TMI Blog1976 (11) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... List was to be prepared. (See Bishan Sarup Gupta v. Union of India ([1975]Supp.S.C.R.491). 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. ([1975] 1 S.C.R. 104). The basis of the preparation of the selection list is the field of choice. The principles for promotion to selection 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 indicated 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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' experience 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' experience 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 selection list to be incorrect is that in the fie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 seniority 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 seniority 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 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circumstances. 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 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 consideration when the vacancies were more than 120 and the Government also ignored th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention it is said that when the Government of India made an application for filling up certain posts this Court by order dated 21 December 1972 permitted the Government to fill in the posts on ad 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 promotions, 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 reference 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 experience, 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 recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government 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 requisite 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 Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 300-1600)--the minimum service 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 ₹ 16001800)--the minimum service prescribed was 14 years in Class I posts provided that for promotion as Collector of Central Excise (scale ₹ 1600-1800) the officers should have worked at least two years in the scale of ₹ 1300-1600. For promotion to Collector Grade I/Commissioner Grade I (scale ₹ 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 ₹ 1300-1600, Collector Grade ₹ 1600-1800, Collector Grade I/Commissioner Grade I Grade ₹ 1800-2000 and Selection Grade Posts of Collectors/ Commissioners. That is apparent from the fact that the Board suggeste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the requirement of 10 years' experience had been abrogated and it was not open to the Government to take the stand that requirement of 10 years' rule was modified or changed. The contention is without any substance because the consistent position on behalf of the Union has always been that the requirement 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 administrative instructions of the Government. This Court has held that in the absence of statutory rules executive orders or administra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 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 will entitle the authorities 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 resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Officers 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 Committee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 evaluation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh in the zone of consideration for promotion 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 promotion. 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 application 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd fulfilled 8 years' experience. 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 consisted. of 276 names as determined by the Committee whose jurisdiction 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 Committee 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly the contention of the respondents is that the date for determining the eligibility of officers for promotion to the posts as Assistant Commissioners should have 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 respectively. 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 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 appeals. Pursuant to the interim order of this Court the Government made two orders dated 21 March 1973 and 29 November 1973 provisionally promoting 59 and 48 officers respectively. In each of the Government orders it is specifically stated as follows: The above promotions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 promotions 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 observations relied on are that after the fresh seniority 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 department 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 Commissioner. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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