Citation: 1977 AIR 757
Case Type: Civil Appeal
Case No: 1837 of 1974
Appellants: Union of India
Respondents: Majji Jagamayya
Decided On: 05-11-1976
Statues Referred: Constitution of India, Government of India Act, 1935
Case Referred:
- Bishan Sarup Gupta v. Union of India
- S.G. Jaisinghani v. Union of India & Ors.
Bench: Ray, A.N. (CJ) Beg, M. Hameedullah Singh, Jaswant
Facts:
The Government of India framed a rule as rule 18 in vol. II of the Office Manual
published in 1955,, which provided that promotion shall be made only on merit and not
on ordinary consideration unless one has completed at least 10 year service as Income
Tax Officer.
This selection list was prepared on the basis of the seniority list approved by Supreme
Court on 16 April, 1974 in Bishan Sarup Gupta etc. etc. v. Union of India & Ors For
promotion to selection posts the principles are enumerated in Memorandum dated 16 May
1957 issued by the Central Board of Revenue.
There were 112 vacancies of Assistant Commissioner and the Government of India sent
336 names in the running order of seniority for consideration out of which the committee
selected 276 names.
Several Income Tax Officers from Class II to I challenged it Vis-via Writ petition filed in
several High Court assailing the correctness of the field of choice so determined by the
Departmental Promotional Committee.
The Gujarat High Court held that the requirement of 10 year’s experience as Income Tax
Officer for promotion as laid dawn in Government of India letter dated 6 th Jan, 1950
prevailed, as the Committee determined the field of choice. The requirement was violated
as the Committee considered persons with 8 year’s experience for the field of choice.
Also the High Court held that the field of choice should contain 5 times the number of
vacancies, whereas the actual field of choice contained much lesser number.
The High Court also contained that the selection list was to be based on merit and not on
seniority cum merit.
Issue:
Was the selection list for promotion of Income Tax Officer Class Service to the post of
Assistant Commissioners of Income Tax is correct or not.
Obiter dicta:
“The High Court improperly considered the true effect of the correspondence between
the finance and the Home Ministries and the Union Public Service Commission. The
Ministry of Finance Vis-via letter dated 30 January 1963 indicated that the condition of
8 years’ service for promotion was proposed to be retained.
The Home Ministry through a letter on 20 February, 1963 indicated that the requirement of 8 years’
experience for promotion did not strictly relate to seniority rules relating to Assistant
Commissioners of Income Tax and should be delinked from such rules and should be
appropriately included in the relevant Recruitment Rules.
Therefore the Home Ministry and the Union Public Service Commission agreed in principle to the requirement of 8 years’ experience. And the Finance Ministry changed the requirement of 10 years’ to 8
years’ experience”.
”The expression “ordinarily” in the requirement of 10 years’ experience reflects that
there can be a departure from the requirement and such departure can be rationalized
by reasons. Administrative instructions if not carried into effect for good reasons
cannot confer a right”.
Ratio decedendi:
The communication between the Central Government and the Union Public Service
Commission between 30 January 1963 and 26 June 1969 reflects that the principle for
promotion for the post of Assistant Commissioner was that no Income Tax Officer shall
be considered unless he has completed 8 years of service as an Income Tax Officer.
The Home Ministry, Finance Ministry, and the U.P.S. Commission concurred with the
change from the requirement of experience from 10 yrs to 8yrs.the only thing to be
checked is that no rules were made U/A 309 of the Constitution. The change was
recorded as an administrative instruction. And it was recognised in the Committee
meeting of September 1968, 1970 and February 1972. So the Finance Ministry in practice
changed the requirement of 10 years to 8 year’s experience.
The Court held that it is apparent that the affidavit evidence and submission made by the
Union indicates that the requirement of 10 year’s experience was replaced with 8year’s
experience.
In the preamble to the Manual published in 1955 it is provided that Vol. I of the Manual
consist of statutory rules and Vol. II consists of administrative instructions. Vol. II of the
Manual provides for 10 year’s experience.
The respondent’s contention that the requirement of 10 year’s experience laid down in the
letter dated 16 th Jan, 1950 had the force of law due to Article 313. But an administrative
instruction was not a statutory rule as held by the Court.
Since 1963 the field of choice is prepared in a running order of seniority. And that the
practice is followed for over 10 years. About 112 vacancies and 10 anticipated vacancies
were present in 1974. If the requirement of 10 year’s experience was adhered to then only
95 officers could be determined for field of choice. This fact alone will suffice for the
authorities to deviate from the rule of 10 year’s experience.
In 1972 there were around 94 vacancies which required 300 officers for field of choice.
There were 213 officers with 8 years’ experience. So the Committee required 8 year’s
experience for promotion. If the field of choice being based on running seniority the
Committee could only have 276 officers in the field of choice in the said case.
The letter written on 16 May, 1957 reflects that the Committee was first to decide the
field of choice. The cardinal feature for it 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. The Government sent 336 names for consideration out of
which 276 names were selected for field of choice. So the Court held that the respondent
contention that the Committee did not consider all the 336 names failed.
The selection list is prepared by placing the names in the order of “three categories”,
namely ‘outstanding’, ‘very good’, ‘good’. Therefore seniority is the sole yardstick for
determining the field of choice in the running order of seniority and merit is the sole basis
for putting the officers in the selection list in each category according to merit.
Judgment
The Apex Court’s bench comprising of Ray, A.N. (CJ) Beg, M. Hameedullah Singh, Jaswant,
held the following:
The 10 year’s experience requirement was modified to 8 year’s experience.
The letter dated 16 th Jan, 1950 by the Under Secretary of Ministry of Finance was not a
statutory rule.
There was no deviation from 10 year’s experience because of modification to 8 year’s
experience.
For preparing the field of choice running order of seniority was considered whereas for
selection list the merit was considered by the Ministry. The Court upheld the
determination.
The selection list made by the Departmental Promotion Committee forming the subject
matter of these appeals was held to be correct, lawful and valid. Parties will pay and bear
their own costs.
Conclusion:
Overruling the decision of lower court is sensitive task for the apex court of India which in
the above case was evenly performed. By dealing with each and every contention soberly, the
Supreme Court rectified the gaffe of lower court.
