1. The O.A. was earlier decided by this Tribunal vide order dated 12.3.2001, but in Special Civil Application bearing Numbers 2600 of 2001 and 2601 of 2001 the Hon'ble High Court of Gujarat has set aside the order passed in the O.A. and remanded back the mater to the CAT for decision on merits. Pursuant to the remand of the matter was have heard the learned advocate of both the parties at length and now decide the matter afresh.
The facts of the case are already narratted in the earlier Judgment of this Tribunal as well as in the Judgment of the Hon'ble High Court but to understand the rival contentions we are narratting the brief history of the case leading to the present litigation.
2. The applicants as well as Respondent No. 3 to 7 are working as Assistant Commissioner of Income-tax and they are engaged in the perpetual dispute of the seniority of direct recruits and the promotees. The applicants are direct recruits of 1991 batch and their grievance is that the I.R.S. Rules, 1988 provide for maintaining the ratio of 1:1 for fixation of seniority of direct recruits vis a vis promotees, Respondent No. 1 and 2 have not maintained this ratio and given en bloc promotion to 176 promotees in the year 1991 showing them as senior to the direct recruits of 1991. The service of the Income-tax officer Class I was earlier regulated by the Income-tax officers (Classification, Service Regulation) Seniority Rules, 1973. However, pursuant to the directions of the Supreme Court, revised rules were notified by the President under Article 309 of the Constitution on dated 12th May 1985. The Notification stated that the rules were made for regulating recruitment to the Indian Revenue Service. The rules inter alia provide for consolidation of the service, laying down that all the posts included in the Service shall be classified as Group A posts, initial constitution of the service, and future maintenance of the Service with provision for seniority, the Procedure for filing up the vacancies in the ratio of 50: 50 for direct recruits and promotees.
Rule 9 provides for the seniority of the Asstt. Commissioner of Income-tax (Jr. Scale), while Rule 15 relates to the power of relaxation of the Government. After the promulgation of these rules, an exercise was undertaken by the Finance Department in the year 1990 to consider the question of promotion to the level of Assistant Commissioner of Income-tax in view of the large number of vacancies. It was found that there were 459 vacancies at the level of Asstt.
Commissioner as on 1.11.1990. It was also worked out that even after the intake of 1992, 332 vacancies still would remain unfilled and hence it would not be possible to promote any Income-tax officer to the level of Asstt. Commissioner (Jr. Scale) as there was no vacancy at this level, it appears that several options were considered by the department to meet with the situation arising out of the pending large number of vacancies. It was felt that the existence of the large number of vacancies was coming in the way of collection of the taxes and to improve to performance of the department as well as to meet with the demands of the Staff Association for promotion it was necessary to till up the part of the existing gap by promoting Group B officers to the grade of Assistant Commissioner (Junior Scale) in relaxation of the quota rules. The Finance Department drew up a proposal for relaxation of the Recruitment Rules and circulated the same to the Department of personnel and Training, Ministry of Law as well as UPSC by Way O.M.dated 5th November, 1990. The proposal contained in the said O.M inter alia sought approval of the Ministry and UPSC for filling up only: (1) 100 posts (through direct recruitment on the basis of the 1990 examination instead of 200 direct recruitment).
(2) For promoting 250 Group B officers in excess of the quota prescribed for them by relaxing the quota rules as a one time measure as was done in 1983-1984 and (3) For providing inter as seniority to the promotees under the relaxation clause on the basis of their order of selection as determined by the UPSC.3. It was also proposed that these officers would be placed and brought on the seniority list of Asstt. Commissioner of Income-Tax (Group A, Junior Scale) below the pirect recruits appointed to this grade during 1990 and also below promotees, who would be adjusted in roster of seniority for direct recruits in accordance with Rule 9(3) of the I.R.S. Rules, 1988. The Ministry of personnel A Ministry of Law accorded approval to the proposal but the UPSC after some correspondence agreed for diversion of 176 vacancies from direct recruitment quota in the grade of Asstt. Commissioner of Income-tax (Junior scale) for filling up by promotion in relaxation of Recruitment Rules as a one time measure. Pursuant to the agreement of the UPSC to the said proposal, the department gave on bloc promotion to 176 Income-tax officers (Junior scale and placed them en bloc below the direct recruits of 1990 batch. However, in the mean time, the UPSC had conducted selection for the posts of Asstt. Commissioner (Junior Scale) and selected 127 candidates for the year 1991. They were given appointment by the department in the year 1991 itself but were placed below the 176 promotees. Aggrieved by the action of the respondent in placing them below the 176 promotees, the Association of the Direct Recruits had moved the principal Bench of the C.A.T by filing O.A. No 2404 of 1991. They also obtained interim relief restraining the respondent from giving en bloc seniority to the 176 promotees. The O.A had, however, come to be dismissed in default and the I.R. granted earlier was vacated. The applicants had there after flied the present O.A to challenge the action of the respondent in relaxing the quota and ROTA Rules. According to them though 127 candidates were available as Direct Recruits in August 1991, the respondents had not given them seniority over the promotees, and not adjusted them as per their original claim in the seniority. They maintained that the seniority list maintained by the respondents is unjust and ab initio void and requires to be quashed and set aside. During the pendency of the O.A., they have also moved an M.A/59 of 2001 seeking amendment to the O.A. to challenge the O.M. of 15th November, 1990. After remand of the matter, it was agreed amongst the parties that the M.A. would be treated as allowed and the applicants would be permitted to argue on the basis of such amendment in the O.A. The M.A. therefore is deemed to have been allowed.
4. Respondents No. 1 and 2 and 3 to 5 have resisted the O.A. by filing their separate redies. The Respondent No. 6 and 7 also have filed their separate reply. Respondent No.8 who had joined subsequently on his moving the Tribunal for being joined as a party, had initially not filed any reply but has supported the case of the applicants. The contention raised by them pertained to limitation, non-joining of the necessary parties as well as the O.A. being barred in view of the dismissal of the earlier O.A. filed in the principal Bench. They all now have been decided and they do not arise for decision in this Judgment. Apart from these contentions, it is also contended by the respondents that prior to coming in force of the IRS Recruitment Rules, 1988-on account of the direction of the Supreme Court- the recruitment to the Grade of Asstt. Commissioner of Income-tax was made under the 1973 Rule's according to which the quota of promotees was kept at 33 1/3% while that of the Direct Recruits was maintained at 66 1/3% In the case of D.S Gupta v. Union of India and therefore again in the case of D.S Gupta IInd reported in AIR 1974 SC 1680, the Supreme Court gave certain directions to the Government to revise the Recruitment Rules of the Assistant Commissioner (Junior Scale) and accordingly the old rule with two years weightage to the promotees was revised by New Seniority Rules in which the promotees were allotted the first slot and the direct recruits were allowed the second slot in the quota of 50: 50.
Ultimately the weightage of two years available to the promotees was also down away with. However, in the year 1990, it was found that there were 500 vacancies which the department was unable to fill up unless direct recruitment was increased substantially. The department had been sending recommendations to the UPSC for recruit 150 officers and promoting equal number of Group B officers to Group A for three years prior to 1990 and it was felt that for a service having 2800 duty posts and 460 posts of various reserves, even this intake was on the higher side. It was therefore not possible to increase the recruitment quota.
The Department of personnel and Training had therefore suggested at one time a that for ensuring the recruitment of 100 officers per year, the department should send a requisition for 125 every year. A detailed exercise was thereafter carried out and it was found that even after the intake of 100 officers every year, it would not be possible to fill up the above gap and that at the end of three years, the gap would come down, to 332. It was also observed that more than 450 Group B officers at that time had put in more than ten years of service as against the eligibility recruitment of three years for promotion to Group A. In these circumstances, a decision was taken to fill up the part of this gap by promotion Group B officers to Group A as a one time measure in relaxation the Rules. Earlier also in the year 1983-84, 258 posts of Group A were filled up by promoting Group B officers in addition to the normal quota of promotion. Since Rule 15 of the I.R.S Rules 1988 empowered the Government for relaxation in the Rules, a decision was taken in consultation with the Law Ministry and UPSC to exercise this power of relaxation and on the advice of the UPSC 176 officers from Group B were given en bloc promotion in relaxation on the rules. It was also considered that existence of a large number of vacancies in I.R.S is coming in the way of collection of the revenue and the direct taxes as per the Estimates of the Union Budget for 1990-91 and therefore in order to improve the performance of the department and also to meet with the demand of the Staff Association, the department had expressed a view that part of the existing gap in I.R.S. be filled up as one time measure by promoting Group B officers to the Grade of Asstt.
Commissioner of Income-tax (Junior scale) in relaxation of the Quota Rule provided in the Recruitment Rules. They have also contended that this relaxation was done as a one time measure and the inter as seniority of direct recruits and promotees during 1990 were regulated as per para 4 of the O.M. dated 5.11.90. After a decision was taken, a D.P.C. meeting to consider promotion of eligible Income-tax officers against the aforesaid 176 posts of Asstt. Commissioner of Income-tax held from 9th to I4th October, 1991 and the D.P.C. had recommended approval of 180 officers and their seniority was fixed as advised by the Department of personnel below the direct recruits appointed to Assistant Commissioner of Income-tax Group A (Jr. time scale) and also below promotees who were adjusted in roster of seniority with such direct recruits under Sub-rule (iii) Rule 9 of I.R.S. Rules, 1988. They have maintained that there was no illegality or arbitrariness involved in carrying out this exercise and the Government has exercised powers available to it under the rules.
5. We have heard learned Counsels of both the parties at length.
Written submission are also filed on behalf of Respondent No. 1 and 2 as well as Respondent No. 8 and we have given due considerations to the contentions raised before us. From the pleadings and the rival contentions advanced at the Bar following points arise for our determination in this O.A:- (1) Whether there was sufficient justification for relaxing the quota of direct recruits and to divert 176 vacancies to promotees quota? (2) Whether the impugned action of the Respondent No. 1 & 2 to relax the quota of direct recruits and divert the 176 vacancies from direct recruits quota to promotees quota is arbitrary or capricious? (3) Whether there is a relaxation of ROTA rules and if yes whether it is justified? (5) Whether Resp. No. 8 can make a grievance about exercise of power of relaxation by the Government and whether they can claim seniority over the excess of the 176 promotees? 6. So far as the promotion of the 176 Group B officers to the level of Group A (Jr. Scale) for the year 1991 is concerned, it is a fate accompli and Mr. Thakor the learned Counsel for the applicants has fairly conceded that there was no challenge to the promotion of 176 group B officers. According to him the grievance of the applicant is not against the promotion of the Group B officers but the grievance is in giving en bloc seniority to them over the applicants. Even the relief prayed for in this O.A. suggests that main grievance of the applicants is about non-observing ratio of 1 : 1 while fixing the seniority of these promotees vis-a-vis direct recruits of the 1991. The proposal for relaxation of the rules emanated from the department because of the large number of vacancies in the cadre of Assistant Commissioner. An exercise undertaken by the department revealed that there were about 500 posts in various grades lying vacant, bulk of which were in the senior scale of Assistant Commissioner of Income-tax.
The recruitment to the Service at the level of Assistant Commissioner Income-tax (Jr. Scale) is made partly by direct recruitment through the Combined Civil Services Examination and partly by promoting officers from Group B as per the provisions of Rule 7 of the I.R.S. Rules, 1988.
According to Rule 7 of these rules, vacancies are required to be filled up in the ratio of 50: 50, through direct recruitment and by promotion of Group B officers. Since there was large number of vacancies in the direct recruitment quota and it was felt by the department that the same could not be filled up in near future, an O.M. dated 5th Nov., 1990 was issued by the Ministry of Finance, Department of Revenue stating that about approximately 500 posts in various grades were vacant, bulk of which were in the grade of Assistant Commissioner of Income-tax. The department been recruiting 150 officers every year through the combined civil Services Examination but the actual available of officers was ranging from 110 to 125 during these years.
The department had sent the requisition of 200 to the UPSC for 1990 exam. It was felt that recruitment of such a large number of officers of the Service would create promotion blocs and the department therefore expressed the view that direct recruitment should be limited to 100 per year or so and in this view of the matter, the existing vacancies could be filled up as per the provisions of I.R.S. Rules, 1988. The O.M. which is in the nature of a proposal further goes on to say that the existence of a large number of vacancies in the Service in I.R.S. was coming in the way collection of the direct taxes as per the Estimates of the Union Budget for 1990-91 and therefore in order to improve the performance of the department and also to meet and demand of the Staff Association, the department was expressing the view that the part of the existing gap in I.R.S. may be filed up as a one time measure by promoting Group B officers to the grade of Assistant Commissioner of Income-tax (Junior Scale) in relaxation of the Quota rules provided for in Recruitment Rules. The O.M. also quotes Rule 15 of the I.R.S. Rules, 1988 and the sub-rule which reads as under:- "Power of relaxation can be exercised, where the Government is of the opinion that it is necessary or expedient to do so by order for reasons to be recorded in writing in consultation with the commission to relax any of the provisions of these rules with respect of any class or category of the persons".
7. It is also mentioned in the O.M. that a similar situation had arisen and during the year 1983-84, vacancies were filled up in I.R.S. by promoting officers in relaxation of the quota rules. These promotions were under a separate set of rules called. The Income-tax officers (Group A-Jr. Scale) Departmental Recruitment Rules, 1983 promulgated in consultation with the Department of personnel and Training and UPSC.The O.M. thereafter further states that above matter was considered in a meeting taken by the Secretary (Revenue) in his chamber on 31.10.1990 which was inter alia attended to by Shri J.S. Mathur, Joint Secretary (Estt.) in the Department of personnel and Training and Shri G.D.Chopra Joint Secretary and Addl. Legal Adviser to the Government of India in the Department of Legal Affairs and Ministry of Law and Justice and after considering the matter in depth, following decisions were taken:- (1) Keeping in view the authorised strength of I.R.S. the proposed recruitment of 200 direct recruits per year through the Combined Civil Service Examination is very high. The intake of such a large number of officers is likely to create promotion blocs and consequently cadre management problem in future. As per the norms of the Department of Personnel and Training recruitment every year should not exceed 100 which is approximately 3% of the authorised cadre strength. The written request made accordingly was sent to the UPSC for filling up only 100 posts through direct recruitment on the basis of 1990 examination.
(2) Since it was not possible to reduce the gap effectively in the next couple of years with the proposed recruitment of 100 officers by direct recruitment it was felt that part of the gap may be filled up by promoting 250 Group B officers in excess of the quota prescribed filled by relaxing the quota rules as one time measure as was done in 1983-84.
(3) Promulgation of the separate set of Recruitment Rules for filling up the 250 Posts as was done in 1983-1984 was not considered desirable in view of the possible delay involved and also the fact that there is a specific provision for relaxation in the I.R.S. Rules, 1988 and (4) The inter-se seniority of the promotees under the relaxation clause shall be on the basis of their order of selection as determined by the UPSC. The officers will be placed and brought in the second list of ACIT (Group A) Junior Scale below the direct recruits appointed to this grade during 1990 and also below promotees which would be adjusted in roster of seniority. With such direct recruits under Sub-rules (iii) of Rule 9 of I.R.S. Rules, 1988.
8. The O.M. further goes on to say that the Department of personnel and Training has been requested to accord their approval to the proposal to fill up 250 posts of Assistant Commissioner (Junior Scale) as a one time measure in relaxation of the Recruitment Rules by promoting the eligible Group B officers. The departmental file as well as the record show that this proposal was sent to the Department of Personnel and Training as well as to Ministry of Law (Department of Legal Affairs) and UPSC. The Department of personnel and Training gave its no objection vide its letter dated 27.11.90 to relax the I.R.S. Rules, 1988 for the following two purposes:- (1) To fill up 250 vacancies during 1990 by promotion from Group B officers restricting the direct recruitment of 200-255 during the year.
(2) To regulate the inter se seniority of direct recruits and promotees during 1990 in the manner proposed in para 4 of the O.M. dated 5.11.1990.
9. The Ministry of personnel, however, stated in the same letter the concurrence of the UPSC may also be obtained. It appears from the Departmental file that UPSC asked for details of the vacancies which fall under the Direct Recruitment quota and break up of the candidates recommended by the commission and those who actually joined during the last ten years. After the same were furnished, the UPSC also observed that the difference between the candidates allotted by the Commission and those joined is only marginal and therefore reasons for the large number of posts i.e., about 500 being unfilled may be intimated. The Department therefore furnished the reasons as required by the UPSC pointing out that against 1060 officers allotted by the UPSC during last ten years only 884 joined the service leaving a gap of 176 and accordingly promotions from the level of Income-tax officers to the level of Asstt. Commissioner of Income-tax were also less. This was one of the main reasons for the existence of a large number of vacancies.
The UPSC thereafter vide its letter dated 20th March 1991 agreed for diversion of 176 vacancies from Direct Recruitment quota in the grade of Assistant Commissioner of Income-tax which was the actual short fall in Direct Recruitment quota for the last ten years for being filled in by promotion in relaxation of Recruitment Rules as one time measure.
The relevant portion of the letter of the UPSC reads as under:- I am directed to refer to your letter No. A-12025/11/90-AD-IV dated 18.12.90 and 24.1.91 on the above subject and to say that in view of the circumstances explained therein, and after taking into account all other factors, the Commission agrees with the diversion of 176 vacancies from Direct Recruitment Quota in the Grade of Assist.
Commissioner of Income-tax (Jr. Scale) (which is the actual short fall in direct recruitment quota for the last ten years) for being filled up by promotion in relaxation of Recruitment Rules as a one time measure".
10. It becomes quite clear from the above text of the UPSC letter that the UPSC agreed only to the extent of diversion of 176 vacancies from direct recruitment quota to the post of Asstt. Commissioner of Income-tax and remained conspicuously silent on the question of seniority. It can therefore easily be said that UPSC had not given any concurrence so far as the proposal of relaxation of the seniority rules was concerned. Mr, Mihir Thakor, the learned Counsel appearing for the applicants has vehemently argued that when there was no concurrence given by the UPSC for relaxation of the Seniority Rules, it was not open to the Government to relax the seniority rules and to given seniority to 176 promotees above the direct recruits of 1991 batch. He has pointed out that even before promotees of 1991 batch- as per relaxation in question had taken over, the direct recruits of the 1991 batch were already appointed and were in position. Accordingly to him the Finance Department as well as UPSC knew very well that the batch of the direct recruits 1991 was already selected and was given the appointment and as such they could not have foreclosed their claim of seniority in the year 1991.
11. Before we refer to the submissions of Mr. Thakor we would like to examine the question regarding the exercise of power of relaxation of the I.R.S. Rules.
12. The Scheme of the rules suggests that the Rules are promulgated for the recruitment to the Indian Revenue Service, providing for further maintainer of Service and also for providing regulation of seniority to the grade of Assistant Commissioner of Income-tax (Jr. Scale) as well as other Grades. The Rules concern mainly with the Recruitment and seniority. Rule 7 provides for filling up the vacancies arising in any of the Grades and also provides that vacancies in the grade of Asstt.
Commissioner of Income-tax shall be filled up in the ratio of 50:50 from the direct recruits and promotees. Rule 8 deals with the seniority at the initial constitution of the Service while Rule 9 provides for the seniority of the Assistant Commissioner of Income-tax (Jr. Scale) and lays down that the seniority among such officers promoted from the grade of Income-tax officers, inter-se seniority shall be determined in the year of their selection for such promotion and officers promoted on the basis of an earlier selection shall rank senior to those promoted on the basis of the subsequent selection and further provides that the relative seniority among the promotees and the direct recruits shall be in the ratio of 1:1 and shall be so determined and regulated in accordance with the roster maintained for the purpose which shall be in the following sequence, namely, 13. Rule 15 as produced earlier, provides for the relaxation of any of the provisions of the rules with respect to any class or category of persons. It is, therefore, apparent that while Rule 7 provides for quota the Rule 9 relates to the ROTA and Rule 15 empowers the Government to relax any of the provisions of the rules with respect to any class or category of persons. It was tried to be argued by Mr.
Raval, learned Advocate for Respondent No.8 that this power does not extend to the relaxation of rule of seniority i.e., Rule 9 and has submitted that no relaxation could have been proposed or carried out by the Government so far the seniority between the direct recruits and promotees was concerned. We are unable to agree with the submission of Mr. Ravel. There is no restriction in this rule placed on the Government to relax a particular provisions of the rule. On the contrary, the Government has been empowered to relax any of the provisions of these rules with respect to any class or category of persons. It cannot be denied that direct recruits and promotees would form separate category of persons and as such when the provisions of seniority under Rule 9 comes in the question the Goverment is empowered to relax the provision with regard to their seniority. It cannot therefore be submitted that the power of relaxation given to the Government does not extend to the relaxation of Rule 9.
14. Dealing with the question of necessity to incorporate the power of relaxation in any Rule, the Supreme Court in the case of Ashok Kumar Uppal v. State of Jammu and Kashmir 1998(4) SCC 179 has observed as under:- "26. Power to relax the Recruitment Rules or any other Rule jnade by the State Government, under Article 3(19 of the Constitution of which the correspond ing provision is contained in Section 124 of the Constitution of Jammu and Kashmir, is conferred upon the Government to meet any emergent situation where injustice might have been caused or is likely to be caused to any individual employee or class of employees or where the working of the Rule might have been impossible. Under service jurisprudence is also the Admin istrative Law, such a power has necessarily to be conceded to the employer particularly the State Government or the Central Government who have to deal with hundreds of employees working under in different departments including the Central or the State Secretariat." 15. The para 28-29 of the Judgment a reference was made to the case of J. C. Yadav v. State of Haryana, 1989 Supplementary 1 SCC 393 and Sandeep Kumar Sharma v. State of Punjab, 1997 SCC (L&S) 1682=1997(3) SLJ 130 (SC) and it is further observed that the Government can exercise the power to relax the rules in all those cases in which hardship is caused in the implementation of those rules to meet with a particular situation or where injustice has been caused either to any individual employee or any class of employees. Of course, this power cannot be exercised arbitrarily or capriciously to give undue advantage or favour to any individual employee. The Supreme Court has also observed that such the rule must the construed liberally though arbitrary exercise of such power must be guarded against.
16. When these observation are applied to the instant case, there is hardly any doubt that powers to relax any of the provisions of I.R.S.Rules, 1988 are available with the Government. The only question to be answered will be whether the powers to relax the rules were exercised by the Government for justifiable reasons or were it exercised arbitrarily only to give an appointment on higher post to the promotees. So far the O.M. dated 5th November, 1990 is concerned., the same proposes to relax Rule 7 as well as Rule 9 of the I.R.S. Rules, 1988. This would mean that the proposal was for relaxing the quota as well as ROTA. Now, so far as the question of relaxation of quota rule is concerned, we find that the department has recorded reasons in writing for such relaxation and has also taken the decision to divert 176 vacancies from direct recruits quota to the promotees quota in consultation with the UPSC. Hence so far as the relaxation of quota rule is concerned, the requirements of Rule 15 are fully satisfied. As observed earlier, there is no denial of the fact that a large number of vacancies were existing in the cadre of Assistant Commissioner of Income-tax and it also cannot be denied that the large number of vacancies had adverse effect on the collection of revenue as well as direct taxes.
17. These vacancies could not have been filled up in the near future and it was practically impossible for the department to recruit such large number of officers at a time as the intake of such a large number of officers was likely to create promotional blocs and also cadre management problems. The decision to divert some of the vacancies to the promotees quota was clearly justified. The existence of such a large number of vacancies in direct recruits quota also suggested that the quota rule had broken down. The accumulation of the vacancies as pointed out by the department was not due to any negligence on the part of the department but had arisen due to the sufficient number of direct recruits not joining the posts after recruitment or leaving the service for better pastures after joining the service. It is therefore quite obvious that the decisions to relax the quota rule and to divert 176 vacancies from direct recruits quota to the promotees quota was neither arbitrary nor capricious but was motivated in the administrative exigencies. We have therefore no hesitation in concluding that the power to relax the quota rule was exercised by the Government for justifiable reasons, the reasons given show that it was necessary or expedient on the part of the Govt. to relax the quota rule. The decision to relax the rule was also taken in consultation with the Department of personnel, Law Ministry as well as the U.P.S.C. and hence it cannot be said to be arbitrary or capricious, Mr. Raval for Respondent No.8 has gone to the extent of arguing that the Government had no power to relax the quota rule or ROTA rule and that the diversion 176 vacancies in relaxation of the quota rule was against the law laid down by the Supreme Court. He has relied on the decision in the case of State of Orrissa v. Sukanti Mohpatra, 1993 SCC (L&S) 607=1993(3) SLJ 6 (SC) as well as decision in the case of M.A. Haque v.Union of India 1993 SCC (L&S) 412=1993(3) SLJ 64 (SC) and the decision in the case of Jammu and Kashmir Public Service Commission v. Dr.
Narindar Mohan 1994 SCC (L&S) 723=1994(1) SLJ 218 (SC). We find that none of these none of these decisions is applicable to the facts of the instant case as the case before the Supreme Court related to the different rules and interpretating those rules the Supreme Court has held that the power of relaxation stated in the rule was not in regard to any of the provisions of the rules, these did not permit relaxation of the rule of direct recruitment without consulting the Commission and the entire ad hoc service of direct recruit could not be treated as regular service. Obviously each case was decided by the Supreme Court on the basis of the facts before it and on the interpretation of the different recruitment rules. The Supreme Court has nowhere stated that the power is given to the Government, for relaxation in Rules, the same cannot be exercised by the Govt. Once it is found that ingredients of the rules are satisfied and the power which is vested in the Govt. of relaxation of rules is exercised by the Govt. in the administrative exigencies and in consultation with the UPSC. It can never be held that such power was exercised arbitrarily or capriciously. We therefore rejected all the arguments advanced so far the question of relaxation of quota rule is concerned. We find that the Government has the power to relax the rule and the same was exercised by the Government properly and rationally so far quota rule is concerned. Hence the diversion of 176 vacancies from direct recruit quota to the promotees quota for the Year 1990 and consequent promotion of Group B officers to the level of Asstt. Commissioner Group A (Jr. Scale) cannot be held to be arbitrary or capricious or in any way invalid.
The next question is whether there was a necessity to relax the ROTA Rules and if so, whether the same was validly relaxed. It can easily be seen that this is the main bone of contention and perhaps the main issue of heart-burning for the applicants. It is a matter of fact that though O.M. proposing relaxation of Quota and ROTA Rules was issued on 5lh November, 1990, the actual promotions were given to the Grade-B officers only in the year 1991 and that to after the batch of direct recruits of 1991 were given appointments and many of them had already taken over the charge. The O.M. dated 5.11.90, as observed earlier, gives ample reasons for relaxing the quota rule. Last four lines of para 2 of the said O.M. reads as under:- "In order to improve the performance of the department and also to meet demand of the staff Associations the department is of the view that the part of the existing gap in I.R.S. may be filled up as a one time measure by promoting Group B officers to the Grade of Asstt. Commissioner (Junior Scale) in relaxation of the Quota rules provided for in the Recruitment Rules".
18. It is therefore quite obvious that the reasons were formulated by the Department for the relaxation of the quota rule. However, the O.M.though providing for a proposal to relax the seniority rules also, does not give a single reason as to why it is was necessary or expedient to relax the seniority rule or ROTA rule. Rule 15 requires that the Governmeni has to form an opinion that it is necessary or expedient to relax the particular rule and this opinion has to be substantiated by reasons to be recorded in writing. We have not been shown any opinion formulated by the Government, leave aside, the reasons for relaxation of the ROTA Rule. Significantly the last para of the said O.M. also does not seek approval to the proposal to relax the ROTA rule but only seeks proposal for relaxation of the Recruitment Rules by promoting the eligible Group B officers. The para runs as under:- "The Department of Personnel and Training is therefore requested to accord their approval to the proposal to fill up 250 posts of Asstt.
Commissioner (Junior Scale) as a one time measure in relaxation of the Recruitment Rules by promoting the eligible Group B officers".
19. There is no proposal to accord approval so far the relaxation of seniority rule is concerned. The UPSC therefore wisely kept mum about according approval to the relaxation of the seniority rule. Another significant aspect is that Clause (iv) in para 4 of the O.M proposes that the proposal of the inter se seniority of the promotees under the relaxation clause shall be on the basis of their order of selection.
These officers will be placed and brought in the seniority list of Assistant Commissioner of Income-tax (Group A) below the direct recruits appointed to this grade during 1990 and also below the promotees who would be adjusted in the roster of seniority with such direct recruits under Sub-Rule (iii) of Rule 9 of the I.R.S. Rules, 1988. Except the proposal for the fixation of the inter se seniority of the promotees, there is absolutely nothing in the O.M. show the reason for this proposal and also to show why such a decision had to be taken.
Obviously, this decision runs contrary to the provisions of Rule 15 as it does not contain any reason for such a relaxation of the seniority rule and also does not show the basis for forming an opinion to relax the seniority rule. The respondents also have not come out with any explanation as to what was the necessity to relax the seniority rules.
We can under stand that large number of vacancies compelled the Govt.
to relax the quota rule but it cannot be said that because the quota rule is relaxed, ROTA rule also simultaneously should be relaxed. The Government has justified the relaxation of Quota rule but has miserably failed in justifying the relaxation of ROTA rule. For any reason which may be given such as reasons for administrative exigencies or for the need of exigencies of the department, the vacancies could certainly be utilised and to that extent as relaxation could also be made in the quota rule but it cannot be said that the appointment by promotion in view of relaxation of the quota rule should also entail the consequences of adopting higher seniority to the promotees, as the seniority cannot be the requirement of the department. The purpose of the department would be served by relaxing the quota rule and filling up the vacancies but the question of giving seniority to the promotees would not be a matter which could be said to be germane for the need of the department. We have, therefore, no hesitation in concluding that be the said O.M. dated 5th November, 1990 the respondents could not have relaxed the Rule 9 pertaining to the seniority and as such could not have assigned en bloc seniority to the 176 promotees just below the direct recruits of 1990 when the seniority has to be governed by the provisions of Rule 9 and we hold that the provisions of Rule 9 do not stand relaxed by the O.M. dated 5th November, 1990.
20. Incidentally, it is not certain whether these 176 promotees have been assigned seniority in relaxation of Rule 9.
21. It is an Undisputable position that the Finance Department has not issued any final seniority list of 1990 and 1991 batch of Assistant Commissioner of Income-tax. The Civil List of Asstt.
Commissioner/Assistant Director of Income-tax for the year 1995 to 1998, referred to and relied upon by both the parties depict following note below the list:- "The inter se seniority of Assistant Commissioner of Income-tax (Direct Recruits vis-a-vis promotees and vice versa) whose names from Sr. No...... and onwards shall be determined later. The seniority these officers vis-a-vis direct recruits is subject to the final outcome of the O. A. 2044 of 1991 filed before the C.A.T. New Delhi.
Inter se seniority of these officers vis-a-vis direct recruits shall be determined later.
Inter se seniority of these officers vis-a-vis promotees shall be determined later".
22. These notes in the Civil List clearly state that the seniority of these 176 promotees was not determined by the department till 1998.
When we had sought clarification from Mrs. Bhatt, learned advocate for Resp. No. 1 and Resp. No. 2 about the exact position of those 176 promotees she has referred to a letter of 2.5.2002 addressed to her by D.S. Kolhari on behalf of the Chief Commissioner of Income-tax, Ahmedabad attaching there with some comments regarding the finalisation of the seniority list. The comments which are taken on record by us, suggests that after this O.A. was filed and interim directions were given the seniority of the Assistant Commissioner of Income-tax was revised in the light of the interim directions given by this Tribunal and the promotees of 1991 batch were matched with the direct recruits of 1991 Batch in the ratio of 1:1 and the excess of the promotees were matched with the next batch of the direct recruits of 1992. According to Mrs. Bhatt, she does not have the complete figures but to give effect to the interim direction of the Tribunal this was done in the year 2000. If this is so, them we are not required to given any further direction in this O.A. It would appear that the department it self has taken proper steps to give effect to our interim directions thereby correctly understanding the position that there was no relaxation, so far the ROTA rule was concerned or the Rule 9 of the I.R.S. 1988 Rules was concerned.
23. M.A 197 of 2002 was moved by the Respondent No. 4 of this O.A.seeking clarification regarding the implementation of the interim order of this Tribunal. So far this M.A. is concerned in the light of the foregoing discussion, we point out that whatever relaxation was proposed and was carried out in direct recruits quota for the year 1990 was as a one time measure and there was no question of following the same pattern for any subsequent years. For all subsequent years Respondent No. 1 and Respondent No. 2 were required to follow the I.R.S. Rules and carry out the recruitment as well as assign the seniority in terms of the provisions made in the I.R.S Rules. We also find that the direct recruits of subsequent years have joined hands with the applicants to challenge the relaxation of the quota and ROTA rules on the part of the Respondent No. 1 & 2. We may say that he recruits of the subsequent year have no locus and to challenge whatever transpired even before they were born in the cadre. Apt are the observation of D.A. Desai Justice in the case of A. Janardan v. Union of India, 1983 SCC (L&S) 467=1983(1) SLJ 564. Referring to a situation where a person already rendering the service as a promotee has to go down below a person who comes into service after the promotee commences the service it is observed as under:- "In other words, after having render service in a post included in the Service, he is hanging outside the Service, without finding a berth in the Service, whereas direct recruits of 1976 have found their place and berth in the Service. This is the situation that stares into one's face while interpreting the Quota ROTA rule and its impact on the service of an individual. But avoiding any humanitarian approach to the problem, we shall strictly go by the relevant rules and precedents and the impact of the rules on the Members of Service and determine whether the impugned seniority list is valid or not. But having done that we do propose to examine and expose an extremely undesirable, unjust and inequitable situation emerging in service jurisprudence from the precedents namely a person already rendering service as a promotees has to go down below the person who comes into service decades after the promotees enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted but on account of the exigencies of service as required by the Government started rendering service. A time has come to recast the service jurisprudence on more just and equitable foundation by examining all precedents on the subject and to retrieve this situation".
24. The direct recruits of subsequent years cannot claim that the vacancies which were diverted from Direct recruits quota belonged to them and since they were diverted they were deprived of their rightful place in the seniority list. Even if these vacancies would not have been diverted to promotees quota, they perhaps could not have found place in the selection, as every year, the department was sending requisition only for 100 and 150 officers. It is a settled position that no right is accrued in favour of a direct recruit till he is born in the cadre. We therefore hold that no right is accrued in favour of the direct recruits of subsequent years to challenge the impugned O.M.as they were not even born in the cadre. Once 176 vacancies were diverted to promotees quota, they had become vacancies of promotees and only promotees had right over it.
25. It view of the foregoing discussions, we uphold the relaxation of the quota rules as one time measure from the direct recruits quota to the promotees quota and we hold that the Govt. had the powers to relax the quota rules and there was sufficient justification for relaxing the quota rule. We also hold that the action of the Respondent No. 1 & 2 in relaxing the quota rule and diversion of 176 vacancies from the direct recruits quota to the promotees quota was not arbitrary in any manner, and that the same was in conformity with the provisions of Rule 15 of the I.R.S. Recruitment Rules, 1988. we however find that there was no relaxation to the seniority rule and that the action of the Respondent No. 1 & 2 to give en bloc seniority to the 176 promotees below the direct recruits and promotees of 1990 batch was not in accordance with the Indian Revenue Service Rules. We there fore direct the Respondent No. 1 and 2 not to give effect to the proposal contained in sub-para (iv) of Para 4 of the O.M. dated 5th November, 1990 and also direct the respondent to regulate the seniority of the 176 promotees of 1990 batch in terms of para (iii) of Sub-rule 3 of Rule 9 of the I.R.S. 1988 Rules and to continue to follow the provisions of the said rules for all subsequent batches.
In view of the above directions our answers to the points raised are under;- The O.A. stands disposed of with the above directions with no orders as to costs. M.A. 752/2000, MA/670/2000 and M.A. 197/2002 also stand disposed of.