1976 Supreme(SC) 439

SUPREME COURT OF INDIA
A.N. RAY, C.J.I., M.H. BEG AND JASWANT SINGH, JJ.
Union of India and others, Appellants
Versus
Majji Jangammayya and others, Respondents.
Union of India and another, Appellants
Versus
V. N. Srivastava and another etc. etc. Respondents.
Union of India and another, Appellants
Versus
A. Bhashyam and others, Respondents.
(1) Civil Appeal No. 1837 of 1974:
(2) Civil Appeals Nos. 1838-1842 of 1974:
(3) Civil Appeal No. 485 of 1975:
P. C. Hadia and another, Appellants
Versus
Union of India and others, Respondents.
(4) Civil Appeal No. 1246 of 1975:
AND
(5) Civil Appeal No. 2041 of 1974:
Civil Appeals Nos. 1837, 1838-1842. 2041 of 1974 and 485 and 1246 of 1975,
D/- 5-11-1976.
Advocates appeared
Mr. Niren De, Attorney General, for India (in all appeals): Mr. Devakinandan, Advocate (in all appeals); Mr. P. P. Rao, Advocate (in C. As. 1246/75 and C. A. 2041/74); Mr. R. N. Sachthey, Advocate for Appellants in C. As. 1837-42/74, 1246/75 and 2041/74 and R. 2 in C. As. 1839, 1840/74 and Rr. 1 and 2 C. A. 485/75; Mr. A. K. Sen, Sr. Advocate (in C. A. 1837/74) and Mr. J. N. Haldar, Advocate (in C. A. 1837/74), Mr. K. K. Singhvi, Sr. Advocate (in C. A. 2041/74), Mr. Yogeshwar Prasad, Advocate Mr .S. K. Bagga and Mrs. S. Bagga, Advocates, for Respns. 1,3,7, 11, 12 & 14 in C. A. 1837/74 and Respn. 1 in C. A. Nos. 1839-1841/74 and 2041/74 and Respns. 2 and 3 in C. A. No. 1246/75; Mr. Yogeshwar Prasad, Advocate and Miss Rani Arora, Advocate, for Respn. 1 in C. A. No. 1838/74 and 1842/74 Mr. Ram Panjawani, Advocate, M/s. Bishamber Lal, S. K. Gupta and P. Dayal , Advocates, for Appellant in C. A. 485/75 and Respn. 5, 6 and 7 in C. A. 2041/74 for the Interveners in C. A. 1838, 1841, 2041/74 and C. A. No. 1246/75). 760

Headnote:

Government of India Act, 1935 - Section 241 (2) - Recruitment Rules - Rule 4 – Constitution of India, 1950 – Article 366 - Post of Assistant Commissioner – Employment and service - whether the selection list for promotion of Income Tax Officers Class I Service to the post of Assistant Commissioner of Income Tax is correct or not - whether the field of choice determined by the Committee on the basis of which the Committee prepared the selection list is correct or not - whether the Rule of 10 years experience was modified to 8 years experience - whether such affidavit evidence is admissible in evidence - 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 Committees 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 remaining 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 prepared 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 periodically 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 – Held, It is manifest from the order of this Court and the two orders made by the Government pursuant to this Courts 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 Officers 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 - 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 Guptas case (supra) at p. 506 of the report = (1975 Supp SCR 491). 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 Guptas 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 Asstt. Commr 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 - Object is to see that the position of such a person is not affected in the seniority 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 officers 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 Assistant Commissioners are on the basis of the selection list prepared by the Committee and are to be made prospectively and not retrospectively - Appeal allowed