 196 of  1970 filed by B. S. Gupta was dismissed whereas Writ Petition  No.   550  of  1970  filed  by  M.  C.  Joshi  was substantially allowed. Setting aside the seniority list, the High Court  gave a  direction that another seniority list be prepared in the light of its judgment.      The decision  of the  Delhi High Court in the aforesaid two writ  petitions was  challenged in  this Court  in  four appeals: one  by B.  S. Gupta  against the  dismissal of his writ petition  and the  other three  by (i)  the Government, (ii) M.  C. Joshi  and  (iii)  S  promotees.  In  all  these appeals, the  only question or consideration was whether the seniority list  prepared on July 15, 1968 was correct and in accordance  with  the  mandamus  issued  by  this  Court  in Jaisinghani v.  Union of  India and  Ors.(1). These  appeals were heard together and were disposed of by a judgment dated August 16,  1972 which  is reported in Bishan Sarup Gupta v. Union of India and Ors.(2).      While  preparing  the  seniority  list  the  Government understood the mandamus issued in Jaisinghani(l) as covering the entire period from 1951 to 1967. For doing that it could not be  blamed, since  the mandamus issued in Jaisinghani(1) directed the Government to adjust the 831 seniority of  various officers  for the  period 1951 to 1956 "and onwards",  A though  the argument  regarding  excessive recruitment of  the promotees was confined to the years 1951 to 1956.  Palekar, J. speaking for the Court in Bishan Sarup Gupta (Supra) observed in the first instance that this Court could not  possibly have in mind a seniority list which took in  promotees  after  1956  and  that  therefore  under  the mandamus issued  by this Court, appointments of promotees in excess of  the quota  could only be taken into consideration in relation  to the  period 1951 to 1956. The reason for the use of  the words  "and onwards"  was explained  to be  that Government should  be able to push down excess promotions to later years  in order that such promotions could be absorbed in the lawful quota available for later years. C      In Bishan  Sarup Gupta-the  Court was  called  upon  to examine the  correctness of  seven principles  enumerated in the  Government   letter  dated   July  15,  1968  governing seniority. The  first principle  was accepted  as good.  The second and  the third  principles were  held to be partially incorrect in  so far  as they  excluded reference to all the promotees of 1952. The Court held that the promotees of 1952 should be referred to in the seniority list whether they are affected or  not, the  object  being  the  ascertainment  of excess promotions.      The fourth  principle set out in the letter of July 15, 1968 which is important for our purpose reads thus: E           In view  of the  difficulty  in  working  out  the      vacancies arising  in each  year the  total  number  of      direct recruits  and promotees  in each  year have been

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    taken into  account for the purpose of implementing the      quota rule. This Court held that the rule dated October 18, 1951 was not concerned with  the  constitution  of  the  cadre  but  "was concerned with  how permanent  vacancies were  to be filled" and therefore  the promotees would be entitled to 1/3 of the vacancies in  any particular  year whether  or not there was direct recruitment  by competitive examination in that year. This ratio  of 2:  1 between  the direct  recruits  and  the promotees could  not be made to depend on whether any direct recruits were appointed in any particular year. It therefore became essential  to determine  the actual  vacancies in the cadre but even in B. S. Gupta the Government put forward the plea that  it was  impossible for  them to  give  the  exact figure of  vacancies in  any particular year. Counsel 11 who appeared for the promotees in that case filed a chart marked Annexure 1  which, according  to  him,  showed  the  correct number of 832 vacancies in the particular years. The Court, however, found it impossible to determine the actual vacancies on the basis of the  figures given  in that  chart. In the circumstances, the Court  considered it  reasonable to accept the number of appointments made  in the  particular years as substantially representing the actual vacancies available for being filled up. One  of the  reasons which  the Court gave in support of this conclusion  was that  when the  quota rule  referred to vacancies, it  was implicit  that the  vacancies  are  those which the  Government wanted to fill up, whatever may be the actual number  of vacancies  available for  being filled up. Thus, if  in the  year 1953,  53 posts were filled by direct recruits and  38 by promotees, the total number of vacancies which were  intended by the Government to be filled in would be 91.  Promotees would  be entitled  to hold  1/3 of  these namely, 30. 8 promotees therefore could be said to have been appointed in  excess of  the quota  available for promotees. This  was  in  fact  what  the  Government  had  done  while preparing the  fresh seniority  list, though  it had wrongly calculated the  vacancies with  effect from  the  year  1953 instead of  doing so  w.e.f. the beginning of the year 1952. There were no promotions in 1951 and therefore, the question of appointment of promotees in excess of their quota did not arise for that year.      The argument  advanced on behalf of the direct recruits that the  quota rule  should be  co-related to  vacancies in permanent posts only and not to those in temporary posts was rejected by the Court.      The Court upheld the 5th principle under which Class II officers  promoted  to  Class  I,  Grade  II,  were  allowed weightage under rule 1(f)(iii).      The Court  then considered  the  question  whether  the quota rule  could be  applied after  the year  1956. It held that even  after 1956, the Government was entitled by reason of rule  4 of  the Recruitment  Rules of  1945 to follow the quota rule  of 1951  as a rough guideline, "without going to the trouble of putting the same on record in so many words". The Court  observed that  if  the  rule  is  followed  as  a guideline, a  slight  deviation  from  the  quota  would  be permissible but  if there was an "enormous deviation", other considerations may  arise.  Taking  into  consideration  the relevant circumstances,  the Court  came to  the  conclusion that in  the normal  course the  Government was  entitled to prepare  the   seniority  list  till  the  end  of  1958  in accordance with the quota rule of 1951.      In regard  to the  position after  the year  1958,  the

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Court came  to the  conclusion that the quota rule ceased to apply and  came to  an end  on January  16,  1959  when  the sanction to upgrade 100 temporary posts in 833 class II,  grade III  to class  I, grade II was given by the President. The seniority rule then fell with the quota rule. On these  considerations it was held that the seniority list was valid in regard to promotions made upto January 15, 1959 to the extent that it was prepared on the basis of the quota rule dated  October 18,  1951 read  with the  seniority rule 1(f) (iii).      This position  made  it  necessary  for  the  Court  to consider as  to how  the inter  seniority between the direct recruits and  the promotes was to be fixed after January 16, 1959, if the seniority rule l(f)(iii) ceased to be operative from that  date. Several  suggestions were made to the Court with a  view to evolving a fair and just seniority rule. The Court declined  to be  drawn  into  any  such  exercise  and preferred to leave it to the Government to devise a fair and just seniority  rule, if necessary, in consultation with the U.P.S.C. As  a corollary,  the Court set aside the seniority list of July 15, 1968 and directed the Government to prepare a fresh  seniority list.  The list  for the  years  1955  to January 15,  1959 was  directed to be prepared in accordance with the  quota  rule  of  1951  read  with  seniority  rule l(f)(iii). The  list to  be effective  from January 16. 1959 was directed  to be  prepared in accordance with rules to be made afresh by the Government.      Principles  (6)   and   (7)   did   not   survive   for consideration separately  in view  of the position mentioned above. E      The Court  kept the  proceedings pending on its file to enable the  Government to  prepare a fresh seniority list in the light  of the  directions given  by it within six months from the date of the order. Liberty was given to the parties to apply to the Court after the list was filed.      The judgment  in B.S. Gupta (supra) was given on August 16, 1972.  On February  9, 1973,  the President  made  rules called the  Income-tax  (Class  1)  Service  (Regulation  of Seniority) Rules,  1973. These Rules were made under Article 309 of  the Constitution and were given retrospective effect from January  16, 1959. In pursuance of the liberty reserved to the  parties  under  the  judgment  in  B.S.  Gupta,  the validity of  the new  Seniority Rules  was challenged by the promotes. That challenge was considered and repelled by this Court in  Bishan Sarup  Gupta etc.  v. Union of India & ors. etc. etc.,(l) the 2nd Gupta case.      Rule 3 of the new Seniority Rules of 1973 reads thus:      "3. Seniority of officers- The seniority of the Income-      tax officers  in the Class I service shall be regulated      as from the 834      date of  commencement of these rules in accordance with      the provisions hereinafter contained namely:-      (i)  the seniority among the promotes inter se shall be           deter mined  in the  order of  selection for  such           promotion and the officers promoted as a result of           any earlier  selection shall  rank senior to those           selected as a result of any subsequent selection;      (ii) the  seniority among  the direct recruits inter se           shall be  deter- mined  by the  order of  merit in           which they  are selected  for such  appointment by           the Union Public Service Commission and any person           appointed as  a result  of an  earlier select  ion           shall rank  senior to  all other persons appointed

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         as a result of any subsequent selection; and      (iii) the relative seniority among the promotes and the           direct recruits  shall be in the ratio of 1: 1 and           the same  shall be  so determined and regulated in           accordance  with   a  roster  maintained  for  the           purpose,  which   shall   follow   the   following           sequence, namely:-           (a) promote;           (b) direct recruit;           (c) promote;           (d) direct recruit; and so on When  the   new  list  of  seniority  was  prepared  by  the Government in  accordance with  these rules,  the Government had on  its hands  73 promotes who, though appointed earlier between  1956  and  1958,  had  no  quota  posts  for  their absorption. The  73 promotes,  described as  "spillovers  on January  16,   1959"  as   also  those   who  were  promoted subsequently had  to be absorbed in the Service, which could only be done by a special rule framed in that behalf.      The method adopted in the preparation of this list was, according  to   Palekar,  J.,   who  spoke   again  for  the Constitution Bench  in the  2nd Gupta case, "simple enough", though the  wording of  the rule  "19 not happy". The simple method  adopted   by  the  Government  was  like  this:  The seniority list  from serial No. 1 to serial No. 485 relating to the  period from 1951 to January 16, 1959 was prepared in accordance with  the quota rule read with the seniority rule which prevailed  until January  16, 1959.  At serial numbers 486 to  1717 are  officers who  had to  be accommodated from January 16, 1959 in accordance with the new seniority rules. Since under  rule 3  (iii), the first post in the roster has to go to a promote and the next to a direct recruit 835 serial No. 486 goes to a promote, serial No. 487 to a direct recruit A. and so on. Promotes whose ranking is below serial No. 485  are either  out of  the 73 spillovers as on January 1959, or  are those  who were appointed later. Thus, the new seniority rule  contains a formula for the absorption of all Promotes  with   effect  from  January  16,  1959  in  posts allocated to  them, it  determines their  seniority inter se and last  but not  the least,  it determines their seniority qua the direct recruits appointed from 1959.      The Court  over-ruled the objection of the 73 spillover Promotes that  since, in  the Ist  Gupta case, the Court had directed that they should be absorbed on a "priority basis", all of  them should have been shown in the seniority list as having been  appointed on  January 16,  1959 embolic and the direct  recruits  for  that  year  should  have  been  shown thereafter.  It  was  explained  that  by  the  use  of  the expression "priority basis", what was meant by the Court was that the  position of  the  spillover  promotes  as  seniors should not be prejudiced by claims made by later promotes on the ground  that since the spillover promotes were recruited in excess  of the  quota, the later promotes whose promotion did not  violate the quota rule had higher rights than those 73.      The principal contention of the promotes in the 2nd GPA case was  this: As  the quota  rule collapsed on January 16, 1959 the  spillover promotes as also those who were promoted thereafter must  be deemed to have been validly appointed in accordance with  rule 4  of the  Recruitment Rules  of 1945. Since there  was no seniority or quota rule in existence for determining  the   seniority  of  promotes  Que  the  direct recruits, the natural seniority linked with the earlier date of appointment must be respected. lt could not be altered to

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the detriment  of the  promotes since to do so would violate Article 16 of the Constitution. This contention was rejected by the  Court on  the ground  That  when  the  73  spillover appointments were made, there were no allocated or earmarked posts to  which  those  promotes  could  have  been  validly appointed, the ordinary consequence of which would have been their reversion  to Class  II posts  which  they  originally held.  So   long  as   the  quota  rule  was  in  existence, appointments in  excess of  the quota,  though invalid  when made, were  at least  liable to be regularized in subsequent years when  vacancies were  available to  the promotes  as a consequence of  the quota  rule. But  once  the  quota  rule ceased to  exist on January 16, 1959, any possibility of the excess  appointments   of  the  promotes  being  regularized vanished. It  was in order to overcome this injustice to the promotes, that  the new  rule was  framed by the Government. The new  rule was  thus not  only the  direct outcome of the judgment of the Court in the 1st Gupta case, 836 but it  was founded  on the  very principles  on  which  the Income tax  Service had  been constituted. The Court finally said that  it  had  also  to  be  remembered  that  promotes appointed from January 16, 1959 onwards were appointed on an officiating or ad-hoc basis with notice that the question of their seniority  was  still  undecided.  This  circumstance, coupled with the absence of clear allocations of posts, made it impossible for the promotes to lay claim to seniority and contend that  they were  deprived of their natural seniority in violation of Article 16.      Shri  V.M.  Tarkunde  who  appears  on  behalf  of  the petitioners in Writ Petition No. 66 of 1974 has made a fresh challenge to the new seniority list prepared in pursuance of the rules  dated February  9, 1973 the validity of which was upheld  by  this  Court  in  the  2nd  Gupta  case  (Supra). According  to   the  learned   counsel,  the   decision   in Jaisinghani.  (Supra)   suffers  from  the  following  three infirmities:      (i)   It was assumed in that case that the appointments           of promotes  were in excess of the quota available           to them  because the  relevant files were not made           available  to   the  Court,  nor  indeed  was  the           necessary  data  placed  before  the  Court,  even           though during  the hearing of the appeal the Court           had asked the Secretary of the Finance Ministry to           furnish information in that behalf. In the absence           of such  information, the Court made an assumption           which was  unjustified, that  the total  number of           vacancies available  for promotes was equal to the           total number  of appointments  actually made.  If,           for example,  10 direct  recruits and  20 promotes           are appointed  in a  particular year  it cannot be           assumed  either   that  only   30  vacancies   are           available for being filled up in that year or that           only 30  appointments are  intended to  be made by           the  Government   during  that  year.  The  proper           inference for the Court to draw, in the absence of           material which  ought to have been produced by the           Government, was  that if  appointments were  to be           made  of  direct  recruits  and  promotes  in  the           proportion of  2: 1,  and if  20 promotes  were in           fact appointed,  the Government desired to appoint           40 direct  recruits but  could  only  appoint  10,           probably  because  of  the  non-  availability  of           suitable candidates for direct recruitment.      (ii) It was  wrongly assumed or held that rule 4 of the

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         Income tax  officers (Class  I. Grade  ll) Service           Recruitment Rules was a statutory rule. 837       (iii) lt  was wrongly  assumed that 100 posts in Class           11, Grade  III, and  114 posts  in the  same cadre           which were  upgraded as Class I, Grade II posts on           January 16, 1959 and December 9, 1960 respectively           were exclusively  allotted to promotes and were in           fact filled in by the appointment of promotes.      In regard to the decision in the 2nd Gupta case (Supra) it is contended that the decision suffers from the following infirmities:      (i)   It was wrongly held therein that the 73 spillover           promotes as on January 16, 1959 could not be given           priority en  bloc, even  though it was directed in           the judgment  in the  1st Gupta  Case (supra) that           they should be dealt with on a "priority basis".      (ii)  It  was  wrongly  held  that  214  promotes  were           appointed in  excess of the quota available to the           promotes.       (iii) The  conclusion that  no distinction can be made           between promotes  and direct  recruits  once  they           belong to  a com-  mon cadre  was erroneous,  as a           result  of   which  the   promotes  were  unjustly           deprived of their right to weightage.      (iv) The  provision in rule 3 (iii) of the new Rules of           seniority  of   1973  that   direct  recruits  and           promotes will  be appointed in the ratio of SO: SO           cannot work  to  the  advantage  of  the  promotes           because the  measure of SO percent is fixed by the           new rules  in relation  to the actual appointments           made, whereas  the old  proportion of  2: 1 was in           relation  to   the  actual   number  of  vacancies           available for being filled in.      Learned counsel  has demonstrated with the help of some of the  instances in  the new  seniority  list,  as  to  how promotes  have   been  treated   unfairly  and  unjustly  in comparison with direct recruits. One such instance is that a direct recruit, Hrushikesh Mishra, who was appointed on July 3, 1966  is placed  at serial  No. 1001  while  one  of  the petitioners, Kamal Kanti Dutta, who was appointed six months earlier on  January 1,  1966 is  placed at  serial No. 1318. Another instance cited is that of a promote, V. R. Hiremath, who was  appointed on  March 1, 1956 but is placed at serial No. 486, the first 485 officers having been ranked according to the  quota  rule  read  with  the  seniority  rule  which prevailed till  January 16, 1959. Hiremath, it is contended, not having been appointed in excess of the quota should have been given  his seniority,  on account  of the  three years’ weightage, with  effect from  March 1, 1953. In the process, he has lost a benefit spread 838 Over not  only three  but six years, because his ranking has been made  according to the new rule in relation to the date January 16, 1959.      These contentions  were adopted by Dr. Y.S. Chitale who appears on  behalf of  the petitioner  H.K. Sajnani  in Writ Petition No.  4146 of 1978. It may be mentioned that in Writ Petition No.  66 of  1974 of K.K. Dutta and others which was filed on  February 8, 1974 no demand was made for the review of the  decisions earlier  given by this Court on the points under  consideration.   The  request  for  review  of  those decisions was  made for the first time by the petitioners by paragraph 3  of their  supplementary affidavit  in rejoinder which was filed in this Court in April 1978. By paragraph 45

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of his  Writ Petition,  which was  filed on  June  27,  1978 Sajnani did contend that the aforesaid judgments be reviewed since they  were wrongly decided. Sajnani asked by paragraph Sl of  his petition,  and so  did the  petitioners  in,  the companion petitions asked by, their supplementary rejoinder, that the  decision of  this Court  in Union  of India  v. M. Jangamayya(1) should also be reviewed.      In  his   writ  petition,  Sajnani  has  cited  several specific instances  in support  of his contention that under the new seniority rules, the promotes have been treated with an evil eye and an uneven hand. His complaint is that direct recruits who are "15 years junior in age and 15 years junior in experience   had  been placed  above him";  and that  the seniority  list   dated  April   15,   1978   of   Assistant Commissioners of  Income- tax, which is the basis of further promotion to  the post  of Commissioner of Income- tax, does not include  his name  at all, though he has been working as an Assistant  Commissioner  ever  since  1969  when  he  was selected by  the competent authority with the concurrence of the U.P.S.C.,  after putting  in 22  years of  service as an I.T.O., out of which 10 years’ service was rendered in Class I itself.  Sajnani also  prays that the seniority list dated April 15,  1978 for  the cadre of Assistant Commissioners be set  aside  as  violating  Articles  14  and  16(1)  of  the Constitution.      In addition  to these grounds which are pressed upon us for reviewing  our decisions in Jaisinghani, Ist Gupta case, 2nd Gupta  case and Jangamayya, (supra) the petitioners have placed strong reliance on the findings of the 49th Report of the Committee  on Petitions  of the  Rajya Sabha,  which was presented on  January 9, 1976. A full text of that Report is extracted at  pages 242  to 363  of the compilation filed by the writ petitioners in this Court.      It appears  from that report that at the sitting of the Rajya Sabha  held  on  the  23rd  August,  1974,  Shri  Kali Mukherjee, M.P., presented 839 a petition  signed by  Shri R.C.  Pandey, General Secretary, All India  A  Federation  of  Income-tax  Gazetted  Services Associations, New  Delhi, praying  for  the  repeal  of  the Income-tax  officers  (Class  I  Service)  4  Regulation  of Seniority  Rules,   1973)  and  for  the  framing  of  fresh seniority rules  in lieu  thereof. The  Committee heard  the representatives of (i) promotes on whose behalf the petition was presented  to The  Rajya Sabha;  (ii)  the  Ministry  of Finance and  (iii) the  direct recruits who were represented by the  Indian  Revenue  Service  Association.  After  going through the  evidence, the memoranda and the files- supplied by the Ministry of Finance the Committee observed:      ".... the  Department from  1944 till  today  has  been      working in a very haphazard, irregular and unscientific      way. They  made policies,  rules, etc. and then went on      deviating from them to suit certain exigencies. Instead      of meeting  the new  situation or  the demands  of  the      Department in  a scientific  or rational way, ad-hocism      prevailed.  This  led  to  litigation  for  nearly  two      decades. Since  the year  1944, the Department has made      so many  commissions and omissions in its long working.      thereby it  has provided  arguments to  both the direct      recruits and promotes which have been advocated by them      force fully. ’This has created bitterness and a picture      of civil war in the Department. It would facilitate our      understanding if  we look  at the  various points, like      vacancies, quota,  seniority, weightage, confirmations,      recruitments or  promotions to  temporary and permanent

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    vacancies, etc. in a proper perspective." The Committee  examined the  files produced before it by the Ministry, expressed  its sense of "shock" at the plea of the Ministry that  files of vital matters were not traceable and concluded that  the new  seniority rules  of 1973  should be scrapped. The Committee recommended, inter alia,:      "The entire  concept of  a common seniority list should      be given up. The existing common seniority list of 1973      be replaced  by two  sets of seniority lists consisting      of direct  recruits and  promotes respectively,  on the      basis  of   the  dates   of  their   appointment.   The      integration of  the two  channels which  may be  turned      into two  cadres should  not be  done at  the level  of      I.T.Os.   but    after   the    level   of    Assistant      Commissioners." The Committee  hoped that  with the  separation of  the  two seniority lists, the controversy of inter se, seniority will be resolved  and the  hardship caused  to the  434  officers promoted  between   1956  to  1966  will  be  relieved.  The Committee made  certain calculations according to which, the correct number of spill-over promotes as on Jan- 840 uary 16, 1959 was 15 and not 73. Observing in paragraph 7(i) that the  Parliament owes  responsibility in service matters too and  that the  executive is answerable to the Parliament for its actions, the Committee concluded its Report with the observation:      ".... if  necessary, a special law could be enacted and      in corporated in the Ninth Schedule of the Constitution      so that  no further  scope is  left  for  disputes  and      litigation and  the Department  would start functioning      as an  efficient and  well- knit  unit and  fulfil  its      intended role in combating the evils of black money and      tax evasion  and ensuring the stability and progress of      our country." It is  not necessary to go into complications arising out of the random placement of statutes, rules and notifications in the 9th  Schedule, but  we  do  hope  that,  some  day,  the promised millennium will come.      The Solicitor General and the other learned counsel who appear for the respondents resisted with great stoutness the attempt of  the petitioners  to reopen decisions rendered by this Court  in disputes between promotes and direct recruits of the  Income-tax Service.  The  respondents  contend  that everyone of  the arguments  now presented before us has been already considered  carefully in  the earlier  decisions and the petitioners’  demand for  review  is  only  yet  another attempt to  retrieve a  lost cause.  The  learned  Solicitor General also  pressed upon  us the  need  for  treating  the matter as  closed.  Reviews,  he  contends,  should  not  be granted save  in exceptional  circumstances and at any rate, he says,  no solution  in service  matters can  ever satisfy both the promotes and direct recruits in an equal measure.      Having considered  these rival submissions carefully we are of the opinion that there is no substance in the request made on  behalf of  the petitioners  for  a  review  of  the decisions in  Jaisinghani, the 1st Gupta case, the 2nd Gupta case and Jangamayya (supra).      Certain historic  facts have  to be borne in mind while considering the  points raised before us. It is necessary to recall that  for nearly a decade after 1950, appointments of promotes were  made far  in excess of the quota available to them. So long as the quota rule operated, it was possible to regularize their  appointments when posts within their quota became  available   in   later   years.   But   a   somewhat

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unprecedented ed  situation arose  by the upgrading of Class II posts to Class I, Grade II,- 100 of the month January 16, 1959 and  114 on December 9, 1960. This massive upgrading of posts brought about a collapse of the quota rule. Subsequent absorption in  posts which become available for being filled up later  really means regularization of appointments, which is 841 possible provided  there is  no excessive deviation from the quota rule.  A We quite appreciate that no blame can be laid at the  doors of  the promotes  on the  score that they were appointed in excess of the quota available to them. Perhaps, their appointments must even have enabled the administration to tide over administrative stalemate. But the tough problem which the  administration has  to face is that whereas it is necessary to  recognize and  protect the  claims of promotes who are  appointed in  excess of  their quota, it is equally necessary to  ensure that  the direct recruits do not suffer an undue  set back  in service  on account  of the excessive appointments of  promotes. The conflicting claims of the two components of  Service, both  having an  importance of their own, have  therefore to  be reconciled.  It  was  with  that object that  the rules have been modified from time to time. The judgments  rendered by  this Court  in matters which the petitioners want  to be  reopened show,  without a shadow of doubt, how  every effort was made to ensure that no hardship or injustice  is caused to the promotes merely because their appointments exceeded their quota.      It  is   not  correct  to  say  that  the  judgment  in Jaisinghani (supra)  was based  on a  concession or that the Court felt  compelled to  draw  the  particular  conclusions therein because  of the  inability or refusal of the Finance Ministry to  produce the  relevant files.  The Court adopted what it considered in the circumstances to be a satisfactory and  scientific   method  of   ascertaining  the  number  of vacancies available  for being  filled up.  It came  to  the conclusions that  the number;  of actual appointments should determine the  number of  vacancies  available  which,  with great respect,  was a  perfectly  legitimate  conclusion  to draw. In  the grey  area where  service rules  operate, more than one view is always possible to take without sacrificing either reason  or commonsense but the ultimate choice has to be  necessarily   conditioned  by   several   considerations ensuring justice  to as many as possible and injustice to as few. We  also find  it impossible to hold that there was any error in  the conclusions in Jaisinghani (supra) that rule 4 of the  Recruitment Rules  was a  statutory rule. Subsequent decisions would  show that  there  was  hardly  any  dispute between the  parties, at later stages at any rate, that rule 4 was a statutory rule.      The other  objections raised  against the  judgments in the various cases partake more or less of the same character and must be overruled for similar reasons.      We appreciate that the promotes should not be penalized for the  mere reasons  that those of them who were appointed after January  16, 1959  were appointed on an officiating or ad-hoc basis and had clear notice that the question of their seniority was still undecided. The 842 circumstances  attendant  upon  their  appointments  cannot, however, be  wholly over-looked  in determining whether the, constitutional constraints have been over- stepped.      In regard  to the  individual instances cited before us as exemplifying  the injustice caused to the Promotes, it is not scare to test the constitutionality of a service rule on

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the touchstone  of fortunes  of individuals.  No matter with what care,  objectivity and foresight a rule is framed, some hardship, inconvenience  or injustice  is bound to result to some members  of the service. The paramount consideration is the reconciliation  of conflicting  claims of  two important constituents of Service, one of which brings fresh blood and the other mature experience.      The counter-affidavit  dated August  31, 1973, filed in the 2nd  Gupta case (supra) by Shri Mehra, Deputy Secretary, Ministry of  Finance, shows  the  fullness  with  which  the Government  had   consulted  all  possible  interests  while framing the  impugned  rules  of  seniority.  The  gamut  of reasonable possibilities  is  fairly  covered  by  the  four alternatives referred  to in  Shri  Mehra’s  affidavit.  The inconveniences and  disadvantages  flowing  from  the  first three alternatives  would be  far greater than those flowing from the  4th. That is why the choice ultimately fell on the 4th alternative,  under which the seniority between Promotes and direct  recruits  was  fixed  alternately  on  a  roster system, vacancies being equally divided between Promotes and direct recruits, for the entire period from 1959 up-to-date. Though the  promotes submitted in the 2nd Gupta case (supra) that the  new seniority  rule was  unfair to them, they were unable to put forward any rational alternative, a fact which is noted  at page  119 of  the Report. That led the Court to remark:           "They are  indeed pleased with the increase in the      promotional  chances.   But  they  are  sore  that  the      artificial rule of seniority which gave them weightage,      has been  removed. They  do not  dispute  that  by  the      increase in  their ratio  in Class  I service, a larger      number of Class II officers will, in course of time get      a chance  to be  appointed by  promotion  as  Assistant      Commissioners. But they are sorry that their chances to      be promoted  to posts higher than that of the Assistant      Commissioner are  now retarded  by the  removal of  the      weightage."      This shows  how difficult  it is  to solve  the jig-saw puzzle of service disputes.      The Report of the ’Committee on Petitions’ of the Rajya Sabha, howsoever sincerely motivated and fully drawn, cannot be given the 843 importance which  the promotes  seem to  attach to it. It is urged that  the findings  of  the  Committee  are  authentic because the  Finance Ministry  had made  the relevant  files available to it. We do not think that this argument is well- founded. In  paragraph 16  of its Report, the Committee does refer to  certain files  but those  files appear  to contain some noting  in regard  to the  direct recruitment only. The Committee has  given a  table of comparative appointments in paragraph 19  of its  Report, but  it had to speculate on an important aspect  of the  matter, as  is shown  by  its  own language, that the table shows the number of direct recruits which the  Government wanted  to take  and " on the basis of which  the   promotes  must  have  been  given  promotions". (emphasis supplied).  If  indeed  the  relevant  files  were produced before  the Committee,  it would not have expressed its  sense   of  deep   shock  and   resentment  at   the  - disappearance of  the files.  We share  the concern  of  the Committee which  is expressed  in paragraph 32 of its Report thus .           "It is  strange that many of the files which could      probably have  thrown light  on the  question of excess      promotion, are  reported ‘missing’  or ‘not available’.

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    The conclusion  is inescapable  that  these  losses  of      files are  far  from  being  accidental.  We  can  only      conclude that  important information  was  deliberately      withheld from  the Supreme  Court as  well as  from the      Committee. Had the Committee been allowed access to the      file relating to the Seniority Rules framed in 1973, we      could have known some more facts". This shows that the Committee, too? had to grope in the dark and indulge  in a  certain amount  of speculation on matters under its  consideration. In  the circumstances, it has done as good  a job  as a  Committee can and we desire to find no fault with its Report. But we can- not accept the submission pressed upon  us by  the petitioners  that  the  Committee’s Report must displace our judgments.      It shall  have been  noticed that  we have  refused  to reconsider our  decisions not  so much  because of  the view taken in  the various  cases cited  by the learned Solicitor General, like  Sajja Singh  v. State  of Rajasthan,(l)  that this Court  should not  review its decisions too readily, as because,  on   merits,   we   see   no   justification   for reconsidering the  judgments already rendered by this Court. No fresh  facts  are  brought  to  our  notice,  by  way  of discovery of new and important evidence, which would justify reconsideration of  the decisions  already rendered  by this Court after the most careful examination of the competing 844 contentions. The  report of  the Rajya  Sabha  Committee  on Petitions shows,  as already  indicated, that  the  relevant files are still not traceable.      The petitions  are accordingly dismissed but there will be no order as to costs.      DESAI, J.-I  have carefully  gone through  the Judgment prepared by  My Lord  the Chief  Justice  but  I  regret  my inability to agree with the same.      The  history,   chronology   of   events,   contentions canvassed and the three decisions of this Court disposing of the contentions have been so succinctly drawn up in the main judgment  that  its  repetition  would  merely  be  an  idle formality. I  would, therefore,  straightaway deal  with the points raised in these petitions.      The petitioners  who are  promote Income  Tax  officers Class I,  Grade II,  pray for  reconsideration of  the three decisions specifically  S.G. Jaisinghani v. Union of India & O.r.s.. Bishan  Satup Gupta  v. Union  of India & o.r.s..(2) (’1st Gupta  case’ for  short) and,  Bishan Sarup Gupta etc. etc. v.  Union of  India &  ors. etc.  etc. (13) (’2nd Gupta case’ for short), and to the extent the first mentioned case is relied  upon in  Union of  India etc. v. Malji Jangamayya etc.,(4) on the following grounds;      1.    The  conclusion that  rule 4  of the  Income  Tax           officers (Class  l, Grade  II) Service Recruitment           Rules  is  statutory  and,  therefore,  the  quota           prescribed  by   the  Government   of  India   for           recruitment to  Income Tax officers Class I, Grade           II in  exercise of  the power  conferred by rule 4           would be  statutory, proceeds on an assumption not           warranted by  the provisions of law bearing on the           point and  if both rule 4 and the quota presumably           prescribed in  exercise of  the power conferred by           rule  4   are  not  shown  to  be  statutory,  the           foundation on  which the  edifice in Jaisinghani’s           case rests  is  knocked  out  because  it  can  be           demonstrably established  that neither  rule 4 nor           the quota  prescribed there under was statutory in           character  but   was  at  best  an  administrative

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         instruction. 845      2.    After the Court on an interpretation of the quota           rule  A   held  that  the  quota  was  related  to           vacancies arising  in the  grade every  year,  the           conclusion reached did not conform to this finding           but accommodated  the  so  called  inability  (now           shown to be factually incorrect) of the Government           of India  to give  information to  the Court about           the vacancies  in the  grade every  year with  the           result that the whole calculation of spill over is           vitiated.      3.    The  mandamus issued  in Jaisinghani’s  case  was           minister pretend by the Government because even if           the quota  was statutory  it  was  operative  only           between  1951   and  1956   but   the   Government           interpreted the  mandamus to  be operative  beyond           1956 and  upto 1967  which  misinterpretation  has           been pointed out in the first Gupta case.      4.    In  the 1st  Gupta case  while holding  that  the           mandamus directing to treat the quota as statutory           beyond 1956 was not justified yet till January 16,           1959, the Court itself in- , directly accepted the           quota rule  as a  guideline and treated that there           was a spill over of 73 promotes. If rule 4 was not           statutory and consequently the quota prescribed in           exercise of  the  power  which  had  outlived  its           prescribed span  of life  in  1956  could  not  be           brought in  to treat any appointment as invalid on           the ground  that there  was no  allocated post for           those appointees  treated as  spill  over  because           under rule  4 itself  the Government  had power to           determine the method or methods to be employed for           the purpose  of filling in particular vacancies or           such vacancies  as may be required to be filled in           during any  particular period  and the  number  of           candidates to be recruited by each method.      5.    The  action of  the Government  in upgrading  214           posts between  1959 and  1962 from Class II, Grade           III to  Class I. Grade II was not open to question           as at  that stage there was no quota rule and rule           4 enabled  the Government to make recruitment from           either of  the two  sources  in  exercise  of  its           executive power.  In upholding the seniority rules           in 2nd  Gupta case the Court introduced quota rule           retrospectively  by   the  back   door  which   is           impermissible   and   its   operation   manifestly           establishes its  utter unfairness  inasmuch  as  a           direct recruit  not any where in the Department or           may be a student may secure a march over a promote           who has been working in Class 1, Grade II. 846      While no  doubt this  Court has constitutional power to review its decision, it is a power to be sparingly exercised because  any  such  review  has  the  tendency  to  unsettle questions which  may have  been finally determined. In fact, learned Solicitor-General  appearing for  the Union of India warned us  that the credibility of this Court is at stake if it goes  on re-opening and reviewing propositions which have been finally  determined by this Court. Whose credibility is at  stake   would  be  presently  pointed  out  because  the examination of  this ugly  aspect could  have been spared if such  a   contention  was   not  canvassed.  Repeatedly  the Government of  India kept  back  material  from  this  Court filing affidavit  after affidavit  showing its  inability to

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provide such  important information on which the decision of the Court  would turn even though it can now be demonstrably established that such mate rial and information was with the Government. If the Government of India Had not withheld such material  information’   which  has  been  rather  adversely commented upon  not by the Court but by the Legislature, the credibility of  the department  would be  exposed. Reference may be  made in  this  connection  to  the  49th  Report  of Committee on  Petitions presented  on January  9,  1976,  to Rajya Sabha  Secretariat, set  up to  dispose of  a petition filed by  one R.C.  Pandey,  General  Secretary,  All  India Federation of  Income Tax  Gazetted  Services  Associations, praying for  repeal of  the Income  Tax  officers  (Class  I Service) (Regulation  of Seniority) Rules, 1973, and for the framing of  fresh seniority  rules in  lieu  thereof.  While disposing of this petition, the observation pertinent to the point under discussion may be extracted:           "The Committee  is shocked at the pleas of loss of      vital records  taken by the administration. In response      to the committee’s requests relating to important files      the  administration  has  taken  a  similar  plea.  The      Committee asked  for a  file which  could possibly show      the correct position on the question whether the 80: 20      quota during  the period  1945-50 was really operative.      The file is reported missing. Another file reported mis      sing is that relating to the framing of the recruitment      rules, 1945.  The file  relating to  Shri  R.C.  Dutt’s      affidavit (filed  in Jaisinghani’s  case) is  also  not      available. Even  the very  recent file  relating to the      framing of  Seniority Rules,  1970, is reported as ’not      available’. On  our insistence  they  have  produced  a      thick sheaf  of papers said to be ’reconstructed file’.      It is  strange that  many  of  the  files  which  could      probably have  that own light on the question of excess      promotion, are  reported ’missing’  or ’not available’.      The conclusion  is Inescapable  that  these  losses  of      files are far from being accident. We can only 847      conclude that  important information  was  deliberately      withheld   from the  Supreme Court  as well as from the      Committee".                                          (emphasis supplied) On these  observations the  credibility submission would not only stand  squarely answered,  but need  not deter  us from going into the points made in these petitions.      However, this  Court does  not lightly undertake review of its  decisions, more  especially where conflicting claims have been  settled by  a decision of the Court and the whole gamut  may   have  to  be  gone  through  over  again  on  a reconsideration of  the decision.  The approach of the Court on a  plea of  reconsideration has  been spelt  out in Sajan Singh  v.   State  of   Rajasthan,(l)  where   a  plea   for reconsideration of the decision of this Court in Sri Sankari Prasad Singh  Deo v. Union of India & State of Bihar,(2) was repelled observing as under:           "It was,  however,  urged  before  us  during  the      course of  the hearing  of these writ petitions that we      should reconsider  the matter  and review  our  earlier      decision in  Sankari Prasad’s case. It is true that the      Constitution does  not place  any  restriction  on  our      powers to  review our  earlier  decisions  or  even  to      depart from  them and  there can  be no  doubt that  in      matters relating  to  the  decision  of  constitutional      points  which   have  a   significant  impact   on  the      fundamental rights of citizens, we would be prepared to

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    review our  earlier decisions in the interest of public      good. The  doctrine of stare decisions may not strictly      apply in  this context  and  no  one  can  dispute  the      position that the said doctrine should not be permitted      to perpetuate  erroneous decisions  pronounced by  this      Court to the detriment of general welfare. Even so, the      normal principle  that  judgments  pronounced  by  this      Court would  be final,  cannot be  ignored  and  unless      considerations  of   a   substantial   and   compelling      character make it necessary to do so, we should be slow      to doubt  the correctness  of previous  decisions or to      depart from them". G Similarly, in  the Keshav  Mills Co. Ltd. v. Commissioner of Income  Tax   Bombay  North,(3)   it  was  held  that  while exercising inherent  power  to  reconsider  and  review  its earlier decisions  this Court would naturally like to impose certain reasonable limitations and would be reluctant 848 to entertain  plea for  reconsideration and  review  of  its earlier decisions,  unless it  is satisfied  that there  are compelling and  substantial reasons  to do so. It is general judicial  experience   that  in  matters  of  law  involving questions  of   construing   statutory   or   constitutional provisions, two views are often reasonably possible and when judicial approach  has to  make a  choice  between  the  two reasonably possible views, the process of decision-making is often very  difficult and  delicate. In  deciding whether  a review is necessary when two views are possible it would not necessarily be  an  adequate  reason  for  such  review  and revision  to   hold  that  though  the  earlier  view  is  a reasonably possible  view, the  alternative  view  which  is pressed on  the subsequent  occasion is more reasonable. The Court’s discretion  should be  guided by  such consideration whether in  the interest  of public  good or  for any  other valid or compulsive reasons it is necessary that the earlier decision should  be revised.  This view  was re-affirmed  in Manganese  Ore   (India)  Ltd.  v.  The  Regional  Assistant Commissioner of Sales Tax, Jabalpur.(l)      Bearing these  principles in  mind, it  is necessary to examine whether  a case  for reconsideration  of  the  three earlier decisions is made out by the petitioners or not.      Jaisinghani’s case proceeds on a concession that rule 4 and the  quota prescribed by the Government referable to the power conferred  by rule 4 were statutory in character. This is borne  out by  the observation  of the Court which may be extracted:           "It is  not disputed that rule 4 of the Income Tax      officers, Class  I, Grade  II Service Recruitment Rules      is a  statutory rule and there is a statutory duty cast      on the  Government under  ’ this  Rule to determine the      method or  methods to  be employed  for the  purpose of      filling the  vacancies or  number of  candidates to  be      recruited by each method".      Income Tax  Service was  reconstituted on September 29, 1944 The  Government of India classified the existing Income Tax Service as Class I and Class II. The scheme provided for recruitment of  Income Tax officers Class I, Grade II partly by promotion  and partly  by direct  recruitment. The scheme was set  out in  the Government of India, Finance Department (Central Revenues)  letter dated  September  29,  1944.  The quota prescribed therein has undergone a revision at a later date. It  thus appears  that the rules were pre-constitution Rules and,  therefore, their  source must  be traced  to the Government of  India  Act,  1935  (’1935  Act’  for  short). Section 241 of the.

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849 1935 Act  made provision  for recruitment  and conditions of service. A  bare perusal  of the section would show that the power to  make  appointments  in  the  case  of  service  of Federation and  posts in  connection with the affairs of the Federation was  conferred on  the Governor-General  or  such person as  he may  direct. The  power to  make rules in this behalf was  conferred by  sub-s. (2) on the Governor-General or by  some person  or persons  authorized by  the Governor- General to Make the rules for the purpose. On an examination of the  rules under  discussion no  material was  placed  on record to  show that  the rules  were  made  either  by  the Governor-General or  such person  as authorized  by him.  As pointed out  a little  while ago, the rules were made by the Finance Department  and no  material was placed to show that the person or the persons who made the rules were authorized by the  Governor-General under  s. 241(2) of the 1935 Act in this behalf.  The assumption made, therefore, that rule 4 of the Rules  was statutory  and that  the quota  prescribed in exercise of the power conferred by rule 4 must be statutory, is ill-  founded. This  knocks out  the entire foundation of the judgment  of this  Court in  Jaisinghani’s case  because this Court proceeded to hold that as the quota was statutory any recruitment  made in  excess of  the quota  in any given year would  be invalid  and at  best can  be regularized  by relegating such  excess appointments to the quota next year. If rule  4 and the quota referable to the power conferred by rule  4   were  not  statutory  but  were  merely  executive instructions, its violation would not render any appointment in excess  of it invalid, but at best would be irregular and in this  case on a plain reading of rule 4 it would not even be irregular.      In P.C.  Sethi &  Ors. v.  Union of  India & Ors., this Court held that in the absence of any statutory rules it was open to the Government in exercise of its executive power to issue   administrative    instructions   with    regard   to constitution and  reorganization of service as long as there is no  violation of  Articles 14 and 16 of the Constitution. If the  parent rule  4 enables  the Government  to prescribe method to  be employed  for the  purpose of  filling in  any particular vacancy  {. Or  such vacancies as may be required to be  filled in during any particular period and the number of candidates  to be  recruited by each method and if the so called quota  is not  statutory but  merely a guideline, the Government whenever  making appointment  would be  acting in exercise of power conferred by rule 4 which leaves it to the discretion of  the Government  to decide  from  what  source recruitment should  be made  and what must be the quantum of vacancies that  must be  filled in  at a given point of time and such appointment could not be said Hi to be invalid. 850      Alternatively,  even   if  the   assumption   made   in Jaisinghi’s case  that rule 4 and the quota referable to the exercise of  power conferred by rule 4 is unquestionable yet when this  Court held  that the  quota  is  related  to  the vacancies, the decision proceeding on an incorrect plea that the information  about the  number of vacancies in a year is not available, is unsustainable for two reasons, namely, (I) that the  files are  now produced; and (2) in the absence of information about  the vacancies  available the  Court could not have  invalidated any appointment on the assumption that appointment from the source of promotes was in excess of the quota. On  a plain  reading of  rules 3,  4 and S it appears crystal clear that the quota was related to vacancies and at one stage that was accepted. On this finding unless the fact

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situation is  clearly established  showing vacancies year to year it  would be  impossible to hold that in any year there was in  excess in  either  source.  Suppose  there  were  90 vacancies in  a year  and the  quota was  66-2/3 for  direct recruits and  33-1/3 for  promotes, it  would be open to the Government to  promote 30  persons irrespective  of the fact whether 60 direct recruits have become available or not. The assumption made  that the  recruitment made  in a given year from both  the sources  would furnish  information about the vacancies in a year would lead to a rather unfair conclusion inasmuch as  the action  of the  Government in  acting in  a certain manner  without due  regard to  the quota rule would work  hardship  on  appointees  even  though  on  a  correct calculation of  vacancies the  appointments may be valid and legal.      The mandamus issued in Jaisinghani’s case was as under:           "We are  accordingly of  the opinion that promotes      from class  II, grade  III to class I, grade II service      in excess  of the  prescribed quotas  for each  of  the      years 1951  to 1956  and on  wards have  been illegally      promoted and the appellant is entitled to a writ in the      nature of  mandamus commanding  respondents 1  to 3  to      adjust  the   seniority  of  the  appellant  and  other      officers similarly  placed like  him and  to prepare  a      fresh seniority  list  in  accordance  with  law  after      adjusting the  recruitment for  the period 1951 to 1956      and  onwards   in  accordance   with  the   quota  rule      prescribed in the letter of the Government of India No.      F. 24(2)-Admn.  I.T./51 dated  October  18,  1951.  We,      however, wish to make it clear that this order will not      affect such  class II  officers who have been appointed      permanently as  Assistant Commissioners  of Income-Tax.      But  this  order  will  apply  to  all  other  officers      including those who have been ap- 851      pointed   Assistant   Commissioners   of   Income   Tax      provisionally  pursuant  to  the  orders  of  the  High      Court".      The Government  understood the mandamus as covering the whole period  from 1951 to 1967. When this was questioned in the 1st  Gupta case,  this Court  held that  the quota  rule Proprio vigor  operated between  1951 to  1956 and  if there were promotions  in any  year in  excess of  the quota those promotions were  merely invalid  for that year but they were not invalid  for all  time and  they could be regularized by being  absorbed  in  the  quota  for  the  later  years.  So adjusting the quota at any rate upto 1956, the quota rule on its  own  strength  evaporated  because  it  was  to  be  in operation for a period of five years and no fresh quota rule was issued  by the  Government. Therefore, after 1956 rule 4 remained in force in all its rigour and was not hedged in by any  quota.   Rule  4   permitted  the  Government  to  make recruitment  from   either  source   without  lettering  its discretion by  any quota  rule which  it was  not  bound  to prescribe. On  January 16,  1959, Government in the ministry of Finance informed the commissioners of Income tax that the President had   sanctioned  the upgrading  to class I of 100 temporary  Posts  of  Income  Tax  officers,  Class  II.  On December 19,  1960, there was further upgrading of 114 posts from class  II to  class I.  Between 1959 and 1962 these 214 posts were filled in by promotes. Now, in the Ist Gupta case this court  held that  even though the quota rule expired in 1956, yet the Government of India adopted it as a guideline. May be, it  may be so. Does any appointment in breach of the guideline neither statutory nor even having the fragrance of

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any executive  instruction become  invalid more  so when the Government had  power to make appointment from either source uninhibited by  any quota  rule under rule 4 ? Yet the Court found that  between 1956  and 1959 when 100 pasts came to be upgraded there  was a spillover of 73 persons and because of the huge departure from guidelines the weightage rule giving seniority to  the promotes  by 2- 3- years was crushed under its own  debris. Again,  with respect  it must  be confessed that rule 4 is overlooked or bypassed when saying that there was a  spillover of  73 promotes  between 1956 and 1959. Nor could it be said that the upgrading of 214 posts and filling them up  by promotes would be in any way even irregular much less invalid  because rule 4 enables Government to draw from either source.      In the  2nd Gupta  case in  view of the decision in 1st Gupta case  a fresh  seniority rule  was prepared and it was made retroactive  from 11  January 16,  1959. If,  the inter alia  provides  that  the  relative  seniority  amongst  the promotes and the direct recruits shall be in the ratio of 852 1: 1  and the  same shall  be so determined and regulated in accordance with  a roster  maintained for the purpose, which shall follow the following sequence, namely:      (a) Promote;      (b) direct recruit,      (c) Promote,      (d) direct recruits, and so on.      This method of roster undoubtedly introduces a quota by the back  door. Once  a roster  is introduced Promote direct recruit, Promote  direct recruit  etc. even if some promotes have come  in a  bulk and  if at  a later  date some  direct recruits are  appointed in  bulk, while  preparing roster an earlier date promote will have to yield his place to a later date direct  recruit. Bluntly  translated it  means that the direct recruit  who was  never in  service when  promote was promoted, probably  he may  be a  student. May be he may not have even  passed the  competitive examination,  yet he  may come into the picture and challenge one who has already been serving  in  the  Department  for  a  number  of  years.  To illustrate, in  the  new  seniority  list  prepared  by  the Government pursuant  to the  order made by this Court in the 1st Gupta  case and upheld by this Court in 2nd Gupta case a promote of  1962 will  have to  yield his  place to a direct recruit of  1966. With  utmost hesitation  I must  say  that service jurisprudence hardly permits a situation where a man not in  service comes  and challenges  some thing  which has been done much before he came in to service and gets such an advantage which  on the face of it appears to be unfair. But apart from  this, even  in 1959  there was no quota rule and assuming that  the old  service rule giving weightage to the promotes crushed  under  that  weight  of  large  number  of promotes being  promoted,  it  would  not  be  open  to  the Government to so prepare a fresh seniority list which cannot be given  effect to  unless a  roster  is  introduced  which introduces quota  by the back door and which is so unfair in its operation that promotes of 1962 will have to yield place to direct recruits of 1966. Now under the old weightage rule promotes were  given a  weightage for  service of  2-3 years over direct  recruits because direct recruits were unable to undertake regular  assessment work for a period of 2-3 years when they  were more  or less  under training while promotes have been  doing this  work for  a number of years and their experience is rejected in the weightage. The whole thing now appears in  the reverse  gear in  that an uninitiated direct recruit takes  precedence over  an experienced  promote. The

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unfairness of the new rule is writ large on the face of it. 853      This  rule   violates  another   important  rule   well recognised in  the service jurisprudence that in the absence of  any   valid  rule   of  seniority   date  of  continuous officiation provides a valid rule of seniority. This rule is completely crucified under two unsustainable assumption that a quota rule having guideline sanction is made imperative in character and  assumed to be in force between 1956 and 1959, and  that  even  though  Government  in  exercise  of  power conferred by  rule 4  for its  own  necessity  promoted  214 promotees to the upgraded posts yet they must yield place to some future  direct recruits  who may come to the department at a  later date.  This Court sustained the position holding that these  were ad  hoc appointments,  and  there  were  no regular posts  for those  promotees.  This  approach  wholly overlooks the effect and the force of rule 4.      Certainty and  continuity demand that this Court should not reopen  settled decisions  or  reopen  closed  questions unless under a compelling necessity. It may be that the fate of Income  Tax officers,  promotees and direct recruits, may rest with  the three  decisions of this Court. Unfairness to some of  them may  itself not  provide a good and compelling reason  for   reopening  and  reconsidering  the  decisions. Therefore, if that were the only point for our consideration I  would   have  unhesitatingly  agreed  with  the  decision rendered by  My Lord  the Chief  Justice.  But  there  is  a further compelling  necessity which  impels me  to pen these few lines.      Jaisinghani and  the two  Gupta cases  are being quoted times without  number before  this Court  for the principles enunciated  therein.   These  decisions,  therefore,  affect subsequent decisions  of this  Court as  well  as  the  High Courts. And some of the principles enunciated in these three cases stand  in sharp  contrast to  other decisions  of this Court and  in fact  this Court  itself felt  it necessary to warn  that  it  may  become  necessary  to  reconcile  these conflicting decisions.  In this  connection reference may be made to  N.K. Chauhan  and ors. v. State of Gujarat and ors. where this  Court after  referring to  two sets of decisions charting two different courses, observed as under:           "After all,  we live  in a  judicial system  where      earlier curial  wisdom, unless  competently over-ruled,      binds the  Court. The  decisions cited  before us start      with the  leading case  in Mervyn  Coutindo &  ors.  v.      Collector of  Customs, Bombay  and close  with the last      pronouncement in  Badami v.  State of  Mysore and  ors.      This time-span  has seen  dicta go zigzag but we see no      difficulty 854      in tracing a common thread of reasoning. However, there      are divergencies  in the  ratiocination between  Mervyn      Coutindo (supra)  and Govind  Dattatray Kelkar and ors.      v. Chief  Controller of  Imports and  Exports and ors.,      on the one hand and S. G. Jaisinghani v. Union of India      (supra) Bishan  Sarup Gupta  v. Union  of India (supra)      Union of  India and ors. v. Bishan Sarup Gupta , and A.      K. Subraman  and ors.  v. Union  of India on the other,      especially on  the  rota  system  and  the  year  being      regarded as a unit, that this Court may one day have to      harmonize the discordance unless Government wakes up to      the need  for properly drafting its service rules so as      to  eliminate   litigative  waste   of  its   servants’      energies".      It is  not for  a moment  suggested and  I say  so with

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utmost respect  that the  aforementioned three decisions are incorrect.  In   the  light  of  the  materials  now  placed especially the  files which were withheld from the Court and the Committee  the only  view that  I express is that enough compelling and  necessary material has been placed on record making out  a  strong  case  for  reconsideration  of  these decisions. Accordingly, in my view the present two petitions deserve to be placed before a larger Bench to be constituted by the Hon’ble Chief Justice of India.                            ORDER      In view  of the majority opinion the Writ Petitions are dismissed with no order as to costs. S.R.                                    Petitions dismissed. 855