PARMANANDA PEGU Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this application under Article 226 of the Constitution, the petitioner has prayed for quashing of the notification dated 24.8.92 by which the respondents 3 to 5 were promoted to the posts of Assistant Commissioner of Taxes and the respondents 6 to 19 were promoted to the posts of Superintendent of Taxes and for a direction on the respondents 1 and 2 to consider the case of the petitioner for promotion to the said post.

(2.) The facts briefly are that the petitioner appeared in the competitive examination held by the Assam Public Service Commission and was selected for Assam Taxation Service - Class-II and was appointed as Superintendent of Taxes by notification dated 19.2.76. He joined the said post of Superintendent of Taxes on 2.3.76 and has been working as such in the said post. Ely a notification dated 25.6.82, the Government of Assam in the Finance Department (Taxation Branch) approved a gradation list of Superintendent of Taxes and in the said gradation list, the petitioner was shown against serial No. 54. Thereafter by a notification dated 31.12.91, the Government of Assam approved provisionally under Rule 17 of the Assam Taxation Service Rules, 1962 (for short, 'the 1962 Rules), a gradation list of Superintendent of Taxes in order of their seniority. In the said gradation list, the position of the petitioner was shown against serial No. 8 and the position of the respondents 3 to 19 were shown against serial Nos. 1, 11, 12, 2, 3, 4, 6,7, 9, 10, 15, 16, 18, 19, 20, 23 and 30 respectively. By a notification dated 24th August 1992, the respondents 3 to 5 were promoted to the posts of Assistant Commissioner of Taxes and by another notification dated 24.8.92, the respondents 6 to 19 were promoted to the posts of Senior Superintendent of Taxes, a new cadre which was created by notification dated 20th November, 1991 of the Government of Assam, Finance (Taxation Branch) Department. The petitioner's grievance is that although some of the private respondents are junior to him in service, they have been promoted to the said posts of Assistant Commissioner of Taxes and Senior Superintendent of Taxes while the petitioner's case has not been considered at all for such promotion contrary to Rule 7 of the 1962 Rules which provides for promotion on the basis of seniority-cum-merit.

(3.) At the hearing of the writ petition, Mr. G.N. Sahewalla, learned counsel appearing for the petitioner, submitted that the only ground for not considering the case of the petitioner for promotion to the post of Assistant Commissianer of Taxes and Senior Superintendent of Taxes taken by the State- respondents 1 and 2 is that the petitioner has not taken the departmental examination and was consequently not confirmed in service, but this ground was not legally tenable as the petitioner is deemed to have been confirmed in service on completion of the maximum period of 4 years' probation as provided in Rule 14 of the 1962 Rules. Mr. Sahewalla relied on the decision of the Supreme Court in the case of Dayaram Dayal-Vs-State of M.P. (1997) 7SCC443,in which it has been held that where the Rules provided for maximum period of probation and the officer continued beyond the said maximum period of probation, he is deemed to have been confirmed on expiry of the said maximum period of probation. According to Mr. Sahewalla, since Rule 14 of the 1962 Rules provided for a maximum period of probation of 4 years and the petitioner has completed the said maximum period of probation of 4 years on 2.3.80, he is deemed to have been confirmed in service with effect from 2.3.80 and he should have been considered for promotion to the post of Assistant Commissioner of Taxes/Senior Superintendent of Taxes before his juniors in service were considered for promotion to the said post in accordance with the principle of seniority-cum-merit laid down in Rule 7 of the 1962 Rules. Mr. Sahewalla cited the decision of a Division Bench of this Court in the case of Tulika Das -Vs- State of Assam & On., (1995) 2 GLR 449, (1995 (2) GLT 450) in support of his argument that the merit of the petitioner who was senior to some of the private respondents should have been judged first before the cases of the junior officers were considered for promotion to the posts of Assistant Commissioner of Taxes and Senior Superintendent of Taxes.