TMI Blog1970 (9) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... id not, when they were promoted, confer upon them the privilege of being placed in the list of Assistant Commissioners above Nadkarni and Karnik. We, accordingly, agree with the High Court that the seniority list must be quashed. Appeal dismissed. - - - - - Dated:- 7-9-1970 - Judge(s) : J. C. SHAH., K. S. HEGDE., A. N. GROVER JUDGMENT The judgment of the court was delivered by SHAH J.-Vasant Jayaram Karnik, hereinafter called "Karnik" moved before the High Court of Gujarat a petition praying for an order quashing the "list of seniority" of Assistant Commissioners of Income-tax framed by the Government of India "as of August 1, 1965," in which he was placed below twenty-nine named officers (who will hereinafter be referred to collectively as respondents Nos. 6 to 34). He claimed that thereby he was denied the guarantee of equality of employment or employment to an office under the Union under article 16(1) of the Constitution. The High Court of Gujarat upheld his contention and issued a direction requiring the Union of India to determine the seniority of Karnik and other officers in the cadre of Assistant Commissioners of Income-tax in accordance with the law. A public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... August 1, 1953", Nadkarni was placed at No. 55 ; Karnik at No. 69; respondents 6 to 21 were placed at Nos. 82, 83, 84, 89, 87, 90, 85, 88 and 93 to 100 respectively (some other officers who are not before us occupying intervening places); respondents 22 to 34 were placed at Nos. 106 to 118 ; and Hansraj Chopra, Sham Singh and B. D. Kapoor at Nos. 119, 120 and 121 respectively. Under the rules framed by the Central Board of Revenue promotion of Income-tax Officers, grade I, class I, to the grade of Assistant Commissioners of Income-tax was to be made on the recommendation of a committee called the departmental promotion committee. Selection for promotion was to be made on merit, i.e., "giving greatest weightage to outstanding qualifications, record of work and ability rather than to mere seniority." The committee after considering the cases of the Income-tax Officers, grade I, class I, eligible for promotion made recommendations to the Central Government, and the Central Government promoted officers recommended as Assistant Commissioners of Income-tax. At a meeting held in August, 1949, the committee resolved that "in the interest of efficiency of administration the cadre of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the committee held in November, 1953, Karnik was found fit and was selected for promotion. At this meeting again the rule requiring minimum service as Income-tax Officer for nine years was relaxed and Income-tax Officers who had completed service for eight years as Income-tax Officers were considered for promotion. Karnik was promoted on February 22, 1954, and was confirmed in that post with effect from May 4, 1956. Respondents Nos. 6 to 34 were promoted on recommendations made in meetings of the committee held in June, 1954, and subsequent thereto. Accordingly, Nadkarni was promoted as Assistant Commissioner of Income-tax on December 22, 1952; Karnik was promoted on February 22, 1954; respondents Nos. 6 to 34 were promoted in and after 1955. Chopra, Sham Singh and Kapoor do not figure in this contest. It is said that they have long ago been superannuated. All the officers who were promoted from the grade of Income-tax Officers on the basis of the recommendations of the committee were posted initially as Officiating Assistant Commissioners. They were considered for confirmation only after they had put in service for two years as Assistant Commissioners. The first to he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Commissioners, and directed that the "impugned seniority list as of August 1, 1965, must be quashed and set aside"; that the earlier confirmation of respondents Nos. 6, 7 and 8 with effect from May 1, 1956, be set aside; and that the Union Government do fix the seniority of Karnik, respondents Nos. 6 to 34 and Nadkarni in accordance with law. With certificate granted by the High Court this appeal has been preferred. The relevant rules which governed seniority in the cadre of Assistant Commissioners may now be set out with modifications made from time to time. On January 15, 1950, the rules for determination of seniority of Assistant Commissioners were first made by the Government of India in consultation with the Federal Public Service Comimission. The rules were: "(i) Confirmed Assistant Commissioners should take seniority according to the date of their confirmation in the grade. (ii) Officiating Assistant Commissioners should take seniority according to the length of continuous service in the grade of Assistant Commissioner, subject to the condition..... (iii) The seniority of officers promoted to the grade of Assistant Commissioner after the date of publication of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s grade on grounds of merit." Rule (1) applied to Assistant Commissioners confirmed before January 16, 1950, and rule (ii) applied to the cases of Assistant Commissioners who were officiating at that date; and rule (iii) dealt with officers promoted after that date. The interpretation placed by the Government of India was plainly inconsistent with the true intent of the rules. The Government of India determined the seniority, inter se, of the four sets of officers in the following sequence: Respondents Nos. 6 to 34, Chopra, Sham Singh, Kapoor, Nadkarni and Karnik. In the opinion of the Government of India since Chopra, Sham Singh and Kapoor were selected for promotion at a meeting at which Nadkarni and Karnik were not found fit, the former were entitled to be placed in the list of seniority above Nadkarni and Karnik. No fault may be found with that view. They further held that when Chopra, Sham Singh, Kapoor, Nadkarni and Karnik were considered for promotion, respondents Nos. 6 to 34 had not completed the minimum length of service and on that account had not been considered for promotion, the latter "fell within the opening part of the proviso (b) to rule (iii)" and were enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their seniority inter se will be reflected in the list of Assistant Commissioners: between an officer promoted earlier and another officer senior to him, but who was not considered in the meeting when the former was promoted, seniority in the list of Income-tax Officers will be reflected in the higher cadre : where the senior officer was considered and not promoted, and the junior officer was promoted at that meeting, the order of promotion will govern seniority in the higher grade : where a senior officer is promoted and confirmed and at a later meeting a junior officer is promoted, the latter cannot claim to be placed above the senior officer in the higher cadre relying upon the circumstance that he could not be considered for promotion at the earlier meeting because he had not to his credit the qualifying minimum service. The High Court was, in our judgment, right in observing that the proviso was intended to neutralise the effect of the minimum service rule in determining seniority in the grade of Assistant Commissioners. Rule (iii) is not intended, contrary to all notions of justice and fair-play, to confer upon an officer, who was junior in the list of Income-tax Officers and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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