Judgment:
(PER HON'BLE SHRI HRIDAY NARAIN, MEMBER (ADMN.)
The present OA has been filed by the applicant against his non promotion to the post of Income Tax Inspector with effect from the date he was entitled.
2. The applicant had filed M.A.No.294/2007 seeking for publication of his result, and the said M.A was closed, vide order dated 10.9.2007, observing that the pendency of this OA does not in any way prevent the respondents from publishing the results. However, it was made clear that the publication of results would be subject to the ultimate result of the present OA.
3. The applicant was appointed as LDC in the year 1985. Later, he was appointed as Data Entry Operator in 1989 and was designated as Data Entry Operator Gr.'B'.
4. Pursuant to the restructuring of the cadres of the Department in the year 2001, the applicant was promoted/re-designated as Senior Tax Assistant. The applicant had applied for the Departmental Examination for Income Tax Inspectors held in January 2002 and he was allotted Roll No. 21097. He appeared for the said Examination in December 2002. The results were published on 2.7.2003 but his name was withheld.
5. The applicant had again applied for the Departmental Examination for Income Tax Inspectors held in the year 2003, but the applicant and some other Senior Tax Assistants who were drawn from Data Entry Operators' cadre, were not allowed to write the examination.
6. The applicant had made representations dated 4.3.2004 and 25.6.2004 about his claim as Office Superintendent under Physically Handicapped Quota for which post he was also entitled as also about his claim for promotion as Income Tax Inspector. Vide Memo dated 6.7.2004, the applicant's claim insofar as Office Superintendent was answered, but insofar as non declaration of
departmental examination and non consideration of his promotion to the post of Inspector was not answered. The applicant made further representations on 21.7.2004, 3.11.2005, 21.2.2006 and 22.8.2006 which were not replied.
7. The applicant had again applied for the Department Examination for Inspector of Income Tax 2006. The applicant was allowed to write the examination except one paper and vide Memo dated 12.2.2006, the claim of the applicant was again rejected on the basis of the Directorate's letter dated 11.10.2006. Hence the present OA. The relief prayed for by the applicant is as under:-
“Direct the respondents to allow the applicant to appear for departmental examination for the post of Income Tax Inspector and/or declare the results of the applicant already appeared in the said departmental examination and promote him to the post of Income Tax Inspector with effect from the date he is entitled with all consequential benefits by holding the action of the respondents in not doing so and repeatedly denying the applicant's claim even to appear for departmental examination, including proceedings dated 12.10.2006 as bad, illegal, irrational and contrary to their own proceedings dated 7.3.2005 and pass such other order or further orders as are deemed fit and proper in the circumstances of the case.”
8. The applicant has argued that when the Senior Tax Assistants including those drawn from the DEOs' cadre were made as the feeder cadre for promotion as Inspector of Income Tax from the Recruitment Year 2002-2003, denying the applicant to write the said examination and not declaring the results only for such Senior Tax Assistants who were drawn from DEOs cadres, is illegal, irrational, arbitrary, unconstitutional being contrary to the instructions of the Board issued from time to time.
9. The applicant has further argued that the view taken by the respondents that as Senior Tax Assistants drawn from DEOs are not eligible to appear for the departmental examination for Income Tax Inspectors on the ground that they are not eligible under the rules for Departmental Examination for Income Tax Inspector 1998, is incorrect as the feeder cadres in 1998 for he post of Inspector are different and no longer exist after the restructuring in 2001/2002. Relying upon the old rules and denying the restructured cadres, though shown as the feeder cadres for Inspectors, is illegal.
10. The respondents have filed reply statement wherein it is submitted that as per Rule-III of the Departmental Examination Rules for 1998, following cadres are eligible to write the departmental examinations for promotion to the post of Inspector of Income Tax:-
i) Directly Recruited Inspector
ii) Supervisor Grade II
iii) Head Clerk
iv) Tax Assistant
v) Upper Division Clerk
vi) Stenographer Grade I, II, III
provided that he has passed the departmental examination for
Ministerial Staff examination.
Prior to restructuring in 2001, the applicant was holding the rank of Data Entry Operator and he was re-desginated as Senior Tax Assistant consequent upon the restructuring. Accordingly, those Senior Tax Assistants re-designated from the cadre of DEO, as a result of restructuring, are not eligible to appear in Income Tax Inspectors' Examination, as they are required to first clear the departmental examination for Ministerial Staff. Consequently, the result of the applicant was withheld, which is in accordance with the eligibility criteria.
11. The respondents have further submitted that the applicant was appointed as LDC under Physically Handicapped quota vide proceedings dated 16.1.1985 and reported to duty on 23.1.1985. Subsequently he was appointed as DEO and reported to duty on 9.3.19089. He was working as DEO, Grade 'A' at the time of restructuring and re-designated as TA in June 2001. Later he was promoted as Senior Tax Assistant vide Memo F.No.CCAP/2(13)/Estt./2002 dated 17.6.2002, as he was re-designated as DEO Gr.'B' with effect from the date of his joining as DEO i.e., 9.3.1989 in pursuance of the Central Administrative Tribunal, Hyderabad Bench's Order dated 9.12.1997 in OA No.170/95 and was granted monetary benefits only from 2.2.1995 vide CCIT proceedings in CCAP/1(17)(a)/Estt./2002 dated 25.6.2002.
12. It is submitted that as per departmental Examination Rules, 1998, only the cadres of employees mentioned above are eligible for appearing in the Departmental Examination for Income Tax Inspectors. Since the employees in the cadre of DEOs were never eligible for writing the Income Tax Inspectors' Examination as per the rules, their designations subsequent to restructuring is irrelevant in deciding their eligibility. Accordingly, the result of the Senior Tax Assistants who were drawn from the cadre of DEOs Gr.'B' was withheld for the year 2002 and for the same reason, they were not permitted to appear for the examination in the year 2003. However, the candidates who were eligible to write the Departmental Examination in the year 2003, were also eligible to appear in the year 2006 examination as per the Directorate's letter dated 11.10.2006 (F.No.EG/20(8)/Restructuring-2001/DIT), subject to fulfilling all other conditions. Since the applicant was not eligible to write the departmental examination, his results were not declared.
13. It is submitted that for promotion to the cadre of income Tax Inspectors, it is mandatory to pass the departmental examination for Income Tax Inspectors. The applicant had not been declared to have passed the Departmental Examination for Income Tax Inspectors, [as the applicant's result was withheld by DIT(Exam)]. It is stated that declaration of Examination results is the decision of the Board.
14. The respondents have further submitted that as per the Board's letter in F.No.A-41015/71/2007-Ad.VII dted 26.6.2007 reservation in promotions for Physically Handicapped would be allowed in Group 'C' and 'D' posts only. Office Superintendents and Income Tax Inspectors come under Group 'B' (Non-Gazetted). Hence, reservation under PH quota is not applicable to the applicant.
15. As regards the prayer of the applicant that he should be permitted to write ITI Examination and results for those examinations he had appeared should be declared and he may be promoted as ITI, the respondents have submitted that declartion of result is not acceptable in view of the existing rules for ITI Examination 1998, since the applicant was not eligible to write the examination for Income Tax Inspectors.
16. The applicant has submitted rejoinder reiterating the submissions made in the OA. It is stated that denial of his claim to write the examination based on the erstwhile category i.e., DEOs is not legal and that when cadres have been merged as Senior Tax Assistants, no distinction can be made based on the source from which they were drawn.
17. The applicant states that he was forced to file M.A.No.294/2007 seeking for publication of results, so that he need not appear for the departmental examination again in 2007, which was scheduled on 17.9.2007. The Tribunal disposed of the M.A stating that since he was only asking for publication of the results, it is open for the respondents to publish results and that pendency of the OA does not prevent the Respondents to do so. It is stated that the applicant made several representations to publish his results and also got issued a legal notice dated 22.9.2007 for publication of his results.
18. The applicant has argued that the respondents have failed to answer in the reply statement as to why he was allowed to write the examination in the year 2006 except one subject as also why he was not allowed to write one paper out of various papers conducted in 2006.
19. The applicant has further argued that the respondents have failed to reply as to how the department can rely on 1998 Rules, which have become redundant after restructuring. The 1998 departmental examination rules obviously would not have DEOs Grade-B cadre as the feeder cadre as that was not the feeder cadre at that time. At any rate, after restructuring, Senior Tax Assistants were made as the feeder cadre for promotion to the post of Income Tax Inspectors and, therefore, all the Senior Tax Assistants are eligible to appear for the departmental examination and it is ironical to permit the candidates drawn from redundant cadres and the Rules pertaining to the period prior to restructuring.
20. The applicant has further argued that a reading of the Board's letter dated 11.10.2006 would show that the Senior Tax Assistants drawn from the cadre of DEOs Grade-B are not made ineligible. In other words, the respondents have misconstrued the Board's letter dated 11.10.2006 leading to issuance of the impugned proceedings dated 12.10.2006. The very basis for rejection of his claim, being misconceived, it is clear that right from the beginning, his claim was mishandled by the respondents without examining the factual and legal position properly. At any rate, after issuance of the Board's letter dated 11.10.2006, the Board has considered the issue afresh on 22.3.2007 and issued proceedings dated 30.3.2007 to the effect that all the Senior Tax Assistants are eligible to write the examination for Income Tax Inspectors.
21. The applicant has submitted that the above circumstances were forced him to appear again for the departmental examination conducted in 2007 and the results were published in 2007, wherein he failed in one paper i.e., Office Procedure and he appeared again in 2008 for the said paper. It is stated that he was repeatedly appearing for the examinations for no fault of him and if the respondents understood the legal and factual position, his results of 2002 deserved to be declared as it was fault on the part of the respondents in not allowing him to write the examination for 2003 and that he should have been promoted as Income Tax Inspector on completion of three years of service as Senior Tax Assistant, treating him as fully eligible for promotion to the said post.
22. The applicant has submitted that the Income Tax Inspector's post does not fall under Group-B. It still comes under Group-C only. A reading of Office Memorandum of G.I., Dept. of Per. and Trg. O.M.NO.36035/3/2004-Estt.(kRes.), dated 29.12.2005 would show that, as per para-2 (II), physically handicapped reservation can be applied only for Group 'D' and 'C' categories. However, it is specifically mentioned in para-4, that the Ministry of Social Justice and Empowerment had already identified jobs/posts suitable to be held by persons with disabilities as per the physical requirement of such jobs vide Notification dated 31.5.2001. It is submitted that the said identified posts shall be the basis for implementation of reservation to physically handicapped persons. It is further stated in para-e of the Report of Expert Committee forming part of Notification dated 31.5.2001 that even if a job/post identified for persons with disabilities has been shifted from one group or grade to another group or grade due to change in the pay scales or otherwise, such job/post shall remain identified. In other words, if a job is identified for persons with disabilities vide Notification dated 31.5.2001 and merely because the said post has been changed to a higher grade/group due to change in the pay scale, the same cannot be the basis to deny reservation to physically handicapped persons to such job/post. In view of this clarification, it is not correct to contend that no reservation can be provided to Income Tax Inspectors even if the same now falls under Grade 'B'.
23. The applicant has contended that a consolidated reading of Notification NO.16-25/99.NI.I, dated 31.5.2001 a copy of which is enclosed as Annexure-VI at page 29 of the rejoinder, wherein Income Tax Inspectors were identified which can be filled up by a candidate with one leg disability read with O.M. Dated 29.12.2005 and the instructions of the Board dated 26.6.2007, would show that he was eligible for promotion as Income Tax Inspector under Physically Handicapped quota. It is stated that the respondents have misconstrued the scope of the Board's decision dated 26.6.2007, which in turn relies on DoPT proceedings dated 29.12.2005, which in turn refers to DoPT Notification dated 31.5.2001. At any rate, assuming that as per the above proceedings, he was not entitled for promotion for income Tax Inspector under Physically Handicapped quota, the same has to give way for the provisions of the Persons with Disabilities (Equal opportunities, protection of rights and full participation Act 1985 (i.e., Act 1/1995). When the Act specifically says that the reservation has to be provided for physically handicapped persons by issuance of the instructions either by DoPT or by the department, the said right cannot be defeated. It is necessary to note that no such restriction for consideration for physically handicapped persons for Group-B was made for direct recruitment. If a physically handicapped person can function as Income Tax Inspector with some physical disability if he is recruited direct, it is not understood how a promotee cannot perform the same functions.
24. The applicant has further submitted that he along with 3 others filed O.A.No.126/2007 before this Tribunal for applying reservation for Physically Handicapped and the said OA was allowed and his colleagues were promoted as Inspector of Income Tax though physically handicapped, but he was denied only because of the above illegality. The matter in this regard is pending before the Hon'ble High Court. The scope of instructions issued with regard to Physically Handicapped was already considered by the Tribunal in the above said OA, but the respondents are contending the same grounds. Further, the Chief Commissioner for Persons with Disabilities in case No.5107/08 and 5108/08 dated 19.6.2008 have held the Inspectors' posts as under Group 'C' but not Group 'B'. Physically Handicapped reservation is applied for Central Excise Inspectors and there is no reason as to why the same principle could not be applied to Inspectors of Income Tax. The applicant has prayed for allowing the OA and for holding that he should be eligible for promotion as Income Tax Inspector on Physically Handicapped quota.
25. We have carefully considered the submissions on both sides and the materials on record. It may be stated here for the completeness of the record that the learned counsel for the applicant Shri J.Sudheer had argued the matter on a few earlier dates of hearing and he had made arguments which are already mentioned in the OA as well as in the rejoinder.
26. The first request of the applicant in this case is that we should direct the respondents to declare the results of the applicant for the departmental examination for Income Tax Inspectors held in the year 2002. This claim of the applicant cannot be considered by us because it is clearly time barred and the applicant's counsel has not been able to show sufficient reason for the delay in agitating this matter. In view of this, we decline to adjudicate on this claim of the applicant.
27. The applicant's next grievance is that he was not allowed to appear in the departmental examination for Income Tax Inspectors in the year 2003. This grievance also cannot be entertained by us for the same reason of limitation as mentioned above.
28. The next grievance of the applicant is that he was allowed to appear in the departmental examination for Income Tax Inspectors in the year 2006 in all the papers except one paper. This grievance of the applicant is certainly to be adjudicated by us. The applicant was the Data Entry Operator and as a result of restructuring, he was promoted/re-designated as Senior Tax Assistant. It is common ground that the cadre of Senior Tax Assistants was a feeder cadre for promotion to Inspector subject to certain conditions i.e., candidates should have put in three years of service in the cadre of Senior Tax Assistant and he should have passed the Departmental examination for Income Tax Inspectors. Thus, the applicant had a clear right to appear in the department examination for Income Tax Inspectors held in the year 2006. It is a sad commentary on the functioning of the Central Board of Direct Taxes that they were indecisive on the issue and harbored for a long time a belief that Departmental examination for Inspectors was to be governed by Departmental Examination Rules 1998 when the cadre of Senior Tax Assistants was not in existence. It is well settled that Rules are handmaid to substantive law and substantive rights. After restructuring, the Senior Tax Assistants were shown as the feeder cadre for promotion to the cadre of Inspectors and the Board could not prevent any class of Senior Tax Assistants in appearing in the departmental examination on the basis of old rules which should have certainly been revised simultaneously with the process of restructuring. In fact, the Board itself realised its mistake, as is clear from the letter of the Directorate in No.CG(20)(3)/2007/DIT (Pt.II)/377 dated 6.7.2007 which is reproduced as under:-
“ Directorate of Income Tax
(Income Tax and Audit)
Ministry of Finance, Department of Revenue,
Mayur Bhawan, Connought circus,
New Delhi-110001.
Subject: Eligibility norms for Departmental
Examinations 2006 (i) Ministerial
Staff (ii) ITIs and (iii) ITOs instruction
Regarding -
The Departmental Examination 2006 for Ministerial Staff, Inspectors of Income Tax and Income Tax Officers was held as a last chance for employees to clear their papers under the Examination Rules 1990 after a gap of about 3 years in October, 2006. The eligibility for such exams was to be determined on the basis of Eligibility Rules 1998.
The eligible cadres as per Examination Rules 1998 underwent a change after restructuring in 2001 due to change in the designations. This created some confusion as to the eligibility of post restructuring designations for various levels of examinations i.e. Ministerial Staff, ITIs and ITOs Examinations leading to representations from employees and clarifications being sought from Commissioners in charge of exams in various cadres controlling CCs IT charges.
On the above subject a Board meeting was held on 22.3.2007 wherein the following decisions were taken by the Board for compliance.
The post restructuring cadres which would now be eligible for Departmental Examinations 2006 for (i) Ministerial Staff (ii) ITIs (iii) ITOs shall be as follows:-
Ministerial Staff Examination:
1.TA (having passed Computer Test)
2.Steno Grde I, II, III
3.LDC including Hindpist
4.Sr.TA
Income Tax Inspectors Examination:
Post restructuring designations which are eligible are:
1.All ITIs (for confirmation)
2.Office Superintendents
3.TAs (those having already passed Ministerial Staff Exam.)
4.Sr. TAs (those having already passed Ministerial Staff Exam)
5.Steno Gr. III, II, I (those having already passed Ministerial Staff Exam)
Income Tax Officers Examination:
Post restructuring designations which are eligible are:
1.ITIs
2.Office Superintendent, if already passed ITI Exam.
3.Sr.TA, if already passed ITI Exam.
4.TA, if already passed ITI Exam.
3.Steno Gr.II and I, if already passed ITI Exam.
This notification shall not apply to adhoc employee even in eligible cadres. The above eligibility criteria is drawn from the Examination Rule 1998 by parity of designations and shall apply only to Departmental Examination 2006.
Sd/-
(Dr. Poonam K.Saxena)
Director of income Tax (IT)
29. In fact, the results of the applicant for 2006 as well as for 2007 examination have already been declared, as is clear from a copy of the letter dated 4.11.2008, enclosed by the applicant himself with his rejoinder. For the sake of completeness, the said letter is also reproduced as under:-
“Directorate of Income Tax
(Income Tax and Audit)
Ministry of finance, Department of Revenue,
Mayur Bhawan, Connought circus,
New Delhi-110001.
F.No.E1(1)Permission/Hyderabad/07/DITDated: 4.11.2008
To
The Commissioner of Income Tax (CO),
(Incharge of Examination),
3rd floor, 'A' Block, Income Tax Tower,
A.C.Guards,
Hyderabad 500 004.
Sir,
Subject:Departmental examination for Income Tax Inspectors Declaration of results withheld for
the year 2006/2007- Reg.
Kindly refer to this directorate's earlier communications F.No.E.1.(2)(2)/ITI/2006/DIT/685 dated 31.03.2007 and F.No. E1(20(2)/2007/DIT/Pt.I, dt. 30.04.2008 vide which result of Shri K.N.L.V.Narasimham (W21097) for the year 2006 and of Shri M.V.Prasd (Z11080) and Shri A.Sridhar (W11044) for the year 2007 were withheld and subsequent representation of these candidates in the matter.
2. These representations have been examined and accordingly, result of Shri K.N.L.V.Narasimham (W21097) for the year 2006 and of Shri M.V.Prasad (Z11080) and Shri A.Sridhar (W11044) for the year 2007 is enclosed. The result incorporates marks obtained by Shri K.N.L.V.Narasimham for the year 2007.
3. Further, it is found from records that Shri A.Sridhar (W11044) being DEO cadre was not eligible to appear for ITIs Exam. in the year 2001. Therefore, his result for the year 2001 may be treated as withdrawn.
Yoursfaithfully,
Encl: As above
Sd/-
(Pankaj Jindal)
Joint Director of income Tax (Exam)
New Delhi”
30. Thus, it is very clear that the respondents were totally wrong in not permitting the applicant to appear fully in the Departmental examination of 2006 and in not declaring his result for the same examination in time. They were also wrong in withholding the result of the applicant for the year 2007. Since the results for the examination of 2006 and 2007 have now been declared, no directions are being given in this regard except that we clarify at the cost of repetition that the applicant was fully eligible to appear in the departmental examination for the ITIs held in the year 2006 and 2007. He shall also be entitled for promotion as Income Tax Inspector subject to fulfillment of necessary prescribed conditions.
31. This leaves thus with only one relief prayed by the applicant to be further adjudicated. The relief relates to his claim that he should be considered for promotion to the cadre of income Tax Inspectors under Physically Handicapped quota. It is important to clarify here that this relief has not been claimed specifically by the applicant in the relief portion of the OA, but we are taking this relief as being covered under the request for passing such other orders as deemed fit. The reason for doing so is that the applicant had advanced substantial arguments in support of this relief and the respondents have also dealt with this matter in the reply. Therefore, we consider it proper to adjudicate on this claim of the applicant also because, even otherwise, it is of vital importance.
32. For considering this claim of the applicant, it is necessary in the first place to refer to G.I., Dept. of Per. and Trg., O.M.No.36035/3/2004-Estt.(Res.), dated 29.12.2005. In this document, it is mentioned that the Ministry of Social Justice and Empowerment have identified the jobs/posts suitable to be held by persons with disabilities and the physical requirement for all such jobs/posts vide their notification No.16-25/99.NI.I, dated 31.5.2001. It is also mentioned that the jobs/posts given in Annexure-II of the said notification as amended from time to time shall be used to give effect to 3 per cent reservation to the persons with disabilities. It further directs the following to be noted:-
“(a)The nomenclature used for any job/post shall mean and include nomenclature used for other comparable jobs/posts having identical functions.
(b)The list of jobs/posts notified by the Ministry of Social Justice and Empowerment is not exhaustive. The concerned Ministries/Departments shall have the discretion to identify jobs/posts in addition to the jobs/posts already identified by the Ministry of Social Justice and Empowerment. However, no Ministry/Department/Establishment shall exclude any identified job/post from the purview of reservation at its own discretion.
(c)If a job/post identified for persons with disabilities is shifted from one group or grade to another group or grade due to change in the pay scale or otherwise, the job/post shall remain identified.”
33. It may be further mentioned that in the Ministry of Social Justice and Empowerment Notification dated 31.5.2001, the post of ITI has been mentioned as available to categories of certain disabled persons suitable for jobs mentioned as OA.OL.BL.OAL.HH. The said Notification provides again, under (e), as under:-
“(e)If at any stage due to change in the pay scale of a post, identified for persons with disabilities gets shifted from one group or grade to another group or grade the post shall remain identified for the purpose of effecting 3% reservation. For example, the post of post graduate teacher, if at the time of identification of post for persons with disabilities is a group 'B' post but due to some policy change if the same post is reduced to Group 'C' the same shall remain identified though its pay scale and grade has been changed.”
34. In the face of above documents, the reply of the respondents that reservation cannot be provided for promotion to the post of ITI under the Physically Handicapped category because the post of Inspector is a Group 'B' post, has no meaning. It is a fact that the post of Income Tax Inspector was earlier a Group 'C' post and merely because the same is now shifted to Group 'B', reservation for Physically Handicapped people cannot be denied, in view of the documents extracted above. Therefore, we hold that the applicant shall be fully entitled for promotion to the cadre of Income Tax Inspectors under Physically Handicapped quota upon satisfaction of all other conditions for promotion as Income Tax Inspector.
35. Before parting with the matter, we want to observe that this OA would have been unnecessary had the Central Board of Direct Taxes taken a rational view in the matter right from the beginning and had it properly studied the relevant instructions of DoPT. The applicant has certainly been put to harassment and for this, we direct that the respondents shall pay Rs.5,000/- to the applicant as a token compensation for the harassment that the applicant had to undergo. Apart from this, the applicant shall also be entitled to a cost of Rs.500/- for this litigation. The applicant shall be paid these amounts within a period of two months form the receipt of this order by the respondents.
36. The OA is thus allowed to the extent indicated above with the order of costs as indicted above.