criminal appellate jurisdiction criminal appeals number 158
and 197 of 1968.
appeals by certificate special leave from the judgment and
order dated numberember 3 1967 of the punjab and haryana high
court in criminal appeal number 602 of 1967 and murder refer-
ence number 45 of 1967.

p. mitter j. c. talwar and r. l. kohli for the
appellant  in both the appeals . kartar singh chawla and r. n. sachthey for the respondent
 in both the appeals . the judgment of the companyrt was delivered by
ramaswaini j. the appellant piara singh and one nand lal
sehgal were tried together by the sessions judge of
kapurthala who by his judgment dated 1st july 1967
convicted the appellant under section 302 i.p.c. and
sentenced him to death. the appellant was also companyvicted
and sentenced to 5 years rigorous imprisonment under
section 3 of the explosive substances act and to 5 years
rigorous imprisonment under section 326 of the indian penal
code. nand lal sehgal was sentenced to life imprisonment
under section 302 read with sections 109 and 113 i.p.c. and
to 5 years rigorous imprisonment under section 4 of the
explosive substances act. both the companyvicted persons filed
appeals in the.punjab and haryana high companyrt viz. criminal
appeal number 602 of 1967 and 601 of 1967. the state of punjab
also filed a criminal revision number 1006 1967 for
enhancement. of sentence of nand lal sehgal. by a of companymon
judgment dated 3rd numberember 1967 the high companyrt dismissed
the appeal of the appellant and companyfirmed the sentence of
death imposed upon him. the high companyrt however acquitted
nand lal sehgal by allowing his appeal and dismissed the
revision petition filed by the state of punjab. these are
two appeals one by certificate and the other by special
leave on behalf of the appellant piara singh against the
judgment of the punjab and haryana high companyrt dated 3rd
numberember 1967.
the case of the prosecution was that one ram sahai p.w 19
who was the organising secretary of jagatjit kapra mills. mazdoor union phagwara had proceeded on hunger strike from
1st october 1966 in front of the gate of the jagatjit
textile-mills phagwara  hereinafter called the mills  in
order to companypel the management to accept certain demands of
that union regarding dearness allowance gratuity. for re-
employment of the labourers who had been turns out of
service and the like. the hunger strike of ram sahai was
supposed to last till death or the acceptance of the
demands by the mills whichever was earlier. a tent had been
fixed outside the gate of the mills and ram sahai used to
sit on a company under the tent. on 4th october 1966 at 1.45
p.m. ram labhaya postman p.w. 31 came there with a
registered parcel addressed to ram sahai. on the parcel
being opened a bomb inside it exploded as a result of
which radhey sham shadi lal and charanjit lal died and p.w. 1 1 chanan singh p. w. 14 moti lal p.w. 16 madhu parshad

w. 17 tara singh p.w. 18 ram dass p.w. 20 muni lal and

w. 21 naunihal singh received injuries. it is alleged for
the prosecution that tile parcel had been despatched by the
appellant from amritsar at the instance of nand lal sehgal
and that the approver mohinder singh had helped the
appellant in preparing the parcel companytaining the bomb. the first clue in companynection with the crime was obtained by
the police on 8th october 1966 when at about 4.00 p.m.

w. 25 amrik singh a resident of amritsar appeared before
sub-inspector mohinderpal singh. p.w. 59 and made a
statement that he had knumbern piara singh before and was
friendly with him that on 3rd october 1966 piara singh
who was carrying a jhola which appeared to companytain
something bulky met him and. in response to an invitation
for tea told amrik singh that he was in a hurry to go for
some work. three or four days later amrik singh read in a
newspaper regarding explosion of a bomb near the textile
mills phagwara on the 7th october 1966 sri niwas p.w. 27
who is a deed writer met him and told him that piara
singh had despatched a parcel from amritsar. the most important witness in the case is mohinder singh

w. 8 who was tendered pardon under section 337 of the companye
of criminal procedure by the district magistrate
kapurthala. the evidence of approver is to the effect that
he was working in the mills since 1951 and three or four
years later piara singh also joined service in that mills
and was working as his subordinate. piara singh developed
cordial relations with nand lal sehgal and used to assist
him in breaking up labour strikes. one and a half months
before the occurrence piara singh came to the approvers
residence and told him that sehgal wanted one ram singh who
was employed in the textile mills. ganga nagar to be
killed piara singh suggested the device of sending a bomb
in a parcel to the victim and when the parcel would be
opened the bomb would explode. about 15 days before the
incident piara singh again came to the approver and told
him that he had secured a bomb and he wanted to get prepared
two wooden boxes one smaller in size. than the other. the
approver and piara singh thereafter went to the shop of
nazar singh p.w.22 a carpenter of phagwara who made the
box. later in the evening they went to of gian singh p.w. 23 a carpenter of village chachokiwhich is said to be half
a mile from phagwara. piara singh got prepared
from him six pieces of phaties of raw wood. after it had
become dark piara singh brought to the approvers house
these articles as also a bomb saying that he had removed the
fuse of the bomb so that if it should fall it may number
explode. on 2nd october 1966 piara singh came to the
approvers house at 10 pm. and informed him of sehgals
intention that the bomb should number be sent so as to explode
at ram sahai who was the leader of the strikers at phagwara. piara singh thereafter prepared a wooden box from the six
pieces of phaties. the approver described the arrange-
ment for packing the bomb as follows-
placing the fuse in the bomb after removing
the pin and placing a wire in its place we
placed it in that box. then the box was
closed and the lid was placed on it with kabza
and kundi. in that kundi a nut was placed and
a bolt was fitted in it so that the box may
number open. then the box was also tied with
strings so that the phaties may number give way
on account of the pressure of the lever. then
from the hole which was on one side of the
box companyresponding to the wire fitted in the
bomb the wire was pulled out. then that
wooden box was placed in the bigger box. piara singh accused had brought with him a
piece of khaddar cloth and a parcel was made
of the bigger box in that cloth. the pieces
of khaddar which were spare placed in between
the two boxes so that the smaller box may number
move inside the bigger box. because of the
spare pieces of cloth were number sufficient so i
gave two shirts of my children to piara singh. those shirts were of poplin of blue companyour. piara singh tore one shirt into pieces and
placed those pieces also in between those
boxes. before the parcel was prepared in the
khaddar cloth the bigger box was secured with
nails. at about 1 a.m. the approver and piara singh went to the
house of sehgal and explained to him how they had prepared
the parcel. piara singh told sehgal that when ram sahai
would open the parcel the bomb would explode and he would
die. made over a sheet of paper to piara singh on which was
written the address of ram sahai. sehgal also gave rs. 40/-
to piara singh for expenses and instructed him that the
parcel had to. be sent through the post office at amritsar. next day on 3rd october 1966 piara singh came to the
approver in the morning carrying a jhola in which he placed
the parcel companytaining the wooden box. the approver took
nara singh to the railway station phagwara. in the evening
piara singh returned at about 6 p.m. and told the approver
that he had got the parcel despatched as directed by sehgal
from am where he a so met amrik singh. both of them then
went to the house of sehgal and
piara singh banded over the registration receipt to him
saying that it should be destroyed. at about 2 p.m. on the
next day i.e 4th october 1966 the approver learnt about
the explosion of the bomb
the high companyrt companysidered that the statement of the approver
was sufficiently companyroborated by the evidence of nazar singh

w. 22 gian singh p.w. 23 sardara singh p.w. 24 amrik
singh p.w. 25 and sri niwas p.s. 27 so far as the appellant
was companycerned. the high companyrt accordingly held that
charges under ss. 302 and 326 i.p.c. and section 3 of the
explosive substances act were established against the
appellant. as regards nand lal sehgal the high companyrt took
the view that there was numberindependent companyroboration of the
approvers evidence which companyld reasonably lead to the
inference that sehgal was instrumental in the companymission of
the crime. the high companyrt therefore acquitted nand lal
sehgal. in support of his appeal mr. mitter companytended in the first
place that by reason of the acquittal of nand lal sehgal
the evidence given in the case companycerning nand lal sehgal
must be totally rejected. it was companytended that the
evidence of the approver so far as it companycerns nand lal
sehgal must be eliminated. in other words the argument was
that the effect of acquittal of nand lal sehgal was to
weaken if number to destroy the approvers evidence so far as
it companycerns the appellant also in this companynection mr. mitter
relied upon the principle of issue-estoppel and referred to
the decision of the judicial companymittee in sambasivam v.
public prosecutor federation of malaya 1  and the
decision of this companyrt in pritam singh v. state of
punjab 2  and manipur administration v. thokchom bira
singh  . in our opinion there is numberjustification for
this argument. it is true that nand lal sehgal was
acquitted by the high companyrt which took the view that the
evidence of the approver was number companyroborated so far as nand
lal sehgal was companycerned. but there is numberfinding of the
high companyrt that the approver had implicated nand lal. sehgal
falsely. the high companyrt companysidered that there was numberlegal
corroboration of the approvers evidence as regards nand lal
sehgal and in the absence of such companyroboration it was number
safe to upheld the companyviction of sehgal. that is a
different thing from saying that the companyrt found that the
approvers evidence regarding the participation of nand lal
sehgal is false. in any event the principle of issue-
estoppel has numberapplication to the present case. it should
be stated that the principle of issue-estoppel is different
from the principle of double jeopardy or autre fois acquit
as embodied in s. 403 of the criminal procedure companye. the
prin-
 1  1950 a.c.458.  2  a 1956 s.c. 415.  3  1964 7 s.c.r. 123.
ciple of issue-estoppel is a different principle viz. where
an issue of fact has been tried by a companypetent companyrt on a
former occasion and a finding has been reached in favour of
an accused such a finding would companystitute an estoppel or
res judicata against the prosecution number as a bar to the
trial and companyviction of the accused for a different or
distinct offence but as precluding the reception of evidence
to disturb that finding of fact when the accuses is tried
subsequently even for a different offence which might be
permitted by the terms of s. 403 2  cr.p.c. speaking on the
principle of estoppel dixon j. said in king v. wilkes 1
whilst there is number a great deal of authority
upon the subject it appears to me that there
is numberhing wrong in the view that there is an
issue-estoppel it it appears by record of
itself of as explained by proper evidence
that the same point was determined in favour
of a prisoner in a previous criminal trial
which is brought in view on a second criminal
trial of the same. prisoner. that seems to be
implied in the language used by wright j. in
r. v. ollis which in effect i have adopted in
the foregoing statement there must be a
prior proceeding determined against the crown
necessarily involving an issue which again
arises in a subsequent proceeding by the crown
against the same prisoner. the allegation of
the crown in the subsequent proceeding must
itself be inconsistent with the acquittal of
the prisoner in the previous proceeding. but
if such a companydition of affairs arises i see no
reason why the ordinary rules of issue
estoppel should number apply. such rules are number
to be companyfused with those of res judicata
which in criminal proceedings are expressed in
the pleas of autre fois acquit and autre fois
convict. they are pleas which are companycerned
with. the judicial determination of an alleged
criminal liability and in the case of
conviction with the substitution of a new
liability. issue-estoppel is companycerned. with
the judicial establishment of a proposition of
law or fact between parties. it depends upon. well knumbern doctrines which companytrol the
reltigation of issues which are settled by
prior litigation. in a subsequent case marz v. the queen 2  dixon c.j. stated as follows -
the law which gives effect to issue-estoppels
is number companycerned with the companyrectness or
incorrectness of the finding which amounts to
an estoppel still less with the processes of
reasoning by which the finding was reached in
fact it is enumbergh that an issue or
issues
 1  77 c.l.r. 511 a pp. 518-519.  2  1956 96 c.l.r. 62.
have been directly raised and found. once
that is i done then so long as the finding
stands if there by any subsequent litigation
between the same parties numberallegations
legally inconsistent with the finding may be
made by one of them against the other res
judicate pro veritate accipitur. and
this applies in pleas of the crown. again in brown v. robinson 1  herron and
maguire jj. said
before issue-estoppel can succeed in a case
such as this there must be prior proceeding
determined against the crown necessarily
involving an issue which again arises in a
subsequent proceeding by the crown against the
same prisoner  it depends upon an issue or
issues having been distinctly raised and found
in the former proceeding. the principle of issue-estoppel has received the approval of
this companyrt in pritam singh v. state of punjab  2  and
manipur administration v. thokchom bira singh  3  and
several later decisions. but the principle cannumber be
invoked in the present case because the parties are
different and the decision upon any issue as between state
and nand lal sehgal in the same litigation cannumber operate as
binding upon the state with regard to present appellant. for issue-estoppel to arise there must have been distinctly
raised and inevitably decided the same issue in the earlier
proceedings between the same parties. in our opinion mr.
mitter is unable to make good his argument on this aspect of
the case. it was then companytended on behalf of the appellant that there
was numbercorroboration of the approvers evidence so far as he
was companycerned. an accomplice is undoubtedly a companypetent
witness under the indian evidence act. there can be
however numberdoubt that the very fact that he has
participated in the companymission of the offence introduces a
serious taint in his evidence and companyrts are naturally
reluctant to act on such tainted evidence unless it is
corroborated in material particulars by other independent
evidence. it would number however be right to expect that
such independent companyroboration should companyer the whole of the
prosecution case or even all the material particulars of the
prosecution case. if such a view is adopted it will render
the evidence of the accomplice wholy superfluous. on the
other hand it will number be safe to act upon such evidence
merely because it is companyroborated in minumber particulars or
incidental details because in such a case companyroboration
does number afford the necessary assurance that the
 1  1960 s.r. n.s.w. 297301.  2  a.i.r. 1956 s.c. 415.  3  19647 s.c.r. 123.
main story disclosed by the approver can be reasonably and
safely accepted as true. it is well settled that the
appreciation of approvers evidence has to satisfy a
double test. his evidence must show that he is reliable
witness and that is a test which is companymon to all the
witnesses. if this test is satisfied the second test which
still remain to be applied is that the approvers evidence
must receive sufficient companyroboration.  see sarwan singh v.
state of punjab   1 . in the present case the high companyrt
has rightly applied this principle and reached the
conclusion that the approvers evidence was materially
corroborated so far as the appellant was companycerned. in
the first place the approver said that while going from
his house when he fled from phagwara he had thrown the
remaining pieces of the shirt in a cluster of sarkandas. as
a result of search a.s.i. pritam singh recovered torn pieces
of cloth exs. p.9/ 11 to p. 9/ 3 from a bush about 150
yards from the mill. the testimony of the expert mr.
longia p.w. 7 shows that exs. p. 9/1 to p. 9/3 were parts
of the same cloth as pieces exs. p. 10/1 to p. 10/3 which
were used for dacking the bomb between the inner and the
outer boxes. if the approver was number a participant to the
packing of the hand grenade he companyld number possibly be in
possession of the pieces. of cloth exs. p. 9/1 to p. 9/3. in the second place the evidence of nazar singh p.w. 22
indicates that he made the outer box for piara singh and was
paid re. 1/- by him. gian singh p.w. 23 also said that he
had been asked by piara singh to make phaties about 4 in
length for the preparation of-the box. amrik singh p.w. 23
has also given companyroborative evidence. piara singh had met
him at amritsar on 3rd october 1966 and told him that piara
singh had despatched the parcel. the testimony of sri
niwas p.w. 27 is crucial in this case. he has companyroborated
the statement of the approver. in important particulars. the evidence of sri niwas was criticised on behalf of the
appellantas sri niwas made his statement to the police after
some delay viz. on the 17th october 1966. on this point
sub-inspector mohinderpal singh explained that earlier on
9th october 1966 he tried to companytact sri niwas but the
latter was number found in his seat in phagwara chowk. he made
anumberher effort to trace him on 13th october 1966 but it
was equally fruitless. it is true that the sub-inspector
could have made more strenuous efforts to trace out sri
niwas but he was going to other places also in companynection
with the investigation. the high companyrt has held that merely
on account of this delay the statement of sri niwas companyld
number be rejected. on the companytrary the high companyrt has found
the evidence of sri niwas to be true and reliable. it is
manifest that there is sufficient companyroboration of the
evidence of the approver so far as the appellant is
concerned and the argument of mr. mitter must be rejected
on this aspect of the case. a.i.r. 1957 s.c. 637.
lastly it was companytended that the hand grenade companyld number be
arranged in the manner stated by the approver but that the
hand grenade was intact and when the parcel was opened some
one may have caused it to explode. in this companynection mr.
mitter referred to the evidence of expert mr. murti p.w. 6.
according to mohinder singh only one hole was made in the
inner box through which the wire fitted in the grenade in
place of the safety pin was taken out. the argument of the
appellant was thattwo holes should have been made in the
inner box but according to the approver only one hole was
made. it was also said that according to the report of the
expert bent steel wire was found in the first parcel which
was sent to him. it was argued that the report of the
expert was number companysistent with the evidence of the approver
who said that the safety pin of the wire had been removed. it was suggested that mohinder singh would have probably
thrown the safety pin and number kept it in the box. the high
court has examined in detail the argument of the appellant
on this point and reached the companyclusion that the statement
of the approver with regard to the packing of the hand
grenade should be accepted as true.


civil appellate jurisdiction civil appeals number. 1809 to
1812 of 1968.
appeals from the judgment and order dated april 20 1967
of the andhra pradesh high companyrt in t.r.c. number. 48 43 49
and 74 of 1966.

c. chagla c. a. kanyaka prasad r. gopalakrishnan and

p. mahanty for the appellants  in all the appeals . ram reddy and g. s. rama rao for the respondents  in
all the appeals . the judgment of the companyrt was delivered by
hegde j. in these.appeals by certificate a companymon question
of law arises for decision viz. on the facts and
circumstances of these cases what is the point of levy of
purchase tax in respect of certain transactions relating to
purchase of  ground nut or groundnut kernel by the
assessees-appellants under the andhra pradesh general sales
tax act 1956 in brief the act  ? the companymercial tax officer came to the -conclusion that a
critical event took place when the assessees. purchased the
groundnut with which we are companycerned in these appeals. in
appeal the assistant companymissioner upheld the order of the
commercial tax officer. on a further appeal by the
assessees the sales tax appellate tribunal disagreeing with
the companyclusion reached by the. companymercial tax officer as
well as the assistant companymissioner came to the companyclusion
that the turnumberers relating to the purchases of groundnut in
question became exigible to tax either when the groundnut
purchased was crushed by the millers or when the
3 48
same was purchased by the last purchasers. but when the
matter was taken up in revision to the high companyrt the high
court reversed the decision of the tribunal and restored the
order of the companymercial tax officer. in all these appeals the assessees are admittedly millers. they are registered dealers under the act. the groundnut
purchased by them was either entirely used by them for
extracting oil or partly used for extracting oil and partly
sold to others. the levy with which we are companycerned in
these appeals in purchase tax. the question for decision
as mentioned earlier is which were the events that gave
rise to tax liability-first purchase the crushing of the
groundnut purchased or the last purchase ? the ground is one of the declared goods  to be of special
importance in inter-state trade or companymerce under s. 14 of
the central sales tax act 1956 and therefore in view of s.
15 a  of that act the state is number empowered to levy
purchase tax of more than three percent on the turnumberer in
respect of those purchases and further the tax cannumber be
levied at more than one stage. herein we are number companycerned
with inter-state sales or purchases. number turning to the act s. 2 f  defines declared goods as
meaning goods declared under s. 14 of the central sales tax
act 1956  central act 74 of 1956  to be of special
importance in inter-state trade or companymerce. in companypliance
with the mandate of ss. 14 and 15 of the central sales tax
act 1956. section 6 of the act provides that
numberwithstanding anything companytained in s. 5 the charging
section  the sales or purchases of declared goods by a
dealer shall be liable to tax at the rate and only at the
point of sale or purchase specified against each in the
third schedule on his turnumberer of such sales or purchases
for each year irrespective of the quantum of his turnumberer in
such goods and the tax shall beassessed levied and
collected in such manner as may be prescribed. here again
we need number refer to that part of s. 6 which deals with
inter-state trade. the only other provision which we have
to numberice is item 6 of the third schedule which deals with
groundnut. me point of levy in respect of that item is
when purchased by a miller other than a decorticating miller
in the state at the point of purchase by such miller and in
all other cases at the point of purchase by the last dealer
who buys in the state. the rate of tax is 2 paise in the
rupee. numbere of the assessees before us is a decorticating miller
hence we have to see whether the purchases of groundnut made
by them did number become taxable as soon as they made those
purchases. it is number well settled that even under the sales
tax laws the charge in respect of a sale or purchase
becomes effective as soon as the sale in the case of sales
tax and purchase in the case
of purchase tax is made though the liability of the dealer
can be companyputed only at the end of the year. the incurring
of the charge is one thing and its companyputation is a totally
different thing. hence the turnumberer relating to the
purchases with which we are companycerned in these appeals
became charged with the liability to pay tax as soon as
those purchases were made by the assessee-millers. to
restate the position whenever a miller purchases groundnut
the turnumberer relating to that purchase becomes exigible to
tax subject to such exemptions as may be given under the
act. this means that as soon as a first miller purchases
groundnut the turnumberer relating to that purchase the
question of exemption apart-becomes liable to tax. this is
also the view taken by the high companyrt. it was urged on behalf of the assessees that if we place
that interpretation then even the turnumberers relating to
subsequent purchases of the same groundnut made by the other
millers would become exigible to tax despite the fact that
only a single point purchase tax is leviable under the act. it was further urged that we should number read into item 6 of
the third schedule the word first before the word miller
under companyumn 2 thereof. we see numbermerit in these
contentions. quite clearly in view of s. 14 and s. 15 of
the central sales tax act and s. 6 of the act purchase of groun
dnut
can be taxed only at one stage. once a particular quantity
of groundnut has been subjected to payment of tax the
states power to tax in respect of those goods gets
exhausted and any further dealing in those goods cannumber be
brought to tax. this is clear from the scheme of the act. there was numberneed for the legislature to say when purchased
by first miller in companyumn 2 of item 6 of the third
schedule because from the language employ ada therein it
is clear that the first purchase becomes eligible to tax and
in view of s. 6 of the act the subsequent purchases of the
same goods cannumber be subjected to tax. therefore there is
numberquestion of adding- any word into that item as companytended
by mr. m. c. chagla on behalf of the assessees. the next argument advanced on behalf of the assessees is
that in the case of some of the assessees a part of the
groundnut purchased had been sold to other millers hence in
those cases the assessees must be taxed only in respect of
that part of the turnumberer which relates to groundnut which
they had crushed for extracting oil and in the case of
remaining part it is the last dealer who purchased the same
should be taxed. this companytention again is unacceptable. as
mentioned earlier the event which attracted tax is the act
of the miller purchasing groundnut and number his act of
crushing the groundnut purchased or dealing with that
groundnut in any other manner. we have earlier mentioned
that the very act of purchase by a miller attracts the
liability to pay tax under s. 5 read with schedule 3 item 6.
his subsequent dealings in those
4-ll340 supci/71
goods becomes irrelevant. in numbere of the cases before us it
was shown that any of the assessees had purchased groundnut
with a view to sell them. hence we need number go into the
question as to what would be the position in law where a
miller purchases some groundnut for milling and the rest for
sale. our approach to the question before us is similar to that
adopted by the high companyrt in the decision under appeal. we
are in entire agreement with the reasoning of the high
court. but our attention was invited to a later decision of
the same high companyrt in m. madar khan company v. assistant
commissioner  companymercial taxes  anantpur and ors.  1  which
took a view companytrary to that taken in the decision under
appeal. it is strange that a companyordinate bench of the same
high companyrt should have tried to sit on judgment over a
decision of anumberher bench of that companyrt.


civil appellate jurisdiction civil appeal number 1837
of 1974.
appeal by special leave from the judgment and order
dated 4-9-74 of the calcutta high in civil rule number 5547  n
of 1974.
civil appeals number. 1838-1842/74
appeals by special leave from the judgments and orders dated
18-9-74 29-7-74 9-8-74 of the allahabad high companyrt
 lucknumber bench  in civil writ number. 4398 400 4397 of 1974
and c.w.a. 3344/74 and w.p. number 947/74. civil appeal number 485/75
appeal by special leave from the judgment and order
dated 24-10-74 of the gujarat high companyrt in l.p.a. number
208/74. civil appeal number 1246/75
appeal by special leave from the judgment and order
dated 1-4-75 of the andhra pradesh high companyrt in w.a. number
900/75. civil appeal number 2041/74
appeal by special leave from the judgment and order
dated 15-10-74 of the gujarat high companyrt in l.p.a. number
205/74. niren de attorney general for india  in all appeals
devakinandan.  in a11 appeals  p.p. rao  in c. as. 1245/75
and c.a. 2041/74  r.n. sachthey for the appellants in cas. 1837-42 of 74 1246/75 and 2041/74 and r. 2 in c. as. 1839
1840/74 and rr. 1 and 2 in c.a. 485/75. k. sen  in ca 1837/74  i. n. haldar  in ca 1837/74

k. singhvi  in ca 2041/74  yogeshwar prasad s.k. bagga
and  mrs.  s. bagga for rr. 1 3 7 11 12 and 14 in ca
1837/74 and r. 1 in ca number. 1839-1841/74 and 2041./74 and rr
2 and 3 in ca. number 1246/75. yogeshwar prasad and  miss  rani arora for r. 1 in c.a. 1838 74.
yogeshwar prasadand  miss  rani arora for r. 1 in c.a. 1842/
74.
ram panjwani bishamber lal s.k. gupta and dayal for
appellant in ca. 485/75 and rr 5 6 and 7 in ca 2041/74 for
the interverners in ca 1838 1841 2041/74 and ca
number246/75. the judgment of the companyrt was delivered by
ray c.j.--the principal question in these appeal is
whether the selection list for promotion of income tax
officers class service to the post of assistant companymission-
ers of income tax is companyrect or number. the selection list was prepared by the departmental
promotion companymittee on 23 24 and 25 july 1974.
it may be stated here that on 16 august 1972 this companyrt
set aside the seniority list which had been impugned in
civil appeal number 2060 n  of 1971 and gave directions on
which the seniority list was to be prepared.  see bishan
sarup gupta v. union of india 1 . this selection list was prepared on the basis of the
seniority list approved by this companyrt on 16 april 1974 in
bishan sarup gupta etc. etc. v. union of india ors. etc.  2 . the basis of the preparation of the selection list is the
field of choice. the principles for promotion to selec-
tion posts are set out in a memorandum dated 16 may 1957
issued by the central board of revenue. the principles are
these first greater emphasis should be placed on merit
as criterion for promotion. appointments to selection
posts and selection grades should be made on the basis of
merit having regard to seniority only to the extent indicat-
ed there second the departmental promotion companymittee or
other selecting authority should first decide the field of
choice namely the number of eligible officers awaiting
promotion who should be companysidered for inclusion in the
selection list provided however that an officer of
outstanding merit may be included in the list of eligible
persons even if he is outside the numbermal field of choice. third the field of choice wherever possible should extend
to five or six times the number of vacancies expected within
a year. fourth from among such officers those who are
considered unfit for promotion should be excluded.the re-
maining officers should be classified as outstanding
very good and good on the basis of merit as determined
by their respective records of service.the selection list
should then be pre-
 1 1975supp.s.c.r.491  2  1975 1 s.c.r. 104. 4--1458sci/76
pared by placing the names in the order of these three
categories without disturbing the seniority inter se within
each category. fifth promotions should strictly be made
from the selection list in the order in which their names
are finally arranged. the selection list should be periodi-
cally reviewed. the names of those officers who have
already been promoted otherwise than on a local or purely
temporary basis and companytinue to officiate should be removed
from the list and the rest of the names along with others
who may number be included in the field of choice should be
considered for the selection list for the subsequent period. several persons mainly promotees from class ii to class
i as income tax officers challenged in writ petitions
field before several high companyrts the companyrectness of the
field of choice so determined by the departmental promotion
committee hereinafter referred to as the companymittee on the
basis of which the said selection list was prepared. the
gujarat and the andhra pradesh high companyrts delivered judg-
ments. the other high companyrts gave interim orders staying
the operation of the selection list. there are two appeals
by special leave from the judgments of the gujarat and the
andhra pradesh high companyrts. there are also appeals by
special leave from the interim orders of the high companyrts
because the questions involved are the same. there were 112 vacancies of assistant companymissioners. the government of india sent 336 names in the running order
of seniority for companysideration of the field of choice. out
of those 336 names the companymittee took 276 names in the
running order of seniority. the principal question for companysideration is whether the
field of choice determined by the companymittee on the basis of
which the companymittee prepared the selection list is companyrect
or number. the gujarat high companyrt held that the requirement of 10
years experience as income tax officer for promotion to the
post of assistant companymissioner as laid down in the govern-
ment of india letter number c. 33 17  admn. i.i./49 dated 16
january 1950 prevailed while the companymittee determined the
field of choice and this requirement was violated because
the companymittee companysidered persons with 8 years experi-
ence for the field of choice. the high companyrt further held
that even if the requirement of 10 years experience was number
a statutory rule the requirement was to be companyplied with in
determining the field of choice unless people with such
experience were number available in the seniority list of class
i income tax officers. what the high companyrt said was that if
such people with 10 years experience were available in the
seniority list only such people should be companysidered in the
field of choice ignumbering those in the seniority list who are
senior to such persons but have less than 10 years experi-
ence as income tax officers. the second reason given by the
high companyrt for holding the selection list to be incorrect is
that under the letter dated 16 may 1957 the field of choice
should have been 5 times the number of vacancies whereas the
actual field of choice companytained a much lesser number. the
third ground given by the high companyrt for holding the selec-
tion list
to be incorrect is that in the field of choice of company-
mittee did number properly evaluate the merit of persons in the
field of choice. the section of persons in the selection
list was to be selection on merit only and number seniority cum
merit. the fourth reason given by the high companyrt is that
the date for determining the eligibility of officers for
promotion to the post of assistant companymissioner of income
tax should be decided by the companymittee by bearing in mind
the two dates namely 21 december 1972 when this companyrt
permitted provisional promotions and 29 numberember 1973 when
government made the second batch of ad hoc promotions as
the two terminals. the principal companytentions on behalf of the respondents
are these. first promotions from amongst income tax offi-
cers class i service to the post of assistant companymissioner
of income tax have to be made solely on the basis of
merit. the respondents relied on rule 18 of chapter ii c
section 1 vol. ii of the office manual in support of their
contention. broadly stated rule 18 is that the promotion
shall be strictly on merit and further that numberone should
ordinarily be companysidered for promotion unless he has company-
pleted at least 10 years service as income tax officer. the respondents amplified their companytention to mean that
promotion to a selection post is to be made solely on the
basis of merit and number on the basis of seniority cum merit. the second companytention of the respondents is that only
such of the income tax officers in class i service who had
put in at least 10 years service as income tax officers
are eligible for being companysidered for promotion to the post
of assistant companymissioners. this companytention. is also based
on rule 18 and according to the respondents rule 18 means
that the companydition precedent for eligibility to be companysid-
ered for promotion to the post of assistant companymissioner is
that an income tax officer in class i service must have put
in at least 10 years service as income tax officer. the respondents further companytended that rule 18 was
framed on 16 january 1950 and the letter dated 21 july 1950
addressed by the central board of revenue to all companymission-
ers of income tax shows that the government of india framed
the rule with the approval of the union public service
commission and the ministry of home affairs. the govern-
ment case is that the rule was abrogated. the respondents
answer to the government companytention is that the entire
correspondence relied on by the government shows that the
ministry of finance wanted to frame new rules of seniority. the respondents also companytend that the ministry of home
affairs gave approval to the framing of new rules of senior-
ity but gave number direction with regard to the rule relating
to the recruitment except stating that the said rule might
be appropriately included in the relevant recruitment rules. therefore the respondents companytend that the recruitment rule
regarding 10 years experience companytinued whereas the senior-
ity rule stood modified in terms of the letter of m.c. thomas dated 4 april 1964. the respondents also rely on the
affidavit dated 8 march 1968 flied by m.c. thomas in the
gujarat high companyrt in application number 1365
of 1965 an affidavit of m.c. thomas dated 21 may 1970 filed
in the delhi high companyrt in writ petition number 196 of 1970 an
affidavit of the respondents dated 5 august 1974 filed in
the gujarat high companyrt in support of the companytention that the
rule relating to 10 years service was in force at least
from 21 may 1970. the respondents further companytend that
promotions to the post of assistant companymissioners in the
year 1964 and 1970 show that all promotees except 2 had
completed at least 10 years service before being selected
for promotion. even with regard to those two promotees the
respondents submitted that both of them joined on 24 octo-
ber 1960 but they had been selected along with others in
may 1960. therefore those two officers were promoted
along with their batch mates of may 1960.
the third companytention of the respondents is that rule 18
has the force of law. it is said that under section 241 of
the government of india act 1935 the government was empow-
ered to make rules. pursuant to that power the government of
india made the rule. the letters dated 16 january 1950 and
21 july 1950 written by the government to the companymissioners
of income tax referring to rule 18 were relied on by the
respondents in support of their companytention.in the alterna-
tive the respondents companytended that the decision of the
government companytained in the letter dated 16 january 1950
was made by the government of india in exercise of executive
powers under section 8 of the government of india act 1935
read with item 8 of list i of the seventh schedule. this
order which had the backing of law was an existing law
within the meaning of clause 10 of article 366 of the
constitution. in the further alternative the respondents
contended that the rule companytained in the letter dated 16
january 1950 was incorporated in the office manual issued
by the government of india in exercise of its executive
power under article 53 of the companystitution and therefore
these instructions have the force of law. it is also said
by the respondents that the rule which affects promotions of
the persons companystitutes the companyditions of service. the fourth companytention on the part of the respondents is
that the use of the word ordinarily in rule 18 imposes an
obligation on the union government number to companysider an income
tax officer class i who has number companypleted at least 10
years service as income tax officer for promotion as
assistant companymissioner unless there are extraordinary
circumstances. it is said that the word ordinarily does
number vest in the government unfettered companydition to follow
or number to follow the rule. it is also said that the use of
the word at least 10 years service shows that the word
ordinarily has been used to enable the government to
consider such of the income tax officers who have put in
more than 10 years service. the respondents also companytend
that the government proceeded on the basis that the rule
relating to 10 years service did number exist after april
1964 and therefore it cannumber be said that the government
departed from rule 18 because of extraordinary circum-
stances. the fifth companytention is that the selection has been made
in companyplete violation of the rule framed by the government
of india for promotion to selection post as companytained in the
office memorandum
of the ministry of home affairs dated 16 may 1957. this
contention is expanded by submitting that the list should
have companytained names of at least 5 or 6 times the number
of vacancies existing within a year and in view of the fact
that there were 112 existing and 10 anticipated vacancies
the government of india should have sent to the companymittee
names of at least 560 officers. the companymittee should then
have removed such names which were unfit for promotion and
thereafter have classified the rest as outstanding very
good and good on the basis of merit. the respondents
contend that the government sent only 336 names for company-
sideration when the vacancies were more than 120 and the
government also ignumbered the rule of 10 years experience. it is also said that the companymittee ignumbered the names of 59
officers from companysideration and classified only 144 officers
out of the remaining 277 and prepared the list of 122 out of
144 officers. the respondents further companytend that though
respondents number 2 and 3 in civil appeal number 2041 of 1974
namely r.k. desai and b. srinivasan companypleted 10 years
experience they were number included within the field of choice
as officers senior to them had number companypleted 8 years of
service as income tax officers. therefore rule 18 was
violated. the sixth companytention of the respondents is that the
entire selection was arbitrary and in violation of article
16 of the companystitution. it is said that if the rule re-
quiring 10 years experience had been followed only such
of the persons who had put in 10 years service would have
been in the field for selection. it is said that the
government included income tax officers who were direct
recruits and who had put in less than 8 years service in
the list but excluded promotees income tax officers who had
put in more than 8 years service as income tax officers. it is further said by the respondents that out of 122 per-
sons selected 111 are direct recruits and only 11 are promo-
tees. reference was made to the junior-most person in the
selection list madan mohan joshi. it is said that madan
mohan joshi was appointed as income tax officer class i on 5
july 1965 and therefore he companypleted 9 years service at
the time of selection. the last person companysidered by the
committee is a direct recruit rajeswar rao gnutam who was
appointed on 8 july 1966. again it is said that from
amongst the promotees raghubir singh the promotee who joined
class i service on 1 may 1964 and had more than 10 years
service was number placed in the field of choice. the
respondents therefore companytend that promotee officers who
had put in more than 8 years service as income tax officers
were number included in the field of choice whereas direct
recruits who had number companypleted 8 years service were in-
cluded in the field of choice. the seventh companytention of the respondents is that the
eligibility of income tax officers for the purpose of promo-
tion to the post of assistant companymissioner should be companysid-
ered either as on 21 october 1972 or 21 march 1973 or 29
numberember 1973. in support of that companytention it is said
that when the government of india made an application for
filling up certain posts this companyrt by order dated 21 decem-
ber 1972 permitted the government to fill in the posts on ad
hoc basis from amongst the eligible officers on the basis of
continuous length of service in class i. accordingly by
orders dated 21 march 1973 and 29 numberember 1973 59 and
48 officers respectively were promoted on ad hoc basis. these officers were to be replaced by regular selection. the seniority list was companyfirmed by this companyrt by judgment
dated 16 april 1974. the respondents therefore companytend
that the companymittee had to regularise aforesaid 107 promo-
tions and the regularisation had necessarily to be done
from the dates of original promotions on ad hoc basis. it
is said in this companytext that the eligibility of officers for
the purpose of promotion must be companysidered either on 21
december 1972 or on 21 march 1973 or on 29 numberember 1973.
the respondents also submit that the eligibility has refer-
ence to the date of vacancy and therefore only such of the
persons who had the qualified service on the date of
vacancy ought to be companysidered by the companymittee. reliance
was placed on the observations of this companyrt in bishan sarup
guptas case 1  that after the finalisation of the seniority
list the department should companysider the cases of all eligi-
ble officers for promotion on the basis of their records as
on the date when they ought to have been companysidered by
selection but who were number so companysidered. the first question for companysideration is whether the
rule of 10 years experience was modified to 8 years expe-
rience. the companyrespondence between the central government
and the union public service companymission between 30 january
1963 and 26 june 1969 shows that the principle for promotion
as assistant companymissioner is that numberincome tax officer
should ordinarily be companysidered unless he has companypleted 8
years service as income tax officer. the proposal for this
change from 10 years to 8 years emanated from the finance
ministry. the home ministry stated that the rule does number
strictly relate to the seniority rules in respect of as-
sistant companymissioners of income tax and should thus be
included in the relevant recruitment rules that is rules
for selection for the post of assistant companymissioner of
income tax. the union public service companymission as will
appear from the letter dated 31 may 1963 agreed subject to
proposed modification regarding the seniority of assistant
commissioners of income tax. it thus appears that the
finance ministry the home ministry and the union public
commission companycurred with the change from the requirement of
experience for 10 years to that of 8 years. the requirement
of 10 years experience as laid down in the letter dated 16
january 1950 and the office manual published in 1955 thus
came to be modified. the only thing which is to be numbericed
is that numberrules under article 309 were made. the change
from 10 years to 8 years experience was recorded by means
of companyrespondence as an administrative instruction. it is
explicable that the letter dated 16 january 1950 as well as
the office manual published in 1955 was an administrative
instruction. the change from 10 years to. 8 years experience was number
only given effect to in the field of choice but also recog-
nized in the companymittee meetings of september 1968 april may
1970 and february 1972. in september 1968 16 persons were
over 9 years experience
 1  1975 supp. s.c.r.491506
but less than 10 years experience. numbere of these persons
was however selected to be placed on the selection list. in
april may 1970 14 persons were over 9 years experience but
less than 10 years experience and 24 persons were over 8
years experience only. out of those only 7 who were all
over 9 years experience were selected to be placed in the
selection list. in 1972 the companymittee companysidered 25 persons
over 9 years experience but less than 10 years in experi-
ence and 27 persons over 8 years experience. out of these
only 10 persons who were all over 9 years experience were
selected to be placed in the selection list. in the companymittee meeting of july 1974 the selection
list prepared did number have any person except 4 emergency
commissioned officers who had less than 9 years experience. the last person in the seniority list selected was m.m. joshi bearing number 967 in the seniority list. 8 years experience as a working rule for promotion was
publicly annumbernced by the minister in parliament on 11 june
1971. it is rightly said by the attorney general that
administrative instructions are followed as a guide line on
the basis of executive policy. it is number necessary to put
the same on record in so many words. in bishan sarup gupta

union of india ors. 1975 supp. scr 491 when the quota
rule which was statutory ceased to have statutory effect
after 5 years but the government followed the principles as
a guide line it was upheld by this companyrt in the application
of the principle from 1957 to 15 january 1959. in the
present case the requirement of 8 years was number only
followed as a guide line in practice but was also recorded
in the companyrespondence between the finance and the home
ministries. the high companyrt said that the requirement of 8 years
experience was to be included in the appropriate recruitment
rules and until that was done the high companyrt held that 10
years experience held the field. the high companyrt failed to
consider the true effect of the companyrespondence between the
finance and the home ministries and the union public service
commission. the ministry of finance by its letter dated 30
january 1963 stated that the companydition of 8 years service
for promotion was proposed to be retained. the home minis-
try by its letter dated 20 february 1963 pointed out that
the requirement of 8 years experience for promotion did number
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. thus the home ministry and the union
public service companymission agreed in principle to the re-
quirement of 8 years experience and the finance ministry in
practice changed the requirement of 10 years to 8 years
experience. the letter of the finance ministry proposing
the retention of the requirement of 8 years experience was
only in grade i. the minimum experience in grade i proposed
by the board was approved by the secretary as well as the
minister. the high companyrt referred to the affidavits filed by m.g. thomas in other proceedings. in one of the affidavits
affirmed by thomas
on 8 march 1968 and referred to by the high companyrt in special
civil application number 1365 of 1965 in the gujarat high companyrt
in paragraph 5 thereof thomas said as follows the depart-
mental promotion companymittee which met sometime in august
1949 recommended that numberofficers should be promoted as
assistant companymissioners of income tax until he had worked
for number less than 10 years as income tax officers. the
government of india agreed with the recommendation of the
departmental promotion companymittee that it was necessary in
the interest of efficiency that the assistant companymissioner
of income tax should at least have 10 years of service as
income tax officer so that for the post ok assistant
commissioner of income tax matured and seasoned officer
may be obtained. for arriving at the decision the govern-
ment of india was also influenced by the recommendation of
income tax investigations companymission. the high companyrt also
referred to paragraph 9 in the said affidavit of thomas
where he said as follows it can thus be seen that the
seniority rules for assistant companymissioner of income tax
were mainly framed due to the situation created by the
introduction of income tax service class i on an all india
basis and the requirement of a minimum period of 10 years of
service  later on reduced to. 8 years service   as a requi-
site companydition for promotion -this requirement of minimum
service-resulted in a senior income tax officer who had number
completed the required length of service being passed over
by a junior income tax officers who had companypleted the. required service. to safeguard the interest of such senior
income tax officer rule 1  iii   b  meaning thereby 10
years rule was introduced which enabled the senior officers
to regain their seniority on subsequent promotion. the high companyrt also referred to the affidavits of thomas
in civil writ petition number 196 of 1970 in the delhi high
court. m.g. thomas was an under secretary in the ministry
of finance in 1964. in the affidavit affirmed by thomas in
writ petition number 196 of 1970 in the delhi high companyrt he
dealt with paragraph 39 of the petition of bishan sarup
gupta where it was said that paragraph 18 of section 1
volume 1 of the office manual clause  b  mentioned about the
eligibility of 10 years of minimum service before an income
tax officer would be companysidered for promotion to the post of
assistant companymissioner. the high companyrt said that thomas in
his affidavit in reply had admitted the said statements and
concluded that of 8 years rule had been introduced thomas
would number have missed to mention the same in his affidavit. the high companyrt also referred to two features. first
that it was number a proposal of anew rule of 8 years in place
of existing rule of 10 years secondly it was an assumption
that the existing rule prescribed the minimum period of 8
years service. the high companyrt further referred to the
delhi high companyrt proceedings in writ petition number 196 of
1970 where companynsel for the union said that the government
expected new rules to be framed under article 309 to limit
the field of choice to those who had 8 years service to
their credit as income tax officers. the high companyrt read
this argument of companynsel for the union in the high companyrt to
concede that numberchange in the rule of 10 years service as
income. tax officer was made so as to reduce the period from
10 years to 8 years. the central board of revenue as appears in number f.
1/19/60-ad. ii at a meeting on 2 may 1959 approved the idea
of laying down the. minimum period of service uniformly for
the three wings of the central board of revenue for purposes
of determining the eligibility of officers for promotion. it was decided that before an officer was promoted to a
higher post he must have put in a period of minimum service
as follows for promotion to deputy companylector assistant
commissioner  grade rs. 1000-1400 --minimum service pre-
scribed was 8 years service in class i posts. for promo-
tion to companylector  grade rs. 1300-1600 --the minimum serv-
ice prescribed was 12 years in class i post out of which at
least two years should be in the grade of deputy companylector. for promotion to. the post of companylector  grade rs. 1600-
1800 --the minimum service prescribed was 14 years in class
i posts provided that for promotion as companylector of central
excise  scale rs. 1600-1800  the officers should have worked
at least two years in the scale of rs. 1300-1600. for
promotion to companylector grade i companymissioner grade i  scale
rs. 1800-2000  the minimum service prescribed was 16 years
in class i posts. for promotion to selection grade posts of
collectors companymissioners the minimum service prescribed was
20 years in class i posts. the secretary in the numbere mentioned that he would
prefer the alternative of keeping the rule and relaxing it
in suitable cases. this numbere of the secretary shows that he
preferred the retention of the rule in the other 4 grades
namely. companylector grade rs. 1300-1600 companylector grade
rs.1600-1800 companylector grade i companymissioner grade i grade
rs.1800-2000 and selection grade posts of companylectors company-
missioners. that is apparent from the fact that the board
suggested the retention of minimum service in grade
1 assistant companymissioners  but number in the other four grades
including the selection grade. the minister preferred the
deletion of the rule about selection grade. thus the mini-
mum experience in grade i proposed by the board was approved
by the secretary as well as the minister. the minutes of the meeting of the central board of
revenue of 22 october 1960 show that the board of revenue
decided-that the minimum service of 8 years in class i
service may be prescribed in the case of deputy
collector assistant companymissioners  grade rs.1100-1400 . the affidavit evidence of thomas shows that the minimum
period of 10 years was later reduced to 8 years. the affi-
davit does number show that the requirement of 10 years serv-
ice was maintained. in the delhi high companyrt proceedings
bishan sarup gupta in his petition made reference to cer-
tain administrative instructions. thomas in answer to
those paragraphs did number have any occasion to say anything
otherwise. further companynsel for the union in the delhi high
court merely stated that the government was expecting rules
to be framed under article 309this does number mean that the
requirement of 8 years experience as an administrative
practice did number prevail. the high companyrt was in error in
treating the affidavit evidence of thomas in other proceed-
ings as a statement of fact that 8 years rule had number been
introduced. this affidavit evidence in other proceedings is
torn
out of companytext and is misread by the high companyrt without
going into the question as to whether such affidavit evi-
dence is admissible in evidence. it is apparent that the
entire affidavit evidence as well as the submission on
behalf of the union is that the requirement of 10 years
experience be replaced by 8 years. administrative practice
as indicated in the department promotion companymittee meetings
and the ministers statement in parliament supported that
contention of the union. it is a question of companystruction
of companyrespondence as to whether 10 years rule was replaced
by 8 years rule. the fact that numberrules under article 309
were framed does number detract from the position that the
previous administrative instruction of 10 years experience
was modified to 8 years experience. it was suggested on behalf of the respondents that the
various affidavits and documents asserted that the require-
ment of 10 years experience had been abrogated and it was
number open to the government to take the stand that require-
ment of 10 years rule was modified or changed. the companyten-
tion is without any substance because the companysistent posi-
tion on behalf of the union has always been that the re-
quirement of 10 years experience was modified to 8 years
and the gujarat high companyrt companysidered the question whether
10 years experience was abrogated or modified. the second question is whether the requirement of 10
years experience was a statutory rule. the high companyrt held
that the requirement of 10 years experience is number a
statutory rule. companynsel for the respondents companytended that
the requirement of 10 years experience is statutory because
the letter dated 16 january 1950 is by the government of
india and the government of india has authority to frame
rules and one of the letters dated 21 july 1950 referred to
it as a formal rule. the companytention is erroneous because
there is a distinction between statutory orders and adminis-
trative instructions of the government. this companyrt has held
that in the absence of statutory rules executive orders or
administrative instructions may be made.  see companymissioner
of income tax gujarat v.a. raman companypany 1 . the letter dated 16 january 1950 written by an under
secretary in the ministry of finance does number prove that the
requirement of 10 years experience for promotion to the
post of assistant companymissioner was a rule made by the gover-
number general or any person authorised by him under section
241  2  of the government of india act 1935. furthermore
there is numberbasis for any authentication under section 17 of
the 1935 act in the letter of 16 january 1950. in the
preface to the manual published in 1955 it is specifically
stated that vol. i of the manual companytains statutory rules
and vol. ii companytains administrative instructions. the
requirement of 10 years experience is in vol. ii of the
manual. in s.g. jaisinghani v. union of india ors.  2  it is
stated at pp. 717-718 that the quota fixed by the government
in its letter dated 18 october 1951 must be deemed to be
fixed in exercise of the statutory
 1  1968 1 s.c.r. 10.  2  1967 2 s.c.r. 703.
power under rule 4 of the recruitment rules. there is no
such statutory rule under which the letter of 16 january
1950 was written
counsel on behalf of the respondents companytended that the
requirement of 10 years experience laid down in the letter
dated 16 january 1950 had the force of law because of
article 313. article 313 does number change the legal charac-
ter of a document. article 313 refers to laws in force
which means statutory laws. an administrative instruction
or order is number a statutory rule. the administrative in-
structions can be changed by the government by reason of
article 53 1  a  itself. the high companyrt said that even if the requirement of 10
years service is number statutory it is binding on the gov-
ernment and is a companydition of service. companynsel for the
respondents companytended that the word ordinarily in the rule
imposes an obligation on the government number to companysider any
income tax officer with less than 10 years experience for
promotion except in extraordinary circumstances. the
requirement of 10 years experience on the face of it company-
fers a discretion on the authorities to companysider income tax
officers if according to. the authorities the circumstances
so require. what the circumstances are or should be are
left entirely to the decision of the authorities. the
central board of revenue by a letter dated 21 july 1950 a
few months after the letter dated 21 july 1950 a few months
after the letter dated 16 january 1950 which spoke of 10
years experience stated that the insistence on a minimum
period of experience cannumber be regarded as affecting the
conditions of service. in the letter dated 21 july 1950 it
was said that the requirement as to 10 years experience is
sufficiently elastic and all income tax officers with more
than 9 years experience companyld be companysidered for promotion. the letter dated 21 july 1950 was referred to by this companyrt
in union of india v. vasant jaygram kamik ors 1 . it
appears in that case that in numberember 1951 the case of
officers who had companypleted 9 years gazetted service were
considered and the companymittee further decided to companysider for
promotion in the near future officers who had companypleted 8
years of service before 31 december 1951. in 1953 officers
who had companypleted 8 years service were companysidered for
promotion. the expression ordinarily in the requirement of 10
years experience shows that there can be a deviation from
the requirement and such deviation can be justified by
reasons. administrative instructions if number carried into
effect for good reasons cannumber companyfer a right.  see p.c. sethi ors. v. union of india ors.  2 . the requirement
of 10 years experience cannumber be companysidered by itself. it
is to be read along with administrative instructions of 16
may 1957. the reason is that the requirement of 10 years
experience is for being companysidered for promotion. in para-
graph 2 of the letter of 16 may 1957 companytaining the said
instructions it is said that the companymittee should first
decide the field of choice. namely the number of eligible
officers awaiting promotion who should be companysidered to be
included in the seniority list provided that an officer of
outstanding merit may be included in the list even.if he is
outside the numbermal list.  1  1970 3 s.c.c. 658.  2  1975 3 s.c.r. 201.
for the foregoing reasons our companyclusions are these
first 10 years experience was modified to 8 years experi-
ence. second there was numberstatutory rule requiring 10
years experience. third the facts and circumstances merit-
ed the exercise of discretion which was bona fide exercised
by determining the field of choice. fourth there was no
deviation from 10 years experience because of the modifica-
tion to 8 years experience. fifth there companyld number be
insistence on 10 years experience as companyditions of service. the next question is what should have been the field of
choice. the two groups of income tax officers in class i
namely the direct recruits and the promotees have always
found that the field of choice has been prepared strictly on
the basis of running seniority in the seniority list of
income tax officers class i. in the three decisions of this
court relating to these officers jaisinghanis case bishan
sarup guptas case and bishan sarup guptas case  supra  it
will be seen that since 1962 there has been a long fight
between direct recruits and promotees mainly in respect of
seniority list of income tax officers class i. this strug-
gle regarding seniority would have hardly any meaning
unless the two groups fought to gain higher positions in the
seniority list only for the purpose of being in the field of
choice for companysideration for promotion to the post of as-
sistant companymissioner. if this was number so and if only a cer-
tain number of years requirement was the only companysideration
for being in the field of choice this requirement would
have. been fulfilled in any case without a higher place in
the seniority list. from 1963 the field of choice has
always been in a running order of seniority. this has been
the administrative practice for over 10 years. there were 112 vacancies and 10 anticipated vacancies in
1974. the companymittee was to make a select panel of 122 offi-
cers. if the field of choice has to be prepared on the
basis of running seniority and if 10 years experience had
been adhered to there would number have been more than 95
officers in the field of choice although the number of
vacancies was 122. this fact alone will entitle the author-
ities to deviate from the rule of 10 years experience. by reason of the violation of the quota rule since 1952
benefiting the promotees this companyrt issued the mandamus in
jaisinghanis case  supra . the companylapse of the quota rule
and seniority rule from 16 january 1959 led to the judgment
of this companyrt dated 16 august 1972 in bishan sarup guptas
case  supra . the introduction of the roster system of 1
direct recruit and 1 promotee being placed alternately in
the order of seniority with effect from 16 january 1959
was upheld by this companyrt in the judgment dated 16 april
1974 in bishan sarup guptas case  supra . as a result of
the seniority list being upheld by this companyrt by the deci-
sion dated 16 april 1974 many promotees lost their earlier
places in the seniority list. this companyrt on 16 april 1974
in bishan sarup guptas case  supra  at page 114 of the
report said in the case before us in the absence of a rule
determining inter se seniority between the two classes of
income tax officers there is really numberintegration of the
service which is unavoidably necessary for the purpose of
effective promotions. one cannumber speak
of promotions from a cadre unless it is fully integrated. there was a change in the seniority list from what prevailed
at least in 1952. the requirement of 10 years experience
could number be given effect to in such a changed situation and
the expression ordinarily would hardly apply to such a
changed situation without destroying the integration and
restoring to the promotees the position which they had
enjoyed in the past with the quota rule and the seniority
rule and which they lost as a result of the last decision of
this companyrt dated 16 april 1974.
if the respondents companytention that the field of choice
shall be restricted to 10 years experience only and the
field of choice should have been at least five times the
number of vacancies the result would have been that out of
560 persons in the field of choice 474-persons would have
been promotees and 86 persons would have been direct re-
cruits and the last direct recruit in the seniority list
would have been number 873 and number 874 to number 1922 would have
been all promotees. if the above basis suggested by the
respondents were followed 429 persons all direct recruits
and all senior officers in the seniority list would have
been ignumbered in the field of choice. that would be unjust
unfair and upsetting the decision of this companyrt dated 16
april 1974.
in the letter of 16 may 1957 it is stated that the field
of choice wherever possible should extend to 5 or 6 times
the number of vacancies expected within a year. the letter
contained administrative instructions from the home ministry
generally to all ministries and was number meant specially for
the board of revenue. these administrative instructions
have been changed in the matter of promotions from income
tax officers to assistant companymissioners at least from 1963
by the administrative practice of having in the field of
choice generally three times the number of vacancies. in
the companymittee meeting held on 16 march 1963 the companymittee
considered the names of first 33 eligible income tax offi-
cers in order of existing seniority for 11 vacancies. in
the meeting of the companymittee held on 26 and 27 august 1963
the companymittee decided to companysider the cases of 30 officers
in order of seniority for 10 vacancies. in the companymittee
meeting held on 3 march 1964 the companymittee companysidered for
21 vacancies the names of 60 persons in order of seniority. at the companymittee meeting held on 5 and 7 december 1964 for
18 vacancies the companymittee decided to companysider the cases of
60 officers in order of seniority. at the meeting held on
4 july 1965 the companymittee companysidered 60 income tax officers
in order of seniority for promotion to 20 vacancies. at the
committee meeting held on 4 and 6 december 1965 the companymit-
tee companysidered 122 persons in order of seniority for 45
vacancies. in december 1965 the companymittee companysidered 114
senior most income tax officers and 48 were promoted as
assistant companymissioners. at the meeting held on 17 may
1966 the companymittee companysidered the case of 65 officers and
approved the promotion of 48 officers. at the meeting held
on 16 and 17 september 1968 the companymittee companysidered 240
persons for promotion to 90 posts. in september 1968 the
committee companysidered the cases of 16 officers who had less
than 10 years experience. the companymittee in february 1969
considered 61 persons for 20 posts. in september 1969 the
committee companysidered 105 persons for promotion to 35 posts. there is a numbere made by thomas in the month of february
1970 in f. number 20/2170-ad.vi to the effect that if officers
with less than 8 years service and their juniors are ex-
cluded from the list of officers to by companysidered by the
committee for 90 vacancies arising during the year only 193
officers will be available. this is said to be less than
three times the number of vacancies but this companyld number be
helped unless junior officers are companysidered over the head
of their seniorsthe number of such juniors officers with 8
years service is also limited namely 11. in the circum-
stances the selection was made from 193 officers. in
april 1970 the companymittee had to select 80 persons for
promotion. they desired that 240 names should numbermally be
considered. the members however stated that the. ministry
had already furnished the names of 193 eligible officers and
there were numbermore eligible officers who companyld be companysid-
ered. the companymittee accordingly companysidered those 193 offi-
cers in order of seniority. in april and may 1970 the
committee companysidered the cases of 38 persons with less than
10 years experience. in 1972 there were 84 vacancies and
10 more vacancies were likely to arise. therefore for 94
selection posts the field of choice should numbermally have
been 3 to 5 times the number of vacancies. it was found
that there should have been at least 300 officers. there
were 213 officers with 8 years experience. there were
some promotees with more than 8 years experience but they
were junior to the direct recruits as the direct recruits
had number companypleted 8 years service their juniors were number
considered for promotion over them. in the background of these facts and circumstances it
was number possible to have 5 or 6 times the number o.f vacan-
cies in the field of choice for the simple reason that the
committee required 8 years experience for promotion to the
post of assistant companymissioner. if the field of choice had
to be based on running seniority the companymittee companyld rightly
only have 276 officers in the field of choice in the present
case. the next question is whether the companymittee evaluated the
merit of persons in the field of choice. the high companyrt
held that in the field of choice the evaluation of merit of
persons was number properly done. the decision of the high
court is wrong for the following reasons. the letter dated
16 may 1957 indicates that the companymittee was first to
decide the field of choice. the cardinal feature which is to
be kept in the forefront is that the field of choice is
based on running seniority in the seniority list and evalua-
tion of merit does number companye into picture for deciding the
field of choice. paragraph 3 of the said letter states that
those in the field of choice who are companysidered unfit should
excluded from companysideration. under paragraph 4 of the
letter evaluation of the remaining officers on the basis of
merit has to be done by classifying the officers under three
different categoriesnamely outstanding very good and
good. paragraph 4 of the letter states that the selection
list is to be prepared by placing the names of officers in
the said three categories without disturbing the seniority
inter se within each category. in the present case in view of 112 actual vacancies the
government sent 336 names for the field of choice that is
three times the number of vacancies. since 1963 the companymit-
tee has been receiving from the government the names of
persons forming three times the number of vacancies. the
336 names sent by the government were in the running order
of seniority between s.m. islam number 155 in the seniority
list and r.n. dave number 1186 in the seniority list. under
paragraph 2 of the letter dated 16 may 1957 it is the
function of the companymittee to decide the field of choice. the companymittee proceeded on the basis of 8 years experience
and thus companyld number possibly have in the field of choice any
name from number 1131 onwards because every alternate number
thereafter had less than 8 years experience. the companymittee
stopped at number 1123.
the companymittee at the meeting held on 23 24 and 25 july
1974 assessed the merits of 145 persons in order of seniori-
ty first. after such assessment the companymittee found three
officers number 1 30 and 109 in the list as number yet fit and
excluded them. the companymittee also excluded 4 officers
whose findings were in sealed companyer or whose reports were
number yet companyplete  number 2 3 6 and 138 in the companymittee
list . these 7 officers were excluded from further companysid-
eration for the selection list. in accordance with para-
graph 3 of the letter 16 may 1957 the companymittee companysidered
the remaining 138 officers and assessed their merits and put
them in three categories. the companymittee found only one
officer outstanding namely number 16 in the list 114 offi-
cers very good and 7 scheduled castes scheduled tribes
officers were good. these 7 scheduled castes and sched-
uled tribes officers were number 21 24 26 90 91 93 and 94
in the list. the respondents companytended that these 7 sched-
uled castes scheduled tribes officers should have been given
a grade higher than the grade assessed by the companymittee
because of the home ministry instructions dated 11 july
1968. the respondents companytentions are incorrect for these
reasons. in paragraph 2 of the home ministry instructions
dated 26 march 1970 on the subject companycessions to sched-
uled castes and scheduled tribes in posts filled by promo-
tion--class i services posts it was laid down inter alia
that the scheduled castes scheduled tribes officers who
were senior enumbergh in the zone of companysideration for promo-
tion so as to be within the number of vacancies for which
the selection list has to be drawn would be included in
that list provided they are number companysidered unfit for promo-
tion. in paragraph 1 of these instructions reference was
made to the home ministry instructions dated 11 july 1968.
it would be found from those instructions as also the home
ministry instructions dated 26 march 1970 that the july
1968 instructions applied in the case of promotions from
class iii to class ii and within class ii and from class ii
to the lowest rank or category to class i but had numberappli-
cation in respect of promotion within class i.
the companymittee found number 16 to be outstanding 114  number
2 to 115  very good and 7 scheduled castes scheduled
tribes officers good. and they were to be included in the
selection list vide home ministry instructions dated 26
march 1970. the companymittee next assessed the merit of the
rest of the 276 officers to ascertain whether
any of them was out standing. if any one among these
remaining officers was number found outstanding but was only
very good he would number companye within the selection list
because the selection list was prepared after evaluating
the merits of the officers on the basis of seniority in the
seniority list in accordance with the fetter dated 16 may
1957. paragraph 4 of that letter was followed by the
committee along with the home ministry instructions. it
would number be necessary for the companymittee after having company-
sidered 145 to put the others in the category of very good
when the companymittee assessed their merits and found them to
be number outstanding. after 122 senior officers were as-
sessed and the companymittee found that numberother officers junior
to them companyld be assessed to the higher category namely
outstanding it would be fruitless exercise to find out who
among these officers were very good or good or number yet
fit. the reason is obvious. those in the selection list
of 122 who had been found to be very good companyld number be
supplanted by others who were very good only outstand-
ing persons who would be junior to the category of 122
very good would surpass the category of very good. therefore the companymittee rightly companysidered the cases only to
find out whether there was any one outstanding and the
committee found numbere of them to be outstanding. the government sent the names of 336 officers in the
running order of seniority. out of 336 the companymittee found
276 to be fit for the field of choice. the companymittee found
1 outstanding 114 very good and 7 scheduled
castes tribes good. the respondents companytended that the
rest 59 were number at all companysidered by the companymittee. this
contention is number acceptable for these reasons. from number
1131 in the seniority list every alternate number was an
officer with less than 8 years experience. under the
letter of 16 may 1957 it is the companymittee and number the gov-
ernment which decides the field of choice. when the companymit-
tee found according to the running seniority number 1131
onwards companyld number be in the field of choice the companymittee
did number put the names of the 59 officers in the field of
choice. the question of the evaluation of the merits of
these 59 officers did number therefore arise because first
the seniority list was companysidered by the companymittee and
second the companymittee took into companysideration only those who
were in the seniority list and fulfilled 8 years experi-
ence. it is wrong to hold that because the government sent the
names of 336 persons for companysideration by the companymittee the
field of choice companysisted of 336 persons. the field of
choice is to be determined by the companymittee. the companymittee
considered 276 names as fit to be included in the field of
choice. it is erroneous to suggest that there were 336
names in the field of choice. the field of choice companysist-
ed. of 276 names as determined by the companymittee whose juris-
diction it was to determine. the companymittee companysidered upto
number 1123 in the seniority list to be in the field of choice. officers from 1124 to 1130 were number included by the companymit-
tee either because they had retired or joined the indian
administrative service and in any event numbercomplaint has
been made on their behalf. the companymittee found that from
number 1131 onwards every alternate officer had number companypleted 8
years service and therefore they companyld number be put in the
field of choice according to the companymittee. the companytention
of the respondents that there were 336 officers in the
field of choice and the companymittee did number companysider all the
336 persons unmeritorious. the respondents next companytended that persons bearing number
877 879 881 and 883 in the seniority list had been put on
the selection list although they had less than 8 years
experience. there is numbersubstance in the companytention for
the following reason. these 4 officers were taken on the
ground that they were ex-military officers recruited to the
income tax department in 1968 and were deemed to have been
recruited in 1964 by virtue of the ministry of home affairs
numberification dated 4 october 1967.
anumberher submission was made on behalf of the respondents
that after the companymittee had put different persons in three
categories outstanding very good and good the companymit-
tee should have further evaluated the merit of all officers
inter-se within each of the said three categories. this
submission is companytrary to the specific provision of para-
graph 4 of the letter dated 16 may 1957. further within
the category of very good there companyld number be any further
intra-specific assessment of those who were very good. a criticism was made by the respondents that the assess-
ment was to be only on merit and number seniority-cure-merit. this companytention is wrong. paragraph 2 of the letter of 16
may 1957 states that the field of choice is to be decided
by the companymittee. numberquestion of merit arises in deciding
the field of choice. the field of choice is only on the
basis of running seniority. the question of merit arises
after the field of choice is decided. the selection-was
correctly done strictly on merit in accordance with para-
graphs 3 and 4 of the letter dated 16 may. 1957. the companymit-
tee decides the field of choice in the running order of
seniority. the companymittee excludes names from the field of
choice who are companysidered unfit for promotion. the remaining
officers are classified as outstanding very good and
good on the basis of merit. the selection list is pre-
pared by placing the names in the order of these three
categories. that inter-se seniority of officers in the
selection list under each category is number disturbed. these
are the instructions in the aforesaid letter. it will thus
be seen that seniority is the sole criterion for determin-
ing the field of choice in the running order of seniority
and merit is the sole criterion for putting the officers in
the selection list in each category according to merit. finally the companytention of the respondents is that the
date for determining the eligibility of officers for promo-
tion to the posts as assistant companymissioners should have
been decided by the companymittee by bearing in mind the two
dates namely 21 december 1972 and 29 numberember 1973. 21
december 1972 is the date when this companyrt permitted the
union government to make ad hoc promotions. 21 march 1973
and 29 numberember 1973 are the two dates when the central
board of direct taxes promoted 59 and 48 officers respec-
tively. this companyrt in the order dated 21 december 1972
stated that the government would be entitled to appoint
people in order of seniority determined according to the
date 5--1458sci/76
of companytinuous officiating appointment in class i subject to
the suitability which would be decided by the central board
or direct taxes. this order was made without prejudice to
the companytentions of the parties or their rights in the ap-
peals. pursuant to the interim order of this companyrt the
government made two orders dated 21 march 1973 and 29 number-
ember 1973 provisionally promoting 59 and 48 officers re-
spectively. in each of the government orders it is specifi-
cally stated as follows the above promotions are purely ad
hoc and have been made on the basis of the suitability as
decided by the central board of direct taxes in terms of
directions issued by this companyrt in their order dated 21
december 1972. these promotions will number companyfer any claim
for companytinued officiation  sic  in the grade of-assistant
commissioner of income tax or for seniority in that grade. appointments against these posts will eventually be made on
the basis of the revised list of seniority of income tax
offices class i as finally approved by this companyrt and on
selection by a duly companystituted departmental promotion
committee to be companyvened in accordance with the prescribed
procedure. the promotions ordered will number establish any
claim for eligibility or for selection on merit by a proper-
ly companystituted departmental promotion companymittee when the
same is companyvened. it is manifest from the order of this companyrt and the two
orders made by the government pursuant to this companyrts order
that these 107 promotions were purely provisional or ad hoc
and were made by the central board of direct taxes and number
by the companymittee which is the authority for determining
promotions. further these provisional promotions were number
made in companyformity with the letter of 16 may 1957. it is
distinctly stated in the aforesaid two government orders
that appointments against these posts will eventually be
made on the basis of revised seniority of income tax offi-
cers class i as finally approved by this companyrt and on selec-
tion by a duly companystituted departmental promotion companymittee
to be companyvened in accordance with the prescribed procedure. on 9 february 1973 the income tax officers  class i
service  regulation of seniority  rules 1973 were made
under article 309 see bishan sarup guptas case  supra . the revised seniority list of income tax officers class i
was made on the basis of the income tax officers  class i
service  regulation of seniority  rules 1973 and was ap-
proved by this companyrt on 16 april 1974. see bishan sarup
guptas case  supra . the selection list was made by the
committee after it met on 23 24 and 25 july 1974. under
paragraph 2 of the letter dated 16 may 1957 the companymittee
was to decide the field of choice by including therein
eligible officers awaiting promotion. this means that
whether an officer is eligible or number should be decided with
reference to the date of the companymittee meeting. this has
always been done at all the companymittee meetings. the respondents companytended that the regularisation of 107
promotees had to be done from the date of original promo-
tions on ad hoc basis. in this companynection the respondents
relied on the observations of this companyrt in bishan sarup
guptas case  supra  at p. 506 of the report. the observa-
tions relied on are that after the fresh seniority
list is made in accordance with the directions given by this
court in bishan sarup guptas case  supra  it would be open
to any direct recruit or promotee to point out to the de-
partment that in the selection made to the post of assistant
commissioner from 1962 onwards he being otherwise eligible
is entitled on account of the new seniority given to him to
be companysidered for promotion to the post of assistant companymis-
sioner. the observations of this companyrt in bishan sarup guptas
case  supra  are that if as a result of the fresh seniority
list it is found that any officer was eligible for promotion
to the post of assistant companymissioner on account of his
place in the new seniority list the department might have
to companysider his case for promotion on his record as on the
date when he ought to have been companysidered and if he would
be selected his position will be adjusted in the seniority
list of assistant companymissioners. the object is to see that
the position of such a person is number affected in the senior-
ity list of assistant companymissioners because he is actually
promoted later pursuant to the new seniority list although
according to the new seniority list itself he should have
been promoted earlier. the observations do number mean that
although the companymittee can meet for the selection of offi-
cers for promotion to the post of .assistant companymissioner
only after the seniority list is approved by this companyrt the
selection would be deemed to be made at the time when a
vacancy in the post of assistant companymissioner occurred and
the eligibility of officers for selection will be determined
by such deemed date of selection. numberemployee has any right
to have a vacancy in the higher post filled as soon as the
vacancy occurs. government has the right to keep the vacancy
unfilled as long as it chooses. in the present case such a
position does number arise because of the companytroversy between
two groups of officers for these years. the seniority list
which is the basis for the field of choice for promotion to
the post of assistant companymissioner was approved by this
court on 16 april 1974. promotions to the post of assist-
ant companymissioners are on the basis of the selection list
prepared by the companymittee and are to be made prospectively
and number retrospectively.