TARNI PRASAD v. UNION OF INDIA — 1969 DIGILAW 71 (PAT)

JUDGMENT : Untwalia, J. - This is an application by one Shri Tarni Prasad, an upper division clerk in the office of the Inspecting Assistant Commissioner of Income-Tax Northern Range, Patna to quash the circulars dated the 16th April, 1960 and the 19th November, 1960 (Annexures 2 and 3 respectively to the writ application), issued by the Central Board of Revenue. The grievance of the petitioner is that the circulars aforesaid are violative of Article 16 of the Constitution, in that they deny equal opportunity to the petitioner for getting promotion to the post of an Inspector in the Income-Tax Department. 2. The posts of Income-Tax Inspectors are filled up by promotion from the cadre of upper division clerks as also from similar other cadres and by direct recruitment; the ratio being two-third for the former class and one-third for the latter. 3. Our attention was drawn during the course of the hearing of this writ application to certain rules of the departmental examinations to be found in the Central Board of Revenue Office Procedure Manual published by the Government of India. The rules prescribe for examinations so that a member of the ministerial establishment who, in the opinion of the Commissioner of Income-Tax, is likely to prove suitable for promotion to an executive post and who is not below of a particular age on the 1st of January of the year in which the examination is to be held and has also passed the departmental examination for ministerial staff conducted by the Director of Inspection, is eligible to sit at the departmental examination to qualify himself for being promoted to the rank of Inspector. In accordance with the circular of the Central Board of Revenue dated the 6th June, 1953 [vide letter no. 60(1) Adm. VII-53], upper division clerks to which rank the petitioner belongs were getting opportunities of being promoted as Income-Tax Inspectors more or less on the basis of their seniority provided they had passed the departmental examination or the qualifying examination referred to above. It appears from the counter-affidavit filed on behalf of the department that giving opportunities to such persons on the basis of their seniority alone caused a sense of dissatisfaction and frustration amongst those who had passed the qualifying examination much earlier than those who were senior to them in the seniority list. It appears from the counter-affidavit filed on behalf of the department that giving opportunities to such persons on the basis of their seniority alone caused a sense of dissatisfaction and frustration amongst those who had passed the qualifying examination much earlier than those who were senior to them in the seniority list. They gave a ventilation to their grievances before the Direct Taxes Administration Enquiry Committee headed by Shri Mahabir Tyagi. Para 8.89 quoted from its Report in the counter-affidavit runs as follows:- "We are informed that if a junior person passes the prescribed examination earlier than his senior colleagues he gets no priority, whatever, for promotion to the next higher grade. We feel that this system is not desirable as it gives no incentive to the younger element to show its mettle. In our opinion, seniority for purposes of promotion to the next higher grade should be regulated with reference to the date or the year of passing the prescribed examination. We understand that similar position obtains in several other services and departments like the Audit and Accounts Department, Defence Accounts Department etc. where a number of persons pass the Examination on the same date, their seniority inter se for the purposes of promotion should be the same as in the grade in which they are presently working. However, the passing of second higher departmental examination should not entitle a person to any additional priority than the one obtained by him by passing the first examination for becoming eligible to promotion to the next higher grade". 4. Taking into consideration the recommendation of the Tyagi Committee, the Central Board of Revenue amended its circular issued in the year 1953 and issued the impugned circular (Annexure 2) on the 16th April, 1960. Shorn of details, it directed a list to be prepared of eligible persons for promotion to the grade of Inspector in ORDER :of the date or the year of passing the qualifying examination subject to the condition that candidates passing in the same examination will maintain their inter se seniority irrespective of the quality of their performance in the same examination. In other words, the direction by Annexure 2 was that persons otherwise eligible for promotion should stand in a queue in accordance with the date of their passing the qualifying examination. In other words, the direction by Annexure 2 was that persons otherwise eligible for promotion should stand in a queue in accordance with the date of their passing the qualifying examination. Obviously stress was laid too much on the basis of the recommendation of the Tyagi Committee on the date of passing the qualifying examination ignoring altogether the seniority of the eligible persons in their respective cadres. As stated in the counter-affidavit this led to a dissatisfaction amongst the senior employees and some representations were filed. In ORDER :to accommodate the senior members of the staff, the All India Non-Gazetted Employees Federation made a proposal to the Government of India. According to this proposal, two lists were to be drawn up separately. In the first list, the names were to be arranged according to the seniority and in the second list, they were to be arranged according to the dates of passing the Inspector's examination. The usual process of selection was to be made alternately from the two lists, that is to say, the first person in the first list was to be promoted first, if otherwise found suitable, and the first person in the second list was to be promoted next and so on alternatively from the two lists. Considering that the suggestion made on behalf of the All India Non-Gazetted Employees Federation was a reasonable solution of the intricate problem of giving due weightage to those who were senior in the cadre as also to those who had passed the qualifying examination earlier than their seniors, the Central Board of Revenue issued the second impugned circular (Annexure 3) on the 19th November, 1960. Again shorn of details, the gist of the circular is to prepare two separate select lists, one on the basis of the seniority and the other on the basis of the date of passing the qualifying examination. Persons were to be selected for promotion to the rank of Inspector alternately from the two lists. In other wads, the first in the seniority list was to get the first chance, the second chance was to go to the first in the list prepared on the basis of the date of passing the qualifying examination, the third chance was made available to the second person in the seniority list and the fourth chance was availed of by the second person in the other list and so on. Thus, this formula was evolved for giving weightage alternately both to those who were senior in the cadre and also to those who had passed their qualifying examination much earlier than those who were senior to them. 5. The petitioner attacks Annexures 2 and 3 on the ground that the formula evolved by Annexure 2 as also by Annexure 3 was unreasonable and denies to him the equal opportunity in getting his promotion to the rank of Inspector. Annexure 2 is attacked on the ground that it laid too much stress on the date of passing the qualifying examination and Annexure 3 is an artificial and an arbitrary rule of considering the cases of upper division clerks for promotion to the rank of Inspector, in that when at a particular point of time a person eligible for promotion in one list is being considered, the person in the second list is not being considered although he may be high up. 6. By giving a chart, Annexure 4 to the writ application, the petitioner has tried to explain that he being the 16th in the seniority list and holding the 21st position in ORDER :to the date of passing the qualifying examination will have to wait and get the 25th chance for consideration of his case for promotion as an Inspector. The argument is that from the same cadre of service these two arbitrary classifications for consideration of promotion must be knocked down as being violative of Article 16 of the Constitution. 7. In support of the contention put forward on behalf of the petitioner, learned Advocate General placed reliance upon a Bench decision of the Mysore High Court in (1) K. R. Yagneswaran V. Director General P & T and another (A.I.R 1967 Mysore 235). Learned Standing Counsel for the Income-Tax Department, apart from other cases, cited before us a decision of the Supreme Court in (2) Mervyn Continho V. Collector of Customs, Bombay (A.I.R. 1967 Supreme Court 52). In reply the petitioner also placed reliance upon this decision of the Supreme Court. 8. It may be stated here that respondents 4 and 5 were promoted to the rank of Inspector respectively in the years 1964 and 1967 before the filing of the present writ application. Some more persons were also promoted during the pendency of this application as at the time of its admission no stay ORDER :was granted. 8. It may be stated here that respondents 4 and 5 were promoted to the rank of Inspector respectively in the years 1964 and 1967 before the filing of the present writ application. Some more persons were also promoted during the pendency of this application as at the time of its admission no stay ORDER :was granted. The petitioner does not feel aggrieved by the promotion of the persons during the pendency of the writ application except that of respondents 6 and 7. He has joined other respondents on the ground that on the basis of the impugned circulars they will get their chances of being considered for promotion earlier than the petitioner. 9. In my opinion, the argument put forward on behalf of the petitioner is not sound and cannot be accepted on the facts of this case. Generally and ordinarily in matters of promotion from lower cadre of service seniority alone does not count. Merit also has got to be taken into consideration. Merit of the different candidates eligible for promotion, even apart from the preparation of the two lists referred to above, undoubtedly is taken into consideration as the two impugned circulars themselves indicate. But the intricate question was how to reconcile the rival claims of persons in the same cadre, one based upon seniority and the other based upon the earlier date of passing the qualifying examination. According to the circular issued by the Board in the year 1953, the basis of seniority had its upper hand and the date or the year of passing the qualifying elimination was ignored. As I have said above, on the basis of the recommendation of the Tyagi Committee Report the Central Board of Revenue thought that it would be quite reasonable to give upper hand to the basis of the date or the year of passing the qualifying examination. If I may say so here, this was not quite in ORDER :and that does not seem to be the purport and the gist of the recommendation of the Tyagi Committee. A claim based upon seniority could not be and ought not to have been ignored altogether. If I may say so here, this was not quite in ORDER :and that does not seem to be the purport and the gist of the recommendation of the Tyagi Committee. A claim based upon seniority could not be and ought not to have been ignored altogether. Ignoring of such claim naturally led to dissatisfaction amongst the service and then the question arose how to evolve a rule which should give due weightage to both aspects of the matter, one the seniority and the other, the date of passing the qualifying examination. Any rule which might have been evolved must have embraced within its incidence some amount of artificiality as it is difficult to guess any rule which could be worked out by a mathematical precision to give exactly due weight to both aspects of the matter. A rule could very well have been framed that while considering the cases of upper division clerks for promotion to the rank of Inspector, both matters, namely, their position in the seniority list as also the date of their passing the qualifying examination should be taken into consideration. But then the question would have arisen as to what percentage of weight should be attached to each aspect of the matter and what should be the exact mode to solve all problems which would have arisen even in such a situation. To illustrate my point, I would take the case of Shri Michael Andrew item no. 2 of Annexure 4. He has been shown as second in seniority and occupying the 17th position with reference to the date of his passing the examination. What percentage of weight should be given to his seniority position arid what percentage to his position in accordance with the date of passing the qualifying examination? The matter was not free from difficulty to be answered, I would take another case of Shri Jagatanand Sahay, item no. 1 in Annexure 4. He is the first in the list as he passed the qualifying examination earliest in the year 1956. In the seniority list he occupies the 27th position. Again, how to reconcile between his high position in one list and low position in the second? 1 in Annexure 4. He is the first in the list as he passed the qualifying examination earliest in the year 1956. In the seniority list he occupies the 27th position. Again, how to reconcile between his high position in one list and low position in the second? It seems to me that it is because of that reason and to avoid some sort of artificiality which must have cropped in selecting persons on the basis of their seniority as also on the basis of their date of passing the qualifying examination, a formula was evolved in consultation with the representatives of the service so that nobody may have any grievance against the Income-Tax authorities to say that unnecessary weight was given to seniority in selecting a particular person and undue weightage was given to the date of passing the qualifying examination in case of another candidate. To avoid such criticisms or dissatisfaction which may have cropped up had the matter been left entirely in the hands of the authorities, it seems to me, a workable and reasonable formula was evolved which leaves least room for any dissatisfaction or criticism. In no sense it denies equal opportunity to the same person in the cadre. It gives equal opportunities to all but does so alternately, in the sense that a person in his turn in the seniority list gets his chance earlier if he is high up there and then a person high up in the other list gets his chance next. 10. It is to be noted here that all eligible persons must find their place in both the lists. It cannot be said that the name of any will be in one list and not in the other. Only their positions will vary either according to their seniority or according to their date of passing the qualifying examination. 10. It is to be noted here that all eligible persons must find their place in both the lists. It cannot be said that the name of any will be in one list and not in the other. Only their positions will vary either according to their seniority or according to their date of passing the qualifying examination. If on the basis of this rotational or alternate rule opportunities are given to all by giving, if I may say so, 50 per cent weightage to both aspects of the matter, it is difficult to accept the argument put forward on behalf of the petitioner that the rule as evolved, on the facts and in the circumstances of the case, is unreasonable or has no probative relationship with the object of the rule or that it denies equal opportunity to any for being considered for promotion to the higher rank of Inspector. Nobody actually suffers according to this rule. A person who is high up in either of lists gets his chance earlier. A person who is down below in both the lists does get and is bound to get his chance of being considered for promotion later. In case of such a person, I am inclined to think, the same result would have followed even if any other formula or rule would have been evolved for giving due weightage to both aspects of the matter. I am not prepared to accept the argument put forward on behalf of the petitioner that the date of passing the qualifying examination is not relevant at all for being taken into consideration in the matter of promotion. In my opinion, an upper division clerk who is diligent or intelligent enough to pass the departmental examination qualifying for being considered for promotion to the rank of Inspector earlier than those who are even senior to him in the rank of upper division clerk, must be deemed to be, from the must point of view, a more suitable person for being considered for promotion than the one who passes the qualifying examination later. At the same time, the seniority also cannot be completely ignored. The seniority means that the person who is senior has got more experience of the working of the department than the one who is junior to him. At the same time, the seniority also cannot be completely ignored. The seniority means that the person who is senior has got more experience of the working of the department than the one who is junior to him. Thus giving due consideration and weightage to both aspects of the matter, I am inclined to think that the formula and the rule evolved by the Central Board of Revenue, contained in Annexure 3, are quite reasonable and do not deny an equal opportunity to any, nor to the petitioner. It may well be that if only the matter of seniority is taken into consideration, his position being 16th in Annexure 4, he could have got the 16th chance. It may equally well be that if he would have got a chance of being considered for promotion on the basis of the date of passing the qualifying elimination, he would have got the 21st chance. But if on giving due consideration to both the aspects, he goes down below to the 25th position, he has merely to thank himself for not passing the qualifying examination earlier or not getting the high position in the seniority list. Considered from the point of view of even any imaginary rule which could have been framed for giving due weight to both aspects of the matter, I have no doubt in my mind that the petitioner would have got the chance much later than he could have got on the basis of the either aspect of the matter. 11. Before I discuss the two cases on which reliance was placed by either side, I would like to refer to the decision of the Supreme Court in (1) Sant Ram Sharma V. State of Rajasthan and others (A.I.R. 1967 Supreme Court 1910). Sant Ram Sharma, the petitioner before the Supreme Court, had been superseded and officers junior to him had been promoted to the rank of Inspector General of Police by the Government of Rajasthan. Sant Ram obtained a rule from the Supreme Court under Article 32 of the Constitution for quashing of the two ORDER :s by which officers junior to him had been promoted to the rank of Inspector and Additional Inspector General of Police. The stand of the State Government was that it had done so on account of the merit of the two promoted officers. Mr. The stand of the State Government was that it had done so on account of the merit of the two promoted officers. Mr. N. C. Chatterjee, learned counsel for the petitioner before the Supreme Court, as would appear from the JUDGMENT : of Ramaswami, J. who delivered the JUDGMENT : on behalf of the Court at page 1916, argued "that the introduction of the ideas of merit into the procedure of promotion brings in an element of personal evaluation and that personal evaluation, opens the door to the abuses of nepotism and favouritism, and so, there was a violation of the constitutional guarantee under Articles 14 and 16 of the Constitution". The argument was rejected and a passage from Leonard D. White's book--Introduction to the study of Public Administration was quoted with approval to show that has a matter of long administrative practice promotion to selection grade posts in the Indian Police Service has been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal". I have referred to this case in ORDER :to lend support to the view which I have expressed earlier in regard to the impugned circulars of the Central Board of Revenue. Apart from other factors which were to be taken into consideration at the time of promotion of upper division clerks to the rank of Income Tax Inspector, the two formidable matters which have to be considered are (i) seniority and (ii) the date of passing the qualifying examination. If no fixed rule as evolved by Annexure 3 would have been adopted, this would have led to the advancement of an argument on the lines of Mr. Chatterjee's argument before the Supreme Court in Sant Ram's case. In my opinion, therefore, the formula or the rule evolved, in the circumstances of the case, is quite reasonable and does not deny any equal opportunity to the petitioner in the matter of appointment or promotion within the meaning of Article 16 of the Constitution. 12. In the Mysore case what happened was that the petitioner who was a clerk in the Department of Posts and Telegraphs had passed in the year 1954 an examination which made him eligible to be appointed as an accountant in a grade known as the lower selection grade which was undoubtedly a higher grade than the one in which the petitioner was. Promotion to the lower selection grade was made in accordance with the directive principles issued by the Director General, Appointments. It is stated in the ninth paragraph of the JUDGMENT : at Page 237 that appointments had to be made to the post of an accountant in the lower selection grade on the circle basis, and the petitioner was the seniormost amongst those who passed the qualifying examination in the year 1954. Although it is not quite clear as to what was the "circle basis" in that case, I am inclined to think that it was a similar character as the one in this case. Those who were passing the qualifying examination earlier were considered eligible for promotion earlier. Once promotees were taken to the higher grade on account of the circle basis, either because of their passing the qualifying examination earlier or on the basis of the seniority, the question was as to what should determine their seniority after promotion. What was done by the department was that even after promotion a person who had passed the qualifying examination earlier was given seniority over the one who had been promoted earlier merely because he had passed the qualifying examination later. This was challenged before the High Court and challenged with success. Somnath Iyer, J., delivering the JUDGMENT : of the Bench said that the directive of the Director General had not been clearly appreciated and the seniority with reference to the ORDER :of passing the qualifying examination herd been wrongly determined after promotion. If the other construction which was put forward on behalf of the department was to be accepted, then the learned Judge said "acceptance of the other construction would produce the strange consequence that a person who was appointed as an accountant many years earlier, would become junior to one who was appointed many years later on the extremely slender foundation afforded by that junior's earlier success in the qualifying examination." If I may say so with respect, the matter was decided correctly by the Mysore High Court because after promotion the date of passing the qualifying examination could not determine the seniority. The only relevant thing to determine the seniority ordinarily was the date of promotion, but this does not mean, rather on this point even the case decided by the Mysore High Court seems to be against the petitioner, that at the stage of considering the cases of various candidates for promotion to give effect to the fact of passing the qualifying examination earlier is violative of Article 14 or 16 of the Constitution. 13. The purport of the decision of the Supreme Court in (2) Mervyn Continho and others V. Collector of Customs, Bombay and others (A.I.R. 1967 Supreme Court 52) is also the same as the one of the decision of the Mysore High Court. Recruitment to the posts of Appraisers was from two sources; a certain percentage by promotion and the rest by direct recruitment. The seniority inter se amongst those was determined alternately as between the promotees and the direct recruits. From the cadre of Appraisers there was a further promotion to the post of Principal Appraisers. One was required to have five years' experience as an Appraiser for being eligible for promotion to the post of a Principal Appraiser. Both kinds of Appraisers, if I may use that expression, one who had come by promotion and the other who had come by direct recruitment, were being promoted to the posts of Principal Appraisers. Even thereafter, irrespective of the date of promotion, the direct recruits were allowed to retain their seniority in accordance with their position in the cadre of Appraisers. The challenge before the Supreme Court was on both the rules. The Supreme Court upheld the first and knocked down the second. It found that the rule of giving seniority by rotation in the cadre of Appraisers had a justification and reason behind it because the recruitments were from two different classes, namely, from the lower cadre and by direct recruitment. It knocked down the other rule on the ground that after promotion to the post of a Principal Appraiser there was no justification or any sound principle behind the rule of determining the seniority on the basis of the seniority which prevailed in the cadre of Appraisers, because the promotion to the post of Principal Appraiser was from the same source, namely, the Appraisers. It is to be noticed, therefore, that stress was laid by the Supreme Court on the date of promotion to the cadre of Principal Appraisers for determining the seniority as all were going to that post by promotion. The rotational rule of fixing the seniority, however, in regard to the Appraisers was justified although it may be said in one sense it was arbitrary as it had to be. Irrespective of the date of promotion or appointment the seniority alternately went to the promotee and the direct recruit and finding a justification for it, such a rule was upheld. The argument on behalf of the petitioner before us was that from the same class namely of upper division clerks there could not be any rotational rule for considering their eligibility for promotion to the rank of Inspectors. I am not impressed with this argument. The classification was not for determining the seniority inter se between the cadre of upper division clerks. As I have said above, all the clerks were included in both the lists which were prepared on two different basis, i.e., on the basis of seniority and on the basis of the date of passing the qualifying examination. Cases of all in rotation is being considered. There is a rational basis for the rule as the history of the case indicates which I have alluded above. I may also add that we were informed by learned counsel for the Income-Tax Department at the bar that this rotational rule introduced as far back as in the year 1960 has worked well throughout India and has nowhere been challenged. That apart, I reiterate the view which I have expressed above that the rule, in the circumstances, is quite reasonable and workable in ORDER :to bring about harmony between the rival claims of the seniors in the cadre and more intelligent and diligent in it and does not violate Article 16 of the Constitution. 14. In the result, the application fails and is dismissed, but there will be no ORDER :as to costs. Application dismissed.