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TMI Blog2017 (4) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... nally in 2011 he qualified the same but the respondents have declared him as fail. Petitioner has further prayed for a direction to promote the petitioner to the post of Income Tax Officer pursuant to his qualification in the examination of 2011 with all consequential benefits from the date of publication of result and promotion order. 3. The factual exposition as has been delineated in the writ petition is that the petitioner joined the organisation of the respondents on 16.08.1984 as an Upper Division Clerk. Subsequently, he was promoted as Income Tax Assistant in the year 1993 and further to the post of Income Tax Inspector in the year 2001 and since then he is rendering his service as such with an unblemish career record. Thereafter, to meet the channel of next promotion as Income Tax Officer, the petitioner applied for the departmental examination held for the same in the year 2011. The forms were duly verified and scrutinised by the competent authorities and the petitioner appeared and duly qualified in the examination in the year 2011 itself. However, to utter surprise of the petitioner, he was shown as 'fail' in the said examination by awarding 'zero' marks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding the attempt in the examination availed by the petitioner. It is case of the petitioner that he has availed the examination for eight times i.e. in the year 1995, 1996, 2001, 2002, 2008, 2009, 2010 and 2011 and the respondents have illegally come to a conclusion that the applicant had availed 12 chances, which is beyond the record. Learned Senior Counsel further argued that attempt in the examination can be counted on actual number of times the petitioner appeared in the examination held by the department. The number of attempts so described by the respondents is contrary to records as the petitioner has actually appeared for eight times in the examination and therefore, he cannot be denied his legitimate right to be considered to have passed the departmental examination within the limit period. Learned Sr. Counsel drew attention of this Court to the Amended Departmental Examination Rules for Income Tax Officers, 2009 which became applicable for the departmental examination from calender year 2010 onwards. A copy of the said Rule was also brought on record before the Central Administrative Tribunal. It is relevant to quote Rule-IV of the said Rule: "RULE-IV: CHANCES PERMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Old Pattern and shall lapse as soon as they reach the age limit/ chance ceiling stipulated below in Rule IV(ii)." Learned Sr. Counsel further argued that the definition in Explanation has to be read in connotion with main part of the Notification. It cannot be read in isolation. The entire explanation has to be taken into consideration not the proviso. To strengthen his arguments, learned Sr. Counsel has placed reliance in a Judgment rendered in the case of "Oblum Electrical Industries Pvt. Ltd., Hyderabad Vs. Collector of Customs, Bombay reported in (1997) 7 SCC 581. Para-11 of the said Judgment reads as under:- "11. It is true that in clause (viii) of the Explanation to the notification the expression "materials" has been defined to mean goods which are raw materials, exponents, intermediate products or consumables used in the manufacture of resultant products and their packings or mandatory spares to be exported in the resultant products. But the said definition in the Explanation has to be read in consonance with the main part of the notification. It is a well-settled principle of statutory construction that the Explanation must be read so as o harmonise with and clear up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us examination like UPSC, only appearance in the concerned examination is considered as an attempt and as such action of the respondents authorities in denying legitimate claim of the petitioner is totally dehorse the rule and unconstitutional and violative of Articles 14 and 16 of the Constitution of India. Learned Sr. Counsel assailing the order of the Tribunal argued that even the Tribunal while dismissing O.A. No. 051/00022/2014 had taken a sympathetic view and observed that if the applicant is otherwise qualified in 2011 examination and if within the bounds of rules, any sympathetic consideration may be given to his case. 7. Per contra, Mr. Deepak Raushan, learned counsel appearing for the Income Tax Department vehemently opposed case of the petitioner and further drew attention of this Court in para-11 of the counter affidavit. "11.That in reply to para 13 to 16 of the writ petition it is humbly stated that rules for department examination are made with the approval of CBDT and it is uniformly applicable to all the candidates. Further, it is clearly stated in the explanations to rule IV (i) & (ii) of the amended departmental examination rules for ITOs 2009 (effective from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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