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P.N. Jhingan and ors. Vs. B. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 694 of 1968
Judge
Reported inILR1972Delhi913
ActsConstitution of India - Article 226
AppellantP.N. Jhingan and ors.
RespondentB. Union of India and ors.
Advocates: S. Pappu,; Bindra Rana,; M.S. Ganesh,;
Cases ReferredCourt (S. N. Andley and T. v. R.Tatachari
Excerpt:
.....to 1956 and onwards in accordance with the aforesaid quota rule. we do not understand either the quotarule or the mandamus of the supreme court to confer a righton persons like the petitioners to secure posts or be deemed tohave been appointed in posts in class i service in 1954, whenthey had in fact and in law been appointed to class ii, grade iiiservice which they had willingly accepted. the petitioners before us hadbeen absorbed in class ii, grade iii service and far from theirhaving been discriminated against, it would appear to be diseriminatorynot to allow them to rank with other class ii officersequally eligible for promotion to class i under the quota reservedfor promotees, and to single the petitioners out of them toconfer a benefit of appointment as direct recruits, while..........directed to apply the same and fixthe seniority accordingly. we do not understand either the quotarule or the mandamus of the supreme court to confer a righton persons like the petitioners to secure posts or be deemed tohave been appointed in posts in class i service in 1954, whenthey had in fact and in law been appointed to class ii, grade iiiservice which they had willingly accepted. it is obviously difficultto hold that any candidate has a legal right to be appointedto a post merely because he has passed the competitive examinationand is found eligible. should the government for any reasonfail or refuse to fill the vacancy or to offer the post to a successfulcandidate, he does not acquire a justiciable right and canordinarily not come to the court for directions to the.....
Judgment:

B.C. Misra, J.

(1) As a result of the combined competitiveexamination for Indian Administrative and allied central services held in September, 1952, the four petitioners, who have filedthis writ petition under Article 226 of the Constitution, wererespectively placed at positions Nos. 152, 161, 178 and 191. AThe petitioners were found eligible for appointment in the IndianIncome Tax Service Class I but since 150 (and according to the petitioners 151) persons were selected for appointment, the petitioners were not absorbed in the said service and they wereoffered the posts of Income-Tax Officers in Class Ii Grade Iii (which have a lower pay scale) and the petitioners state thatsimilarly placed candidates had been informed that their acceptanceof the offer would not prejudice their case for being consideredfor appointment in Class I service. 'The petitioners joinedClass Ii service in 1954 and at present Shri Jhingan and SbriBraham Dev Sethi, petitioners Nos. 1 and 3 are serving as Income-Tax Officers while Shri C. Satyanarayana, petitioner No. 2and Shri R. L. Bhutani, petitioner No. 4 are working as Assistant Commissioners of Income Tax.

(2) It appears that in the Income-Tax Service Class I, therewas what has come to be known as the 'Quota Rule' accordingto which the appointment of direct recruits (as a result of thecompetitive examination) had to bear a certain proportion topromotions to the said service from Class Ii, Grade III. Thisratio was previously 80:20, but at the relevant time was twothirdsand one-third. The Government had been treating theQuota Rule as administrative instructions and so were not strictlyfollowing it, which resulted in disproportion of the appointmentssometimes in favor of the direct recruits and at othertimes the promotees. The matter ultimately came up before theSupreme Court in S. G. Jaisinghani vs . Union of India. : [1967]65ITR34(SC) . In this decision, the SupremeCourt held that the aforesaid Quota Rule had a statutory force and should be observed and the Court issued a mandamus commandingthe authorities concerned 'to adjust the seniority of the petitioner and other officers similarly placed like him and to preparea fresh seniority list in accordance with law after adjustingthe recruitment for the perio^ 1951 to 1956 and onwards in accordance with the aforesaid Quota Rule.' In obedience to themandamus of the Supreme Court, the authorities prepared aseniority list in July, 1968 which has been struck down by DivisionBench of this Court in Mohan Chandra Josh! vs. The Unionof India Civil Writ No. 550 of 1970 decided on 25/03/1971 (2) but the same is, on a certificate granted by this Court, thesubject-matter of an appeal pending in the Supreme Court. Therehave been a number of other offshoots following upon the decision in Jaisinghania's case(1) and one matter came up before theHigh Court of Madras in P. R. Sharma vs. Union of India, CivilWrit No. 396 of 1967 decided on 18/08/1970(3) to whicha detailed reference would be made hereafter.

(3) The allegation of the petitioners unfolded by the writ petitionis that the position of appointments from May, 1952 to1954, as detailed in the petition, yielded a shortfall of vacanciesin the places reserved for the direct recruits which had been occupiedby the promotees. These promotees have, as a result ofthe application of the Quota Rule, under directions of the SupremeCourt, been brought down and their posts have, thereforee,to be filled in by direct recruits. The petitioners contend thatthese posts should, instead of being filled by direct recruits onfresh examinations held in subsequent years, be offered to the petitioners who had qualified in the 1952 examination and wereeligible to be appointed to Class I Service and who would havesecured the posts but for their illegal occupation by promoteesand consequently the petitioners claim that they be treated ashaving joined the Income-tax Service Class I, Grade Ii from thedate of their appointments and be treated as having qualified forbeing appointed as Assistant Commissioner and their senioritybe accordingly refixed. Respondents Nos. 5 to 74 are the promoteeswho are alleged to be affected by the relief claimed in thewrit petition but they have not appeared to contest this petition.Respondent No. 4 is the Union Public Service Commission andrespondent No. 1 is the Union of India while respondents Nos. 2and 3 are the public authorities concerned.

(4) An affidavit in return has been filed by the Under Secretaryof the Ministry of Finance and a rejoinder affidavit was filed byone of the petitioners. The material facts of the case are notmuch in dispute and the contesting respondents have contendedthat the petitioners are not entitled to the relief claimed in THE petition in the circumstances of the case. The learned counselfor the respondent has stated at the bar (though it is not containedin the returns filed on their behalf) that as a result of the 1952examination in which the petitioners appeared, the Governmenthad fixed the number of vacancies in the Income-Tax ServiceClass I at 50 which have all been filled and there neither wasnor is any post vacant available to the petitioners.

(5) The contentions formulated by Mrs. Shyamla Pappu onbehalf of the petitioners are as follows:All the candidates who have taken examination and are qualified and eligible and fall within the vacancies correctly determinedin accordance with law, are entitled to the benefit of the statutoryrules and if this is not accorded, the action would suffer from thevice of hostile discrimination under Articles 14 and 16 of theConstitution. Secondly, the Quota Rule which has been found bythe Supreme Court as statutory must, in obedience to the mandamusof the Supreme Court, be applied not only for purposes ofseniority or promotion but also at the inception of the service forthe purpose of recruitment and any over or under recruitmentcontrary to the Quota Rule of two-thirds and one-third wouldvisit evil consequences and would be discriminatory. Thirdly, theposts available to direct recruits on adjustment as a result of theapplication of the Quota Rule must be offered to the petitionerswho had been found qualified and eligible in the same year asposts fell vacant instead of being filled in by direct recruits fromexaminations held in subsequent years.

(6) The following chart given in the writ petition would disclosethe case of the petitioners:-

______________________________________________________________________________________Year No. of War No. Total Direct Deficiency Total No. Progressive direct Service pr- recruits from earl- of direct total of recru- candid- moted at 66.2/3 ier years recruitm- shortfall itment ates of Col.5 ent that (Col. 8 made (that should have minus ought to been made Col. 2 have been under the made in the rules relevant year)______________________________________________________________________________________ 1 2 3 4 5 6 7 8 9______________________________________________________________________________________1951 50 - - - - - - - 1952 - 2 49 51 34 - 32 321953 52 - 38 90 60 32 92 40 1954 44 - 30 74 49 40 89 451955 45 - 24 69 46 45 91 46 ______________________________________________________________________________________ The respondents have in paragraph 14 of the counter-affidavit furnished the following figures:- ______________________________________________________________________________________ No. of Direct recruits taken No. of promotions made______________________________________________________________________________________1951 50 -1952 2 491953 53 381954 48 311955 46 241956 - 25______________________________________________________________________________________

(7) The figures in this chart furnished by the respondents areslightly different from the one given in the decision of theSupreme Court in Jaisinghan's case (supra) but the counsel forthe respondent explains that the figures now given before us arecorrect figures found as a result of the research. The difference,however, is not material fordecision of this writ petition.

(8) The points for consideration are whether the petitionershave now any legal right to be appointed or deemed to be appointedto the aforesaid posts in Class I as in 1954 with consequentialseniority and benefits and whether infringement of thisright contravenes Articles 14 and 16 of the Constitution.

(9) We have considered all the submissions of the counsel verycarefully, but we are unable to accept them. Jaisinghani's case(1)before the Supreme Court related to fixation of seniority amongstpersons who had already joined Class I Service from two sources, namely, direct recruitment as a result of competitive exami-nation and promotion from Class Ii Service. The Court foundthat the Quota Rule was not an administrative direction, but ithad a statutory force and it could not be altered according to thepleasure of the Government or exigencies of the situation; .theauthorities were, thereforee, directed to apply the same and fixthe seniority accordingly. We do not understand either the QuotaRule or the mandamus of the Supreme Court to confer a righton persons like the petitioners to secure posts or be deemed tohave been appointed in posts in Class I Service in 1954, whenthey had in fact and in law been appointed to Class Ii, Grade IIIService which they had willingly accepted. It is obviously difficultto hold that any candidate has a legal right to be appointedto a post merely because he has passed the competitive examinationand is found eligible. Should the Government for any reasonfail or refuse to fill the vacancy or to offer the post to a successfulcandidate, he does not acquire a justiciable right and canordinarily not come to the Court for directions to the Governmentto make his appointment to the post. As a result of the examination held in 1952, 190 persons were declared eligible, butonly 150 or 151 were appointed. The remaining eligible candidatescannot claim any legal right to be appointed to any vacancies occurring at that time or in subsequent years, if the Governmentfelt that there were no vacancies or had decided to offerthe existing or additional vacancies to the candidates qualifyingin examinations held in subsequent years. Consequently the petitionersdo not have any right which they can enforce now inCourt.

(10) The argument of hostile discrimination is fallacious. Nomaterial has been placed before us to show that any successfulcandidates left out of absorption in 1954 or 1955 have now, onthe date of the petition or near-about, been appointed to the posts said to have occurred in 1954 after several competitiveexaminations have since been held resulting in appointment ofa large number of direct recruits. The petitioners before us hadbeen absorbed in Class Ii, Grade Iii Service and far from theirhaving been discriminated against, it would appear to be diseriminatorynot to allow them to rank with other Class Ii officersequally eligible for promotion to Class I under the quota reservedfor promotees, and to single the petitioners out of them toconfer a benefit of appointment as direct recruits, while they haveall these years enjoyed the benefits of Class Ii officers, would constitute hostile discrimination against other holders of Class IIposts as well as against the direct recruits of Class 1. The unequaltreatment of the equals would also constitute unfair discriminationwhich we are unable to countenance.

(11) We are supported in our view by the decision of the HighCourt of Madras in R. R. Sharma's case (supra) (3). The facts ofthat case are more or less similar. In that case, the petitioner hadurged that he had taken a competitive examination in September,1952 and was placed amongst 191 eligible candidates out ofwhom only 150 were absorbed in Class I Service, while the petitionerhad been offered the post of Income-Tax Officer in Class Ii, Iii and he had been assured that his chances of promotionto Class I in case of his turn would not be prejudiced byA acceptance of Class Ii post. It was claimed that as a result of theapplication of the Quota Rule under the directions of the SupremeCourt for the year 1954, appointments had been made of 45direct recruits and 30 promotees, but in fact 49 ought to havebeen appointed directly and so the petitioner claimed that heought to have been appointed and must be deemed to have beenappointed to the post in Class I as in 1954 and he be recordedthe resultant seniority. The High Court of Madras repelled thecontention and observed that by merely showing excessive improperrecruitment against the Quota Rule, the petitioner couldnot insist that it should ipso facto follow that the correspondingvacancies should be filled in directly out of the unabsorbed listof successful candidates of the early years; the Quota Rule requiredthat at the recruitment to Class I, Grade Ii Service, theprescribed proportion from the two sources should be maintained,but it did not mean that if promotions in excess of such proportionhad been made, the corresponding places constitutedvacancies available for being redistributed and filled in. Withthis observation of the Court, we respectfully agree.

(12) The counsel for the petitioners strongly relies upon the decisionof this Court in Mohan Chandra Joshi's case(2). In that case,a Division Bench of this Court (S. N. Andley and T. v. R.Tatachari, JJ.) held that the method of working out the QuotaRule was to determine the number of direct recruits and thenumber of promotees in each year and treat the aggregate as thenumber of vacancies in that year and then make appointmentsof two direct recruits as against one promotee in each year'svacancies. We are of the view that this observation of the Courtwas made for the purpose of determining the validity of theseniority list compiled by the Department in July, 1968 whichlist has been struck down by this Court. We are unable to deriveany assistance from this decision to support the contention ofthe petitioners that they should now be appointed or deemed tohave been appointed in the vacancies of the year 1954 whichhave long since been closed.

(13) Mrs. Shyamla Pappu, counsel for the petitioners, does notdispute the position that while considering the Quota Rule orissuing the mandamus, the Supreme Court was not consideringthe question of creation of posts and their being offered to thepersons who had already joined Class I, Grade Iii Service of theDepartment, but she contends that the rule should be extendedby analogy and it be held that had the Quota Rule been rightly Aapplied in 1954 (at the time of appointment of the petitioners)and vacancies were found to exist, the petitioners had a right tobe appointed in those vacancies. She said that the petitioners hadbeen declared successful in the examination and had been declared eligible for appointment but had not been appointed merely because the Government felt that there were no vacancies andthis wrong done to the petitioners must now be remedied. Weare of the view that there is no scope for any such extension ofthe Quota Rule or mandamus of the Supreme Court by analogyor by the process of logical reasoning. The application of therule does not mean that the posts, if any should be offered tothe unabsorbed candidates of any particular year and that tooafter several years have passed and the lists of vacancies whichhad long since been closed be re-opened and re-distributed.

(14) There are two other reasons why no relief can be grantedto the petitioners, assuming they were entitled to it. One is acquiescence and the other is laches. The petitioners had willinglyaccepted the offer of posts in Class Ii, Grade Iii Service and they have enjoyed its benefits including chances of promotion from the said class to Class I for several years past. The petitionersnever sought to enforce their right, if any, to be directly recruitedto Class I on the ground that there were vacancies in the year inwhich they had passed the examination. They had fully acquiesced in the filling of the posts and cannot be allowed to agitate thegrievance now.

(15) The second reason is the great delay. Since 1954, about 18 years have gone by and a large number of direct recruits havebeen appointed to Class I Service as a result of several competitiveexaminations. The petitioners have filed the writ petition onlyin 1968 without offering any Explanationn for the delay. Theirstand that they could not come to Court earlier than the decision of Jaisinghani's case^) by the Supreme Court is not convincinglyadequate. The Supreme Court in Jaisinghani's case(1) simply clarifiedthe position in regard to Quota Rule and this declaration ofthe law did not confer any new rights on persons like the petitioners.The delay in the circumstances of the case is so inordinatethat it will be wholly inequitable to grant any relief to the petitioners, assuming that they were entitled to it, though in fact,as we have held, the petitioners do not possess any legal rightto obtain the relief claimed.

(16) In the result, we do not find any force in the writ petitionand we dismiss the same, but in the circumstances of the case,leave the parties to bear their respective costs.


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