Full Judgment Text
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PETITIONER:
UNION OF INDIA AND ORS.
Vs.
RESPONDENT:
SYED MOHD. RAZA KAZMI AND ORS.
DATE OF JUDGMENT13/03/1992
BENCH:
RANGNATHAN, S.
BENCH:
RANGNATHAN, S.
RAMASWAMI, V. (J) II
YOGESHWAR DAYAL (J)
CITATION:
1994 AIR 805 1992 SCR (2) 280
1992 SCC Supl. (2) 534 JT 1992 (3) 309
1992 SCALE (1)699
ACT:
Civil Services :
Income Tax Department-Creation of cadre of Tax
Assistants-Intermediary cadre between Upper Division Clerk
and Head Clerk-Promotion to the post of Head Clerk along
with UDCs on the basis of seniority in the cadre of UDC-
Claim of Tax Assistants for being declared en bloc senior to
Upper Division Clerks-Validity of the claim-consideration
of-Policy decisions regarding promotions-Interference by
Court/Tribunal-When justified. ^
HEADNOTE:
The Respondents joined service in the Income Tax
Department as Upper Division Clerks. In the normal course
after five years of service and after passing a ministerial
staff examination, they would have been promoted as Head
Clerks. Since there was stagnation, the Government
constituted a grade of Tax Assistants, as an intermediary
cadre between Upper Division Clerks and Head Clerks. One-
third of the cadre strength of UDCs was upgraded as Tax
Assistants. The recruitment to the post of Tax Assistants
was entirely by promotion of UDCs, on a selection basis.
UDCs with a minimum service of three years who had secured
atleast 40 per cent marks in atleast four subjects in the
departmental examination for the post of Income Tax
Inspectors, were considered for selection as Tax Assistants.
Having fulfilled the above qualifications, the
Respondents were promoted as Tax Assistants.
Even after the creation of the post of Tax Assistant,
the recruitment rules for the post of Head Clerk remained
unaltered. As such, only UDCs were eligible for promotion as
Head Clerk; the Tax Assistants were not eligible. For the
post of Income Tax Inspector, the Tax Assistants were
eligible subject to their completing the departmental
examination therefor. Since the eligible candidates from
higher ministerial cadres were con-
281
sidered first, the Tax Assistants had to wait for their
turn.
The department, after considering the fact that Tax
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Assistants formed a grade higher than that of UDCs, and that
it would be inequitable to deny them promotion as Head
Clerk, issued instructions to the effect that Tax Assistants
would also be considered along with UDCs for promotion as
Head Clerk. However, they were to be considered only in
accordance with their seniority in the cadre of UDCs,
irrespective of their confirmation in the grade of Tax
Assistants. This resulted in a peculiar situation wherein
UDCs who could not qualify for the post of Tax Assistants
could become Head Clerks, and the Tax Assistants, who formed
a higher grade, were considered along with such UDCs, for
promotion to the post of Head Clerks.
Being aggrieved by the said instructions, the
respondents approached the Central Administrative Tribunal,
contending that the Tax Assistants should be treated en bloc
as a cadre senior to UDCs, as was the position in regard to
promotion for the post of Income Tax Inspector, and that
they should not be made to wait for their turn in seniority
as UDC, for promotion to the post of Head Clerk.
The Tribunal was of the view that the Government should
evolve a proper scheme to tide over the situation and
suggested three alternative methods, viz., (i) A quota or
roster on the same lines as in the case of Inspectors for
promotion to the post of Head Clerks should be fixed; (ii)
Option should be invited from such of the TAs who want to
opt for HC’s posts and thereafter for supervisors’ posts
and (iii) the post of HCs should be filled not by seniority
alone but by an open competition where all UDCs of certain
minimum years of service are allowed to compete.
The department considered the suggestions given by the
Tribunal and felt that since the existing scheme of
promotion of Tax Assistants to Head Clerk had stood the test
of time and since it was in the best interest of the
department and all the feeder cadres of employees, any
change would create enormous difficulties for the department
whose offices are located all over the country. Therefore,
the department decided to continue the existing scheme.
The Department having stood its ground, the Respondents
again moved the Tribunal questioning the stand of the
department and certain
282
amendments to the Recruitment Rules made after the
Tribunal’s order. The Tribunal felt that the amendment in
the Rules were intended to defeat the respondent’s claim for
promotion. It also took the view that the respondents were
entitled to promotion posts under the earlier rules, such
rights having crystallised by virtue of its orders passed in
1988. The Tribunal directed that in case the respondents
were found entitled for promotion, their appointment to such
promotion posts would take effect from the date of its order
and not from the date they were subsequently promoted.
Against this order of the Tribunal, the department
preferred the present appeal by special leave.
Allowing the appeal, this court,
Held : 1. No right had crystallised in favour of
respondents as a result of the earlier order of the
Tribunal. At that time, the Tribunal was inclined to think
that the grade of Tax Assistants being higher than the grade
of Upper Division Clerks, the department should evolve some
scheme whereby the respondents could be made eligible to be
considered for promotion as Head Clerks otherwise than in
their turn of seniority as Upper division Clerks. The
earlier order did not however, give any specific direction
to the department. [291 E, F]
2. Neither the original rules nor the amended rules
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provided for the promotion of Tax Assistants to the post of
Head Clerk. The amended rules in respect of Inspectors did
not also place the respondents under any greater
disadvantage than before in the matter of their promotion as
Inspectors. The reference to higher ministerial
establishments contained in the earlier rules was replaced
by a more detailed specification by a reference being made
to "Supervisors Grade-I, Supervisors Grade-II, Head Clerks,
Tax Inspectors, Upper Division Clerks and Stenographers"
providing a similar arrangement of gradation as earlier and
creating quotas for ministerial grades on the one hand and
the stenographer’s grades on the other. There is no basis
for the Tribunal’s conclusion that the department had
attempted to by-pass any direction or conclusion of the
Tribunal by the amendments to the rules. [292 C-E]
3. The respondents are no doubt better than the other
Upper Division Clerks in that they have qualified in a
limited manner in the
283
Income-tax Inspector’s Examination which the other Upper
Division Clerks have not done. Therefore, the Tax Assistants
have been given a promotion and they have been in receipt of
higher grades of salary right from the beginning from the
day they become Tax Assistants. To this extent, they have
gained a march over the other UDCs who could not qualify,
wholly or partly, in the Income Tax Inspectors examination.
They have also gained a preference for promotion as
Inspector over UDCs who do not qualify as Tax Assistants but
who pass the Inspectors’ examination in due course. It is no
doubt true that the promotion of the respondents as Tax
Assistants has not been carried to its fullest local sequel
by giving them promotion as Head Clerks treating them as a
cadre higher to UDCs. But this was a calculated decision
taken in the difficult situation of having to reconcile the
claims of the large number of UDCs who would be left
otherwise with no avenues of promotion and of the UDCs who
had already earned some advantages by becoming Tax
Assistants. [294 E-G]
4. The policy decision taken by the department is not
arbitrary or meaningless. It has a background and it has a
purpose. It is for the department to decide on policies of
promotion which will be consistent with the interests of all
employees belonging to various cadres. It is not for the
Administrative Tribunal or for the Courts to interfere with
this and to dictate the avenues of promotion which the
department should provide for its various employees. The
courts cannot direst that Tax Assistants should be made a
direct feeder post to Head Clerks superior to Upper Division
Clerks. No doubt the court will interfere if there is
arbitrariness or resultant discrimination. There is no
arbitrariness or discrimination. There is no ground for
interfering with the policy of the department which has been
in force since 1978. The Tribunal has had no opportunity to
hear the point of view of the larger category of Upper
Division Clerks who have not qualified to be either
Inspectors or officers and whose future is fully jeopardised
by the directions given by the Tribunal. This is another
reason why the Tribunal was not justified in giving such a
direction as it did to the effect that the respondents
should be promoted as Head Clerks by treating them as
belonging to a cadre higher than Upper Division Clerks. [294
H; 295 A-D]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2255 of
1992.
From the Judgment and Order dated 9.5.1991 of Central
Administra-
284
tive Tribunal, Allahabad in O.A. No. 348 of 1990.
K.T.S. Tulsi, Addl. Solicitor General, A.S. Rao, Ms.
Sushma Suri, P.Parmeshwaran, Niranjan Singh, T.C. Sharma and
C.V.S. Rao for the Appellants.
Respondent appeared in person with Arun K. Sinha.
The Judgment of Court was delivered by
RANGANATHAN, J. Leave is granted and the appeal is
disposed of after hearing counsel for both parties.
The four respondents joined service in the Income-tax
department as Upper Division Clerks. Their scale of pay was
Rs. 330-560. In the normal course of events, after putting
in five years of service and passing a ministerial staff
examination, they would have been promoted as Head Clerks
(H.C.) on the scale of Rs. 425-700. Perhaps because of the
stagnancy of a large number of Upper Division Clerks (UDCs)
without any promotion, the Government constituted a grade of
Tax Assistants (T.As.) by an order dated 11th March, 1978.
The pay-scale of the post of Tax Assistants was fixed at Rs.
380-12-EB-15-560-EB-20-640. In other words, the cadre of
T.As. was created as an intermediary cadre between U.D.Cs.
and H.Cs. classifying it also as a ministerial cadre in
Group C of the Central Services. This was done by upgrading
as T.As. one third of the cadre strength of U.D.Cs. The idea
was provide more experienced and competent ministerial staff
to deal with important clerical work particularly in the
Companies’ and investigation circles. 4,140 posts of TAs
were created by upgrading an equal number of posts of UDCs
with the result that a corresponding number of posts of UDCs
got abolished from time to time as posts of Tax Assistants
got filled up in the respective charges. The recruitment to
the post of TAs was entirely by promotion from the cadre of
UDCs on a selection basis on the recommendation of a duly
constituted departmental promotion committee out of those of
the UDCs as had (a) rendered a minimum service of three
years and (b) secured at least 40 per cent marks in the
paper on four subjects in the departmental examination
conducted for the post of Income-tax Inspectors (I.T.I.)
from time to time.
This may be described as a limited qualification in the
I.T.I. Examination. A pass in every paper of the examination
with 50% marks and
285
an overall average of 60% made the candidates eligible for
consideration for promotion to the post of ITIs which is a
non-gazetted, non-ministerial post in Class III (Group C) of
the Central Services.
The four respondents had obtained the limited
qualification referred to above in the ITI examination in
1976 and 1977 and, as such, they were all promoted as TAs
and have been functioning as such.
There were two promotional avenues for Upper Division
Clerks. They could become Head Clerks after putting in five
years of service and passing a ministerial staff examination
as already mentioned. They were also eligible, along with
staff in higher ministerial grades and stenographers, to be
considered for the post of Inspectors provided they had also
completed and departmental examination for ITIs. For this
purpose, persons in the higher grades got preference over
the persons working in the lower grade. An Upper Division
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Clerk could become an Inspector only after persons in higher
ministerial grades had been duly considered. But Upper
Division Clerks could become Head Clerks and Inspectors in
due course of time, subject to their passing the respective
qualifying examination. When the post of Tax Assistant was
created, the rules of recruitment for Head Clerks was not
modified. In other words, so far as the post of Head Clerks
was concerned, that had to be filled up 100 per cent by
promotion only from Upper Division Clerks. The Tax
Assistants were not eligible for promotion as Head Clerks.
They were, however, eligible for consideration as Inspectors
on completing the I.T.I. examination. Thus Tax Assistants
could be promoted only to the posts of Inspectors but there
also they stood in the queue till all eligible candidates
from higher ministerial cadres had been considered.
Considering that they formed a grade higher than the grade
of Upper Division clerks, it was inequitable that they
should be denied promotion to the post of Head Clerks. The
Department, therefore, issued instructions that promotion to
the grade of Head Clerks could be made not only form the
cadre of Upper Division Clerks but also from the cadre of
Tax Assistants but added, as a rider, that in so doing, the
Tax Assistants would be considered only in turn in
accordance with their seniority in the cadre of Upper
Division Clerks, irrespective of the fact that they may have
been confirmed in the grade of Tax Assistants. These
instructions appear to have been issued in 1978 itself but
were reiterated by another Memorandum dated 26th March,
1982. The result of this was that though Tax Assistants got
promotion as Head Clerks, it was available
286
only according to their order of seniority among the Upper
Division Clerks. They felt that it was very inequitable that
they, who belonged to a higher cadre than the Upper Division
Clerks should get promotion as Head Clerks much after
persons who continued to remain as Upper Division clerks and
had not qualified for appointment as Tax Assistants. This,
they felt, amounted to putting a premium on inefficiency.
The Tax Assistants, thus aggrieved, went to the Central
Administrative Tribunal for redress. They contended that,
for promotion as Head Clerks, Tax Assistants should be
treated en bloc as a cadre senior to UDCs (as was the
position regarding promotion as ITIs) and should not be made
to wait for promotion to HCs for their turn in seniority as
UDC. To illustrate their grievance, it may be mentioned that
respondent Syed Mohd. Raza Kazmi (who was the applicant
before the Tribunal) had completed the departmental
examinations for Income-tax Inspectors as early as 1977 and
had qualified for becoming and had become a Tax Assistant by
reason of complete success in the above examination which
made him eligible even for promotion as Income-tax
Inspectors subject, of course, to his seniority. On the
other hand, though promoted as Tax Assistant as early as
1977 he found himself continuing as a Tax Assistant even as
late as 1988, whereas if he had been treated as belonging to
a higher grade of employees than Upper Division Clerks he
would have been promoted as Head Clerk w.e.f. 7.3.1984.
There was also another hurdle in the way of this respondent
in that he could not appear in Income-tax Officers’
Examination, (Group-B), until promoted as a Head Clerk. To
sum up, his promotion as a Head Clerk was inordinately
delayed; his promotion as Inspector was also consequently
delayed because Tax Assistants could be considered for
promotion as Inspectors only after Head Clerks; and he was
also under a handicap in regard to his eligibility for
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appearing in the officers’ examination. The Central
Administrative Tribunal felt that there was an injustice in
this situation. The Tribunal observed:
"It is not under dispute that the post of Tax
Assistants is an intermediatary cadre post in a
higher grade and is considered as a promotional
post from the grade of UDC. The only reason that
has been emphasised in the replies filed by the
respondent for not giving any consideration to the
fact that it is an intermediatary cadre and higher
grade post and a promotional post from the grade of
Upper Division Clerk, is that in case this was
287
made a channel of promotion of UDCs (sic) who do
not appear in the departmental examination for
promotion to the post of ITIs and who wait for
promotion avenue and will stagnate and retire on
the same post i.e. Upper Division Clerks. To our
mind, this explanation is not founded on well
considered principles and the chances of further
promotion for TAs should also have been safeguarded because
once they took a chance to appear in a departmental
examination and qualify through a DPC for promotion as TAs,
which is a higher grade post they cannot be, for the
purposes of consideration for further promotion to the grade
of Head Clerks, (in) made to lose their rights accrued to
them by virtue of their promotion and by virtue of occupying
a post which is without any doubt a higher grade and
promotional post. At the same time, when these posts were
created, only part of the cadre of Upper Division Clerks
i.e. 1/3rd was upgraded to those posts. Therefore, majority
of UDCs still remain in the parent cadre of UDCs. A plain
reading of the manner in which the post of Tax Assistants
have been created also does not leave any doubt that these
posts could very well be treated in the regular avenue of
promotions from the post of UDC to that of H.C. but this
would have resulted in a peculiar situation i.e. all UDCs
would have to pass through the post of H.C. which posts are
definitely not in large numbers and thereby there would have
been no stability and continuity in the incumbency of the
post of HC as he would have thereafter moved for further
promotion to the category of Supervisor Grades I and II or
ITI. The respondents raised a contention in their reply that
if TAs were allowed to occupy the post of HC and they
already have a chance for promotion as a Inspector, which is
a higher grade post than that of Head Clerk, they would have
not been able to find sufficient number of staff to man the
post of Supervisor Grade I and II who are in the avenue of
promotion of Head Clerks (sic) can also not be just right."
Considering the above aspects the Tribunal was of the
opinion that the Government should evolve a proper scheme by
which the fact of the Tax Assistants being in a higher grade
is not ignored and the difficult
288
situation facing the applicants could be overcome. The
Tribunal proceeded to suggest three alternative methods by
which such an improvement in the situation could be
achieved.
(i) A quota or roster on the same lines as in the
case of inspectors for promotion to the post of
Head Clerks should be fixed;
(ii) Option should be invited from such of the TAs
who want to opt for HC’s posts and thereafter for
supervisors, posts; and
(iii) The posts of HCs should be filled not by
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seniority alone but by an open competition where
all UDCs of certain minimum year of service are
allowed to compete.
The respondents filed an application for review
praying, inter alia, that "specific orders for immediate
implementation be passed that the TAs be given seniority
over UDCs for promotion to HCs w.e.f. 31.5.78". This
application was dismissed by the Tribunal on 28.4.1989. Then
they preferred petitions for special leave to the Supreme
Court being SLP Nos. 15854-63 of 1991 with the following
observations:
"The Tribunal has formulated the scheme which
we hope will be implemented by the Department
within reasonable time. The Special Leave Petitions
are dismissed".
The Department claims that it has given careful
consideration to the various suggestions made by Tribunal. A
propos the three suggestion made by the Tribunal, the
department’s comments are as follows:
4. That the Government has carefully re-examined
various alternatives suggested in the directions of
Central Administrative Tribunal. The first
alternative suggested was that a quota system could
be introduced for promotion to the grade of Tax
Assistant (TA). This has been examined carefully.
The quota system in the grade of Inspectors, (ITI)
referred to by the CAT is only for the feeder
categories as provided in the relevant recruitment
rules. This position is not obtaining in the case
of TAs. The quota/Roster system cannot be
introduced for promotion to the post of Head Clerks
(HC) as under the
289
recruitment rules for HCs, the TA is not a feeder
grade for promotion to the post of H.C. The
Quota/Roster system for promotion to HC would not
be advantageous to the TAs as at present they are
eligible for consideration for promotion to all
available posts of HCs on the basis of their
seniority as UDC. That if quota system is
introduced it is likely that junior UDCs may get
promotions to the post of HCs earlier than some of
the TAs who may be senior in the grade of LDC as
promotion of TA to HC would than be restricted to
the fixed quota only. They may be senior as UDCs
but cannot get promoted to the grade of HC due to
the proposed fixation of quota for TAs/UDCs. Hence,
fixation of quota system for promotion of Tax
Assts. to H.C. is not considered feasible.
5. That as regards the suggestion that option be
obtained from TAs, it is considered that it should
be a retrograde step to obtain from TAs, who want
to be absorbed in the Ministerial cadre, foregoing
their chances for promotion in the grade of
Inspectors. The efficiency of the Income-tax Deptt.
would suffer if such a step is taken. The purpose
behind creation of the grade of TAs senior to the
level of UDC, would be defeated if option is
allowed to the TAs for absorption in the
ministerial cadre.
6. That the TA perform work of Technical and
complicated nature in the Income-tax Deptt. having
qualified in the Departmental examination of ITIs.
Promotion to the ministerial cadre posts of HCs and
above are basically provided for UDCs, who form
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part of the ministerial cadre. However, TAs are
also considered for promotion to HC as per their
place in the UDC seniority list.
7. That the TAs have been made eligible for
promotion as HC, as a concession and they do not
have a statutory right for such promotion, as their
line of promotion is in the Executive cadre of ITI.
8. That the Government has issued special
executive orders making the TA eligible for
promotion to the post of HC on the basis of their
seniority as UDC alongwith other UDCs who
290
have not received promotion to the grade of TA.
9. That giving an over-riding seniority to the the
post of TA in the matter of promotion to HC would
be doing injustice to the UDCs and is not
contemplated in the recruitment rules. It would
also be against the general principles of natural
justice.
10. That thirdly, the post of HCs cannot be filled
by open examination as no open examination is held
for such supervisory post in any department of
Govt. of India.
11. As already explained all the above three
alternatives have been duly considered after
detailed examination and the Department of Revenue
have come to the conclusion that existing system is
in the best interest of the Department and all
feeder categories of employees and could not be
changed.
The department was of the view that the existing scheme
of promotion of Tax Assistants to the grade of Head Clerks
by virtue of their seniority in the grade of Upper Division
Clerks had stood the test of time. It was in the best
interests of the department and all the feeder categories of
employees. No representations had been received by the
department from the staff side for any change in the scheme.
No difficulties had also been experienced so far from any
other charge of the department which is located all over
India. On the other had, any change made in the present
scheme, it was thought, would create enormous difficulties
for the department. It was, therefore, decided to continue
the existing system.
With the department taking up this stand, the
respondents had no option but to go back to the Central
Administrative Tribunal. They submitted to the Tribunal
that, though the department had categorically
admitted that they accepted the earlier order of
the Tribunal, it was declining to give effect to
the directions contained in the said order. On the
other hand, certain amendments to the recruitment
rules to various promotional posts that had been
made in the meanwhile were also brought to the
Tribunal as placing the respondents in worse
position. The Tribunal also seems to have thought
that the amendment in the rules were intended to
defeat the respondents’ claim for promotion. The
Tribunal also took the view that the respondents
had become entitled to the promotion posts under
the earlier rules as they existed in view of the
Tribunal’s directions
291
on the earlier applications. Their rights for promotion thus
crystallised since 1988, they observed, could not be
defeated because of subsequent amendments, in the rules.
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They commented adversely on the department’s failure "to
formulate a scheme even after judicial orders had been
passed which had to be obeyed and implemented by them". The
Tribunal directed (in terms which are not quite clear in the
copy of the order furnished to us):
"We direct that the respondents (sic) with rules
along with as per the order of the Tribunal dated
26.8.88 referred to above notwithstanding the fact
there was any failure on their part to formulate
the scheme. In case the applicants are found
entitled, their appointment will take effect from
the date they were subsequently promoted. Let
compliance of this order be made within a period
of two months and one week from today. As this
order has been passed in the presence of the
counsel and officials of the Income Tax
Department, it is not necessary to say that the
order is to be implemented from the date of
receipt of copy of the same."
It is from this order of the Tribunal dated 9.5.1991
that the Union of India had preferred the present appeal.
We are afraid that the Tribunal’s order is based on
confusion and misapprehension. In the first place, we do not
think that any right had crystallised in the favour of
respondents, as a result of the earlier order of the
Tribunal. At that time, the Tribunal was no doubt inclined
to think that, the grade of Tax Assistants being higher than
the grade of Upper Division Clerks, the department should
evolve some scheme whereby the respondents could be made
eligible to be considered for promotion as Head Clerks
otherwise than in their turn of seniority as Upper Division
Clerks. The earlier order did not however, give any specific
direction to the department. The operative portion of the
order only read thus:
"We dispose of this application only by a
direction to the respondents to evolve a scheme
considering the suggestions given in our
observations along with any other scheme that they
may be able to evolve to remove the anomalous
situation whereby the incumbents of promotional
post which are in intermediary cadre are clubbed
for their seniority with persons
292
in a lower grade for consideration for promotion
to the post of Head Clerk."
It is, therefore, difficult to see how any rights had
got crystallised in favour of the respondents which have
been taken away by the department subsequently. The second
major impression underlying the order of the Tribunal is
that the department had defeated the rights of the
respondent by the subsequent amendments made in the rules.
This, again, is an incorrect impression as the amendments
did no such thing. Neither the original rules nor the
amended rules provided for the promotion of Tax Assistants
to the post of Head Clerks. The amended rules in respect of
Inspectors did not also place the respondents under any
greater disadvantage than before in the matter of their
promotion as Inspectors. Only, the reference to higher
ministerial establishments contained in the earlier rules
was replaced by a more detailed specification by a reference
being made to "Supervisors Grade-I Supervisors Grade-II,
Head Clerks, Tax Inspectors, Upper Division Clerks and
Stenographers", providing a similar arrangement of gradation
as earlier and creating quotas for ministerial grades on the
one hand and the stenographer’s grades on the other. There
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is no basis for the Tribunal’s conclusion that the
department had attempted to by-pass any direction or
conclusion of the Tribunal by the amendments to the rules.
It is no doubt true that, by its earlier order, the
Tribunal had suggested to the department that some
alternative schemes should be thought of and some solution
should be evolved to redress the grievances of the
respondents. But no specific direction was given and the
mere fact that the department has not found it feasible to
accept any of the suggestions made by the Tribunal
cannot justify the grant of the respondent’s
prayer. The only effect of the order dated 26.8.88
not being implemented is, therefore, to put the
parties back in the position in which they were and
to call for a fresh consideration of their plea on
the merits.
Now the short question is whether there is any
injustice suffered by the respondents which can be remedied
by the Tribunal or the Court. The respondents no doubt have
a grievance that, though promoted to a grade higher than the
Upper Division Clerks, they are being considered for
promotion as Head Clerks only in accordance with their
seniority in the cadre of Upper Division Clerks. This
creates two types of anomalies. One is that a UDC (who has
not qualified as TA) can become HC earlier than
293
one who has, by virtue of his seniority as UDC. The second
is that a senior UDC, who qualifies as a TA much latter than
a UDC junior to him can become HC earlier, thought, as TA,
he would be junior to the latter. But as against these
anomalies , one has to consider the difficulties faced by
the Department in giving TAs as a class higher preference
than UDCs for promotion as Head Clerks. For one thing, the
recruitment rules of 1969 did not, naturally, envisage TAs
as a feeder post for promotion as HCs and, when the posts of
TAs were created, it was deliberately decided not to include
them as such; the rules were not amended and the
instructions only put them on par with other UDCs. This
remained unchallenged and, even when challenged in 1987,
the Central Government as such was not made a party and no
specific directions for the amendment of the rule in this
behalf were prayed for. But, this apart, there were
insuperable difficulties in the way. The figures given to us
indicate that there were about 13,000 Upper Division Clerks
in 1978. Their promotional avenue was only to become Head
Clerks by passing the ITI examination. There were UDCs who
could do this and get such promotions in due course.
Secondly, there were Upper Division Clerks who were not
capable of passing the Income-tax Inspectors’ Examination
but were able to qualify in the lower grade ministerial
examination which made them eligible to become Head Clerks.
There was third category of Upper Division Clerks who fell
in between these two categories. They did not completely
pass the Income-tax Inspectors’ Examination but qualified in
it with sufficient marks to justify the view that, given
some encouragement, they would be able to move into the
Inspectors’ executive line. The department was also in need
of a category of persons who would not be simply doing
clerical work but who showed such promise of developing into
Inspectors. In this situation, the department created the
post of Tax Assistants and promoted to these posts persons
who had not fully completed the ITI examination but had
secured a "limited" pass therein . This gave the UDCs who
had achieved this distinction two advantages: (i) they
became immediately entitled to higher scale of pay than
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other UDCs and (b) they acquired higher eligibility to
become Inspectors of Income-tax for which selection they
stood in between Head Clerks and other Upper Division
Clerks. But they suffered this advantage that they would not
become Head Clerks; their ability to pass the ITI
examination was taken as an indication of their propensity
to move to an executive line and so, promotion for them was
to be only as ITIs in due course. So far as the rest of the
UdC staff was concerned, who had qualified neither in the
Income-tax Inspector’s Examination, nor in the Tax
Assistant’s Examina
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tion,they continued to be Upper Division Clerks. The depart-
ment felt that, if the Tax Assistants were also allowed to
compete for the post of Head Clerks by the mere reason of
their limited qualification in the Income-tax Inspectors’
Examination at a level higher than UDCs, there would be a
tremendous stagnation amongst the Upper Division Clerks.
More than 2/3rd of the Upper Division Clerks would be
completely shut out from all chances of promotion. However,
realising that, to deny the Tax Assistants completely any
promotion as Head Clerks would also amount to an anomaly
since they were in no way inferior to the other Upper
Division Clerks who were eligible for such promotion, the
department decided that while Tax Assistants should normally
await promotion as Income-tax Inspectors, they should be
enabled as and when their normal seniority in the rank of
Upper Division Clerks warranted it, to be promoted as Head
Clerks though, strictly speaking, they belonged to a grade
from which there would be no promotion to the posts of Head
Clerks. This was a via media found by the department between
the two alternatives (a) of altogether denying the Tax
Assistants promotion as Head Clerks and (b) of treating the
Tax Assistants as a cadre superior to Upper Division Clerks
in all respects including promotion as Head Clerks. It was a
concession shown to the TAs, standing in the longer queue
for ITIs, by permitting them to join the queue for HCs but
with no precedence over other senior UDCs already standing
in this second queue. In this situation, it is very
difficult to agree that the department has acted
unreasonably or unjustly. The respondents are no doubt
better than the other Upper Division Clerks in that they
have qualified in a limited manner in the Income-tax
Inspector’s Examination which the other Upper Division
Clerks have not done. But, for this "achievement", they
have been given a promotion and they have been in receipt of
higher grades of salary right from the beginning from the
day became Tax Assistants. To this extent, they have gained
a march over the other unenterprising UDCs who could not
qualify, wholly or partly, in the ITI examination. They have
also gained a preference, for promotion as ITIs, over UDCs
who do not qualify as TAs but who pass the ITI’s examination
in due course. It is no doubt true that the promotion of the
respondents as TAs has not been carried to its fullest
logical sequel by giving them promotion as Head Clerks
treating them as a cadre higher to UDCs entitled to such
promotion. But this was a calculated decision taken in the
difficult situation of having to reconcile the claims of the
large number of UDCs who would be left otherwise with no
avenues of promotion and the UDCs who had already some
advantages by becoming TAs. The policy decision is not
arbitrary or meaningless. It has a background
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and it has a purpose. It is for the department to decide on
policies of promotion which will be consistent with the
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interests of all employees belonging to various cadres. It
is not for the Administrative Tribunal for the Courts to
interfere with this and to dictate the avenues of promotion
which the department should provide for its various
employees. The courts cannot, we think, direct that TAs
should be made a direct feeder post to HCs superior to UDCs.
No doubt the Court will interfere if there is arbitrariness
or resultant discrimination. But, after considering very
carefully all aspects the situation, we are unable to say
that there is any such arbitariness or discrimination. We
are unable to see any ground for interfering with the policy
of the department which has been in force since 1978. We
may also point out that, in the proceedings before it, the
Tribunal has had no opportunity to hear the point of view of
the larger category of Upper Division Clerks who have not
qualified to be either Inspectors or officers and whose
future is fully jeopardised by the directions given by the
Tribunal. This is also an additional reason why we think
the Tribunal was not justified in giving such a direction as
it did to the effect that the respondents should be promoted
as HCs by treating them as belonging to a cadre higher than
UDCs.
For the above reasons, we quash the Tribunal’s
direction to give promotion to the respondents on the basis
indicated it its order. We would only like to add that,
while there is no doubt some ground for complaint on the
part of the respondents, it should not be forgotten that,
for the "limited" qualification they had obtained, they have
had clear and tangible benefits by being appointed to the
higher post of TAs. They are better off than they would have
been had they not qualified as TAs at all. We, therefore,
do not consider it necessary to interfere in the matter.
The appeal is allowed, but, in the circumstances, we
make no order regarding costs.
G.N. Appeal allowed.
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