Judgement

SIKRI, J.: 16. Officers of the Income-tax Department have filed this petition under Article 32 of the Constitution praying for various reliefs on the ground that their rights under Articles 14 and 16 have been infringed. They are all confirmed Assistant Commissioners of Income-tax and respondents 6 to 39 are also confirmed Assistant Commissioner of Income-tax. Respondents 1 to 5 are the Union of India, Secretary, Ministry of Finance, Central Board of Direct Taxes, Secretary, Ministry of Home Affairs, and the Union Public Service Commission. The practical object of the petition is to gain some seniority so that they can be promoted as Commissioner of Income-tax earlier than the respondents 6-39. The petitioners were all confirmed as Assistant Commissioner in 1959. Apart from respondents 28, 29 and 30, all other respondents were confirmed in earlier years. In brief, the case of the petitioners is this: The Government in breach of the rules governing the service of Income-tax Officer Class I, Grade II, appointed respondents 6 to 39. Their initial appointments 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 discrimiatory and which made hostile discrimination against Class I direct recrits 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, 1967-2 SCR 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 Article 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) the relief which has now been claimed would be against the decision in Jaisinghani s case, 1967-2 SCR 703 (Supra).

2. In order to appreciate the above contentions and the other points raised before us, it is necessary to set out the relevant facts chronologically.

3. Before September 29, 1944, when the re-organisation scheme was launched, the conditions of service and pay-scales of Income-tax Officers were different and the method of recruitment was also different in different Provinces. By letter dated 23-3-43, it was decided that pending the constitution of Class I and Class II Service of Income-tax Officers, the latter of which will include also officers hitherto called Assistant Income-tax Officers, the existing grade of Assistant Income-tax Officers should be designated as Income-tax Officers, Grade II. There was disparity not only in pay but also in prospects and conditions of service. The Government therefore felt it necessary to re-organise the entire service and to create a Central Service and uniform payscales for different constituent grades. The main idea was to create Class I cadre Officers Service and to make selection to it from the existing Class II officers. This re-organisation scheme was formulated in a letter dated 29-9-44 from the Government of India, addressed to all Commissioners of Income-tax. The Central Service Class I was to consist of Commissioners of Income-tax - (No. of posts 8 - 7 permanent and 1 temporary). Assistant Commissioners of Income-tax -

(No. of posts 378 - 360 permanent and 18 temporary).

Income-tax Officers Grade I:

(No. of posts 151 - 125 permanent and 26 temporary).

Income-tax Officers Grade II:

(No. of posts 183 - 125 permanent and 63 temporary).

Class II was to consist of Income-tax Officers Grade III: (No. of posts 83 - 9 permanent and 74 temporary).

4. Regarding Income-tax Officers Grade I (Class I Service) it was stated that these officers will