KAMAL KANTI DUTTA AND ORS. v. UNION OF INDIA AND ORS

Citation: [1980] 3 S.C.R. 811

Court: Supreme Court of India

Bench: Y.V. CHANDRACHUD, N.L. UNTWALIA, P.S. KAILASAM, D.A. DESAI, E.S. VENKATARAMIAH

Case summary

In pursuance of the liberty reserved to the parties under the Judgment in the first Gupta's case the validity of the new seniority rules was challenged by the· promoteeS once again....

Judgment text

KAMAL KANT! DUTTA AND ORS. v. UNION OF INDIA AND ORS. April 23, 1980 [Y. V. CIIANDRACHUD, C. J. , N. L. UNTWAUA, P. S. KAILASAM, D. A. DESAI AND E. S. VENKATARAMIAH, JJ. ] 1 Review of Judgments of the Supreme Court of India under Airticle 137 of ihe Constitution read with Order XXL of the Supreme Court Rules, 1966- Petitions filed under Article 32 of the Constitution indirectly invoking the review ·c iurisdiction and seeking a revie1v of earlier decision of the'· Courts Held, there is no substance in the request. With a view to imp:roving the Income-tax administration, the Government of India in consultation with the Federal Public Service Commission decided to -reconstitute then existing income-tax services, Class I and II.

Under the scheme of reorganisation of the services set out in a letter dated September 29, 1944 of the Government of India Finance Department, the central service Class I was to consist of (i) Commissioners of Income-Tax (ii) Assistant Commis- ·sioners of Income-Tax; (iii) lncome. -Tax Officers Grade I and (iv) Income-Tax Officers Grade-II. Thus Income-Tax Officers Class I were to be of two grades, Grade I and II; while Income-Tax Officers Class II were to consist of one grade, namely, Grade III. Clauses (a) to (e) of paragraph 2 of the letter, prescribed the mode of recruitment to the various posts in Class I and Class II, Under Clause (d) recruitment to Class I Grade II was 20% by promotion from Class II, Grade III and 80% by direct recruitment via Indian Audit and Accounts Service etc. examination.

Rules regulating recruitment to the Income-Tax Officers (Class I, Grade II) service ''liable to alteration from year io year" were published on May 26, 1945, by a resolution of the Finance (Central Revenues) Department. Rule 3 provided that recruitment to Class I, Grade ! I's service shall be made (I) by competitive examination held in India in accrnlance with Part-II of the Rules and (ii) by promotion on the basis of selection of Grade ill (Class II service, in accordance with Part lII of the :Rules. By Rule 4 of the Government was to determine, subject to the provi• sioos of Rule 3, the method or methods to be employed for the purpose of ·filling any particular vacancies, or such vacancies as may be required to be filled during any particular period, and tho number of candidates to be recruited by such method.

Part ill of the Rules called (Recruitment by Promotion) provided by paragraph 21 that "recruitment by promotion shall be made by selection from Grade-Ill Income-Tax Officers (Class II service) after consuli•tion with the Federal Public Service and that no officer shall have any claim to such promotion as of right". 1ly a letter dated January 24, 1950 the Government of India laid down certain rules of seniority: (a) as between direct recruits; (b) as between promotees selected from Class II and (c) as between direct recruits who compl_eted their probation in a given year and the promotees appointed in the same year to Class r.

A, On October 18, 1951 the Government of India addressed a letter to all the Ccmn1issioners of Income·Tax titled "Income-Tax Officers, Grade-II (Class- I service)-quota of vacancies filled by promotions" wherein it was outlined that for a period of 5 years in the first instance 66 and 2/3 per cent of the vacancies in Class-I, Grade-II would be filled by direct recrnittnent by a combined. competitive examination and the remaining 33 and 1/3 per cent on the basis of selection by promotion from Grade-III (Class-II service). Any surplus vacancies which could not be filled by promotion for want of suitable candidates would be added to the quota of vacancies to be filled by direct recruitment. By a letter dated September 5, 1952 the Government of India revised with a retrospective effect the Rules of Seniority which were laid down on January 24, 1950.

Rule 1 (f)(iii) as framed on January 24, 1950 which was to the effect that "the promotees who have been certified by the comm~s sion in any calendar year sha. 11 be senior to all direct recruits who complete their probation during that year or after and are confirmed with effect from date in that year or after" was revised on September 5, 1952 as "officers promoted in accordance with the recommendations of . the Departmental Promotion Committee before the next sitting of the Departmental Promotion Committee shall be senior to all direct recrui:ts appointed on the results of the examinations held by the Union Public Service Commission during the calendar year in which the Departmental Promotion Committee met during the three previous years".

Rule l(f)(iv) of the 1952 Rules dealt with a special situation in \Vhich an officer initially appointed to Class Il service was given seniority in thei same manner as a departmental promotee, if subsequent to bis passing the departmental examination he was appointed to Class I on the results of the competitive examination. Rule 4 of Chapter IX of the Rules of Promotion of the Central Board of Revenue Office Procedure Manual states that the pres· cribed n1inimum service for an officer of Class-I, Grade-TI for promotion to Er Grade-I is 5 years gazetted service including one year in Class-I, Grade-Il. For a promotee from Cass-II the minimum period of service for promotion t'o Class-I, Grade-I would be actually 4 years service in Class-II and one year service in Oass-1, Grade--11. In an appeal arising out of Writ Petition No. 189-D af 1962 filed by one S. G. Jai Singhani (who is respondent No. 358 in Writ Petition No. 66 of 1974 F: and respondent No. S in Writ Petition No.

4146 of 1978), a constitutional Bench of this Court held : {i) Rules I(f)(iii) and (iv) of the Seniority Rules framed ~·1952 did not violate Articles 14 and 16 since they·were·based on a reasonable classification; (ii) Rule 4 of Chapter IX of the Central Board of Revenue Office Procedure Manual did not lead to any discrimination as between direct recruits and promotees, since the object of the rule was· really to carry out 'the policy of Rule I (f) (iii) of the Rules of Seniority and not allow it to be defeated by the recruitment of 5 years' service in Oass-I, ·Grade-Il itself, before a person could be considered for promotion to Class-I, Grade-I; (iii) Rule 4 of the Income-Tax Officers (Clas~I, Grade-II) Service Recruitment Rules was a statutory rule to which a statutory duty was cast on the Government to determine the method or methods to be employed for the purpose of filling of the vacancies and the number of candid;ites to 'be recruited by.

each method; and that though in the letter of the Government of India dated October 18, ll: 1951 there was no specific reference to Rule 4, the quota fixed by that letter must be deemed to have been fixed in exercise of the statutory power gi~en by Rule 4. There was, therefore, no discretion left to the Government of K. K. DUTTA V. UNION 813 ! India to alter that quota according to the exigencies of the situation or to . cJeviate from the quota in any particular year at its own wilt and pleasure. The .. quota rule) according to the Court, was linked up with the Seniority Rule and unless it was strictly observed in practice it would be difficult to hold that the :seniority rule contained in rule 1(f) (iii) was not unreasonable and did not offend Article 16 of the Constitution.

The Court suggested that for future years the 'foster system should be adopted by framing an appropriate rule for \Vorking out the quota between the direct recruits and the promotees and that a roster should be maintained indicating the order in which appointments \Vere made -by direct recruitment and by promotion in accordance with the percentages fixed under the statutory rule for each method of recruitment. Thus the direct ;recruit. 3 succeeded substantially in their contentions, the quota rule acquired statutory force, appointments of promotees in excess of the quota became bad and it became obligatory for the Government to prepare a fresh seniority list. Promotees found to have been appointed in excess of the quota admissible to ·promotees had naturally to go down in the final gradation of seniority. On July 15, 1968 the Govcrnn1ent prepared a fresh seniority list and filed it . in the Supreme Court. That list failed to satisfy promotees as well as direct recruits.

Whether this seniority list was correct and in accordance with the mandan1us which was issued by this Court in S. G. Jai Singhani's case, [1967] 2 S. C. R. 703 came up for consideration in four appeals which '\Vere disposed of by a common judgment dated August 16, 1972 reported as Bishan Sarup Gupta v: 'Union of India (first Gupta"s case) in [1975] Suppl. S. C. R. 491. The Court was also called upon to examine the correctness of seven principles enumerated iri the Government letter dated July 15. 1968 governing seniority. The first principle was accepted as good. The second and the third principles were held to be partially incorrect in so for as they excluded reference to all the promotees of 1952. The Court held that the promoteesi of 1952 should be referred to 'in the seniority list whether they are affected or not, the object being the ascertainment of excess promotions.

This Court further held that the rule dated October 18, 1951 was not concerned with the ~onstitution of the cadre but "was concerned with how permanent vacancies were to be filled" and, therefore, the promotees would be entitled to l/r3 of the vacancies in any particular year whether or not there was direct recruitment by competitive examination in that year. This ratio of 2 : 1 between the direct recruits and the promotees. could not be made to depend on whether any direct recruits were appointed in any particular year. It, therefore, became essential to detennine th'e actual vacancies in the cadre but the Government put forward the plea even in this ·case as in Jai Singhani's) that it was impossible for them to give the exact figure of vacancies in any particular year.

According to the Court, when the quota rule referred to vacancies it was implicit that the vacancies are those which the Government wanted to fill up '\Vhatever may be the actual number of vacancies available for being filled up. Any number of posts among the promotees more than 1/3 of the total number of appoint,ments in the particular ·year was considered to be in excess of the quota available for promotees. The Court rejected the argument that the quota rule which is co-related to vacancies of permanent posts only and not to those in temporary posts. While upholding the weightage allowed under Rule I (! )(iii) ro Class·II officers ·promoted to Class-I. Grade-II, the Court also held .

that even after 1956, the Government was entitled by reason of Rule 4 of the Recruitment Rules of I945 to follow the quora rule of 1951 as a rough guideline, "without going through the trouble of putting the same on record in so many words" and that in the normal course the Government was entitled to prepare the seniority list till the end of 1958 in accordance with the quota rule of 195. 1. In regard to the position after year 1958 the Court came to the conclusion that ' ~ the quota rule ceased to apply and came to an end on January 16, 1959, I when the sanction to upgrade 100 t'emporary posts in Class-II, Grade-III t0- Class-I, Grade-II was given by the President. The seniority rule then fell with quota rule. On these considerations the Court held that the seniority list' was valid in regard to promotions made up tu January 15, 1959 to the extent that it was prepared on the basis of the quota rule dated October 18, 1951 read with Seniority Rule l(f) (iii).

As a corollary, the Court set aside the seniority list of July 15_, 1968 and directed the Government to prepare a fresh seniority list. The List for the· years 1955 to January 15, 1959 was directed to be prepared in accordance with the quota rule of 195l read with Seniority Rule l(f) (iii). The List to be effective from January 16, 1959 was directed to be prepared in accordance with the rules to be made afresh by the Government. On February 9, 1973 the President made rules called the fncome-Tax (Class-I) Service (Regulation of Seniority) Rules 1973 under Article 309 of the Constitution giving retrospective effect from January 16, 1969. In pursuance of the liberty reserved to the parties under the Judgment in the first Gupta's case the validity of the new seniority rules was challenged by the· promoteeS once again. The challenge was considered and repelled by the Court in Bishan Swamp Gupta etc. v. Union of India and Ors. , [1975] 1 S. C. R.

104, second Gupta's case~ When the new list of seniority was prepared. by the Government, in accordance with these rules, the Government had on its hand 7'5 promotees who though appointed earlier between 1956 and 1958 had no quota post, for their absorption. The 73 promotees described as "spill-overs on January 15, 1959'', as also those who were promoted subsequently had to be absorbed in the Service, which could only be done by a special rule framed in that behalf. The new seniority rule contained a formula for the absorption of all promotees with effect from January 16, 1959 in posts allocated to them, ir determined their seniority intel' se and last but not the least it determined their seniority qua the direct recruits appointed from 1959. The. Court overruled' the objection of the '73' spill-over promotees that since in the first Gupta's case the cCourt had directed that they should be absorbed on a ';priority basis··.

all of them should have been shown in the seniority list as having been appointed on January 16, 1959' en bloc and the direct recruits for that year should have been shown thereafter. It was explai Jed that by use of the expression "priority basis" what was· meant by the Court was that the position of the spill-over promotees as senkirs should not be prejudiced by claims made by later promotees on the ground tha. t since the spill-over promotees were recruited in excess of the quota, the later promotees whose promotion did not violate the quota rule had higher rights than, those 73. The Court further held that, when the 73 spill-over appointments were made, there were no allocated or earmarked posts to which those promotees could have been validly appointed, the ordinary consequence of which would have been their reversion to Cla. ss II po11ts which they originally held. ' So long as the· quota rule was in i! xistence.

appointments in excess of the quota, though invalid when n1ade, were atleast Jiable to be regularised in subsequent years when vacancies were· avai1ableto the promotees as a C-Onsequence of the quota rule. Bur once the quota rule ceased to exist on JanuarY 16, 1959, any possibility of the excess appointments of the promotees being regularised vanished. It \Vas in order K· K. DUTTA V. UNION 815 to overcome this injustice to the promotees, that the new rule was framed by the Government. The new rule was thus not only the direct outcome of the judgment of the Court in the ! st Gupta case, but it was founded on the very principles on which the Income-tax Service had been constituted. The Court finally said that it had also to be remembered that promotees appointed from January 16, 1959 onwards w·ere appointed on an officiating or adhoc basis with notice that the question of their seniority was still undecided. 'fhis circmnstance coupled with the absence of clea.

r allocation of posts, made B'. ir impossible for the promotees to lay claim to seniority and contend that they were· deprived of their natural seniority in violation of Article 16. The petitioners who were promotee Income-Tax Officers Class-r, Gradel! prayed for reconsideration of these three decisions S. G. Jai SinJ;hani v. l! nion of India and Anr. , [1967] 2 S. C. R. 703; Bishan Swarup Gupta v. [Inion of Indio and Ors. , \Finl Guptds case). [1975] Suppl. S. C. R. 495; Bis/uw SwarrJp Gupta e1c. v. Cir. ion of India and Ors. • (Second Gupta's case),. [1975] 1 S. C. R. 104- and to the extent S. G. Jai Singhani's case is relied upon in ll11ion of India v. ilfalji Jangamayya etc. , [1977] 2 S. C. R. 28, on the following grounds : 1. The Conclusion that Rule 4 of the Income.

Tax Officers (Class-I, Grad&-11) Service Recruitment Rules is statutory and, therefore, the quota pte9albcd by the Government of India for recruitment to Income-Tax Offi· cers Class-I, Grade-II in exercise of the power conferred by Rule 4 would be statutory, proceeds on an assumption not warranted by the provisions of law bearing on the point and if both Rule 4 and the quota presumably prescribed in exercise of the power conferred by Rule 4 are not shown to be statutory, the foundation of which the edifice in S. G. Jai Singhanfs c. ase rests is knocked down because it can be demonstrably established that neither rule 4 nor the quota prescribed thereunder . was stautory in character but was at best an administrative instruction. 2.

After the Court on an interpretation of the quota rule held that the quota \Vas ielated to vacancies arising in the grade every year, the conclusion reached did not conform to this finding but accommodated the so-called inability (now shown to be factually incorrect) of the Government of India to give information to the Court about . the' vacancies ;in the grade every year with the result r{ that the . whole calculation of spill-over is vitiated. 3. The mandamus issued in Jai Singllani's'case was misinterpreted by the Government because even if the quota was statutory it was operative only between 1951 and 1956 but the Government interpreted the mandamus w be operative beyond 1956 and upto 1967 which misinterpretation has been pointed out . ia the first Gupta's case. 4.

Jn the first Gupta's case while holding that the mandamus directing to treat the quota statutory beyond 1956 was not justified yet till January 16, 1959, the Court itself indirectly accepted the quota rule as a guideline anrl treated that there was a spill-over of 73 promotees. If Rule 4 was not statutory and consequently the quota prescribed in exercise of the power which had outlived. its prescribed span of life in 1956 could not be brought in to treat any appoiatment as invalid on the ground that there was no allocated post for those appointeet treated as spill-over because under Rule 4 itself the Government harl power to-detern1ine the method or methods to be employed for the purpose of filling in particular vacancies or such vacancies as may be required to be· filled in during any particular period and the number of candidates·. to be recruited ( by each method. '! '- 5.

The action of the Government of upgrading 214 posts between 1959 and 196-Z from Class-II, Grade-II to Class I, Grade II was not open to question as at that stage there was no quota rule and Rule 4 enabled the Government to make recruitment from either of the two sources in exercise of its executive power. In regard to the second Gupta's case the Court introduced quota rule retrospectively by the back door which is impermissible and its operation manifestly establishes its utter unfairness inasmuch as a direct recruit nor any where in the department or may be a student may secure a march~over a promotee \vhich has been working in Class-I, Grade-II. Dismissing the petitions the Court, HELD: Per Chandrachud, C. J. (On behalf of N. L. Untwalia, P. S. Kailasam, E. S. Venkataramiah, JJ. and himself). (Majority view) l. A consideration of certain historic fa. cts in this case makes it clear that there is no &ubstance in the request made for a review of the de. cisions in Jai Singhani v.

[Inion of India and Ors. , [1967] 2 S. C. R. 703; Bishan Swarup Gupta v. Union of India and Ors. (1st Gupta's case) [1975] supplementary S. C. R.. 491; Bishan Swarup Gupta v. Union of India & Ors. ; Second Gupta's case [1975] I S. C. R. 104 and Union of lndia v, Malji Jangamayya [1977] 2 S. C. R. 28. [840 E-FJ For nearly a- decade after 1950, appointments of promotees were made far in excess of the quota available to them. So long as· the quota rule operated, it \vas possible to regularise their appointments when posts within thCir quota became available in later years. But a ~omewhat unprecedented situation arose by the upgrading of Class II posts to Class I grade II-100 of them on January 16, 1959 and 114 en December 9, 1960. This massive upgrading of posts brought about a colla-pse of the quota rule.

Subsequent absorption in posts which became available for being filled up later really mearui rngularisation of appointments, which is possible provided there is no excessive: deviation from the quota rule. [840 G-H, 841 AJ It is true that no blame can be laid at the doors of the promotees on the score that they were appointed in excess of the quota avail~ able to them. Perhaps, their appointments must even have enabled the· administration to tide over administrative stale-mate. But the tough problem which the administration has to face is that whereas it is necessary to recognUe and protect the claims of promotees who were appointed in excess of their quota, it is equally necessary to ensure that the direct recruits do not suffer an undlle set-back in service on account of the appointments of promotees. The conflicting claims of the two components of Service, both having an importance of their own, have therefore to be reconciled.

It was with that object that the rules have been modified from time to time. The judgments rendered ~y this Court in the aforesaid four cases show, without a. shadow doubt, bow every effort was made to ensure that no hardship or injustice is caused to lh~ pro~ n1ctees merely because their appointments exceeded their quota. (841 A.. C] II 2. It is not correct to say that the judg:meilt in Jai Singhani was based on a concession or that the Court felt compelled to draw the particular conclusions K. K. DUTTA V. UNION 817 therein because of the inability or refusal of the Financei lVIinistiy to produce the relevant files. The Court adopted what it considered in the circumstances . to be a satisfactory and scientific method of ascertaining the number of vaca. ll-.. cies available for being filled up. lt came to the conclusion that the1 number . ,of actual appointments should determine the number of vacancies available which ¥. ras a perfectly legitimate conclusion to draw.

In the grey area where service rules operate, more than one view is always possible to take without "Sacrificing either reason or con1monsense but the ultimate choic~ has to be neces· sarily conditioned by serveral considerations ensurin_g justice· to as many as possible and injustice· to as few. There was no error in the conclusion in Jiti Singlzani that Rule 4 of the Recruitment Rules was a statlltory rule Subse- ,quent decisions V. 'ould show that there was hrirdly ooy dispute between the -parties, at later stages at any rate, that Rule 4 was a statutory rule. (841 D-G] f 3. No doubt, the. pron1otees should not be penalised for the mere rOO::Son that those of them who were appointed after Ja-nuary 16, 1959 were appointed on an officiating or ad hoc basis and had clear notice that the question of their ·seniority was still undecided.

The circumstances attendant upon their appoint~ ments cannot, ho\vever, be wholly overlooked in determining whether the constitutional constraints have been over-stepped. [841 H. 842 A] 4. It is not safe to test the constitutionality of a service rule on the iouch stone of fortunes of individuals. No matter With what care, objectivity and foresight a rule is framed, some hardship, inconvenience or injustice is bound to result to some members of the service. The paramount consideration is the reconciliation of conflicting claims of two important constituents of :Service, one of v,ihich brings fresh blood and the other mature experience. [842 A-CJ 5. Though the promotees submitted in the Second Gupta case that the new ·seniority rule was unfair to them, they were unable to put forward any rational alternative. On the contrary the counter-affidavit dated August 31,.

1973 filed in the Second Gupta case by Shri Mehra·, the· Deputy secretary Finance, shows the fullness with which the Government had consulted all possible interests ·while framing the impugned rules of seniority. The gamut of reasonable l)O~ibilities is fairly covered by the four alternatives referred to in Shri Mehra's affidavit The inconveniences and disadvantages flowing from the first three alternatives would be far greater than those flowing from the fourth. Tha. t is le randidates will be added to the quota of vacancies to be filled by direct recruitment via the Indiaμ Audit and Accounts etc. Services examination. Rules regulating recruitment to the Income-tax Officers (Class I, ' Grade II) Service, "liable to alteration from year to year", were pub- ' lished on May 26, 1945 by a resolution of the Finance Department (Central Revenues).

Rule 3 provided that reeruitment to Class I, Grade II Service shall be made (i) by competitive examination held in India in accordance with Part II of the Rules and (ii) by promotion E. on the basis of selection from Grade III (Class II Service) in accordance with Part III of the Rules. By rule 4, the Government was to determine, subject to the provisions of rule 3, the method or methods to be employed for the purpose of filling any particular vacancies, or such vacancies as may require to be filled during any particular' periop, F. and the number of-candidates to be recruited by each method. Part III of the Rules called 'Recruitment by Promotion' provided by para- • graph 21 that recruitment by promotion shall be made by selection from among Grade III Income-tax Officers (Class II Service)lafter consultation with the Federal Public Service Commission and that no officer shall have any claim to such promotion as of right.

By a letter dated January 24, 1950 the Government of India laid do,wn certain rules of seniority (a) as between direct recruits, (b) as ' between promotees selected from Class II, and (c) as between direct recruits who completed their probation in a given year and the pro-. motees appointed in the same year to Class I. H On October 18, 1951, the Government of India addressed a letter to allth~ Commissioners of Income-tax on the subject 'Income·tax Officers, 14-463 SCl/80 • Grade II (Class I Service)-quota of vacancies filled by promotion·. The letter says : ' The Government of India have had under consideration the question of increasing the proportion of vacancies reserved fqr I promotion from Class II Income-tax Officers in Class I. It has been decided in consultation with the Union Public Service ' Commission and in modification of para 2(d) of the Finance Pep!. (Central Revenues) letter No. 195-Admn.

(IT)/39 dated the 29th September, 1944 that for a period of five years in the first instance 66/2-3 %of the vacancies in Class I, Grade II, will be filled by direct recruitment via combined competitive examination . and the remaining 33! %by promotion on the basis of selection from Grade III (Class II Service). 'Any surplus vacancies which cannot be filled by promotion for want of suitable candidates will be added to tbe quota of vacancies to be filled by direct recruitment. By a Jetter dated September 5, 1952, the Govemment of India revised with retrospective effect the rules of seniority which were laid down on January 24, 1950. Rule l(f)(iii) as framed on January 24, 1950 read thus : The pr who have been certified by the Commission 0motees in any calendar year shall be senior . to all direct recruits who complete their probation during that year or after and are confirmed with effect from a date in that year or after.

The rule as revised on September 5, 1952 read thus : Officers promoted in accordance with the reeommenda~ tion of the Departmental Promotion Committee before the next meeting of the Departmental Promotion Committee sha! '' be senior to all direct recruits appointed on the resul~ of the examinations held by the Union Public Service Commission during the calendar year in which the Departmental Promotion Committee met and the three previous years. -0 Rule l(f)(iv) ofthe 1952 Rules dealt with a special situation in which an officer initially appointed to Class II service is given seniority in the same manner as a departmental promotee, if subsequent to his passing -Ythe departmental examination he is appointed in Class I on the ;esults of the competitive examination. Rule 4 of Chapter IX of the "Rules of Promotion of the Central Board of Revenue Office Procedure Manual states, that the prescribed K. K. DUTTA v. UNION (Chandrachud, C. l.

) 827 minimum service for an officer of Class I, Grade II for promotion to Grade I is 5 years gazetted service including 1 year in Class I, Grade II. For a promotee from Class II, the minimnm period of service for promotion to Class I, Grade I, would be actually 4 years service in Class II and 1 year service in Class I, Grade II. In 1962, S. G. Jaisinghani (who is respondent No. 358 in Writ Petition No. 66 of 1974 and respondent No. 5 in Writ Petition No. 4146 of 1978) filed Civil Writ No. 189-D of 1962 in the High Court of Punjab under Article 226 of the Constitution, challenging the validity of th. e seniority rnles in regard to Income-tax Service, Class I, Grade II as also the actual implementation of the 'quota' rule, as infringing Articles 14 and 16(1) of the Constitution. Promotees who were likely to be affected by the decision of the Writ Petition were added as respondents 4 to 126 to that Petition.

Jaisinghani who was recruited directly as an Income-tax Officer, Class I (Grade II), raised four principal contentions : (i) Rule l(fJ(iii) of the seniority rules as "framed in 1952 was based upon an unjustifiable classification between direct recruits and promotees after they had entered Class I, Grade II· Service. On the basis of that classification, promotees were given seniority over direct recruits of the same year and with weightage of three previous years. All officers appointed to Class I, Gr. ade II Service formed one class and after being recruited to that class, no distinction could be made between direct recruits and promotees. (ii) Rule l(f)(iv) was discriminatory because though the petitioner, Jaisinghani, qualified in the same competitive exap mination of 1950 for appointment to Class I, Grade II Service as respondents 4, 5 and 6 to that petition, they • were treated as senior to him by the operation of the artificial rule by which.

they were regarded as "deemed promotees", since they were appointed to Class II, Grade III Service in 1947. All the four of them were appointed to Class I, Grade II Service in ! 951 and therefore the period of service put in by respondents 4, 5 and 6 in Class II, Grade III Service cannot be counted for fixing their seniority vis-a-vis the petitioner. (iii) Rule 4 of Chapter IX of the 'Central Board of Revenue Office Procedure Manual' leads to discrimination as between direct recruits and promotees; and that .. (iv) during the years 1951 to 1956, there was excessive recruitment of 71. promotees, in violation of the quota rule of 2 : 1 contained in Government of India's letter dated October 18, 195L The quota fixed by that letter must be deemed to have been fixed in exercise of the, statutory power given by rule 4 of the Income-tax Officers (Class I, Grade II) Service Recruitment Rules published on May 26, 1945.

A full Bench of the Punjab High Court, Circuit Bench, Delhi, rejected the writ petition, holding that the principles for determining seniority between direct recru,its and promotees laid down in rules l(f} (iii) and (iv), 1952 were not discriminatory, that the quota rule announced by the Government of India were, merely a policy statement and had no statutory force, that departure from the quota rule did not give rise to any justiciable issue and that the promotion rule governing promotions from Class I, Grade U to Class I, Grade I was not discriminatory and ultra vires of Articl1' 14 and 16 of the Constitution.

In appeal, a Constitution Bench of this Court held that rules l(f)(iii) and (iv) of the seniority rules framed in 1952 did not violate Articles 14 and 16 since they were based on a,reasonable classification and that rule 4 of Chapter IX of the 'Central Board of Revenue Office Procedure Manual' cannot be held to lead to any discrimination as between direct recruits and promotees, since the object of the rule was really to carry out the policy of ~le l(fJ(iii) of the Rules of Seniority ,+ and not allow it to be defeated by the ,requirement of five years service in Class I, Grade II itself, before a person could be considered for promotion to Class I, Grade J. On the question of excessive recruitment of promotees from.

1951 to 1956 in violation of quota rule, the Court had directed the Secretary of the Finance Ministry, during the hearing of the appeal, to furnish information regarding the number of ,~ , vacancies which had arisen from year to year from 1945 onwards, '- ~ the nature of the vacancies-permanent or temporary-the chain of ~ vacancies and such other details which were relevant to the matters pending before the Court. In his affidavit dated January 31, 1967 Shri R. C. Dutt, Finance Setretary, said that he was not able to work out, in spite of his best endeavours, the number of vacancies arising in a particular year. However, a statement, Ex. E. was furnished to the Court showing the number of officers recruited by the two methods of '""( recruitment to Class I Service during the relevant years.

The Court found that it was not clear from Shri Dutt's affidavit whether the quota rule was followed strictly for the years in question ar d noted that in the ff absence of fig1lres of permanent vacancies in Class I, Grade II, for the relevant years, the Solicitor General was unable to say to what extent .. K. K. DUTTA v. UNION (Chandrachud, C. J. ) 829 there had been deviation! from that rule. Rejecting the submission of the Solicitor General that the quota rule was merely an administrative direction, the Court held rtiat rule 4 of the Income-tax Officers (Class I, Grade II) Service Recruitment Rules was a statutory rule nnder which a statutory duty was cast on the Government to determine the method or methods to be employed for the purpose of filling the vacancies and the number ofcandidates to be recruited by each method; and that, though in the letter ofthe Government ofIndia dated October 18, 1951 there was no specific reference to rule 4, the quota fixed by ..

that letter must be deemed to have been fixed in exercise of the statutory power given by rule 4. There was therefore no discretion leftwith the Government of India to alter that quota according to the exigencies· of the situation or to deviate from the quota, in any particular year, at its own will and pleasure. The quota rule, according to the Court, was linked up with the seniority rules and unless it was strictly observed in practice it would be difficult to hold that the seniority rule contained in rule l(f)(iii) was not unreasonable and did not offend Article 16 ofthe Constitution.

The Court expressed its conclusion thus : We are aocordingly of the opinion that promotees from Clltss II, Grade III to Class I, Grade II Service in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards have been illegally promoted and the appellant is entitled to a writ in the nature ofmandamus commanding respondents I to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to 1956 and onwards in accordance with the quota rule prescribed in the letter of the Government of India No. I;'. 24(2)-Admn. I. T. /51 dated October 18, 1951. We, however, wish to make it clear that this order will not affect such Class II Officers who have been appointed permanently a~ Assistant • commissioners of Income Tax. (emphasis supplied).

The Court suggested that for future years the roster system should be adopted by framing an appropriate rule for working out the quota between the direct recruits and the promotees and that a roster should be maintained indicating the order in which appointments are made by direct recruitment and by promotion in accordance with the percentages fixed under the statutory rule for each method of recruitment. In Writ Petition No. 5 ~f 1966 filed by Mohan Chandra Joshi under H. , Article 32 of the Constitution, a similar mandamus was'issued by the Court. Mohan· Chandra Joshi, like Jaisinghani, was recruited dfrectly ... ; as Income-tax Officer, Class I, Grade II, with the only difference that he was appointed in 1953 while Jaisinghani was appointed in 1951. Thus the direct recruits succeeded substantially in their contentions.

the quota rule acquired statutory force, appointments of promotees in excess ofthe quota became bad and it became obligatory for the Govern-· ment to prepare a fresh seniority ,list. Promotees found to have been appointed in excess of the quota admissible to promotees had naturally to go down in the final gradation of seniority. The aforesaid decision was given by this Court on February 2, 1967. But, in spite ofthe mandamus issued by it, Government did not ··~ prepare a fresh seniority list for over a year, which led to the filing of a contempt petition by Jaisinghani and Joshi. Those proceedings were dismissed by this Court on. November 6, 1968. In the meanwhile, on July 15, 1968, the Government prepared a fresh seniority list and filed it in this Court. That list failed to satisfy promotees as well as direct recruits. Two writ petitions were filed in the Delhi High Court to challenge the fresh seniority list : one by B. S. Gupta, a promotee of 1962 and the other by M. C.

Joshi, a direct recruit who had succeeded in the eerlier round of litigation in this Court. . These writ petitions were heard by two separate Benches of the Delhi High Court. Writ Petition No. 196 of 1970 filed by B. S. Gupta was dismissed whereas Writ Petition No. 550 of 1970 filed by . M. C. Joshi was substantially allowed. Setting aside the seniority list, the High Court gave a direction that another seniority list be prepared in the light of its judgment. The decision ofthe Delhi High Court in the aforesaid two writ petitions was challenged in this Court in four appeals : one by Il. S. Gupta against the dismissal of his Writ petition and the other three by (i) the Government, (ii) . M. C. Joshi and (iii) 5 promotees. In all these appeais, the only question or consideration was whether the seniority list prepared on July 15, 1968 was correct and in accordance with the mandamus issued by this Court in Jaisinghani v. Union of India and Ors. (1J.

These appeals were heard together and were disposed of by a judgment dated August 16, 1972 which is rep~rted in Bishan Sarup Gupta v. Union of India and Ors. (2). While preparing the seniority list the Government understood the mandamus issued in Jaisinghani(}) as covering the entire period from 1951 to 1967. For doing that it could not be blamed, since the mandamus issued in Jaisinghani~) clirected the Government to adjust the -(! ) [1967] 2 S. C. R. 703. (2) [1975] Suppl. S. C. R. 491. K. K. DUTTA v. UNION (Chandrachud, C. l. ) 8 31 seniority of various officers for the period 1951 to 1956 "and onwards", though the argument regarding excessive recruitment of the promotees was confined to the years 1951 to 1956. Palekar, J.

speaking for the Court in Bishan Sarup Gupta (Supra) observed in the first instance that this Court could not possibly have in mind a seniority list which took in promotees after 1956 and that therefore under the mandamus issued by this Court, appointments of promotees in excess of the quota could only be taken into consideration in relation to the period 1951 to 1956. The reason for the use of the words "and onwards" was explained to be that Government should be able to push down exceis promotions to later years in order that such promotions could be absorbed in the lawful quota available for later years. In Blshan Sarup Gupta---the Court was called upon to examine the correctness of. seven principles enumerated in the Government letter dated July 15, 1968 governing seniority. The first principle was accepted as good. The second and the thirdh>rinciples were held to be partially incorrect in so far as they excluded reference to all the promotees of 1952.

The Court held that the promotees of 1952 should be referred to in the seniority list whether they are affected or not, the obje"ct being the ascertainment of excess promotions. The (ourth principle set out in the letter of July 15, 1968 which is important for our purpose reads thus : In view of the difficulty in working out the vacancies arising in each year the total number of direct recruits and promotees in each year have been taken into account for the pur- . pose of implementing the quota rule. ··4J This Court held that the rule dated October 18, 1951 was not concerned with the constitution of the cadre but "was concerned with how pe(lllaneat vacancies were to be filled" and therefore the promotees would. he entitled to l/3 of the vacancies in any particular year whether or not there was direct recruitment by competitive examination in that year. This ratio of 2 : l between the direct rerruits and the promotees could not be made to depend on whether.

any direct recruits were appointed in any particular year. It therefore became essential to determine the actual vacancies in the cadre but even in B. S. Gupta the Government put forward the plea that it was impossible for them to give the exact figure of vacancies in any particular year. Counsel R who appeared for the promotees in that case filed a chart marked Annexu re I which, according to him, showed the correct number of 832 SUPREME COURT IU! PORTS (1980] 3 s. c. R. ' vacancies in the particular years. The Court, however, foundit impossible to determine the actual vacancies on the basis of the figures given in that chart. In the circumstances, the Court considered it reasonable to accept the number of appointments made in the particular years as substantially representing the actual vacancies available . for being filled up. One of the reasons which the Court gave in sup- •B port of this conclusion was that when the quota rule referred to vacan- ..

cies, it was implicit that the vacancies are those which the Govc111ment wanted to fill up, whatever may be the actual number of vacancies available for being filled up. Thus, if in the year 1953, 53 pos~ were filled by direct recruits and 38 by promotees, the total number ofvacancies which were intended by the Government to be filled in W4>'*1 be ·~. 91. Promotees would be entitled to hold 1/3 of ,these namely, 30. 8 promotees therefore could be said to have been appointed in excess of the quota available for ptomotees. This was. in fact what the Gov-. ernment had done while preparing the fresh seniority list, though it had wrongly calculated the vacancies with effect from the ye11r 1953 instead of doing so w. e. f. the beginning of the year 1952. There were . D no promotions in 1951. and therefore, the question of appointment of promotees in excess of their quota did not arise for that year.

The argument advanced on behalf of the direct recruits that the quota rule should be co·related to vacancies in permanent posts only and not to those in temporary posts was rejected by the Court. The Court upheld the 5th principle under which Class II Officers promoted to Class I, Grade II, were allowed weightage und1:r rule l(f)(iii).! The Court then considered the question whether the quota rule could be applied after the year 1956. It held that even after I9S6, the Government was entitled by reason of rule 4 of the Recruitment . Rules of 1945 to follow the quota rule of 1951 as a rough guideline, "Without going to the trouble of putting the same on record in so many words". The Court observed that if the rule is followed as a gul'deline, a slight deviation from the quota would be permissible but if there was an "enormous deviation", other considerations ma. Jr arise. Taking into consideration the relevant circumstances, the Court came to the conclusion that in.

the normal course the Government was entitled to prepare the seniority list till the end of 1958 in accordance with the quota rule of 1951. In regard to the position after the year 1958, the Court came to the ' . cone! usion that the quota rule ceased to apply and came to an end on January 16, 1959 when the sanction to upgrade 100 temporary posts in K. K. DUTTA v. UNION (Chandrachud, C. l. ) 833 class II, grade III to class I, grade II was given by the President. The seniority rule then· fell with the quota rule.. On these considerations it was held that the seniority list was valid in regard to promotions made upto January 15, 1959 to the extent that it was prepared on the basis of the quota rule dated October 18, 1951 read with the seniority rule l(f) (iii).

This position made it necessary for the Court to consider as to how the inter se seniority between the direct recruits and the promotees was to be fixed after January 16, 1959, if the seniority rule l(f)(iii) ceased to be operative from that date·. Several suggestions were made to the Court with a view to evolving a fair and just seniority rule. f The COurt declined to be drawn into any such exercise and preferred to leave it to the Government to devise a fair and just seniority rule, if " necessary, in consultation with the U. P. S. C. As a corollary, the Courf8et aside the seniority list of July 15, 1968 and directed the Governmimt to prepare a fresh seniority list. The list for the years 1955 to January 15, 1959 was directed to be prepared in accordance with the quotll rule of 1951 read with seniority rule l(f)(iii). The list to be effective from January 16, ]959 "(as directed to be prepared in accordance with rules to be made afresh by the Government.

Principles (6) and (7) did not survive for consideration separately in view of the position mentioned above. · I The Court kept the proceedings pending OJ). its file to enable the Government to prepare a fresh seniority list in the light ofthe directions given by it within six months from the date of the order. Liberty was given to the parties to apply to the Court after the list was file!!. The judgment in B. S. Gupta ~(supra) was given on August 16, 19n. On February 9, 1973, the President made rules called the Income-tax (Class I) Service (Regulation of Seniority) Rules, 1973. These Rules · were made under Article 309 of the Constitution·and were given retrospective effect from Januafy 16, 1959. In pursuance of the liberty resel'VC)d to the parties under the judgment in B. S. Gupta, the validity of the new Seniority Rules was challenged by the promotees. That challenge was considered and repelled by this Court in Bishan Sarup y the writ petitioners in this Court.

It appears from that report that at the sitting of the Rajya Sabha held on the 23rd August, 1974, Shri Kali Mukherjee, M. P. , presented (I) [1977J 2. S. C. R. 2. 8 .. K. K. DUTTA v. UNION (Chandrachud, C. J. ) 839 , ;a petition signed by Shri R. C. Pandey, General Secretary, AU India Federation of Income-tax Gazetted Services Associations, New Delhi, ! Praying for the repeal of the Income'tax Officers (Class I Service) (Regulation of Seniority Rules, 1973) and for the framing of fresh seniority rules in lieu thereof. The Committee heard the representatives of (i) promotees on whose behalf the petition was presented to the Rajya Sabha; (ii) the Ministry of Finance and (iii) the direct re- . cruits who were represented by the Indian Revenue Service Association. After going through the evidence, the memoranda and the files 11upplied by the Ministry of Finance the Committee observed : " ......

the Department from 1944 till today has been working in a very haphazard, irregular and unscientific way. They made policies, rules, etc. and then went on deviating from them to suit certain exigencies. Instead of meeting the new situation or the demands of the Department in a scientific or rational way, ad-hocism prevailed. This led to litigation for nearly two decades. Since the year 1944, the Department has . made so many commissions and o=issions in its long working, thereby it has provided arguments to both the direct re- ently pJintei out because. the examination of this ugly aspect could hive been s;nrd if srrcl:t a contention was not canvassed. Re· • peatedly the GJvernment of India kept back material from this Court filing affidavit after affidavit showing its inability to provide such im· portant information on which the decision of the Court would turn even thougl:t it can now be demonstrably established that such material and information was with tl:te Government.

If the Government of India had not withheld such material information;which has been rather adversely commented upon not by the Court but by the Legis· lature, the credibility of the department would be exposed. Reference may be made in this connection to the 49th Report of Committee on Petitions presented on January 9, 1976, to Rajya Sabha Secretariat, set up to dispJse of a petition filed by one R. C. Pandey, General Secre· tary, All India Federation of Income Tax Gazetted Services Associations, praying for repeal of the Income Tax Officers (Class I Service) (Regulation of Seniority) Rules, 1973, and for the framing of fresh seniority rules in lieu thereJf. While dispJsing of til'ts petition. , the observation pertinent to the point under discussion may be extracted: "The Committee is shocked at the pleas of loss of vital records taken by the administration. In response to the Corn• rnittee's requests relating to important files the administration has taken a similar plea.

The Committee asked for a file which could possibly show the correct position on the question whether the 80 : 20 quota during the period 1945-50 was really operative. The file is reported missing. Another file reported missing is that relating to the framing of the recruitment rules, 1945. The file relating to Shri R. C. Dutt's affidavit (filed in Jaisinghani's case) is also not available. Even the very recent file relating to the framing of Seniority Rules, 1970, is reported as 'not available'. On our insistence they have produced a thick sheaf of papers said to be 'reconstructed file'. H is strange that many of the files which could probably have thrown light on the question of excess promotion, are reported 'missing' or 'not available'. The conclusion is inescapable that these losses of files are far from being accidental. We can only K. K. DUTTA v. UNION (Des«>, !.

) 847 conclude that important information was de/iberately''withheld from the Supreme Court as well as from the Committee". (emphasis supplied) On these observation*he credibility submission would not only stand squarely answered, but need not deter us from going into the points made in these petitions. However, this Court does not lightly undertake review of its deci- • sions, more especially where conflicting claims have been settled by a decision of the Court and the whole gamut may have to be gone through over again on a reconsideration ofthe decision. The approach of the Court on a plea of reconsideration has been spelt out in Sajjan Singh v. State of Rajasthan,(') where a plea for reconsideration of the decision of this Court in Sri Sankari Prasad Singh Deo v.

Union of India & State of Bihar,(2) was repelled observing as under : "It was, however, urged before us during the course of the hearing of these writ petitions that we should reconsider the matter and review our earlier decision in Sankari Praiad's case, It is true that the Constitution does not place any restriction on our powers to review our ear1ier decisions or even to depart from them and there can be no doubt that in matters relating to the decision of constitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared to review our earlier decisions in the interest of public good. The doctrine of stare decisis may not strictly apply in this context and no one can dispute the position that the said doctrine should not b~ permitted to perpetuate erroneous decisions pronounced by this Court to the detriment p of general welfare.

Even so, the normal principle that judgments pronounced by this Court would be final, cannot be ignored and unless considerations of a substantial and compelling character make it necessary to do so, we should be slow to doubt the correctness of previous decisions or to depart from them". Similarly, in the Keshav Mi/is Co. Ltd. v. Commis issued by the Government. Therefore, after 1956 rule 4 remained in force in all its rigour and was not hedged in by any quota. Rule 4 permitted the Government to make recruitment from either source without lettering its discretion by any quota rule which it was not bound to prescribe. On January 16, 1959, Government in the Ministry of Finance informed the commissioners of Income Tax that the President had sanctioned the upgrading to class I of I00 temporary Posts oflncome Tax Officers, Class JI. On December 19, 1960, there was further upgrading of 114 posts from class II to class I. Between 1959 and 1962 these 214 posts were filled in by prornotees.

Now. in the ! st Gupta case this court held that even though the quota rule expired in 1956, yet the Government of India adopted it as a guideline. May be, it may be so. Does any appointment in breach of the guideline neither statutory nor even having the fragrance of any executive instruction become invalid more so when the Government had power to make appointment from either source uninhibited by any quota rule under rule 4? Yet the Court found that between 1956 and 1959 when 100 • posts came to be upgraded there was a spillover of 73 persons and because of the huge departure from'' guidelines the weightage rule giving seniority to the promotees by 2-3-years was crushed under its own debris. Again, with respect it must be confessed that rule • 4 is overlooked or bypassed when saying that there was a spillover of 73 promotees between 1956 and 1959.

Nor could it be said that the upgrading of 214 posts and filling them up by promotees would be in any way even irregular much less invalid because rule 4 enables Government to drs. \v from either source. In the 2nd Gupta case in view of the decision in ]st Gupta case fresh seniority rule was prepared and it was made retroactive from January 16, 1959. If, the inter a/ia, provides that the relative seniority amongst the promotees and the direct recruits shall be in the ratio of 1 : 1 and the same shall be so determined and regulated in accordance with a ro~ter maintained for the purpose, which shall follow the following sequence, namely : (a) Promotee;! (b) direct recruit; (c) promotee, (d) direct recruits, and 'o on. This methed of roster undoubtedly intrcduces a quota by the back door. Once a roster is introduced promotee direct rucruit, promotee direct rucruit etc.

even if some promotees have come in a bulk and if at a later date some direct 'recruits are appointed in bulk, while preparing roster[an earlier date promotee will have'. to yield~his place to a later date direct recruit. Bluntly translated it means that the direct recru,it who was never in service when promotee was promoteed, probably he may be a student. May be he may not have even passed the competitive examination, yet he may come into the picture and challenge one who has already been servmg in the Department for a number of years. To illustrate, in the new seniority list prepared by the Government pursuant to the order made by this Court in the 1st Gupta case and upheld by this Court in 2nd Gupta case a promotee of 1962 will have to yield his place to a direct recruit of 1966.

With utmost hesitation I must say that service jurisprudence hardly permits a situation where a man not in service comes and challenges some thing which has been done much before he came in to service and gets such an advantage which on the face of it appears to be unfair. But apart from this, even in 1959 there was no quota rule and assuming that the old service rule giving weightage to the promotees crushed under that weight of large number of promotees being promoted, it would not, '"" be open to the Govenment to so prepare a fresh seniority list which cannot be given effect to unless a roster is introduced which introduces quota by the back door and which is so unfair in its operation that promotees of 1962 will have to yield place to direct recruits of 1966.

Now ' under the old weightage rule promotees were given a weightage for service of 2-3 years over direct recruits because direct recruits were unable to undertake regular assessment work for a period of 2-3 years when they were more or less under training while promotees have been doing this work for a number of years and their experience is reflected in the weightage. The whole thing now appears in the reverse I gear in that an uninitiated direct recruit takes precedence over an experienced promotee. The unfairness of the new rule is writ large on the face of it. K. K. DUTTA v. UNION (Desai, J. ) 853 This rule violates another important rule well recognised in the ser vice jurisprudence that in the absence of any valid rule of seniority d ate of continuous officiation provides a valid rule of seniority.

This rule is completely crucified under two unsustainable assumption that a quota rule having guideline sanction is made imperative in character and assumed to be in force between 1956 and 1959, and that even though Government in exercise of power conferred by rule 4 for its own necessity promoted 214 promotees to the upgraded posts yet they mnst yield place to some future direct recruits who may come to the • department at a later date. This Court sustained the position holding that these were ad hoc appointments, and there were no regular posts for those promotees. This approach wholly overlooks the effect and the force of rule 4. Certainty and continuity demand that this Court should not reopen settled decisions or reopen closed questions unless under a compelling necessity. It may be that the fate of Income Tax Officers, promotees and direct recruits, may rest with the three decisions of this Court.

Unfairness to some of them may itself not provide a good and compelling reason for reopening and reconsidering the decisions. Therefore, ;f that were the only point for our consideration I would have unhesitatingly agreed with the decision rendered by My Lord the Chief Justice. But there is a further compelling necessity which impels me to pen these few lines. Jaisinghani and the two Gupta cases are being quoted times with- <mt number before this Court for the principles enunciated therein. These decisions, therefore, affect,subsequent decisions·of this Court as well as the High Courts. And some of the principles enunciated in these three cases stand in sharp contrast to other decisions ohhis Court and in fact this Court itself felt it necessary to warn that it may become necessary to reconcile these conflicting decisions. In ,, this connection reference may be made to N. K. Chauhan and Ors. v. State of Gujarat and Ors.

,(') where this Court after referring to two sets of decisions charting two different courses, observed as under : "After all, we live in a judicial system where earlier curial wisdom, unless competently over-ruled, binds the Court. The decisions cited before us start with the leading case in Mervyn Coutindo & Ors. v. Collector of Customs, Bombay (2) and close with the last pronouncement in Badami v. State ofMysore and Ors. (l) This time-span has seen dicta go zigzag but we see no difficulty (1) [1977] I SC. R. 1037 at 1053. (2) [1966] 3 S. C. R. 600. •(3) [1976] 1 S. C. R. 815. in tracing a common thread of reasoning. However, there are divergencies in the ratiocination between Mervyn Coutindo (supra) and Govind Dattatray Kelkar and Ors. v. Chief Controller ofImports and Exports and Ors. , (1) On the one hand and S. G. Jaisinghani v. Union of India (supra) Bishan Sarup Guptav. Union of Ind1a (supra) Union ofIndia and Ors. v. Bishan Sarup Gupta (3), and A. K. Subraman and Ors. v.

Union of India (2) on the other, especially on the rota system and the year being regarded as a unit, that this Court may one day have to harmonize the discordance unless Government wakes up to the need for properly drafting its service rules so as to eliminate ' litigative waste of its servants' energies". :~ It is not for a moment suggested and I say so with utmost respect that the aforementioned three decisions are incorrect. In the light of the materials now placed especially the files which were withheld from the Court and the Committee the only view that I express is that enough compelling and necessary material has been placed on record making out a strong case for reconsideration of these . decisions. Accordingly, in my view the present two petitions deserve· to be placed before a larger Bench to be constituted by the Hon'ble Chief Justice of India. ORDER In view of the majority opinion the Writ Petitions are dismissed with no order as to costs. S. R. Petitions dismissed. ...

' (I) [1967] 2 S. C. R. 29. (2) (1975] 2 S. C. R. 979.