9911796707
TMI Blog2019 (6) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... o have passed the examination. True that it was made clear therein that all the Departmental Examinations for Income Tax Officers held upto 1997 and the results of which were declared would continue to be governed by the Departmental Examination for ITOs issued under the Directorate's letter F.No.EG(20) (8) 93/DIT to 6625 dated 18/26.11.1993 as amended from time to time. As noticed hereinbefore, the petitioner had appeared for the Departmental Examinations to be cleared for promotion to the post of Income Tax Officer in the years 2000, 2001, 2002 and 2003. During those relevant periods, it was being governed by the Rules for the Departmental Examination for Income Tax Officers-1998. The rules relating to the conduct of the Departmental Examinations were modified and the percentage required for a pass was reduced to 50% for each paper only as per the 'Modified Rules' and Modified Rules relating to pass percentage viz., Clause VI was given effect only from 26.5.2008. Hence, how can the petitioner bring in a challenge on the ground of discrimination and canvass the position that it should be deemed to have come into operation with retrospective effect from 1998 as relates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or The Petitioner : MR C. V. ANTONY (PARTY IN PERSON) For The Respondents : ADV. SRI.T.V.VINU, CGC JUDGMENT Ravikumar, J. The petitioner/the applicant in O.A No.955/2014 on the files of the Central Administrative Tribunal, Ernakulam Bench, who is a retired Income Tax Officer, filed the captioned original petition aggrieved by the impugned order passed thereon. He filed the said original application seeking the following reliefs:- A. To call for the records leading to Annexure A11 dated 19.8.2014 and set aside the same. B. To direct the respondents to declare that the applicant has passed the Departmental Examination for Income Tax Officers held in the year 2003 and to grant him two advance increments w.e.f 17.11.2003, the last date of the Departmental Examination. C. To direct the respondents to promote the applicant as Income Tax Officer w.e.f 7.4.2005, the date on which his immediate junior was promoted and grant him consequential monetary benefits including re fixation of pension and other terminal benefits. D. Any other appropriate order or direction this Hon'ble Tribunal deem fit in the interest of justice. He got amended the original ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile he was in service, the petitioner had appeared for Departmental Examination, consisting of five subjects, for promotion to the post of Income Tax Officer, in the years 2000, 2001, 2002 and 2003. Departmental Examination Rules for Income Tax Officers, 1998 was in force during that period. Income Tax Law, viz., the first subject, got two parts with 100 marks each. Going by the 1998 Rules, apart from 60% marks in the designated subjects, 60% marks in aggregate was to be scored to pass the examination for earning eligibility for promotion. The petitioner could not pass the examination as he had fallen short of the requisite 60% of marks. Virtually, claiming for a declaration that he is entitled to carry forward the excess marks scored in one particular year to make good the shortage of marks in the next year examination so as to obtain a pass in the examination for the purpose of promotion, he approached the Tribunal by filing O.A.No.287 of 2005. He contended that in the examination held in the year 2000, for the subject 'Book Keeping', he obtained 64 marks and thereby secured four marks in excess of the prescribed qualifying mark of 60. In the examination held in 2001, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e post of Income Tax Officer viz., from 60% to 50% viz., only with prospective effect, is unreasonable. Virtually, the petitioner was claiming the benefit of reduction of percentage of marks. The Tribunal had declined to accept the contentions of the petitioner against the prescription of lower percentage of eligibility marks only prospectively and the claim for its retrospective effect from the year 2003. Consequently, the original application was dismissed. It is this order that is under challenge in this original petition. 4. Various contentions have been raised by the petitioner before us to challenge the order in O.ANo.955 of 2014. The following twin contentions were mainly raised by the petitioner to assail the amendment brought in, by the Modified Rules:- 1. The modified rules under Annexure A12 as regards Departmental Examination for Income Tax Officers reducing the pass mark from 60% to 50% should be given retrospective effect; 2. Giving effect to Rule VI: 'PASS PERCENTAGE' of the modified rules contained in Annexure A12 only from 26.5.2008 would tantamount to stipulation of cut off date as 26.5.2008 hence, leading to unreasonable classification and thereb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , John Vallamattom and another v. Union of India [AIR 2003 SC 2902] and Belwant Singh v. Commissioner of Police and others [(2015) 4 SCC 801] . 7. Virtually, the decision in Indra Sawhney 's case is relied on to canvass the position that it would be impermissible for the Executive or Legislature to remove a defect which is the cause for discrimination, only prospectively and that it could be removed only retrospectively. No specific contention has been taken by the petitioner, either before the Tribunal or before this Court, to the effect that the modified rules in Annexure A12 were issued to correct a mistake. Even if such a specific contention was taken, it could not have been sustained in view of the nature of modification brought in, as per Rule VI of the modified rules in Annexure A12 as regards 'pass percentage' in Departmental Examination for Income Tax Inspectors. What was actually done thereunder is not correction of a mistake and it was nothing but a reduction of pass percentage from 60% to 50%, in the manner specifically mentioned therein consequent to the introduction of Departmental Examination Rules for Income Tax Officers, 2007 in place of 1998 Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. It may be true that the petitioner had been cherishing promotion as Income Tax Officer from 2003. But, there is no fundamental right to get promotion under the Constitution. It guarantees only consideration for promotion ahead of juniors. In this case, promotion to ITO is not based on mere seniority and pass in Departmental Examination is a quintessential qualification for the same. The pass percentage at the relevant point of time was 60% and it was modified and prescribed only with effect from 26.5.2008. He must have had the chance of promotion as Income Tax Officer in case he had passed the departmental examination while he was in service. He retired from service on 30.9.2008 and the provision under Rule VI in Annexure A12 was given effect only from 26.5.2008. 9. In the contextual situation, it is relevant to refer to Rule VI: 'PASS PERCENTAGE' of the modified rules in Annexure A12 (Ext.P5) and Rule VI(1) thereunder reads thus:- A candidate will be declared to have completely passed the Departmental Examination for ITOs if he secures a minimum of 50% (45% in the case of SC/ST candidate) in each of the following subjects: (i) Income Tax L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/DIT to 6625 dated 18/26.11.1993 as amended from time to time. As noticed hereinbefore, the petitioner had appeared for the Departmental Examinations to be cleared for promotion to the post of Income Tax Officer in the years 2000, 2001, 2002 and 2003. During those relevant periods, it was being governed by the Rules for the Departmental Examination for Income Tax Officers-1998. The rules relating to the conduct of the Departmental Examinations were modified and the percentage required for a pass was reduced to 50% for each paper only as per the 'Modified Rules' and Modified Rules relating to pass percentage viz., Clause VI was given effect only from 26.5.2008. Hence, how can the petitioner bring in a challenge on the ground of discrimination and canvass the position that it should be deemed to have come into operation with retrospective effect from 1998 as relates 'pass percentage'? In Clause VI, it was specifically made clear that the Modified Rules relating lowering of 60% to 50% would be effective only from 26.5.2008, presumably because of the doubtful position likely to arise on perusal of the aforesaid recital in the introductory part. There can be no doubt wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, it would cause total chaos in the matter of administration. That apart, in such circumstances, one cannot be oblivious of the position that an accrued right cannot be taken away by making modification in the rules after the examination, publication of the result and consequential action in effecting promotions. Very rightly, the respondents have carefully incorporated Rule VI and gave effect to it only prospectively, realising and recognizing such settled position of law. If persons who could not acquire the requisite 'pass percentage' in examinations conducted prior to the commencement of the Modified Rules, are declared as passed by virtue of the Modified Rules with effect from a previous day, it would certainly entail reversion of many hands who were promoted on passing such tests in view of the requirement in that regard during the relevant period. The Tribunal had rightfully repelled those contentions. How can the petitioner stake the claim of promotion, whatever be the ground, at this distance of time, in the light of the decision of the Hon'ble Apex Court in Union of India v. Tarsem Singh [2009 (1) KLT 101 (SC) and in the said circumstances. In paragraph 7 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the aforesaid manner was pending, in the year 2007. The petitioner has not chosen to raise the claim and contentions now raised in O.A.No.955 of 2014 appropriately, immediately on the introduction of the Modified Rules. It is true that it was introduced only after the institution of O.A No.287 of 2005 and the order passed thereon had ultimately attained finality only upon passing Annexure-A8 dated 21.10.2013 by the Hon'ble Apex Court. Despite its introduction, the petitioner has chosen only to pursue with his claim and contentions originally raised in O.A.287 of 2005. As can be seen from Annexure A8, the claim and contentions raised in the said O.A was rejected by the Tribunal as per Annexure A6 order and it had become final, against the petitioner as per Annexure A8 judgment of the Apex Court. Even thereafter, the petitioner had not chosen to approach the Tribunal raising challenge against the Modified Rules, more particularly against Rule 6 therein, within a reasonable time. Obviously, he approached the Tribunal raising such challenge only in the year 2014 i.e., after about 7 years since the introduction of the Modified Rules and only after being unsuccessful in his att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.11.2003, the last date of the Departmental Examination. (iv) To direct the Respondents to grant two advance increments to the applicant in the category of Income-Tax Inspector w.e.f 17.11.2003, the last date of Departmental Examination for Income Tax Officers 2003, consequently on the declaration as sought above. C. To direct the respondents to promote the applicant as Income Tax Officer w.e.f 7.4.2005, the date on which his immediate junior was promoted and grant him consequential monetary benefits including re fixation of pension and other terminal benefits. 13. A perusal of the reliefs sought for by the petitioner in O.A No.287 of 2005 and in O.A No.955 of 2014 would reveal that in essence, they are one and the same made with a purpose to redress his grievance regarding non-grant of advance increments with effect from 17.11.2003 and to obtain promotion to the category of Income Tax Inspector with retrospective effect. Whatever be the ground such prayers were dismissed by the Tribunal and the verdict of the Tribunal in O.A No.287 of 2005 was confirmed by this Court and concluded and attained finality with Annexure A8 order ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
