COMMISSIONER OF INCOME TAX Vs. A.P. AGGARWAL

JUDGEMENT

(1.) Respondent Nos.l and 2 filed Civil Writ Petition No.3350 of 1978 praying that respondent Nos.3 to 24 be declared junior to them and the order assigning them senior be modified. They further prayed that the official respondents be directed to consider the case of the writ petitioner for promotion with effect from the date when persons junior to them had been promoted. They also claimed all the consequential benefits. Vide judgment, impugned in this appeal, the writ petition was allowed by setting aside the impugned seniority list and order of the Board (Annexure R-l) with direction to the respondent-authorities to fix the seniority of the writ petitioners and private respondents in terms of the Government instructions attached with the petition as Annexure P-3. It was further held that the petitioners would be entitled to all the consequential reliefs, which flow from passing of the aforesaid order. The judgment impugned is stated to be against law and facts and not sustainable in view of the service Rules and the departmental instructions, issued from time to time.

(2.) We have heard the learned counsel appearing for the appellants and perused the records. No one has appeared for the contesting respondents.

(3.) Both the writ petitioners were appointed as Inspectors on the condition that they will be required to pass the departmental examination for inspectors according to Rules thereof and failure to pass the examination may involve loss of the appointment. It is also not disputed that they passed the examination in January, 1975, though they had taken the examination in July 1974. It is worthwhile to mention here that the writ petitioners were appointed as Inspectors in the Income Tax Department on November 28, 1969 and March 2, 1970. It has also been contended on behalf of the Department that recruitment to the post of Inspector was governed by the Rules known as Income Tax Department (Inspectors) Recruitment Rules, 1969, which came into force with effect from December 27,1969. According to these Rules, 33-1/3% of the vacancies were to be filled by direct recruitment and remaining 66-2/3% by promotion. Respondent Nos.3 to 24 had been promoted from amongst the Upper Divisional Clerks, Stenographers and Selection Grade Stenographers etc. who had qualified in the departmental examination for Income Tax Inspectors. The Departmental Promotion Committee confirmed respondent Nos.3 to 24 in its meeting held in October 1974 and no order could be passed regarding the petitioners as their result in the departmental examination held in July 1974, had not been declared. The writ petitioners were, however, later confirmed as Inspectors by the Departmental Promotion Committee, which met in November 1975, with effect from November 26, 1975. The representation filed by the wait petitioners about their delayed confirmation was not decided. It was submitted by the petitioners that in the absence of the Rules governing their seniority, the Department was required to determine the same in the light of the communication of the Government of India dated July 1,1964 (Annexure P-2) which laid down that in the case of appointments subsequent to July 1, 1964, seniority should be determined as envisaged in the Ministry of Home Affairs' communication dated December 22, 1959, read with communication dated April 20, 1961. Para 6 of annexure P-3 provided that the relative seniority of direct recruits and of promotees was to be determined according to the rotation of vacancies between direct recruits and promotees, which was required to be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules. The appellants determined the seniority of the Inspectors as on October 21, 1972, vide their letter dated March 19, 1977, wherein the writ petitioners were shown at Nos.48 and 56 whereas respondent Nos.3 to 24 were shown between Nos.74 to 104. Subsequently, vide letter dated October 24, 1977. The respondent authorities put the writ petitioners at Nos.70 and 71 and the contesting respondents in the writ petition at serial Nos.42 to 69. The representation filed by the writ petitioners were rejected vide letter dated June 16, 1978 (Annexure R-l). The appellants justified the upsetting of the seniority list on ground that as the writ petitioners had not passed the departmental examination within the prescribed period, they were neither entitled to be confirmed as Inspectors nor shown as senior that respondent Nos.3 to 24. The learned Single Judge considered the rival contentions and held as under:-