R S DHABA Vs. UNION OF INDIA

JUDGEMENT

(1.) R. S. Dhaba Petitioner in this writ petition under Art. 226/227 of other constitution has prayed for quashing of the order passed why the Commissioner of income-tax respondent No. 2 on 22nd May, 1961, revering him form the post of officiating Income-tax Officer, Class II to that of officiating Inspector of Income-tax (Annexure B ).

(2.) A few relevant facts may be stated. The petitioner on 28th April 1947, joined the Income-tax Department as an upper-division clerk. He was confirmed in this post with effect from 1st December, 1949. He successfully passed the departmental examination in the year 1951 and was promoted as Inspector of income-tax with effect from 25th October. 1951. He was given the second lift and appointed as officiating Income-tax Officer. Class II on 11th April, 1953. The government of India, Home Affairs Memorandum No. F. 44/1/59-Estb (A), dated 15th April, 1959 (Annexure F) provides: "it is, therefore, recommended that those promoted as well as the fresh entrants to a service should be kept on probation for a period of two years. The controlling authority may, however, have the discretion to count any period of successful officiation in the service as probationary period. While the normal probation may certainly be extended in suitable cases, it is not desirable that an employee should be kept on probation for years as happens occasionally at present. It is, therefore, suggested that, save for exceptional reasons, probation should not be extended for more than a year and no employees should be kept on probation for more than double the normal period". Shri M. Kasivisvanatha Pillai, Income-tax Commissioner, on 6th February, 1964, wrote a demi-official letter to Shri S. P. Pande, Secretary, Central Board of Direct taxes, New Delhi, suggesting that the petitioner's record was unsatisfactory and that he proposed to revert him to the post of Inspector after giving him notice. He solicited approval of the Board and also wanted to be enlightened about the procedure he was required to follow in giving notice and issuing order of reversion finally. In this letter he referred to the unsatisfactory state of record of the petitioner and many complaints received boy the Department against his integrity and also the advice of the Chairman of the Departmental promotions Committee that the petitioner should be given notice and recreated. A copy of this letter is on the Departmental file produced by the learned counsel for the respondents and was indeed referred to during the course of arguments. On receipt of the advice from the Central Board of Direct Taxes, Shri S. R. Mehta, who succeeded Shri M. Kasivisvanatha Pillai as Income-tax Commissioner, passed the impugned order in exercise of his powers under Exception IV below Rule 13 of the Central Civil service (Classification, Control and Appeal) Rules, 1957. The petitioner alleged that there were 38 persons working as Income-tax Officers, class II who were junior to him at the time when he was reverted and subsequent to his reversion more persons junior to him had been promoted as Income-tax officers, Class II. He impugned the validity of the order of his reversion on the grounds that he had been officiating for eleven years as Income-tax Officer, and the order demoting him to the post of officiating Inspector of Income-tax was male fide on the face of it, that Shri S. R. Mehta passed this order without applying his mind and that the order of reversion attached a stigma against him and would very much stand in his way for future promotions. The other grounds mentioned by him in the petition in support of his prayer were not pressed at the time of arguments and so need not be mentioned here.

(3.) THE respondents in their written statements pleaded that the petitioner was appointed as officiating Income-tax Officer because he had passed the departmental examination and not that he had an outstanding record, that Shri S. R. Mehta passed the impugned order after applying his mind and that the action taken against the petitioner was not male fide. According to them the petitioner was reverted because his working was not found satisfactory and that there was no stigma attached in his reversion and as such the provisions of Art. 311 of the constitution could not be availed of obey him. They finally urged that the petitioner being the holder of the post in officiating capacity only could be reverted and the reversion in his case was not by way of punishment but merely to ensure the efficiency of the service.