Chandrakant Somchand Shah v. State of Gujarat — 1976 DIGILAW 165 (GUJ)

JUDGMENT : M.P. THAKKAR, J. 1. The question which has emerged for decision in this petition under Article 226 of the Constitution of India instituted by five sales tax inspectors is as regards the true interpretation of the rules framed by the Government of Gujarat in exercise of powers under Article 309 of the Constitution of India known as the Sales Tax Officer (Sales Tax Department) Recruitment Rules, 1969, hereinafter adverted to as Recruitment Rules of 1969 and of the Gujarat Sales Tax Department (Conditions of Service relating to sales Tax Officers Examination) Rules, 1967 which will here after he referred to as STO Examination Rules of 1967 and the interpretation is required to be made in the context of the claim of the petitioners that on a true construction of the aforesaid rules, the petitioners were entitled to be considered for promotion to the post of Sales Tax Officers (STO) regardless of whether other sales tax inspectors who had passed the relevant examination within the prescribed time and within prescribed chances along with or subsequent to the petitioners were available notwithstanding the fact that the petitioners, though they had passed, hid not passed the examination within the prescribed time and prescribed chances. The State Government has assumed a contrary stance. 2. The facts necessary in order to understand the real dispute between the parties are few and are not in dispute. The petitioners held the posts of Sales Tax Inspectors. All of them have passed the examination, prescribed by the STO Examination Rules of 1967. All the petitioners failed to pass the examination within the prescribed time and within the chances prescribed under the relevant rules at the material time. Though they did not pass the examination in question within the stipulated time and prescribed chances, as per the STO Examination Rules of 1967, they are entitled to appear at the examination and they have actually appeared and have been declared to have passed the examination. It is not in dispute that they became eligible for promotion only after having passed the foresaid examination. It is not in dispute that they became eligible for promotion only after having passed the foresaid examination. It is also not in dispute that the State of Gujarat has proceeded on the assumption that the petitioners are not eligible for being considered for promotion to the post of STO so long as sales tax inspectors who have passed the relevant examination within the stipulated time and prescribed chances are available irrespective of the fact that some of them might have passed the examination subsequent to the passing of the examination on the part of the petitioners. There is no dispute in respect of those sales tax inspectors who actually passed the examination prior to the passing of the examination on the part of the petitioner. The petitioners do not claim that they arc entitled to be considered for promotion to the posts of STO so long as other sales tax inspectors are available who have passed the examination prior in point of time to the passing of the examination on the part of the petitioners. The real dispute has centred round the question as to whether even the sales tax inspectors who are junior to the petitioners and who have passed the relevant examination along with or subsequent to the petitioners are entitled to be considered for promotion in preference to the petitioners solely by reason of the fact that they passed the examination within the stipulated time and within the prescribed chances albeit subsequent to the date of passing of the examination on the part of the petitioners. The petitioners contend that the aforesaid Persons who are junior and who have passed the examination subsequently cannot be considered for promotion in preference to them. The stand taken by the respondent State on the other and is that the petitioners are not entitled to be considered for promotion so long as other sales tax inspectors who have passed the examination within the prescribed time and prescribed chances are available even though such persons may he junior to the petitioners in the cadre of sales-tax inspectors and even though they may have passed the examination in question subsequent to the passing of the examination on the part of the petitioners. The petitioners contend that the same reasoning would be applicable vis-a-vis sales tax inspectors who are junior to the petitioners in the cadre of sales tax inspectors who might have passed the examination along with the petitioners and not subsequent to them regardless of the fact that they might have passed take examination within the prescribed time and within the prescribed chances unlike the petitioners who passed the examination but passed it after the expiry of the prescribed time and after the prescribed chances were exhausted. 3. It will be appropriate to take a glance at the relevant rules before we approach the question of interpretation in the light of the respective contentions urged on behalf of the petitioners on one hand and the respondent- State and respondents Nos. 3 to 11 (who are sales tax inspectors junior to the petitioners in the cadre of sales-tax inspectors but who have passed the examination along with the petitioners or subsequent to the petitioners albeit within the prescribed time and prescribed chances and who have already been promoted prior to the institution of the petition on December 4, 1971 on the other. 4. For recruitment to the post of sales tax officer, the Government of Gujarat has made rules in exercise of powers under article 309 of the Constitution of India which will be adverted to as STO rules of 1969. The question of appointment is governed by the rules in question made on October 24, 1969 (Annexure 'E'). Rule 2 of the said rules reads as under:- "(2) Appointment to the post of sales tax officer in the Sales Tax Department, in Gujarat Sales Tax Service, Class II shall be made either: (a) by promotion, subject to the provisions made in the rules for the departmental examination prescribed by Government for non-gazetted executive staff of the sales tax department, of persons of proved merit and efficiency who belong to the amalgamated common cadre of sales tax inspectors, Assistant Superintendents and Head Clerks in the Sales Tax Department and who have served satisfactorily as sales tax inspector for not less than two years. (b) by direct selection on the result of the combined competitive examination held by the Gujarat Public Service Commission." On analysis of the aforesaid rule, it becomes evident that in order to be eligible for promotion within the meaning of clause (a) of rule 2, a sales tax inspector has to fulfil the following conditions; (i) he has passed the departmental Examination prescribed by the Government; (ii) he is a person of proved merit and efficiency; (iii) he belongs to the amalgamated common cadre of sales tax inspectors, Assistant Superintendents and Head Clerks and (iv) he has served satisfactorily as a sales tax inspector for not less than two years. In the present case, it is common ground between the parties that conditions Nos. (iii) and (iv) are fulfilled inasmuch as all the petitioners belong to the amalgamated cadre of sales tax inspectors, Assistant Superintendents and Head-Clerks and all of them have also served satisfactorily as sales tax inspectors for a period exceeding two years. The resultant position is that the petitioners would be eligible for promotion to the post of STO and would be entitled to be considered for such promotion provided they have passed the departmental examination prescribed by the Government and they are persons of proved merits and efficiency. In the present case, the question whether or not the petitioners are persons of proved merits and efficiency has not arisen by reason of the fact that the petitioners have still not been considered for promotion on the ground that so long as candidates who have passed the examination within the prescribed time and prescribed chances are available regardless of the fact that such candidates may be junior to the petitioners and regardless of the fact that they have passed the examination along with the petitioners or subsequent to them. Now, there is nothing in the recruitment rules of 1969 which would justify the stand taken by the State Government, for, on a plain reading of rule 2, no such rider has been added by the rule-making authority in respect of recruitment. It is, under the circumstances, not necessary to refer to other provisions contained in the recruitment rules of 1969 for the purposes of the present petition. The respondents have relied on the provisions contained in the STO Examination rules of 1967 in order to buttress the stand taken by them. It is, under the circumstances, not necessary to refer to other provisions contained in the recruitment rules of 1969 for the purposes of the present petition. The respondents have relied on the provisions contained in the STO Examination rules of 1967 in order to buttress the stand taken by them. We must, therefore, examine the relevant provisions of the sro examination Rules of 1967 in order to ascertain whether there is any warrant in the aforesaid rules for refusing to consider the petitioners for promotion to the post of STO notwithstanding the fact that so far as the recruitment rules of 1969 are concerned, they are eligible to be considered inasmuch as they have already passed the examination. 5. It is now time to consider the relevant provisions of the STO Examination Rules of 1967. The relevant rules round which discussion has centred are rules 7 and 8 which may be quoted:- "7. Where an inspector who has failed to pass the examination with in the period specified in rule 4 and according to the chances available to him under rule 5, he shall, notwithstanding such failure, be eligible to appear at any time in such examination on payment of an examination fee of thirty rupees and if he passes the examination, he shall be eligible for promotion to the post of a Sales tax officer: Provided that he shall not be entitled to claim preference to those persons who may have passed the examination earlier. 8. An inspector who passes the examination within the specified period and in specified chances, shall, on his promotion to the post of sales tax officer, be assigned seniority over a person, if any, who although being junior to him in the cadre of inspectors may have been promoted as a sales tax officer earlier by reason of his having passed the examination earlier." It may be stated that a reference is made to rules 4 and 5 in the course of rule 7. These two rules, Rules 4 and 5, prescribe time within which the departmental examination is required to be passed and the chances available for passing such examination. We are not concerned with rules 4 and 5 for it is an admitted position that the petitioners have not passed the departmental examination within the prescribed time and within the prescribed chances. These two rules, Rules 4 and 5, prescribe time within which the departmental examination is required to be passed and the chances available for passing such examination. We are not concerned with rules 4 and 5 for it is an admitted position that the petitioners have not passed the departmental examination within the prescribed time and within the prescribed chances. The purpose of rule 7 appears to be to enable a sales tax inspector to pass the departmental examination notwithstanding the fact that he was not able to do so within the time and chances prescribed by rules 4 and 5. On a plain reading of rule 7, it is evident that the purpose of the said rule is to confer a right on a sales tax inspector to appear at the departmental examination and to pass it regardless of the fact that he failed to do so within the prescribed time and prescribed chances subject to the rider that he would be liable to pay Rs. 30/- by way of examination fee. Rule 7 in terms makes it abundantly clear as to what would be the resultant position if a sales tax inspector passes the examination by virtue of the opportunity afforded to him under the said provision. The last lines of the first paragraph of rule 7 to the effect that if he passes the examination "be shall be eligible for promotion to the post of a sales tax officer" leave no room for doubt that the rule in question confers a right on the sales tax inspector concerned to be considered for promotion to the post of STO if he passes the examination notwithstanding the fact that he failed to do so within the prescribed time and prescribed chances as per rules 4 and 5. And now, we are concerned with the crucial proviso which is the pivotal focus of the dispute. The proviso may be quoted once again in order to highlight its meaning and purpose. It reads thus: "Provided that he shall not be entitled to claim preference to those persons who may have passed the examination earlier." What is the true import of this proviso? The proviso may be quoted once again in order to highlight its meaning and purpose. It reads thus: "Provided that he shall not be entitled to claim preference to those persons who may have passed the examination earlier." What is the true import of this proviso? The proviso, on a plain reading, enjoins that a sales tax Inspector who has passed the examination in pursuance of the provisions made in the main part of rule 7 would become eligible for promotion to the post of S.T.O. But then, he would not be entitled to claim priority as against other Sales Tax Inspectors who may have passed the examination in question earlier. Till the Sales Tax Inspector concerned passed the examination under the main part of rule 7, he would suffer from a disability in the matter of being considered for promotion. As soon as he passed the examination, the disability or handicap would disappear and he would become eligible for being considered for promotions. But then, a question might still arise as to whether he would be entitled to claim to be considered in preference to those who were junior to him but who might have passed the examination earlier than him. And in order to resolve such a situation, the rule has made a provision in anticipation thereof that an inspector who passes the examination under the main part of rule 7 will not be entitled to claim preference vis-a-vis those who might have passed the examination at a point of time earlier than him. The sole test devised by the proviso is the time test. Only one question has to be posed and only one test is to be answered, viz. who passed the examination earlier in point of time. No other factor enters in the reckoning, when there are two rival claimants who are eligible for promotion, the only relevant and material consideration would be to pose the question who out of the two passed the examination earlier? If the rival claimant has passed the examination earlier in point of time, he would have to be considered for promotion in preference to the inspector who qualified himself by passing the examination (beyond the prescribed time after exhausting the prescribed chances) under the main part of rule 7. If the rival claimant has passed the examination earlier in point of time, he would have to be considered for promotion in preference to the inspector who qualified himself by passing the examination (beyond the prescribed time after exhausting the prescribed chances) under the main part of rule 7. And that situation has to be faced from the stand-point of time when the petitioners become entitled to be considered by reason of their having passed the examination and the obstacle in their way being removed. As soon as they become eligible to be considered, the question has to be examined vis-a-vis those who might also be eligible along with them. Those who might be eligible along with them would be parsons who have passed the qualifying examination either along with them or at a point of time earlier than them. At that point of time, no question of contemplating a claim of such person vis-a-vis those who might have passed the examination later can at all arise. And from the stand point of time factor, a line has to be drawn at the stage when the Inspector concerned passes the examination under the main part of rule 7 and becomes eligible for promotion for the first time. Those who have passed the examination earlier than such person fall on one side of the dividing line and would be entitled to, be preferred to the petitioners by reason of the principle embodied in the rules (which stands to reason) of the earlier point of time of passing the examination. One who passes the examination earlier naturally and understandably gets a Preference and by necessary imolilation it follows that one who passes the examination along with or later than such inspector would not be entitled to preference. The rule is not susceptible to any other interpretation for the expression earlier can in no case mean later and when the rule contemplates giving a preference to one when passes the examination earlier, it can never be contended that one who passes the examination later must be given preference. It would amount to interpreting the rule against the positive criterion embodied in the rule itself and in a manner which would be self-destructive and self-nugatory. It would amount to interpreting the rule against the positive criterion embodied in the rule itself and in a manner which would be self-destructive and self-nugatory. It is, therefore, not possible to accede to the argument advanced on behalf of the State Government that it is permissible to give preference to those inspectors who passed the examination later or subsequent to the petitioners even though the proviso in terms enjoins that preference can be given only to those who passed the examination earlier. And he fact that others passed the examination within the prescribed time and within the prescribed chances albeit subsequent to the petitioners is a matter of no consequence at all from the stand point of the rules. The test is a test of finding cut who passed the examination earlier and not as to whether he persons who passed the examination earlier passed it within the prescribed time and prescribed chances. To uphold the interpretation canvassed on behalf of the State is to held that, notwithstanding the clear provision made in letter person who passed the examination subsequently (and not earlier) will be entitled to preference merely because the persons who passed the examination subsequently passed it within the stipulated time and stipulated hence. Such an interpretation cannot be accepted unless one is to read rule 7 by adding thereto a further proviso to the effect that notwithstanding the fact that, if a person concerned passes the examination within the stipulated time aid prescribed chances, he would be deemed to have passed the examination earlier. No known canon of reconstruction would permit one to place such distorted interpretation on rule 7 besides it would lead to an absurd situation. A person who might be 10 or 11 places below the petitioners would become senior to the petitioners at the point of time of being considered for promotion merely by reason of the fact that he passed the examination within the prescribed time and prescribed chances. Once both the candidates are qualified and become eligible for being considered for promotion, they are in the same stream and on par in all respects. Then they belong to the same class. By distorting the interpretation of rule 7, a new sub-class of those who pass the examination within the prescribed time and prescribed chances cannot be introduced. Once both the candidates are qualified and become eligible for being considered for promotion, they are in the same stream and on par in all respects. Then they belong to the same class. By distorting the interpretation of rule 7, a new sub-class of those who pass the examination within the prescribed time and prescribed chances cannot be introduced. Once the petitioners are held to be eligible under the rules, they stand in the same queue as the others according to seniority. Unless the rule in terms provides that those who pass the examination within the prescribed time and within the prescribed chances will be deemed to be standing in a separate privileged queue, those persons could not have been accorded a preference in the matter of appointment. It is an admitted position that the State Government has so far under some misconception interpreted rule 7 in such a manner that the petitioners have not been considered to be eligible for promotion notwithstanding the fact that they have passed the examination long with or earlier than the rival claimants merely by reason of the fact that the rival candidates had passed the examination within the prescribed time and prescribed chances albeit along with or subsequent to assing of the examination on the part of the petitioners. On a true interpretation of rule 7 and the aforesaid relevant rules on which reliance as been placed, it is impossible to uphold the interpretation so far being placed by the State Government as canvassed by the learned Assistant Government pleader and the learned counsel for the respondents. The resultant position is that there is no scope from the conclusion that he petitioners have been kept out of consideration for promotion on an impossible and erroneous interpretation of rule 7 and they have been treated inspectors who were not entitled to be considered for promotion to the post of STO notwithstanding the fact that they had passed the examination. For doing so, irrelevant consideration and consideration which cannot be supported by the rules have entered in the reasoning. The petitioners are, therefore, entitled to succeed. It must be stated that during the pendency of this petition, the petitioners have been promoted some where in June 1976. The relief claimed by the petitioners will have, therefore, to be moulded in the light of the subsequent development. The petitioners are, therefore, entitled to succeed. It must be stated that during the pendency of this petition, the petitioners have been promoted some where in June 1976. The relief claimed by the petitioners will have, therefore, to be moulded in the light of the subsequent development. When the petition was filed, the petitioners claimed interim injunction restraining the respondent. State from making promotions without considering the claim of the petitioners in the light of their contentions in the present petition. Mr. Desai appearing for the State made a statement that "any promotion given in this connection would be subject to the decision of this special civil application." In view of this statement, no interim relief was granted. It, therefore, follows that, if any promotions have been made subsequent to the institution of this petition, the promotions have been made to the aforesaid condition. So far as respondents Nos. 3 to 11 are concerned, admittedly they are junior to the petitioners and they have passed the examination in question along with the petitioners or subsequent to passing of the qualifying examination on the part of the petitioners. The petitioners were, therefore, entitled to be considered for promotion along with respondents Nos. 3 to 11 as and when they were promoted. Justice and fair play, therefore, demands that the State Government considers afresh the claim of the petitioners to be entitled to be promoted at the point of time when respondents Nos. 3 to 11 were actually promoted. Of course, the petitioners would be entitled to claim their right to have been promoted at the material time only if they satisfied the basic condition for promotion incorporated in rule 2(a) of the Recruitment Rules of 1969, viz. that they were persons of proved merit and efficiency. The claim of the petitioners vis-a-vis respondents Nos. 3 to 11 will have to be considered from the stand point as to whether, if the petitioners had been considered for promotion along with the aforesaid respondents at the material time, the petitioners would have been promoted by reason of their being persons of proved merit and efficiency at the point of time when the question of promotion arose. 3 to 11 will have to be considered from the stand point as to whether, if the petitioners had been considered for promotion along with the aforesaid respondents at the material time, the petitioners would have been promoted by reason of their being persons of proved merit and efficiency at the point of time when the question of promotion arose. If the State Government comes to the conclusion that the petitioners would have been so entitled to be promoted, the State Government shall pass appropriate orders promoting the petitioners with effect from the relevant date by recourse to the formula of deemed date. The petitioners would thereupon for all intents and purposes be treated as having been promoted with effect from the deemed dates and they would be entitled to claim all consequential benefits claimable by them on that footing. Apart from the declaration to the aforesaid effect, no other relief can be or need be granted in the facts and circumstances of the case. It may be stated that the State Government will have to pass appropriate orders within three months of the receipt of a certified copy of this judgment being supplied to them on condition that they apply for an urgent certified copy within a week. 6. The petition is allowed. Rule is mace absolute to the aforesaid extent. There will be no order regarding costs. Petition allowed.