TMI Blog1969 (10) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners is this : The Government in breach of the rules governing the service of Income tax officers Class 1, grade II, appointed respondents 6 to 39. Their initial, appoint- ments were irregular and illegal being outside the quota prescribed by Government for regulating recruitment to the service. Not only were they thus illegally absorbed into service but were also given preferential treatment in the matter of seniority in Class I Grade II itself and for further promotion to higher grades by framing rules which were discriminatory and which made hostile discrimination against Class I direct recruits like the petitioners. It is urged before us that their case is covered by the principle laid down by this Court in the case of S. G. Jaisinghani v. Union of India and Ors.( (1967] 2 S.C.R. 703). These contentions are controverted by the respondents. The learned Attorney General further contends that (1) all acts which have been challenged in this petition happened before the advent of the Constitution and cannot be challenged under Arts. 14 and 16 of the Constitution; (2) the petition merits dismissal on the ground that there has been gross delay in bringing the petition; and (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Allied Services Examination. The remaining 20 per cent of vacancies will be filled by promotion on the basis of selection from Grade HI (Class It Service) provided that suitable men up to the number required are available for appointment. Any surplus vacancies which cannot be filled by promotion for want of suitable candidates will be added to the quota of vacancies to be filled by direct recruitment via the Indian Audit and Accounts etc. Services Examination. All direct appointment via the Indian Audit and Accounts and Allied Service Examination to Grade II will, during the period of the war, be subject to such general orders as have already been or may hereafter be issued by the Government of India with a view to safeguarding the interest of 'war service' X X candidates. It is necessary also to set out Para 3 of the letter which is headed-General'- The new classification (in so far as it relates to Income tax officers, Grade I and II) indicated in paragraph I above will apply to officers who are recruited under the new scheme including those who are selected from the existing Grade I Income-tax officers, Class II Service. The present Grade I Income t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice 10 officers on the result of the competitive examination that will be held in October 1944. Considering that there were 183 posts, permanent and temporary to be filled in by Income tax officers Grade II, the number was insignificant. The idea seems to have been to take the officers from existing grade I of Class II as far as possible as they had experience and the direct recruits would not be able to cope with the work for some years to come. On 26.5-1945. the Government framed rules for recruitment to the Income tax officers (Class 1, grade II) service. These were conceded to be statutory rules in Jaisinghani's case(1). In the opening paragraph, it was stated that these rules were liable to alteration from year to year. Rules 3 and 4 read as follows 3. The services shall be recruited by the following methods (i) By competitive examination held in India in accordance with Part II of these Rules. (ii) By promotion on the basis of selection from Grade III (Class It Service) in accordance with Part III of these Rules. (1) [1967]2 C.R. 70-3. 4. Subject to tile provision of rule 3, Government shall. determine the method or methods to be employed for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration for promotion to grades I and II in Class I where special circumstances seem to justify a course. They suggest, however, that this should be exceptional. We may mention here that respondents 31 to 39 were appointed as I.T.0s. Class 1, grade II in 1945, respondents II and 25 in 1946, but the original date of appointment of respondent No. 25 is 1-6-1947. All the petitioners were either appointed I.T.Os Class I Grade II in 1946 or 1947. Respondents 6 to 10, 26, 27 and 28 were appointed in 1947. On 3-1-1947 the Government forwarded to the Secretary Federal Public Service Commission the names of officers then considered suitable for appointment to Class 1, Grades I and II. It was further stated that there were a large number of temporary posts in each grade and it may not be fair to limit promotions to the available permanent posts only as that might result in a large number of temporary men who may 'be eligible for higher scales of. pay being kept down. In February 1949, in discussing the draft scheme for regula- ting the seniority of Income tax officers, Class I on an all-India basis, the Government explained that there are still 51 old Class II, Grade I of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds on different dates in 1949 and were confirmed as I.T.Os Class 1, Grade II in 1949 and 1950, except petitioner No. 9 Shri D. N. Pande, who was confirmed on 22-12-1951. Most of the respondents had already been confirmed on various dates in 1946, 1947 and 1948. On 29-4-1949 a meeting of the Departmental Promotion Committee took place and the Committee agreed that promotions to Income tax officers Class I Service, of officers recruited in 1944 on the results of the I.A. A.S. and Allied Services examination held in 1943, and on other bases, should be given effect to from the 1st August 1948. This decision affected respondents Nos. 12 to 24, 29 and 30. On 14-6-49 representations were made by direct recruits including petitioners Nos. 5, 6, 8, 10 and 12 and respondent No. 28 (Shariff who is a petitioner in W.P. No. 242/67 under Art. 32), regarding proposed Seniority Rules. On 9-9-1949 Seniority Rules were framed and a seniority list of Class 1, Grade II, Income tax officers, as on the 1st Jan. 1950, was drawn up 'and circulated by a letter dated 24-1-1950. It appears that the seniority rules of 1949 had in the meantime been revised and a copy thereof was enclosed with the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho joined in 1946. In the serial Nos. 72-86 mentioned above, exist the names of the present respondents 12-24 and respondents 29 and 30. It is contended before us that this decision was arbitrary and not warranted by any rules or principles. It is further contended that the decision was made in 1952 and therefore it is liable to be challenged in a petition under Art. 32 of the Constitution. On the material on record it is not possible to say that this decision was actually taken in 1952 and not on 29-4-49 or thereabout when The Departmental Promotion Committee met and the list was prepared on 24th January 1950. The fact is that the seniority of the respondents (Srl. Nos. 72 to 86) seems to have been fixed on the basis that the Departmental Promotion Committee meeting took place on 6-9-1948. We may here reproduce the relevant Seniority rules made in 1949, 1950 and 1952 :- Rules regulating Seniority of Class 1, Grade II, Income tax Officers. Rule I (f), I (i) and I (ii) remain the same in the three years and read thus (f) The seniority of direct recruits recruited on the results of the examinations held by the U.P.S.C. in 1944, and subsequent years shall be reckone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the representations made but an interview with the Finance Minister also took place in 1960. In spite of the Government rejecting the representations, fresh representations continued to be made. On 25-4-62 Jaisinghani filed a Writ Petition in the High Court and the High Court delivered its judgment on 11-3-64. Against this decision Jaisinghani filed an appeal to this Court. A writ petition was filed by Joshi in the Supreme Court and this Court delivered its judgment in Jaisinghani's Appeal and Joshi's Writ Petition on 22-2-67, and the present Writ Petition was filed in July 1967. It seems to us that there is force in the preliminary points raised by the Attorney General, and it is not necessary to decide the various points raised by the petitioners. It is settled law that the Constitution has no retrospective operation. In Pannalal Binjrai v. Union of India(19571 SC R 33, 266), Bhagwati J. speak- ing for the Court says : It is settled that Art. 13 of the Constitution has no retrospective effect and if, therefore, any action was taken before the commencement of the provisions of any law which was a valid law at the time when such action was taken, such action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must he held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and became void on and from that date under Art. 13(1) of the Constitution. It is this passage which is strongly relied on by the learned Counsel for the petitioners. In our view this passage has no application to the facts of this case. In a number of subsequent decisions of this Court the passage has been held to be applicable only to the facts in that case. In Sri Jagadguru Nari Basava Rajendra Swami of Gavimutt v. Commissioner of Hindu Religious Charitable Endowments, Hyderabad,( [1964] 8 S.C.R. 252.) Gajendragadkar C. J. observed thus regarding the aforesaid passage With respect, we are not prepared to hold that these observations were intended to lay down an unqualified proposition of law that even if a citizen was,' deprived of his fundamental rights by a valid scheme framed under a valid law at a time when the Constitu- tion was not in force, the mere fact that such a scheme would continue to operate even af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rought about 15 years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Learned Counsel for the petitioners says that this Court has no discretion and cannot dismiss the petition under Art. 32 on the ground that it has been brought after inordinate delay. We are unable to accept this contention. This Court by majority in M/s. Tirlokchand Moti Chand's case([1969] S.C, Cases 110) held that delay can be fatal in certain circumstances. We may mention that in Laxmanappa Hanumantappa Jamkhandi v. The Union of India Anr. ([1955] S.C.R. 769), Mahajan, C. J. observed as follows :- From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income tax Act itself were made against the petitioner in November 1953. In these circumstances, we are of the opinion that he is entitled to no relief under the provisions of Art. 32 of the Constitution. It was held by this Court in Ramjilal v. Income tax Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointments and promotions made after 1950. In this case, we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income tax and who were appointed and promoted to their original posts during 1945 to 1950, should be left alone. Learned Counsel for the petitioners, however, says that there has been no undue delay. He says that the representations were being received by the Government all the time. But there is a limit to the time which can be considered reasonable for making representations. If the Government has turned down one representation, the making of another representation on similar lines would not enable the petitioners to explain the delay. Learned Counsel for the petitioners says that the petitioners were under the impression that the Departmental Promotion Committee had held a meeting in 1948 and not on April 29, 1949, and the real true facts came to be known in 1961, when the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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