Union of India (Uoi) and ors. Vs. Kishore Chandra Mohanty and ors. - Court Judgment

L. Mohapatra, J.

1. In these two writ applications, this Court is called upon to decide as to whether the judgment of the Central Administrative Tribunal, Cuttack Bench, Cuttack rendered on 9th August, 2002 in O.A. No. 542 of 1995 is legally sustainable. One Kishore Chandra Mohanty (Opposite Party No. 1 in W.P.(C) No. 224 of 2003 and Opposite Party No. 4 in W.P.(C) No. 4493 of 2002) was the applicant before the Tribunalin the aforesaid Original Application and the petitioner in W.P.(C) No. 4493 of 2002 was Respondent No. 5 before the Tribunal.

2. The case of Kishore Chandra Mohanty before the Tribunal was that he had served for more than three years as Inspector of Income Tax and appeared in the departmental examination held during June/July 1995, but the results were published on 12.2.1996 and two annual increments were allowed to him with retrospective effect, i.e., from 3.7.1995. During the period from June/July, 1995 and publication of result on 12.2.1996, five posts of Income Tax Officer (Group-B) were sanctioned for Orissa Region and to fill up the said post, the Department Promotion Committee was convened on 13.10.1995. However, the case of the applicant-Kishore Chandra Mohanty was not considered. According to the applicant-Kishore Chandra Mohanty, he having appeared in the departmental examination by the time the Departmental Promotion Committee was convened, his case should have been considered and kept in sealed cover till publication of the results of the departmental examination. It is also the case of the applicant-Kishore Chandra Mohanty that on earlier occasions whenever any DPC used to be convened in between the last date of examination and publication of results thereof, the Department used to convene a review DPC to consider the cases of those Inspectors of Income Tax who clear the examination and give them promotion with retrospective effect, i.e., from the date on which the last examination was held. Such a practice having been given a go-bye by the Department in the relevant year in which the applicant-Kishore Chandra Mohanty appeared in the departmental examination, he approached the Tribunal by filing the Original Application out of which both the writ applications arise. The Department filed a counter affidavit in the said Original Application and the petitioner before this Court Sovesh Chandra Mohanty in W.P.(C) No. 4493 of 2002 also intervened in the case and filed a counter affidavit. Reliance was placed by the applicant-Kishore Chandra Mohanty on an earlier decision of the Tribunal in T.A. No. 214 of 1986 in the case of Dhirsa Raj Dev v. Union of India and Ors., decided on 27.6.1991 upholding the deferment of the DPC under similar circumstances. Reliance was also placed by the applicant-Kishore Chandra Mohanty on a decision of the Government of India (Ministry of Finance) dated 18.11.1996 laying down that the date of passing of examination is to be taken as the date on which the last paper of the said examination was held and not the declaration of the result. The learned Counsel for the Department relied on two decisions of the Tribunal rendered in O.A. No. 543 of 1995, disposed of on 15.10.2001 and O.A. No. 207 of 1996, disposed of on 16.11.1999 in which the Tribunal held that the DPC has to consider the persons who are eligible at the relevant time and the subsequent passing of the examination would not make a candidate eligible for promotion from the last date of holding of the examination. The. Tribunal referring to a decision of this Court in the, case of Ajaya Kumar Das v. Union of India and Ors. decided on 28.3.2001 in O.J.C. No. 1594 of 1999decided the case and directed the Department to hold a review Departmental Promotion Committee within a period of ninety days from the date of receipt of a copy of the order and consider the case of the applicant-Kishore Chandra Mohanty and grant him retrospective promotion by granting only notional financial benefit for the intervening period till his actual promotion. The Tribunal also directed the Department to consider the case of such other similarly placed Income Tax Inspectors along with the applicant-Kishore Chandra Mohanty

3. Shri Sanjit Mohanty, the learned Senior Counsel appearing for the petitioner in W.P. (C) No. 4493 of 2002 and Shri J.K. Mishra, the learned Assistant Solicitor General assail the impugned judgment on the ground that the decision of this Court in the case of Ajaya Kumar Das v. Union of India and Ors. (O.J.C. No,1594 of 1999) having been reversed by the Supreme Court, no reliance could be placed on the said decision by the Tribunal in order to allow the application of the applicant-Kishore Chandra Mohanty. It was also contended by the learned Counsel that guidelines specifically provide for three years experience as Inspector of Income Tax and passing of the departmental examination as conditions precedent for consideration for promotion to the post of Income Tax Officer (Group-B). Admittedly, the applicant Kishore Chandra Mohanty having not passed the departmental examination by the time the DPC wasconvened on 13.10.1995, he was not eligible .to be considered for promotion and therefore, he cannot have a grievance. It was also contended that Shri Kishore Chandra Mohanty, the applicant before the Tribunal could not pass the examination in first attempt and having passed the departmental examination in the second attempt, by the time the results were declared, the DPC had already been convened. The further contention before this Court is that the applicant-Kishore Chandra Mohanty had filed O.A. No. 542 of 1995 and one Shri L.N. Majhi, another Inspector of Income Tax had filed O.A. No. 543 of 1995 for the very same relief. O.A No. 543 of 1995 filed by Shri L.N. Majhi was dismissed as he had not passed the departmental examination by the time the DPC considered the cases for promotion. But the said judgment was not taken note of by the Tribunal in the impugned judgment. The Tribunal having passed an order for consideration of all similarly placed Income Tax Officers as that of Kishore Chandra Mohanty, Shri L.N. Majhi whose Original Application was dismissed by the Tribunal has been given promotion along with Shri Kishore Chandra Mohanty by virtue of the impugned judgment.

4. Shri R.K. Rath, the learned Senior Counsel appearing for Kishore Chandra Mohanty and learned Counsel appearing for some of the intervenors contended that the earlier practice of the Department was that in an year during which the departmental examination is held and before publication of result, a DPC is convened for promotion, a review DPC is held after publication of results and cases of those Income Tax Inspectors whose cases could not consider by the DPC earlier because of non-publication of result used to be considered and they used to be given promotion with effect from the date on which the last paper of the Examination was held. Only in 2000 administrative instructions were issued to hold DPC only after publication of departmental examination result in order to avoid litigations and thereafter there has not been any grievance from any quarter. It is also contended by the learned Counsel appearing for Shri Kishore Chandra Mohanty and other intervenors that such practice having been adopted by the Department for a long, that has been rightly accepted by the Tribunal while allowing the prayer of the applicant-Kishore Chandra Mohanty.

5. On examination of the respective cases orthe parties and upon hearing the learned Counsel appearing for the parties, we find that the sole question to be considered by this Court is as to whether procedure adopted by the Department on earlier occasions was legally correct or whether there has been infraction of the rules prescribing for promotion from the post of Inspector of Income Tax to the post of Income Tax Officer (Group-B) while adopting such procedure.

The instructions/guidelines issued by the Department for promotion from the post of Inspector of Income Tax to ITO Group-B is as follows:

Inspectors of Income-Tax are considered for promotion as Income-Tax Officer, Group-B provided that they have passed the Departmental Examination prescribed for Income-Tax Officers and put in service as inspector for at least 3 years and are otherwise approved for promotion.

There is no dispute that even after such instruction/guidelines for promotion were issued on some earlier occasions, the Department considered the cases of some Officers in the level of Income Tax Inspectors by holding a review DPC after publication of results and gave them retrospective promotion with effect from the date on which last paper of the Examination was held. This gave rise to litigations and ultimately by letter dated 18.7.2000 issued from the Ministry of Finance, Government of India, Department of Revenue, all the Chief Commissioners of Income Tax were intimated that in order to avoid unnecessary litigations, it has been decided that no DPC for Income Tax Qfficer grade may be held in between the period of examination and declaration of result thereof, especially when adequate number of officers for Reserved Vacancies are not available. The letter of the Ministry in Annexure-I of the counter affidavit filed on behalf of the opposite party No. 1 is quoted below:

F. No. A-32013/3/2000-Ad.VI

GOVERNMENT OF INDIA

MINISTRY OF FINANCE

DEPARTMENT OF REVENUE

New Delhi, the 18th July, 2000

To

All the Chief Commissioners of Income Tax.

Subject - Holding of D.P.Cs. for Promotion to the grade of Income Officer, Departmental exam-Regd.

Sir,

I am directed to say that as per the prevalent practice, the results of the departmental examinations are usually made effective from the date of the conduct of the last paper. Consequent to this practice, several cases have come to the notice of this department where some senior income tax inspectors who were initially not considered by the D.P.C. for not having qualified the departmental examination on the date of DPC meeting, latter on qualified the departmental examination retrospectively and thus became eligible to be considered by the review DPC. This has given rise to unnecessary litigation as well as administrative problems. The matter has since been examined by the Board in consultation with DIT (IT)/DGIT (Admn) and accordingly in order to rule out the continued recurrence of such cases, it has been decided that no DPC for the Income Tax Officer grade may be held in between the period of examination and declaration of result thereof, especially when adequate number of officers for Reserved Vacancies are not available.

Yours faithfully,

B.K. ARORA

DEPUTY SECRETARY TO THE GOVT. OF INDIA

It is fairly admitted by the learned Counsel appearing for all the parties that after issuance of the said letter there has been no grievance from any quarter.

In this case admittedly the departmental examination was conducted in June/July, 1995 whereas the results were published in February, 1996. Admittedly also five posts of ITO, Group-B had been sanctioned for the State of Orissa and the Departmental Promotion Committee was convened on 13.10.1995, i.e., after the Examination was conducted and before the results were published. The guidelines clearly lay down that in order to be considered for promotion to the post of ITO, Group-B, an Income Tax Inspector must have served as such, for a period of three years and must have cleared the departmental examination. The applicant-Kishore Chandra Mohanty himself admits in the Original Application that though he had completed three years of service as an Income Tax Inspector by the time the DPC was convened, he had not cleared the departmental examination and the results were awaiting. Therefore, in terms of the guidelines regulating promotion of Income Tax Inspectors to the post of ITO, Group-B, the applicant-Kishore Chandra Mohanty was not eligible to be considered for promotion on the date, i.e., 13.10.1995 when the DPC was convened.

6. Now the question that arises for consideration is as to whether the case of the petitioners is covered by the decision in the case of Ajaya Kumar Das v. Union of India and Ors. (supra) or not. Ajaya Kumar Das was working as an Assistant Audit Officer in the office of the Accountant General, Orissa, Bhubaneswar and had applied to the Union Public Service Commission (UPSC) for special limited competitive examination for being inducted to Audit and Accounts Service, 1995. The UPSC by its order dated 26.12.1996 rejected the prayer on the ground that he had cleared the S.O. Grade Examination on 14.3.1990 and therefore, was not eligible to be considered. This Court relying on a decision of the Allahabad High Court took a view that the qualification of Ajaya Kumar Das for the purpose of consideration of promotion shall relate back to the date of examination and accordingly allowed the writ application. The said judgment of this Court was challenged before the Supreme Court in SLP (Civil) No. 10995 of 2001. The Supreme Court passed the following order reversing the judgment of this Court and held that the condition of eligibility was very clear and therefore, the High Court laid down an incorrect proposition of law by holding that the results which was declared in March, 1990 will relate back to the date of the examination in 1989.

ORDER

Special leave granted.

The respondent was working as an Asst. Audit Officer. In November, 1989, he had taken the Subordinate Accounts Service Examination.

An advertisement had appeared whereby for induction to the Audit and Accounts Service Examination 1998 the eligibility criteria was that a candidate should satisfy the eligibility conditions on 1st January, 1995 one of which was the following condition.

(1) SCALE OF PAY AND LENGTH OF SERVICE.

The candidates should be holding post in the scale of pay of Rs. 2000-3000 or above and should have rendered not less than 5 years regular service after qualifying in the Subordinate Accounts Service or Section Officer Grade Examination or an equivalent examination conducted by the concerned Department.

Admittedly the result had been declared in March, 1990. Counting from that date, the five years qualifying period would end in March, 1995. Therefore, as on 1st January, 1995, the respondent did not have five years regular service after qualifying In the Subordinate Accounts Service Examination.

The High Court held that the results which were declared in March 1990 will relate back to the date of the examination in 1989. This, in our opinion is an incorrect proposition of law. There can be no question of relating back. The condition of eligibility was very clear. It had to be five years' service after qualifying as on 1st January, 1995 and in this view, we are supported by a decision of this Court in Ashok Kumar Sharma and Ors. v. Chander Shekhar and Anr. 1997 (4) SCC 18.

For the aforesaid reason, this appeal is allowed and the decision of the High Court is set aside.

It was vehemently contended by the learned Senior Counsel Shrt Rath appearing for Kishore Chandra Mohanty that the judgment in the case of Ajaya Kumar Das has no application considering the fact that it does not relate to the Income Tax Department. We are unable to accept such a contention considering the fact that the question raised before the Supreme Court was as to whether the publication of result shall relate back to the date of Examination or not. Here is a case where the applicant-Kishore Chandra Mohanty claims that the publication of result should relate back to the date on which last paper of the Examination was held and he should be given retrospective promotion from that date by holding a review DPC. Therefore, we are of the view that the said judgment has full application so far as the ratio laid down therein is concerned.

7. Shri Rath, the learned Senior Counsel appearing for Shri Kishore Chandra Mohanty placed the judgment of the Tribunal rendered in the case of Dhirsa Raj Dev v. Union of India and Ors. which relates to the Income Tax Department and submitted that the said judgment supports the case of tho applicant-Kishore Chandra Mohanty. On the other hand, we find that in the case of Sovesh Chandra Mohanty W.P.(C) No. 4493 of 2002) who had independently approached the Tribunal in O.A. No. 207 of 1996 claiming retrospective promotion from 1.11.1994 had been turned down by the Tribunal on the basis of the ratio laid down in the case of Ajaya Kumar Das and the case of L.N. Majhi in O.A. No. 543 of 1995 was also dismissed following the case of Ajaya Kumar Das. Unfortunately in the case of the applicant-Kishore Chandra Mohanty, the decision of the apex Court in the case of Ajaya Kumar Das was not cited and relying on the judgment of this Court which was reversed by the Supreme Court, the Tribunal passed the impugned judgment. Reliance was placed on behalf of Shri Kishore Chandra Mohanty in the case of State of Maharashtra v. Jagannath Achyut Karandikar reported in : (1989)ILLJ441SC , to substantiate the argument that the incumbents should not be penalized for Government's lapse to hold the examination in certain years though rules enjoins government to hold examination every year. Though there is some substance in the submission of the learned Counsel for Kishore Chandra Mohanty that the DPC held on 13.10.1995 could have been deferred till publication of the result, the fact is that the DPC was convened on 13.10.1995 and the applicant Kishore Chandra Mohanty was not eligible, for consideration on that date having not cleared the departmental examination. Reliance was placed by the applicant-Kishore Chandra Mohanty in the case of Ashok Kumar Sharma and Ors. v. Chancier Shekhar and Anr. reported in : (1994)ILLJ267SC . It appears that in a review the said judgment was partly over-ruled and the judgment delivered in the review has been reported in : (1997)ILLJ1160SC . In the review, the Supreme Court specifically held that the proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well established law. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. The learned Counsel Shri Rath appearing for Shri Kishore Chandra Mohanty in his notes of submission has also referred to some other decisions relating to the practice adopted by the Department earlier but we are of the view that such decisions have no application in the present case considering the fact that the ratio laid down by the Supreme Court in the case of Ajaya Kumar Das still holds good and therefore, the applicant-Kishore Chandra Mohanty not being eligible for consideration on the date the DPC was convened, was not rightly considered for promotion and his prayer for promotion by holding a review DPC with retrospective effect from the date the last paper of the departmental examination was conducted could not have been allowed by the Tribunal.

8. We, in view of the reasons stated above, allow both the writ applications and set aside the impugned judgment of the Tribunal. All consequential orders passed in pursuance of the judgment of the Tribunal impugned before this Court shall also stand automatically recalled.

I. Mahanty, J.

9. I agree.