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PETITIONER: UNION OF INDIA ETC.

       Vs.

RESPONDENT: MAJJI JANGAMAYYA ETC.(With connected Civil Appeals)

DATE OF JUDGMENT05/11/1976

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SINGH, JASWANT

CITATION:  1977 AIR  757            1977 SCR  (2)  28  1977 SCC  (1) 606  CITATOR INFO :  RF         1979 SC1060  (19)  RF         1980 SC2056  (59)  C&F        1991 SC 212  (1,2,3)

ACT:         Constitution of India 1950, Arts. 53, 313 and 366--Scope of             Government  of  India Act, 1935,  241--Scope  of--Office         Manual, 1955, Vol. II. r. 18--Whether statutory rule.

HEADNOTE:             The  Government  of India, in 1950, framed  a  rule  for         promotion   of  an Income Tax Officer as  Assistant  Commis-         sioner  and  it was published as rule 18 in Vol. I1  of  the         Office  Manual published in 1955.  The rule  provided   that         promotion shall be strictly on merit and that no one  should         ordinarily   be considered for promotion unless he has  com-         pleted at least ten years service as Income Tax Officer.  In         1957, a memorandum was issued by the Central Board of  Reve-         nue  containing  the following principles for  proration  of         Income Tax Officers Class I as Assistant Commissioners.         1. Greater emphasis should be laid on merit as a criterion.             2.  The  Departmental Promotion Committee  should  first         decide  the field of choice, namely, the number of  eligible         officers  awaiting  promotion who should be  considered  for         inclusion in the selection list.  An officer of  outstanding         merit may be included in the list even if he is outside  the         normal field of choice.             3.  The field of choice wherever possible should  extend         to 5 to 6 times the number of vacancies expected.             4.  From  among such officers those who  are  considered         unfit  for  promotion should be excluded and  the  remaining         should be classified as ’outstanding’ very good’ and  ’good’         on  the  basis of merit as determined  by  their  respective         records"  of  service.  The selection list  should  then  be         prepared  by placing the games in the order of  these  three         categories without disturbing the seniority inter se  within         each category.         5.  Promotions should strictly be made from  such  selection         list  in the order in which the names are finally  arranged.         The selection list should be periodically reviewed  removing         from  the list names of persons who have been  promoted  and

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       including fresh names.         On 16th August 1972 this Court set aside the seniority  list         in  the first Bishan Sarup Gupta case [1975] Supp.  SCR  491         and  gave  directions  for preparing a fresh  list.   On  21         December  1972,  the Government applied to  this  Court  for         making ad hoc promotions and the court permitted them to  do         so.Accordingly,  in March 1973 and November 1973  the  Board         promoted  59  and  48 Income Tax  Officers  respectively  as         Assistant   Commissioners.   It  was  distinctly  stated  in         those  two orders that the ad hoc appointments made  against         those  posts  were  provisional and  that  the  appointments         eventually  be  made on the basis of the  revised  seniority         list of Income Tax Officers Class I  as finally approved  by         this  Court, and on selection by a duly constituted  Depart-         mental Promotion Committee in accordance with the prescribed         procedure.In  February 1973, the Income Tax Officers  (Class         I) Service  (Regulation of Seniority) Rules, 1973, were made         and a revised seniority list of Income Tax Officers Class  I         was  made on the basis of those rules.  The list as well  as         the  Rules  were approved in the second Bishan  Sarup  Gupta         Case [1975] 1 SCR 104.  From such seniority list the Depart-         mental  Promotion  Committee made a selection list  in  July         1974,  for  proration of Income .Tax Officers, Class  I,  as         Assistant  Commissioners.  There were 112 vacancies and  the         Government sent 336 names in the running order of  seniority         for consideration of the field of         29         choice.  The Committee followed the instructions in the 1957         Memorandum an.d found 276 to be fit for the field of choice,         assessed  the merits of 145 persons in order  of  seniority,         found  one officer outstanding, 114 very good, and 7  Sched-         uled Castes/Tribes officers good, according to the  instruc-         tions.   The Selection list was challenged in  various  High         Courts.  Two of the High Courts held in favour of the  peti-         tioners and the other High Courts gave interim orders  stay-         ing the operation of the Selection List.             In  appeals  by the Union of India to  this  Court,  the         respondents sought to support the judgments in their  favour         on the following contentions :--             (1)  The  requirement  in the rule  regarding  10  years         experience was not abrogated as contended by the  Government         and  the  affidavits  field in the  various  proceedings  on         behalf of the Union as well as the petitioners show that the         10 year rule was in force and was followed             (2) Rule 18 has the force of law under the Government of         India Act, 1935, and hence is existing law within the  mean-         ing of Art. 366(10) of the Constitution and also because  it         was incorporated in the Office Manual issued by the  Govern-         ment of India in exercise of its executive power under  Art.         53.             (3) The rule constitutes one of the conditions of  serv-         ice and, therefore, should be followed.             (4) The rule imposes an obligation on the Union  Govern-         ment  to  Consider ’ordinarily’ only Officers of  ten  years         service,  but the selection list was  prepared in  violation         of  the  rule in that officers of 8  years  experience  were         considered.             (5) The selection has been made in complete violation of         the  principles  set  out in the  1957--memorandum  and  was         entirely arbitrary.             (6) The promotion should be considered as on 21 December         1972  when the-Government applied to this Court for  permis-         sion to make ad hoc appointments, and on the two dates  when         the Government actually made 107 (59-1-48) ad hoc promotions         and  it Was the duty of the Committee to regularise the  107

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       promotions  as from the dates of the original promotion  and         to  consider the eligibility of an officer for promotion  as         on those dates, and this not having been done. the selection         list  was illegal being contrary to the observations in  the         first Bishan Sarup Gupta’s case.             Rejecting these contentions of the respondents, allowing         the  appeals,  and upholding the Selection List,             HELD:  (1)(a) The requirement Of 10 years experience  in         r.  18 was modified to 8 years experience.  The  correspond-         ence between the Finance Ministry and Home Ministry and  the         U.P.S.C.  shows that there was concurrence with the  change.         The High Court was in err, or when it said that the require-         ment  of  8 years experience must first be included  in  the         appropriate  recruitment rules and that until that was  done         10 years experience  held  the  field.  8  years  experience         as  a working rule for promotion was publicly  announced  by         the  Minister in  Parliament.  Administrative   instructions         are  followed  as  a guide line on the  basis  of  executive         policy.  The requirement of 8 years was followed as a guide-         line  in practice in 1968, 1970 and 1972.   The  requirement         was thus not only modified but was given effect to.  [39F]             (b) The High Court was in error in treating the  affida-         vit  evidence  of  an officer of the  Government,  in  other         proceedings,  as a statement of fact that the 8  years  rule         had  not been introduced.  This affidavit evidence  is  torn         out  of  context and is misread by the  High  Court  without         going  into  the  question as to whether  such  evidence  is         admissible.   The entire affidavit evidence as well  as  the         submissions  made  on behalf of the  ’Union  Government   is         that  the requirement of 10 years experience is replaced  by         one  of 8 years.  It is a question of construction  of.  the         correspondence as to whether the 10 years rule was  replaced         by  8  years rule.  The fact that no rules  under  Art.  309         were         30         framed  does  not detract from the  position  that  previous         administrative instruction of 10 years experience was  modi-         fied  to  8 years experience.  The  various  affidavits  and         documents show that the consistent position on behalf of the         Union  has  always  been that the requirement  of  10  years         experience was modified to one of 8 years.  [41H; 42A-B]         (2) The rule is not a statutory rule.  [42D]             (a) The contention that because Government of India  has         authority  to frame rules the letter of 16th January 1950 in         which the rule was  framed should, therefore, be treated  as         a  formal’  rule is erroneous since there is  a  distinction         between  statutory orders and  administrative   instructions         of   the  Government.  The change was recorded by  means  of         correspondence  as an administrative instruction.   ’In  the         absence of statutory rules, executive orders or  administra-         tive instruction may be made.  [42E-F]             Commissioner of Income Tax Gujarat v. A. Raman &  Compa-         ny. [1968] 1 S.C.R. 10, referred to.             (b) The letter of 16th January 1950 written by an  Under         Secretary in the Ministry of Finance does not prove that  it         is a rule made by the  Governor General or any person autho-         rised  by  him under s. 241(2),  Government  of  India  Act,         1935.  Furthermore, there is no basis for any authentication         under s. 17 of the 1935 Act in the letter.  [42G]             (c)  In  the preface to the Office Manual  published  in         1955 it is specifically stated that Vol. I contains statuto-         ry  rules and Vol. II, in which r. 18 occurs, contains  only         administrative instructions.  [42G]         S.C.  Jaisinghani v. Union of India & ors. [1967]  2  S.C.R.         70, referred to.

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           (d)  Article  313  refers to laws in  force  which  mean         statutory  laws.  An administrative instruction or order  is         not  a statutory rule or law.  The  administrative  instruc-         tions  can be changed by the Government by reason  of   Art.         63(1).  Article 313 does not change the legal character of a         document. [43B]             (3)  The  High Court erred in holding that the  10  year         rule  is a condition of service.  The word  "ordinarily"  in         the rule does not impose an obligation on the Government not         to  consider any Income Tax Officer with less than 10  years         experience,  for  promotion.  The rule on the  face  of  it,         confers  a discretion on the authorities to consider  Income         Tax Officers of lesser years experience if the circumstances         so  require, and whether such circumstances exist should  be         left  to the decision of the authorities.  Even the  Central         Board of Revenue, in a letter written a few months after the         rule  was  framed, stated that the insistence of  a  minimum         period  of  experience cannot be regarded as  affecting  the         conditions  of service.  In that letter. it was stated  that         the  requirement  of  10 years  experience  is  sufficiently         elastic  and all Income Tax Officers with more than 9  years         experience  could  also be considered for  promotion.   This         letter  was referred to by this Court in Union of  India  v.         Vasant Jayarama Karnik [1970] 3 SCC 65.  [43C-F]             (4) It cannot be said that there is a deviation from the         requirement  of 10 years experience in preparing the  Selec-         tion list.  That requirement was modified to one of 8  years         experience.   The expression ’ordinarily’ in the rule  shows         that there can be deviation and such deviation can be justi-         fied by reasons. Administrative instructions if not  carried         into effect for good reasons, cannot confer a right.  [43G]         P.C.  Sethi & ors. v. Union of India & Ors. [1975] 3  S.C.R.         201, referred to.         (5) The facts and circumstances in the present case  merited         the exercise of discretion which was bona fide exercised  by         determining the field of choice and from 1963, the field  of         choice has always been in a  running  order  of seniority.         31         (a)  There were, in the present case,112 vacancies  and   10         anticipated vacancies and the Departmental Promotion Commit-         tee  was to make a panel of 122 officers.  If the  field  of         choice has to be prepared on the basis of running  seniority         and if 10 years experience had been adhered to, there  would         not  have been more than 95 officers in the field of  choice         although  the number of vacancies was 122.  This fact  alone         entitled  the  authorities to deviate from the  rule  of  10         years experience.  [44E-F]             (b) The requirement of 10 years experience could not  be         given  effect  to also because in the  second  Bishan  Sarup         Gupta case, this Court had directed that the two classes  of         Income Tax Officers, direct recruits  and  promotees, should         first  be fully integrated before determining inter se  sen-         iority.   The expression ’ordinarily’ would hardly apply  to         such a changed situation without destroying the integration.         If  the respondents’ contention that  the  field  of  choice         shall  be  restricted to 10 years experience  only  and  the         field  of   choice  should have been at least  5  times  the         number  of vacancies the result would have been that out  of         560  persons in the field of choice 474 persons  would  have         been  promotees and only 86 persons would have  been  direct         recruits and 429 senior officers, who were direct  recruits,         would have been ignored.  That obviously would be unjust and         unfair  and also contrary to the decision of this  Court  in         the second Bishan Sarup Gupta’s case.  [47BC]             (c)  As a result of administrative instructions  issued,

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       at least since 1963, for promotion of Income Tax Officers as         Assistant  Commissioners, the administrative practice is  to         take the field of choice generally of 3 times the number  of         vacancies.  The evidence shows that in the circumstances  of         this  case,  it was not possible to have 5 or  6  times  the         number of vacancies in the field of choice. [46E]         (d) The High Court was wrong in holding that in the field of         choice, the evaluation o{ merit of persons was not  properly         done.  The 1957-Memorandum requires that the field of choice         is  based on running seniority and evaluation of merit  does         not  come  into picture for deciding the  field  of  choice.         The  question of merit comes in only in the  preparation  of         the  selection  list. Seniority is the  sole  criterion  for         determining the field of choice and merit is the sole crite-         rion for putting the officers in the Selection list.  [46G]             In present case, the instructions in the   1957-memoran-         dum  were  strictly followed.             (e)  The  7  Scheduled Caste/Tribes  officers  were  not         entitled to  a  grade higher than the grade assessed by  the         Committee, because, the Home Ministry instructions,  regard-         ing  concessions to Scheduled Castes and Tribes  applied  in         the case of promotions from Class III to Class II and within         Class  II and from Class II to the lowest rank of  Class  I,         but had no application in respect  of promotion within Class         I.  [47E]             (f) After 122 senior officers were assessed and 114 were         found  to  be ’very good’, they could not be  supplanted  by         other who were also ’very good’.  Only ’outstanding’ persons         who  would be junior to the 122 could surpass  them.  There-         fore,  the  Committee rightly considered the  cases  of  the         officers  remaining out of the 276 only to find out  whether         there was any one  ’outstanding"  as it would be a fruitless         exercise to find out who among them was ’very good’.                                                              [48B]             (g) The contention of the respondents that the  officers         remaining out of the 336 sent up, were not at all considered         by the Committee is not also acceptable.  When the Committee         found, according to running seniority, that certain  persons         beyond  a  certain  number  could not be  in  the  field  of         choice,  the Committee did not put the names in the field of         choice.  The question of the evaluation of their merits  did         not, therefore, arise.  It is wrong to hold that because the         Government  sent  the  names of 336 persons  the  field   of         choice  consisted  of all 336 persons.  The field is  to  be         determined  by the Committee and the Committee rightly  con-         sidered 276 names as fit to be included.  [48F]         32             (h)  There is no substance in the contention that  4  of         the officers had less than 8 years experience, because, they         were ex-military officers  recruited by virtue of a  notifi-         cation of the Ministry of Home Affairs.  [49B-C]             (i)  The contention that after putting the  officers  in         the  three  categories they should further be  evaluated  on         merit  inter  se  within each category is  contrary  to  the         specific  provision  of the  1957-memorandum,  and  further,         there could not be any further intra-specific assessment  of         those who are  already considered to be "very good".  [49D]             (6) The date for determining the eligibility of officers         has  nothing to do with the dates on which ad  hoc  appoint-         ments were permitted and ad hoe appointments were, in  fact,         made.   The observations Of this Court in the  first  Bishan         Sarup  Gupta  case,  are that if as a result  of  the  fresh         seniority  list, it is found that any officer  was  eligible         for  promotion on account of his place in the new  seniority         list,  the Committee might have to consider his case  as  on

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       the  date  when  he ought to have been  considered  and  his         position adjusted in the seniority list of Assistant Commis-         sioners.   The observations did not mean that  although  the         Committee can meet only after the seniority list is approved         by  this Court, the selection would be deemed to be made  at         the time when a vacancy in the post occurred and the  eligi-         bility  of  officers for seleCtiOn should be  determined  by         such deemed date of selection.  No employee has any right to         a vacancy in the higher post as soon as the vacancy  occurs.         The Government has a right to keep it unfilled as long as it         chooses.  The seniority list which is a basis for the  field         of  choice for promotion was approved by this Court on  16th         April  1964 in the second Bishan Sarup Gupta  case.   Promo-         tions  to  the post of Assistant Commissioners  are  on  the         basis  of the Selection List prepared by the  Committee  and         are to be made prospectively and not retrospectively.                                                           [51 C-D]

JUDGMENT:             CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No.  1837         of 1974.             Appeal  by  Special Leave from the  Judgment  and  Order         dated 4-9-74 of the Calcutta High in Civil Rule No. 5547 (N)         of 1974.         Civil Appeals Nos. 1838-1842/74         Appeals by Special Leave from the Judgments and Orders dated         18-9-74,  29-7-74,  9-8-74,  of  the  Allahabad  High  Court         (Lucknow  Bench) in Civil Writ Nos. 4398, 400, 4397 of  1974         and  C.W.A. 3344/74 and W.P. No. 947/74.         Civil Appeal No. 485/75             Appeal  by  Special Leave from the  Judgment  and  Order         dated  24-10-74  of  the Gujarat High Court  in  L.P.A.  No.         208/74.         Civil Appeal No. 1246/75             Appeal  by  Special Leave from the  Judgment  and  Order         dated  1-4-75 of the Andhra Pradesh High Court in  W.A.  No.         900/75.         Civil Appeal No. 2041/74             Appeal  by  Special Leave from the  Judgment  and  Order         dated  15-10-74  of  the Gujarat High Court  in  L.P.A.  No.         205/74.             Niren  De, Attorney General for India (In  all  appeals)         Devakinandan.  (In a11 appeals) P.P. Rao (In C. As.  1245/75         and  C.A. 2041/74), R.N. Sachthey for the appellants in CAs.         1837-42 of 74, 1246/75 and 2041/74 and R. 2 in C. As.  1839,         1840/74 and RR. 1 and 2 in C.A. 485/75.         33             A.K. Sen, (In CA 1837/74), I. N. Haldar (In CA 1837/74),         K.K. Singhvi (In CA 2041/74),  Yogeshwar Prasad;  S.K. Bagga         and  (Mrs.)  S. Bagga for RR. 1, 3, 7, 11, 12 and 14  in  CA         1837/74 and R. 1 in CA Nos. 1839-1841/74 and 2041./74 and RR         2 and 3 in CA.   No. 1246/75.              Yogeshwar Prasad and (Miss) Rani Arora for R. 1 in C.A.         1838 74.         Yogeshwar Prasadand (Miss) Rani Arora for R. 1 in C.A. 1842/         74.             Ram Panjwani, Bishamber Lal, S.K. Gupta and   Dayal  for         Appellant in CA. 485/75 and RR 5, 6 and 7 in CA 2041/74  for         the   Interverners  in  CA  1838,  1841,  2041/74   and   CA         No..1246/75.         The Judgment of the Court was delivered by             Ray,  C.J.--The  principal question in these  appeal  is         whether  the  selection  list for promotion  of  Income  Tax

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       Officers Class Service to the post of Assistant  Commission-         ers of Income Tax   is correct or not.             The  selection  list was prepared  by  the  Departmental         Promotion Committee on 23, 24 and 25 July, 1974.             It may be stated here that on 16 August 1972 this  Court         set  aside  the Seniority List which had  been  impugned  in         Civil  Appeal   No. 2060(N) of 1971 and gave  directions  on         which  the Seniority  List was to be prepared.  (See  Bishan         Sarup Gupta v. Union of India(1).             This  selection  list was prepared on the basis  of  the         seniority  list approved by this Court on 16 April, 1974  in         Bishan Sarup  Gupta etc. etc. v. Union of India & Ors.  etc.         (2).            The basis of the preparation of the selection list is the         field   of choice.   The principles for promotion to  selec-         tion  posts  are set out in a Memorandum dated 16  May  1957         issued by the Central Board of Revenue.   The principles are         these:  First, greater   emphasis should be placed on  merit         as  criterion  for promotion.    Appointments  to  selection         posts  and selection grades should be made on the  basis  of         merit having regard to seniority only to the extent indicat-         ed  there  Second, the Departmental Promotion  Committee  or         other  selecting authority should first decide the field  of         choice,  namely,  the number of eligible  officers  awaiting         promotion  who  should be considered for  inclusion  in  the         selection  list  provided,  however, that  an  officer    of         outstanding  merit may be included in the list  of  eligible         persons  even if he is outside the normal field  of  choice.         Third,  the field of choice wherever possible should  extend         to five or six times the number of vacancies expected within         a  year.   Fourth, from among such officers  those  who  are         considered  unfit for promotion should be  excluded.The  re-         maining  officers  should be  classified  as  "outstanding",         "very  good" and "good" on the basis of merit as  determined         by  their respective records of service.The  selection  list         should then be pre-         (1)[1975]Supp.S.C.R.491        (2) [1975] 1 S.C.R. 104.         4--1458SCI/76         34         pared  by  placing  the names in the order  of  these  three         categories without disturbing the seniority inter se  within         each  category.  Fifth, promotions should strictly  be  made         from the selection list in   the order in which their  names         are finally arranged.  The selection list should be periodi-         cally  reviewed.    The  names of those  officers  who  have         already been promoted otherwise than on a ’local or   purely         temporary basis and continue to officiate should be  removed         from  the list and the rest of the names along  with  others         who  may  now be included in the field of choice  should  be         considered for the selection list for the subsequent period.             Several persons, mainly promotees from Class II to Class         I    as  Income Tax Officers challenged  in  writ  petitions         field  before  several High Courts the  correctness  of  the         field of choice so determined by the Departmental  Promotion         Committee  hereinafter referred to  as the Committee on  the         basis  of which the said selection list was prepared.    The         Gujarat  and the Andhra Pradesh High Courts delivered  judg-         ments.    The other High Courts gave interim orders  staying         the operation of the selection list.   There are two appeals         by  special leave from the judgments of the Gujarat and  the         Andhra  Pradesh  High Courts.   There are  also  appeals  by         special  leave from   the interim orders of the High  Courts         because the questions involved are the same.             There  were 112 vacancies of  Assistant   Commissioners.         The Government of India sent 336 names in the running  order

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       of seniority for consideration of the field of choice.   Out         of  those   336 names the Committee took 276  names  in  the         running order of seniority.             The principal question for consideration is whether  the         field of choice determined by the Committee on the basis  of         which   the Committee prepared the selection list is correct         or not.             The  Gujarat High Court held that the requirement of  10         years’ experience as Income Tax Officer for promotion to the         post  of Assistant Commissioner as laid down in the  Govern-         ment  of India letter No. C. 33(17) Admn. I.I./49  dated  16         January  1950 prevailed while the Committee  determined  the         field  of choice and this requirement was violated   because         the  Committee  considered  persons  with  8 years’  experi-         ence  for the field of choice.  The High Court further  held         that even if the requirement of 10 years’ experience was not         a statutory rule the requirement was to be complied with  in         determining  the  field of choice unless  people  with  such         experience were not available in the seniority list of Class         I Income Tax Officers.  What the High Court said was that if         such people with 10 years’ experience were available in  the         seniority list only such people should be considered in  the         field of choice ignoring those in the seniority list who are         senior to such persons but have less than 10 years’  experi-         ence as Income Tax Officers.  The second reason given by the         High Court for holding the selection list to be incorrect is         that under the letter dated 16 May 1957 the field of  choice         should have been 5 times the number of vacancies whereas the         actual  field of choice contained a much lesser number.  The         third ground given by the High Court for holding the  selec-         tion list         35            to   be incorrect is that in the field of choice of  Com-         mittee did not properly evaluate the merit of persons in the         field  of choice.  The section of persons in  the  selection         list was to be selection on merit only and not seniority cum         merit.   The fourth reason given by the High Court  is  that         the  date  for determining the eligibility of  officers  for         promotion  to the post of Assistant Commissioner  of  Income         Tax  should be decided by the Committee by bearing  in  mind         the  two  dates, namely, 21 December 1972  when  this  Court         permitted  provisional promotions and 29 November 1973  when         Government  made the second batch of ad hoc  promotions,  as         the two terminals.             The  principal contentions on behalf of the  respondents         are  these. First, promotions from amongst Income Tax  Offi-         cers  Class I Service to the post of Assistant  Commissioner         of  Income  Tax  have to   be made solely on  the  basis  of         merit.   The respondents relied on rule 18 of Chapter  II(c)         section  1 Vol. II of the Office Manual in support of  their         contention.    Broadly stated rule 18 is that the  promotion         shall  be strictly on merit and further that no  one  should         ordinarily  be considered for promotion unless he  has  com-         pleted  at  least 10 years’ service as income  Tax  Officer.         The  respondents  amplified  their contention to  mean  that         promotion  to a selection post is to be made solely  on  the         basis of merit and not on the basis of seniority cum merit.             The  second contention of the respondents is  that  only         such of the Income Tax Officers in Class I Service  who  had         put  in at  least 10 years’ service as Income  Tax  Officers         are eligible for being considered for promotion to the  post         of Assistant Commissioners.   This contention. is also based         on  rule 18 and according to the respondents rule  18  means         that  the condition precedent for eligibility to be  consid-         ered for promotion to the post of Assistant Commissioner  is

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       that an Income Tax Officer in Class I Service must have  put         in at least 10 years’ service as Income Tax Officer.             The  respondents  further  contended that  rule  18  was         framed on 16 January 1950 and the letter dated 21 July  1950         addressed by the Central Board of Revenue to all Commission-         ers of Income Tax shows that the Government of India  framed         the  rule  with the approval  of the  Union  Public  Service         Commission and the Ministry of  Home Affairs.   The  Govern-         ment case is that the rule was abrogated.   The respondents’         answer  to  the  Government contention is  that  the  entire         correspondence  relied on by the Government shows  that  the         Ministry of Finance wanted to frame new rules of  seniority.         The  respondents  also  contend that the  Ministry  of  Home         Affairs gave approval to the framing of new rules of senior-         ity but gave no. direction with  regard to the rule relating         to the recruitment except stating that the  said rule  might         be appropriately included in the relevant recruitment rules.         Therefore the respondents contend that the recruitment  rule         regarding 10 years’ experience continued whereas the senior-         ity   rule  stood modified in terms of the  letter  of  M.C.         Thomas dated 4 April 1964. The respondents also rely on  the         affidavit  dated 8 March, 1968 flied by M.C. Thomas  in  the         Gujarat High Court in application No. 1365         36         of 1965, an affidavit of M.C. Thomas dated 21 May 1970 filed         in the Delhi High Court in writ petition No. 196 of 1970, an         affidavit  of the respondents dated 5 August 1974  filed  in         the Gujarat High Court in support of the contention that the         rule  relating  to 10 years’ service was in force  at  least         from  21 May, 1970.   The respondents further  contend  that         promotions  to  the post of Assistant Commissioners  in  the         year  1964  and 1970 show that all promotees  except  2  had         completed  at least 10 years’ service before being  selected         for  promotion. Even with regard to those two promotees  the         respondents  submitted that both of them joined on 24  Octo-         ber,  1960 but they had  been selected along with others  in         May  1960.   Therefore,   those two officers  were  promoted         along with their batch mates of May, 1960.             The third contention of the respondents is that rule  18         has the force of law.   It is said that under section 241 of         the  Government of India Act 1935 the Government was  empow-         ered to make rules. Pursuant to that power the Government of         India made the   rule. The letters dated 16 January 1950 and         21 July 1950 written by the Government to the  Commissioners         of  Income  Tax referring to rule 18 were relied on  by  the         respondents  in support of their contention.In the  alterna-         tive,  the  respondents contended that the decision  of  the         Government  contained in the letter dated 16  January,  1950         was made by the Government of India in exercise of executive         powers  under section 8 of the Government of India Act  1935         read  with item 8 of List I of the Seventh Schedule.    This         order  which  had  the backing of law was  an  existing  law         within  the  meaning of clause 10   of Article  366  of  the         Constitution.   In the further alternative   the respondents         contended  that  the rule contained in the letter  dated  16         January,  1950 was incorporated in the Office Manual  issued         by  the  Government of India in exercise  Of  its  executive         power  under  Article 53 of the Constitution  and  therefore         these instructions have   the force of law.  It is also said         by the respondents that the rule which affects promotions of         the persons constitutes the conditions of service.             The fourth contention on the part of the respondents  is         that the use of the word "ordinarily" in rule 18 imposes  an         obligation on the Union Government not to consider an Income         Tax  Officer  Class   I who has not completed  at  least  10

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       years’  service  as Income   Tax Officer  for  promotion  as         Assistant  Commissioner  unless  there    are  extraordinary         circumstances.   It is said that the word "ordinarily"  does         not  vest in the Government unfettered condition  to  follow         or not to follow the rule.   It is also said that the use of         the   word "at least 10 years’ service" shows that the  word         "ordinarily"  has  been  used to enable  the  Government  to         consider  such of the Income  Tax Officers who have  put  in         more  than 10 years’ service.  The respondents also  contend         that  the  Government proceeded on the basis that  the  rule         relating  to  10 years’ service did not  exist  after  April         1964; and, therefore, it cannot be said that the  Government         departed  from  rule  18 because  of  extraordinary  circum-         stances.             The fifth contention is that the selection has been made         in  complete violation of the rule framed by the  Government         of India for promotion to selection post as contained in the         Office Memorandum         37         of  the Ministry of Home Affairs dated 16 May, 1957.    This         contention  is expanded by submitting that the  list  should         have    contained names of at least 5 or 6 times the  number         of vacancies existing within a year and in view of the  fact         that there were 112 existing and   10 anticipated  vacancies         the  Government of India should  have sent to the  Committee         names of at least 560 officers.   The Committee should  then         have  removed such names which were unfit for promotion  and         thereafter  have  classified the rest as  outstanding,  very         good,  and  good on the basis of  merit.    The  respondents         contend  that   the Government sent only 336 names for  con-         sideration  when  the vacancies were more than 120  and  the         Government  also ignored the rule of 10  years’  experience.         It  is also said that the Committee ignored the names of  59         officers from consideration and classified only 144 officers         out of the remaining 277 and prepared the list of 122 out of         144 officers.   The respondents further contend that  though         respondents  No. 2 and 3 in Civil Appeal No. 2041  of  1974,         namely,  R.K.  Desai and B. Srinivasan completed  10  years’         experience they were not included within the field of choice         as  officers  senior to them had not completed  8  years  of         service  as  Income Tax Officers.   Therefore, rule  18  was         violated.             The  sixth  contention of the respondents  is  that  the         entire  selection was arbitrary and in violation of  Article         16  of the Constitution.   It is said that if the  rule  re-         quiring 10 years’ experience   had   been followed only such         of  the persons who had put in 10 years’ service would  have         been  in  the  field for selection.   It is  said  that  the         Government  included  Income Tax Officers  who  were  direct         recruits  and who had put in less than 8 years’  service  in         the list but excluded promotees Income Tax Officers who  had         put  in more than 8 years’ service  as Income Tax  Officers.         It  is further said by the respondents that out of 122  per-         sons selected 111 are direct recruits and only 11 are promo-         tees.   Reference was made to the junior-most person in  the         selection  list Madan Mohan Joshi.   It is said  that  Madan         Mohan Joshi was appointed as Income Tax Officer Class I on 5         July, 1965, and, therefore, he completed 9 years’ service at         the  time of selection.   The last person considered by  the         Committee  is a direct recruit Rajeswar Rao Gnutam  who  was         appointed  on  8  July, 1966. Again, it is  said  that  from         amongst the promotees Raghubir Singh the promotee who joined         Class  I Service on 1 May 1964 and had more than  10  years’         service  was  not  placed  in the  field  of  choice.    The         respondents,  therefore, contend that promotee Officers  who

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       had put in more than 8 years’ service as Income Tax Officers         were  not  included in the field of  choice  whereas  direct         recruits  who had not completed 8  years’ service  were  in-         cluded in the field of choice.             The  seventh contention of the respondents is  that  the         eligibility of Income Tax Officers for the purpose of promo-         tion to the post of Assistant Commissioner should be consid-         ered  either as on 21 October, 1972 or 21 March 1973  or  29         November  1973.   In support of that contention it  is  said         that when the Government of India made   an application  for         filling up certain posts this Court by order dated 21 Decem-         ber 1972 permitted the Government to fill in the posts on ad         38         hoc basis from amongst the eligible officers on the basis of         continuous, length of service in Class I.   Accordingly,  by         orders dated   21 March 1973, and 29 November, 1973, 59  and         48  officers  respectively were promoted on  ad  hoc  basis.         These  officers were to, be replaced by  regular  selection.         The  seniority list was confirmed by this Court by  judgment         dated 16 April 1974.   The respondents,   therefore, contend         that  the Committee had to regularise aforesaid  107  promo-         tions,  and  the regularisation had necessarily to  be  done         from the dates of original promotions on ad hoc basis.    It         is said in this context that the eligibility of officers for         the  purpose of promotion must   be considered either on  21         December  1972 or on 21 March 1973 or on 29 November,  1973.         The respondents also submit that  the eligibility has refer-         ence to the date of vacancy and therefore  only such of  the         persons  who  had  the qualified service on  the  date    of         vacancy ought to be considered by the Committee.    Reliance         was placed on the observations of this Court in Bishan Sarup         Gupta’s case(1) that after the finalisation of the seniority         list the department should consider the cases of all  eligi-         ble officers for promotion on  the basis of their records as         on  the  date  when they ought to have  been  considered  by         selection but who were not so considered.             The  first  question for consideration is   whether  the         rule of 10 years’ experience was modified to 8 years’  expe-         rience.   The correspondence between the Central  Government         and  the Union Public Service Commission between 30  January         1963 and 26 June 1969 shows that the principle for promotion         as  Assistant  Commissioner is that no  Income  Tax  Officer         should  ordinarily be considered unless he has  completed  8         years’ service as Income Tax Officer.  The proposal for this         change  from 10 years to 8 years emanated from  the  Finance         Ministry.   The Home Ministry stated that the rule does  not         strictly  relate to the seniority  rules in respect  of  As-         sistant  Commissioners  of  Income Tax and  should  thus  be         included  in the relevant Recruitment Rules, that is,  Rules         for  selection  for the post of  Assistant  Commissioner  of         Income  Tax.   The Union Public Service Commission  as  will         appear from the letter dated 31 May, 1963 agreed subject  to         proposed  modification regarding the seniority of  Assistant         Commissioners  of  Income  Tax.  It thus  appears  that  the         Finance  Ministry,  the Home Ministry and the  Union  Public         Commission concurred with the change from the requirement of         experience for 10 years to that of 8 years.  The requirement         of 10 years’ experience as laid down in the letter dated  16         January, 1950 and the Office Manual published’ in 1955  thus         came to be modified.  The only thing which is to be  noticed         is  that no Rules under Article 309 were made.   The  change         from  10 years to 8 years’ experience was recorded by  means         of  correspondence as an administrative instruction.  It  is         explicable that the letter dated 16 January, 1950 as well as         the  Office Manual published in 1955 was  an  administrative

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       instruction.             The change from 10 years to. 8 years’ experience was not         only given effect to in the field of choice but also, recog-         nized in the Committee meetings of September 1968, April/May         1970 and February, 1972.  In September 1968, 16 persons were         over 9 years’ experience         (1) [1975] supp. S.C.R.491,506         39         but  less than 10 years’ experience.  None of these  persons         was however selected to be placed on the selection list.  In         April/May 1970, 14 persons were over 9 years experience  but         less  than 10 years’ experience, and 24 persons were over  8         years’  experience only.  Out of those only 7 who  were  all         over  9 years’ experience were selected to be placed in  the         selection list.  In 1972 the Committee considered 25 persons         over 9 years’ experience but less than 10 years’ in  experi-         ence, and 27 persons over 8 years’ experience.  Out of these         only  10 persons who were all over 9 years’ experience  were         selected to be placed in the selection list.             In  the  Committee meeting of July, 1974  the  selection         list  prepared  did not have any person except  4  emergency         commissioned officers who had less than 9 years’ experience.         The  last  person in the seniority list  selected  was  M.M.         Joshi bearing No. 967 in the seniority list.             8 years’ experience as a working rule for promotion  was         publicly announced by the Minister in Parliament on 11  June         1971.   It  is  rightly said by the  Attorney  General  that         administrative instructions are followed as a guide line  on         the  basis of executive policy.  It is not necessary to  put         the same on record in so many words.  In Bishan Sarup  Gupta         v.  Union of India & Ors. 1975 Supp. SCR 491 when the  quota         rule  which  was statutory ceased to have  statutory  effect         after 5 years but the Government followed the principles  as         a guide line it was upheld by this Court in the  application         of  the  principle from 1957 to 15 January,  1959.   In  the         present  case  the  requirement  of 8  years  was  not  only         followed  as a guide line in practice but was also  recorded         in  the  correspondence  between the Finance  and  the  Home         Ministries.             The  High  Court said that the requirement of  8  years’         experience was to be included in the appropriate Recruitment         Rules  and until that was done the High Court held  that  10         years’  experience held the field. The High Court failed  to         consider  the true effect of the correspondence between  the         finance and the Home Ministries and the Union Public Service         Commission.  The Ministry of Finance by its letter dated  30         January  1963 stated that the condition of 8 years’  service         for promotion was proposed to be retained.  The Home  Minis-         try  by its letter dated 20 February, 1963 pointed out  that         the requirement of 8 years’ experience for promotion did not         strictly  relate  to seniority rules relating  to  Assistant         Commissioners of Income Tax and should be delinked from such         rules  and should be appropriately included in the  relevant         Recruitment  Rules.   Thus the Home Ministry and  the  Union         Public  Service  Commission agreed in principle to  the  re-         quirement of 8 years’ experience and the Finance Ministry in         practice  changed the requirement of 10 years’ to  8  years’         experience.   The letter of the Finance  Ministry  proposing         the  retention of the requirement of 8 years experience  was         only in Grade I.  The minimum experience in Grade I proposed         by  the Board was approved by the Secretary as well  as  the         Minister.             The High Court referred to the affidavits filed by  M.G.         Thomas  in  other  proceedings.  In one  of  the  affidavits         affirmed by Thomas

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       40         on 8 March 1968 and referred to by the High Court in Special         Civil Application No. 1365 of 1965 in the Gujarat High Court         in paragraph 5 thereof Thomas said as follows: "The  Depart-         mental  Promotion  Committee which met sometime  in  August,         1949  recommended  that no officers should  be  promoted  as         Assistant  Commissioners of Income Tax until he  had  worked         for  not  less than 10 years as Income  Tax  Officers.   The         Government  of India agreed with the recommendation  of  the         Departmental  Promotion Committee that it was  necessary  in         the  interest of efficiency that the Assistant  Commissioner         of  Income Tax should at least have 10 years of  service  as         Income  Tax  Officer so that for  the   post   ok  Assistant         Commissioner   of  Income Tax matured and  seasoned  officer         may be obtained.  For arriving at the decision, the  Govern-         ment  of India was also influenced by the recommendation  of         Income Tax Investigations Commission".  The High Court  also         referred  to  paragraph 9 in the said  affidavit  of  Thomas         where  he  said as follows:  "It can thus be seen  that  the         seniority  rules  for Assistant Commissioner of  Income  Tax         were  mainly  framed  due to the situation  created  by  the         introduction  of Income Tax Service Class I on an All  India         basis and the requirement of a minimum period of 10 years of         service (later on reduced to. 8 years’ service) (as a requi-         site  condition for promotion)-this requirement  of  minimum         service-resulted in a senior Income Tax Officer who had  not         completed  the required length of service being passed  over         by  a  junior Income Tax officers, who  had  completed  the.         required service.  To safeguard the interest of such  senior         Income  Tax  Officer  rule 1 (iii) (b)  meaning  thereby  10         years’ rule was introduced which enabled the senior officers         to regain their seniority on subsequent promotion".             The High Court also referred to the affidavits of Thomas         in  Civil  Writ Petition No. 196 of 1970 in the  Delhi  High         Court.   M.G. Thomas was an Under Secretary in the  Ministry         of Finance in 1964.  In the affidavit affirmed by Thomas  in         Writ  Petition  No. 196 of 1970 in the Delhi High  Court  he         dealt  with  paragraph 39 of the petition  of  Bishan  Sarup         Gupta  where  it was said that paragraph 18, of  section  1,         Volume 1 of the Office Manual clause (b) mentioned about the         eligibility of 10 years of minimum service before an  Income         Tax Officer would be considered for promotion to the post of         Assistant  Commissioner. The High Court said that Thomas  in         his affidavit in reply had admitted the said statements  and         concluded  that of 8 years’ rule had been introduced  Thomas         would not have missed to mention the same in his affidavit.             The  High Court also referred to two  features.   First,         that it was not a proposal of anew rule of 8 years in  place         of existing rule of 10 years; secondly, it was an assumption         that  the existing rule prescribed the minimum period  of  8         years’  service.   The High Court further  referred  to  the         Delhi  High  Court proceedings in Writ Petition No.  196  of         1970  where Counsel for the Union said that  the  Government         expected  new rules to be framed under Article 309 to  limit         the  field  of choice to those who had 8 years’  service  to         their  credit as Income Tax Officers.  The High  Court  read         this argument of counsel for the Union in the High Court  to         concede  that no change in the rule of 10 years’ service  as         Income. Tax Officer was made so as to reduce the period from         10 years to 8 years.         41             The  Central  Board  of Revenue as  appears  in  No.  F.         1/19/60-Ad. II at a meeting on 2 May, 1959 approved the idea         of laying down the. minimum period of service uniformly  for         the three wings of the Central Board of Revenue for purposes

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       of  determining the eligibility of officers  for  promotion.         It  was  decided that before an officer was  promoted  to  a         higher post he must have put in a period of minimum  service         as  follows:  For  promotion to  Deputy  Collector/Assistant         Commissioner  (Grade  Rs. 1000-1400)--minimum  service  pre-         scribed  was 8 years’ service in Class I posts.  For  promo-         tion to Collector (Grade Rs. 1300-1600)--the minimum   serv-         ice prescribed was 12 years in Class I post out of which  at         least two years should be in the grade of Deputy  Collector.         For  promotion  to. the post of Collector (Grade  Rs.  1600-         1800)--the minimum service prescribed was 14 years in  Class         I posts provided that for promotion as Collector of  Central         Excise (scale Rs. 1600-1800) the officers should have worked         at  least  two  years in the scale of  Rs.  1300-1600.   For         promotion  to Collector Grade I/Commissioner Grade I  (scale         Rs.  1800-2000) the minimum service prescribed was 16  years         in Class I posts.  For promotion to Selection Grade posts of         Collectors/Commissioners the minimum service prescribed  was         20 years in Class I posts.             The  Secretary  in the note  mentioned  that  he   would         prefer  the alternative of keeping the rule and relaxing  it         in suitable cases.  This note of the Secretary shows that he         preferred  the retention of the rule in the other 4  grades,         namely.  Collector  Grade  Rs.  1300-1600,  Collector  Grade         Rs.1600-1800,  Collector Grade I/Commissioner Grade I  Grade         Rs.1800-2000  and Selection Grade Posts of Collectors/  Com-         missioners.  That is  apparent from the fact  that the Board         suggested  the  retention  of   minimum   service  in  Grade         1(Assistant Commissioners) but not in the other four  grades         including  the Selection Grade.  The Minister preferred  the         deletion of the rule about Selection Grade.  Thus the  mini-         mum experience in Grade I proposed by the Board was approved         by the Secretary as well as the Minister.             The  minutes  of  the meeting of the  Central  Board  of         Revenue  of 22 October 1960 show that the Board  of  Revenue         decided-’that  the  minimum service of 8 years  in  Class  I         Service   may   be  prescribed  in  the   case   of   Deputy         Collector/Assistant Commissioners (Grade  Rs.1100-1400).             The affidavit evidence of Thomas shows that the  minimum         period of 10 years was later reduced to 8 years.  The  affi-         davit does not show that the requirement of 10 years’  serv-         ice  was  maintained.  In the Delhi High  Court  proceedings         Bishan  Sarup Gupta in his petition made reference to   cer-         tain   administrative  instructions.  Thomas  in  answer  to         those  paragraphs did not have any occasion to say  anything         otherwise.  Further counsel for the Union in the Delhi  High         Court merely stated that the Government was expecting  rules         to be framed under Article 309..This does not mean that  the         requirement  of  8 years’ experience  as  an  administrative         practice  did  not prevail. The High Court was in  error  in         treating the affidavit evidence of Thomas in other  proceed-         ings as a statement of fact that 8 years’ rule had not  been         introduced.  This affidavit evidence in other proceedings is         torn         42         out  of  context and is misread by the  High  Court  without         going  into the question as to whether such  affidavit  evi-         dence  is admissible in evidence.  It is apparent  that  the         entire  affidavit  evidence  as well as  the  submission  on         behalf  of  the Union is that the requirement of  10  years’         experience be replaced by 8 years.  Administrative  practice         as indicated in the Department Promotion Committee  meetings         and  the Minister’s statement in Parliament  supported  that         contention of the Union.  It is a question of   construction         of correspondence as to whether 10 years’ rule was  replaced

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       by 8 years’ rule.  The fact that no rules under Article  309         were  framed  does not detract from the  position  that  the         previous administrative instruction of 10 years’  experience         was modified to 8 years’ experience.             It  was suggested on behalf of the respondents that  the         various affidavits and documents asserted that the  require-         ment  of 10 years’ experience had been abrogated and it  was         not  open to the Government to take the stand that  require-         ment of 10 years’ rule was modified or changed.  The conten-         tion  is without any substance because the consistent  posi-         tion  on  behalf of the Union has always been that  the  re-         quirement  of 10 years’ experience was modified to  8  years         and  the Gujarat High Court considered the question  whether         10 years’ experience was abrogated or modified.             The  second  question is whether the requirement  of  10         years’ experience was a statutory rule.  The High Court held         that  the  requirement   of 10 years’ experience  is  not  a         statutory rule.  Counsel for the respondents contended  that         the requirement of 10 years’ experience is statutory because         the  letter  dated 16 January 1950 is by the  Government  of         India  and  the Government of India has authority  to  frame         rules and one of the letters dated 21 July, 1950 referred to         it  as a formal rule.  The contention is  erroneous  because         there is a distinction between statutory orders and adminis-         trative instructions of the Government.  This Court has held         that  in the absence of statutory rules executive orders  or         administrative instructions may be made.  (See  Commissioner         of Income Tax Gujarat v.A. Raman & Company(1).             The  letter  dated 16 January 1950 written by  an  Under         Secretary in the Ministry of Finance does not prove that the         requirement  of  10 years’ experience for promotion  to  the         post of Assistant Commissioner was a rule made by the Gover-         nor  General or any person authorised by him  under  section         241 (2) of the Government of India  Act,  1935. Furthermore,         there is no basis for any authentication under section 17 of         the  1935  Act in the letter of 16 January,  1950.   In  the         preface  to the Manual published in 1955 it is  specifically         stated  that Vol. I of the Manual contains  statutory  rules         and  Vol.  II  contains  administrative  instructions.   The         requirement  of  10 years’ experience is in Vol. II  of  the         Manual.             In  S.G. Jaisinghani v. Union of India & Ors.(2)  it  is         stated at pp. 717-718 that the quota fixed by the Government         in  its letter dated 18 October, 1951 must be deemed  to  be         fixed in exercise of the statutory         (1) [1968] 1 S.C.R. 10.            (2) [1967] 2 S.C.R. 703.         43         power  under Rule 4 of the Recruitment Rules.  There  is  no         such  statutory rule under which the letter of  16  January,         1950 was written,             Counsel on behalf of the respondents contended that  the         requirement of 10 years’ experience laid down in the  letter         dated  16  January,  1950 had the force of  law  because  of         Article 313.  Article 313 does not change the legal  charac-         ter  of  a document.  Article 313 refers to  laws  in  force         which  means statutory laws.  An administrative  instruction         or  order is not a statutory rule.  The  administrative  in-         structions  can  be changed by the Government by  reason  of         Article 53(1)(a) itself.             The  High Court said that even if the requirement of  10         years’  service is not statutory, it is binding on the  Gov-         ernment  and  is a condition of service.   Counsel  for  the         respondents contended that the word "ordinarily" in the rule         imposes an obligation on the Government not to consider  any         Income  Tax Officer with less than 10 years’ experience  for

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       promotion  except  in  extraordinary  circumstances.     The         requirement  of 10 years’ experience on the face of it  con-         fers a discretion on the authorities to consider Income  Tax         Officers if according to. the authorities the  circumstances         so  require.   What the circumstances are or should  be  are         left  entirely  to the decision of  the  authorities.    The         Central  Board of Revenue by a letter dated 21 July, 1950  a         few months after the letter dated 21 July, 1950 a few months         after  the letter dated 16 January, 1950 which spoke  of  10         years’  experience stated  that the insistence on a  minimum         period  of experience, cannot be regarded as  affecting  the         conditions of service.  In the letter dated 21 July, 1950 it         was said that the requirement as to 10 years’ experience  is         sufficiently  elastic and all Income Tax Officers with  more         than 9 years’ experience could be considered for  promotion.         The letter dated 21 July, 1950 was referred to by this Court         in  Union  of India v. Vasant Jaygram Kamik  &  Ors(1).   It         appears  in  that case that in November, 1951  the  case  of         officers  who had completed 9 years’ gazetted  service  were         considered and the Committee further decided to consider for         promotion  in the near future officers who had  completed  8         years of service before 31 December, 1951.  In 1953 officers         who  had  completed  8 years’ service  were  considered  for         promotion.             The  expression  "ordinarily" in the requirement  of  10         years’  experience shows that there can be a deviation  from         the  requirement  and  such deviation can  be  justified  by         reasons.   Administrative instructions if not  carried  into         effect  for good reasons cannot confer a right.   (See  P.C.         Sethi & Ors. v. Union of India & Ors. (2).  The  requirement         of 10 years’ experience cannot be considered by itself.   It         is  to be read along with administrative instructions of  16         May, 1957.  The reason is that the requirement of 10  years’         experience is for being considered for promotion.  In  para-         graph  2 of the letter of 16 May, 1957 containing  the  said         instructions  it  is said that the  Committee  should  first         decide  the field of choice. namely, the number of  eligible         officers  awaiting promotion who should be considered to  be         included  in the seniority list provided that an officer  of         outstanding merit may be included in the list even.if he  is         outside the normal List.         (1) [1970] 3 S.C.C. 658.          (2) [1975] 3 S.C.R. 201.         44             For  the  foregoing reasons our conclusions  are  these:         First  10 years’ experience was modified to 8 years’ experi-         ence.   Second  there  was no statutory  rule  requiring  10         years’ experience.  Third the facts and circumstances merit-         ed the exercise of discretion which was bona fide  exercised         by  determining the field of choice.   Fourth there  was  no         deviation from 10 years’ experience because of the modifica-         tion  to  8  years’ experience.  Fifth there  could  not  be         insistence on 10 years’ experience as conditions of service.             The next question is what should have been the field  of         choice.  The two groups of Income Tax Officers in  Class  I,         namely,  the direct recruits and the promotees  have  always         found that the field of choice has been prepared strictly on         the  basis  of running seniority in  the seniority  list  of         Income Tax Officers Class I.  In the three decisions of this         Court relating to these officers Jaisinghani’s case,  Bishan         Sarup Gupta’s case and Bishan Sarup Gupta’s case (supra)  it         will  be  seen that since 1962 there has been a  long  fight         between  direct recruits and promotees mainly in respect  of         seniority list of income Tax Officers Class I.  This  strug-         gle  regarding  seniority  would have  hardly   any  meaning         unless the two groups fought to gain higher positions in the

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       Seniority List only for the purpose of being in the field of         choice  for consideration for promotion to the post  of  As-         sistant Commissioner. if this was not so and if only a  cer-         tain number of years’ requirement was the only consideration         for  being  in the field of choice, this  requirement  would         have.  been fulfilled in any case without a higher place  in         the  seniority  list.   From 1963 the field  of  choice  has         always been in  a running order of seniority.  This has been         the administrative practice for over 10 years.             There were 112 vacancies and 10 anticipated vacancies in         1974. The Committee was to make a select panel of 122  offi-         cers.   If  the field of choice has to be  prepared  on  the         basis of running seniority, and if 10 years’ experience  had         been  adhered  to, there would not have been  more  than  95         officers  in  the  field of choice although  the  number  of         vacancies was 122.  This fact alone will entitle the author-         ities to deviate from the rule of 10 years’ experience.             By reason of the violation of the quota rule since  1952         benefiting  the promotees this Court issued the mandamus  in         Jaisinghani’s case (supra).  The collapse of the quota  rule         and seniority rule from 16 January, 1959 led to the judgment         of this Court dated 16  August 1972 in Bishan Sarup  Gupta’s         case  (supra).  The introduction  of the roster system of  1         direct  recruit and 1 promotee being placed  alternately  in         the  order of seniority with effect from 16  January,   1959         was  upheld  by this Court in the judgment dated  16  April,         1974  in Bishan Sarup Gupta’s case (supra).  As a result  oF         the  seniority list being upheld by this Court by the  deci-         sion dated 16 April, 1974 many promotees lost their  earlier         places in the Seniority List.  This Court on 16 April,  1974         in  Bishan  Sarup Gupta’s case (supra) at page  114  of  the         report said "In the case before us in the absence of a  rule         determining  inter se seniority between the two  classes  of         Income  Tax Officers, there is really no integration of  the         service,  which is unavoidably necessary for the purpose  of         effective promotions.  One cannot speak         45         of  promotions from a cadre unless it is fully  integrated."         There was a change in the seniority list from what prevailed         at  least in 1952. The requirement of 10  years’  experience         could not be given effect to in such a changed situation and         the  expression  "ordinarily" would hardly apply to  such  a         changed  situation  without destroying the  integration  and         restoring  to  the  promotees the position  which  they  had         enjoyed  in the past with the Quota Rule and  the  Seniority         Rule and which they lost as a result of the last decision of         this Court dated 16 April, 1974.             If the respondents’ contention that the field of  choice         shall   be restricted to 10 years’ experience only  and  the         field  of  choice should have been at least five  times  the         number of vacancies, the result would have been that out  of         560  persons in the field of choice, 474-persons would  have         been  promotees  and 86 persons would have been  direct  re-         cruits  and  the last direct recruit in the  seniority  list         would  have been No. 873 and No. 874 to No. 1922 would  have         been  all  promotees. If the above basis  suggested  by  the         respondents  were followed 429 persons all  direct  recruits         and  all  senior officers in the seniority list  would  have         been  ignored in the field of choice. That would be  unjust,         unfair  and  upsetting the decision of this Court  dated  16         April, 1974.             In the letter of 16 May 1957 it is stated that the field         of  choice wherever possible should extend to 5 or  6  times         the  number of vacancies expected within a year. The  letter         contained administrative instructions from the Home Ministry

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       generally to all Ministries and was not meant specially  for         the  Board of Revenue.   These  administrative  instructions         have been changed in the matter of  promotions  from  Income         Tax  Officers to Assistant Commissioners at least from  1963         by  the  administrative practice of having in the  field  of         choice  generally three times the number of  vacancies.   In         the  Committee meeting held on 16 March, 1963 the  Committee         considered  the names of first 33 eligible Income Tax  Offi-         cers  in order of existing seniority for 11  vacancies.   In         the meeting of the Committee held on 26 and 27 August,  1963         the  Committee decided to consider the cases of 30  officers         in  order of seniority for 10 vacancies.  In  the  Committee         meeting  held on 3 March, 1964 the Committee considered  for         21 vacancies  the names of 60 persons in order of seniority.         At the Committee meeting held on 5 and 7 December, 1964  for         18 vacancies the Committee decided to consider the cases  of         60 officers in order of seniority,.  At the meeting held  on         4 July, 1965 the Committee considered 60 Income Tax Officers         in order of seniority for promotion to 20 vacancies.  At the         Committee meeting held on 4 and 6 December, 1965 the Commit-         tee  considered  122 persons in order of  seniority  for  45         vacancies.  In December, 1965 the Committee  considered  114         senior  most  Income Tax Officers and 48  were  promoted  as         Assistant  Commissioners.   At the meeting held on  17  May,         1966  the Committee considered the case of 65  officers  and         approved the promotion of 48 officers.  At  the meeting held         on  16 and 17 September, 1968 the Committee  considered  240         persons for promotion to 90 posts.  In September, 1968   the         Committee  considered the cases of 16 officers who had  less         than  10 years’ experience.  The Committee in February  1969         considered 61 persons for 20 posts.  In September, 1969  the         Committee considered 105 persons for promotion to 35 posts.         46             There is a note made by Thomas in the month of February,         1970 in F. No. 20/2170-Ad.VI to the effect that if  officers         with  less than 8 years’ service and their juniors  are  ex-         cluded  from  the list of officers to by considered  by  the         Committee for 90 vacancies arising during  the year only 193         officers  will be available.  This is said to be  less  than         three  times the number of vacancies but this could  not  be         helped  unless junior officers are considered over the  head         of their seniors..The number of such juniors officers with 8         years’ service is also limited, namely, 11.  In the  circum-         stances,  the  selection  was made from  193  officers.   In         April,  1970  the  Committee had to select  80  persons  for         promotion.   They desired that 240 names should normally  be         considered.   The Members however stated that the.  Ministry         had already furnished the names of 193 eligible officers and         there  were no more eligible officers who could  be  consid-         ered.  The Committee accordingly considered those 193  offi-         cers  in  order  of seniority.  In April and  May  1970  the         Committee considered the cases of 38 persons with less  than         10  years’ experience.  In 1972 there were 84 vacancies  and         10  more vacancies were likely to arise.  Therefore  for  94         selection  posts  the field of choice should  normally  have         been  3  to 5 times the number of vacancies.  It  was  found         that  there should have been at least 300  officers.   There         were  213  officers with 8 years’ experience.    There  were         some promotees with more than 8 years’ experience but   they         were junior to the direct recruits.. As the direct  recruits         had  not completed 8 years’ service their juniors  were  not         considered for promotion over them.             In  the background of these facts and  circumstances  it         was not possible to have 5 or 6 times the number o.f  vacan-         cies  in the field of choice for the simple reason that  the

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       Committee required 8 years’ experience for promotion to  the         post of Assistant Commissioner.  If the field of choice  had         to be based on running seniority the Committee could rightly         only have 276 officers in the field of choice in the present         case.             The next question is whether the Committee evaluated the         merit  of  persons in the field of choice.  The  High  Court         held that in  the field of choice the evaluation of merit of         persons  was  not properly done. The decision  of  the  High         Court  is wrong for the following reasons. The letter  dated         16  May,  1957  indicates that the Committee  was  first  to         decide the field of choice. The cardinal feature which is to         be  kept  in the forefront is that the field  of  choice  is         based on running seniority in the seniority list and evalua-         tion  of merit does not come into picture for  deciding  the         field of choice.  Paragraph 3 of the said letter states that         those in the field of choice who are considered unfit should         excluded  from  consideration.   Under paragraph  4  of  the         letter evaluation of the remaining officers on the basis  of         merit has to be done by classifying the officers under three         different categories,namely, ’outstanding’, ’very good’  and         ’good’.  Paragraph 4 of the letter states that the selection         list  is to be prepared by placing the names of officers  in         the said three categories, without disturbing the  seniority         inter se within each category.         47             In the present case in view of 112 actual vacancies  the         Government sent 336 names for the field of choice, that  is,         three times the number of vacancies.  Since 1963 the Commit-         tee  has  been receiving from the Government  the  names  of         persons  forming three times  the number of vacancies.   The         336  names sent by the Government were in the running  order         of  seniority  between S.M. Islam No. 155 in  the  seniority         list  and R.N. Dave No. 1186 in the seniority list.    Under         paragraph  2  of  the letter dated 16 May, 1957  it  is  the         function  of  the Committee to decide the field  of  choice.         The Committee proceeded on the basis of 8 years’  experience         and thus could not possibly have in the field of choice  any         name  from No. 1131 onwards because every  alternate  number         thereafter had less than 8 years’ experience.  The Committee         stopped at No. 1123.             The Committee at the meeting held on 23, 24 and 25  July         1974 assessed the merits of 145 persons in order of seniori-         ty  first.  After such assessment the Committee found  three         officers  No. 1, 30 and 109 in the list as not yet  fit  and         excluded  them.   The Committee  also  excluded  4  officers         whose  findings were in sealed cover or whose  reports  were         not  yet  complete  (No. 2, 3, 6 and 138  in  the  Committee         List).  These 7 officers were excluded from further  consid-         eration  for the selection list.  In accordance  with  para-         graph 3 of the letter 16 May, 1957 the Committee  considered         the remaining 138 officers and assessed their merits and put         them  in  three categories.  The Committee  found  only  one         officer "outstanding", namely No. 16 in the list, 114  offi-         cers "very  good" and 7  Scheduled  Castes/Scheduled  Tribes         officers  were ’good’.  These 7 Scheduled Castes and  Sched-         uled Tribes officers were No. 21, 24, 26, 90, 91, 93 and  94         in  the list. The respondents contended that these 7  Sched-         uled Castes/Scheduled Tribes officers should have been given         a  grade  higher than the grade assessed  by  the  Committee         because  of  the Home Ministry Instructions dated  11  July,         1968.  The respondents’ contentions are incorrect for  these         reasons.  In paragraph 2 of the Home Ministry   instructions         dated  26 March, 1970 on the subject "Concessions to  Sched-         uled  Castes and Scheduled Tribes in posts filled by  promo-

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       tion--Class  I Services/ posts" it was laid down inter  alia         that  the  Scheduled Castes/Scheduled Tribes  officers,  who         were  senior enough in the zone of consideration for  promo-         tion  so as to be within the number of vacancies  for  which         the  selection  list has to be drawn, would be  included  in         that list provided they are not considered unfit for  promo-         tion.   In paragraph 1 of these instructions, reference  was         made to the Home Ministry instructions dated 11 July,  1968.         It would be found from those instructions as ’also the  Home         Ministry  instructions dated 26 March, 1970 that  the  July,         1968  instructions  applied in the case of  promotions  from         Class III to Class II and Within Class II and from Class  II         to the lowest rank or category to Class I but had no  appli-         cation in respect of promotion within Class I.             The Committee found No. 16 to be ’outstanding’, 114 (No.         2  to  115)  ’very good’ and  7  Scheduled  Castes/Scheduled         Tribes officers ’good.’ and they were to be included in  the         selection  list  vide Home Ministry  instructions  dated  26         March,  1970.  The Committee next assessed the merit of  the         rest of the 276 officers to ascertain whether         48         any  of  them was ’out standing’.  If any  one  among  these         remaining officers was not found ’outstanding’ but was  only         ’very  good’  he would not come within  the  selection  list         because  the selection list was prepared,  after  evaluating         the merits of the officers on the basis of seniority in  the         seniority  list in accordance with the fetter dated 16  May,         1957.   Paragraph  4  of that letter was  followed  by   the         Committee  along  with the Home Ministry  instructions.   It         would  not be necessary for the Committee after having  con-         sidered 145 to put the others in the category of ’very good’         when the Committee  assessed  their merits and found them to         be  not ’outstanding’.  After 122 senior officers  were  as-         sessed and the Committee found that no other officers junior         to  them  could be assessed to the higher  category  namely,         ’outstanding’ it would be fruitless exercise to find out who         among  these officers were very good’ or ’good’ or ’not  yet         fit’.  The reason  is obvious.  Those in the selection  list         of  122  who had been found to be ’very good’ could  not  be         supplanted by others who were  ’very good’  Only  ’outstand-         ing’  persons  who would be junior to  the category  of  122         ’very  good’  would  surpass the category  of  ’very  good’.         Therefore the Committee rightly considered the cases only to         find’  out  whether there was any one  outstanding  and  the         Committee found none of them to be ’outstanding’.             The  Government  sent the names of 336 officers  in  the         running order of seniority.  Out of 336 the Committee  found         276 to be fit for the field of choice.  The Committee  found         1   ’outstanding’,   114  ’very  good’   and   7   Scheduled         Castes/Tribes  ’good’.  The respondents contended  that  the         rest  59 were not at all considered by the Committee.   This         contention  is not acceptable for these reasons.   From  No.         1131  in  the seniority list every alternate number  was  an         officer  with  less  than 8 years’  experience.   Under  the         letter  of 16 May 1957 it is the Committee and not the  Gov-         ernment which decides the field of choice.  When the Commit-         tee  found  according to  the  running  seniority  No.  1131         onwards  could not be in the field of choice  the  Committee         did  not put the names of the 59 officers in the  field,  of         choice.   The  question of the evaluation of the  merits  of         these  59 officers did not, therefore, arise  because  first         the  seniority  list  was Considered by  the  Committee  and         second the Committee took into consideration only those  who         were  in the seniority list and fulfilled 8  years’  experi-         ence.

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           It is wrong to hold that because the Government sent the         names of 336 persons for consideration by the Committee  the         field  of  choice consisted of 336 persons.   The  field  of         choice is to be determined by the Committee.  The  Committee         considered  276 names as fit to be included in the field  of         choice.   It  is erroneous to suggest that  there  were  336         names in the field of choice.  The field of choice  consist-         ed. of 276 names as determined by the Committee whose juris-         diction it was to determine.  The Committee considered  upto         No. 1123 in the seniority list to be in the field of choice.         Officers from 1124 to 1130 were not included by the  Commit-         tee  either  because they had retired or joined  the  Indian         Administrative  Service  and in any event no  complaint  has         been made on their behalf.  The Committee found that from         49         No. 1131 onwards every alternate officer had not completed 8         years’  service and therefore they could not be put  in  the         field of choice according to the Committee.  The  contention         of  the  respondents  that there were 336  officers  in  the         field  of choice and the Committee did not consider all  the         336 persons unmeritorious.             The respondents next contended that persons bearing  No.         877, 879, 881 and 883 in the seniority list had been put  on         the  selection  list although they had less  than  8  years’         experience.   There is  no substance in the’ contention  for         the  following reason.  These 4 officers were taken  on  the         ground that they were ex-military officers recruited to  the         Income  Tax Department in 1968 and were deemed to have  been         recruited in 1964 by virtue of the Ministry of Home  Affairs         Notification dated 4 October, 1967.             Another submission was made on behalf of the respondents         that after the Committee had put different persons in  three         categories ’outstanding’, ’very good’ and ’good’ the Commit-         tee should have further evaluated the merit of all  officers         inter-se  within  each of the said three  categories.   This         submission  is contrary to the specific provision  of  para-         graph  4 of the letter dated 16 May, 1957.   Further  within         the  category of ’very good’ there could not be any  further         intra-specific assessment of those who were ’very good’.             A criticism was made by the respondents that the assess-         ment  was to be only on merit and not  seniority-cure-merit.         This  contention is wrong.  Paragraph 2 of the letter of  16         May, 1957 states that  the field of choice is to be  decided         by  the Committee.  No question of merit arises in  deciding         the  field  of choice. The field of choice is  only  on  the         basis  of running seniority.  The question of  merit  arises         after  the  field of choice is decided.   The  selection-was         correctly  done strictly on merit in accordance  with  para-         graphs 3 and 4 of the letter dated 16 May. 1957. The Commit-         tee  decides  the field of choice in the  running  order  of         seniority.   The Committee excludes names from the field  of         choice who are considered unfit for promotion. The remaining         officers  are classified as ’outstanding’, ’very  good’  and         ’good’  on the basis of merit.  The selection list  is  pre-         pared  by  placing  the names in the order  of  these  three         categories.   That  inter-se seniority of  officers  in  the         selection list under each category is not disturbed.   These         are  the instructions in the aforesaid letter. It will  thus         be.. seen that seniority is the sole criterion for determin-         ing  the field of choice in the running order  of  seniority         and merit is the sole criterion for putting the officers  in         the selection list in each category according to merit.             Finally  the contention of the respondents is  that  the         date for determining the eligibility of officers for  promo-         tion  to  the posts as Assistant Commissioners  should  have

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       been  decided  by the Committee by bearing in mind  the  two         dates  namely,  21 December 1972 and 29 November  1973.   21         December  1972  is the date when this  Court  permitted  the         Union  Government to make ad hoc promotions.  21 March  1973         and  29  November 1973 are the two dates  when  the  Central         Board  of Direct Taxes promoted 59 and 48  officers  respec-         tively.  This  Court in the order dated  21  December,  1972         stated  that  the Government would be  entitled  to  appoint         people  in  order of seniority determined according  to  the         date 5--1458SCI/76         50         Of continuous officiating appointment in Class I subject  to         the suitability which would be decided by the Central  Board         or  Direct Taxes.  This order was made without prejudice  to         the  contentions of the parties or their rights in  the  ap-         peals.   Pursuant  to the interim order of  this  Court  the         Government  made two orders dated 21 March 1973 and 29  Nov-         ember  1973 provisionally promoting 59 and 48  officers  re-         spectively.  In each of the Government orders it is specifi-         cally stated as follows: "The above promotions are purely ad         hoc  and have been made on the basis of the  suitability  as         decided  by  the Central Board of Direct Taxes in  terms  of         directions  issued  by this Court in their  order  dated  21         December  1972.  These promotions will not confer any  claim         for continued "officiation" (sic) in the grade  of-Assistant         Commissioner  of Income Tax or for seniority in that  grade.         Appointments against these posts will eventually be made  on         the  basis  of the revised list of seniority of  Income  Tax         Offices  Class  I as finally approved by this Court  and  on         selection  by  a  duly  constituted  Departmental  Promotion         Committee  to be convened in accordance with the  prescribed         procedure.   The promotions ordered will not  establish  any         claim for eligibility or for selection on merit by a proper-         ly  constituted  Departmental Promotion Committee  when  the         same is convened".             It is manifest from the order of this Court and the  two         orders made by the Government pursuant to this Court’s order         that these 107 promotions were purely provisional or ad  hoc         and were made by  the Central Board of Direct Taxes and  not         by  the Committee which is the authority   for   determining         promotions.  Further  these  provisional promotions were not         made  in conformity with the letter of 16 May 1957.   It  is         distinctly  stated  in the aforesaid two  Government  orders         that  appointments  against these posts will  eventually  be         made  on the basis of revised seniority of Income Tax  Offi-         cers Class I as finally approved by this Court and on selec-         tion by a duly constituted Departmental Promotion  Committee         to be convened in accordance with the prescribed procedure.             On  9  February 1973 the Income Tax Officers  (Class  I)         Service  (Regulation  of Seniority) Rules,  1973  were  made         under  Article  309 See Bishan Sarup Gupta’s  case  (supra).         The  revised seniority list of Income Tax Officers  Class  I         was  made on the basis of the Income Tax Officers (Class  I)         Service  (Regulation of Seniority) Rules, 1973 and  was  ap-         proved  by this Court on 16 April, 1974.  See  Bishan  Sarup         Gupta’s  case (supra).  The selection list was made  by  the         Committee  after it met on 23, 24 and 25 July, 1974.   Under         paragraph  2 of the letter dated 16 May, 1957 the  Committee         was  to  decide  the field of choice  by  including  therein         eligible  officers  awaiting  promotion.   This  means  that         whether an officer is eligible or not should be decided with         reference  to  the date of the Committee meeting.  This  has         always been done at all the Committee meetings.             The respondents contended that the regularisation of 107         promotees  had to be done from the date of  original  promo-

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       tions on ad hoc basis.  In this connection, the  respondents         relied  on  the observations of this Court in  Bishan  Sarup         Gupta’s case (supra) at p. 506 of the report.  The  observa-         tions relied on are that after the fresh seniority         51         list is made in accordance with the directions given by this         Court in Bishan Sarup Gupta’s case (supra) it would be  open         to  any direct recruit or promotee to point out to  the  de-         partment that in the selection made to the post of Assistant         Commissioner from 1962 onwards he, being otherwise eligible,         is entitled on account of the new seniority given to him  to         be considered for promotion to the post of Assistant Commis-         sioner.             The  observations of this Court in Bishan Sarup  Gupta’s         case (supra) are that if as a result of the fresh  seniority         list it is found that any officer was eligible for promotion         to  the  post of Assistant Commissioner on  account  of  his         place  in the new seniority list, the department might  have         to  consider his case for promotion on his record as on  the         date when he ought to have been considered, and if he  would         be  selected his position will be adjusted in the  seniority         list of Assistant Commissioners.  The object is to see  that         the position of such a person is not affected in the senior-         ity  list of Assistant Commissioners because he is  actually         promoted later pursuant to the new seniority  list, although         according  to the new seniority list itself he  should  have         been  promoted earlier.  The observations do not  mean  that         although  the Committee can meet for the selection of  offi-         cers  for promotion to the post of  .Assistant  Commissioner         only after the seniority list is approved by this Court, the         selection  would  be deemed to be made at the  time  when  a         vacancy  in the post of Assistant Commissioner occurred  and         the eligibility of officers for selection will be determined         by such deemed date of selection.  No employee has any right         to have  a vacancy in the higher post filled as soon as  the         vacancy occurs. Government has the right to keep the vacancy         unfilled as long as it chooses.  In the present case, such a         position  does not arise because of the controversy  between         two groups of officers for these  years. The seniority  list         which is the basis for the field of choice for promotion  to         the  post  of Assistant Commissioner was  approved  by  this         Court on 16 April, 1974.  Promotions to the post of  Assist-         ant  Commissioners  are on the basis of the  selection  list         prepared  by the Committee and are to be made  prospectively         and not retrospectively.             For  the  foregoing  reasons the  judgments  and  orders         appealed against are set aside.  The selection list made  by         the  Departmental  Promotion Committee forming  the  subject         matter  of these appeals is held to be correct,  lawful  and         valid.  Parties will pay and bear their own costs.         V.P.S.                                    Appeals allowed.         52