C.V.ANTONY vs. THE CHAIRMAN, CENTRAL BOARD OF DIRECT TAXES

The respondents resisted the claims and contentions of the petitioner by filing reply statement. After considering the rival contentions and perusing the materials on record, the Tribunal dismissed the original application. In this original petition, besides seeking quashment of Ext.P1 order viz., the order passed by the Tribunal in O.A No.955 of 2014, he seeks for the following reliefs:- i) To call for the records leading to Exhibit-P1 and to set aside the same. ii) To call for the records leading to Annexure-A11 dated 19-8-2014 and to set aside the same. Iii) To declare that the stipulation of cut-off date of 26-5-2008 for implementation of Rule VI of the Modified Rules contained in Annexure A-12 is arbitrary and violative of Articles 14 & 16(1) of the Constitution of India. iv) To declare that the Modified Rules as evidenced by Annexure-A12 for the Departmental Examination for Income Tax Officers shall take effect retrospectively and the petitioner is eligible to be promoted to the category of Income Tax Officer with retrospective effect. v) To direct the respondents to declare that the petitioner has passed the Departmental Examination for Income Tax Officers held in the year 2003 and to grant him 2 advance increments with effect from 17-11-2003 being the last date of the examination held in the year 2003. vi) To direct the respondents to promote the petitioner as Income Tax Officer with effect from 7-4-2005, the date on which his junior Sri.C.Vinod Jayan was promoted and, grant him consequential monetary benefits including relaxation of pension and other terminal benefits.

A short prelude is inevitable for considering the claims and contentions of the petitioner appropriately. While he was in service, the petitioner had appeared for Departmental Examination, consisting of five subjects, for promotion to the post of Income Tax Officer, in the years 2000, 2001, 2002 and 2003. Departmental Examination Rules for Income Tax Officers, 1998 was in force during that period. Income Tax Law, viz., the first subject, got two parts with 100 marks each. Going by the 1998 Rules, apart from 60% marks in the designated subjects, 60% marks in aggregate was to be scored to pass the examination for earning eligibility for promotion. The petitioner could not pass the examination as he had fallen short of the requisite 60% of marks. Virtually, claiming for a declaration that he is entitled to carry forward the excess marks scored in one particular year to make good the shortage of marks in the next year examination so as to obtain a pass in the examination for the purpose of promotion, he approached the Tribunal by filing O.A.No.287 of 2005. He contended that in the examination held in the year 2000, for the subject 'Book Keeping', he obtained 64 marks and thereby secured four marks in excess of the prescribed qualifying mark of 60. In the examination held in 2001, in the subject 'Office Procedure', he obtained 60 marks and for Accounts and Language test, he scored 90 marks out of 150. It is to be noted that by the year 2003, he got Income Tax Law (consisting of two papers viz., Income Tax Law-I and Income Tax Law-II) to be cleared. In fact, he appeared for the said papers in the year 2002 and then, in the year 2003. In the year 2002, he obtained only 57 and 56 marks and in the year 2003, he obtained 44 and 37 marks respectively for the said papers. It is in the said circumstances that he took up the contention that to make good the shortage of three marks for Income Tax Law-I and four marks in Income Tax Law-II excess marks scored by him for Book Keeping and the other subjects mentioned hereinbefore should be reckoned and adjusted. Raising such contentions, he sought for a declaration that he passed the said papers in the year 2003. In this context, it is relevant to note that a pass in all the subjects in the examinations prescribed under the 1998 Rules would have made him eligible for two advance increments in the category of Income Tax Inspectors and also for promotion to the post of Income Tax Officer. The said original application was dismissed as per order dated 4.6.2007. He challenged the same before this Court by filing W.P.(C) No.30706 of 2007 and it was dismissed as per Annexure A7 judgment. The petitioner had challenged Annexure A7 judgment before the Apex Court in SLP (C) No.6116 of 2008. During its pendency, the petitioner had retired from service on 30.9.2008 upon attaining the age of superannuation. The said Special Leave Petition was dismissed as per Annexure A8 order dated 21.10.2013. Thus, the matter had indisputably attained finality. According to him, only thereafter he came to know about the introduction of Modified Rules for the Departmental Examination for the Income Tax Officers-1998 (for short 'the Modified Rules') whereby the 'Pass Percentage' in Rule VI of the Departmental Examination Rules for ITOs 1998, prescribing requirement of 60% of marks for passing each of the subjects was modified and reduced to 50%. Thereupon, he filed Annexure A9 representation dated 19.7.2014 contending that prescription of cut off date for applying the reduced percentage of marks for the subjects in the Departmental Examination for Income Tax Officers to earn eligibility for promotion to the post of Income Tax Officer viz., from 60% to 50% viz., only with prospective effect, is unreasonable. Virtually, the petitioner was claiming the benefit of reduction of percentage of marks. The Tribunal had declined to accept the contentions of the petitioner against the prescription of lower percentage of eligibility marks only prospectively and the claim for its retrospective effect from the year 2003. Consequently, the original application was dismissed. It is this order that is under challenge in this original petition.

Various contentions have been raised by the petitioner before us to challenge the order in O.ANo.955 of 2014. The following twin contentions were mainly raised by the petitioner to assail the amendment brought in, by the Modified Rules:-

Giving effect to Rule VI: 'PASS PERCENTAGE' of the modified rules contained in Annexure A12 only from 26.5.2008 would tantamount to stipulation of cut off date as 26.5.2008 hence, leading to unreasonable classification and thereby violation of Articles 14 and 16(1) of the Constitution of India.

In fact, the Tribunal, on appreciation of all the contentions including the aforesaid twin contentions, found that the attempt on the part of the petitioner is to get the benefit granted by the Modified Rules extended to the year 2003 disregarding the specific provisions to the contra and held that results of the Departmental Examinations for a particular year are to be evaluated in the light of rules then in vogue and the attempt of the petitioner seeking application of the Modified Rules as regards examinations conducted in the year 2003 ignoring the Rules then in force viz., Departmental Examination Rules for Income Tax Officers, 1998 is absolutely impermissible. The Tribunal had also considered the contentions raised before it by the petitioner relying on the decision in Zile Singh v. State of Haryana [(2004) 8 SCC 1] and repelled it holding that the revised set of guidelines contained in the Departmental Examination Rules 2007 were not brought in, to supplement an omission or as explanatory or declaratory in nature.

Before us, the petitioner reiterated the contentions unsuccessfully raised before the Tribunal and especially, the twin contentions mentioned hereinbefore. According to him, prescription of only 50% marks for a pass as per Annexure A12, only from 26.5.2008, would amount to hostile discrimination of the persons like the petitioner who were governed by the pre-modified Departmental Examination Rules and thereby required to obtain 60% marks in designated subjects as also in aggregate to earn eligibility for promotion. In short, it is the contention of the petitioner that the requirement of only 50% marks ought to have been given retrospective effect and thereupon, as a consequence, he should have been declared as eligible to be promoted to the category of Income Tax Officer with retrospective effect. According to him, in such eventuality, he would be entitled to get a direction for promotion to the post of Income Tax Officer with effect from 7.4.2005, the date on which his immediate junior Sri.C.Vinod Jayan was promoted, with consequential benefits including re-fixation of pay and terminal benefits. In support of the said claim and contentions, the petitioner relied on the decisions of the Hon'ble Apex Court in Indra Sawhney v. Union of India [AIR 2000 SC 498]

Virtually, the decision in Indra Sawhney's case is relied on to canvass the position that it would be impermissible for the Executive or Legislature to remove a defect which is the cause for discrimination, only prospectively and that it could be removed only retrospectively. No specific contention has been taken by the petitioner, either before the Tribunal or before this Court, to the effect that the modified rules in Annexure A12 were issued to correct a mistake. Even if such a specific contention was taken, it could not have been sustained in view of the nature of modification brought in, as per Rule VI of the modified rules in Annexure A12 as regards 'pass percentage' in Departmental Examination for Income Tax Inspectors. What was actually done thereunder is not correction of a mistake and it was nothing but a reduction of pass percentage from 60% to 50%, in the manner specifically mentioned therein consequent to the introduction of Departmental Examination Rules for Income Tax Officers, 2007 in place of 1998 Rules. Among other the question whether it would be possible for the Executive or Legislature to remove a defect which is the cause for discrimination only prospectively when the said action was declared as violative of the provisions of Part III of the Constitution by the Court, was considered by the Hon'ble Apex Court. The case on hand carries a totally different situation. We have already found that the modification, rather the amendment, brought in as per Rule VI 'PASS PERCENTAGE' is not correction of a mistake. So also, it is to be noted that it is a case where the claim for promotion of the petitioner from the year 2003 was already decided against him and it had attained finality with Annexure-A8 order. In short, the contention based on the decision in Indra Sawhney's case is absolutely bereft of any basis.

Decision in John Vallamattom's case (supra) is relied on to canvass the position that by giving prospectivity to the aforesaid rule viz., rule VI relating to 'pass percentage', equality clause under Article 14 and 16(1) was violated. According to the petitioner, an unreasonable classification had occurred in view of the prospective nature of Rule VI in Annexure A12 modified rules and there was no intelligible differentia for such classification. In John Vallamattom's case, the Hon'ble Apex Court was considering the validity of certain provisions under the Succession Act (Act 39 of 1925). In the said decision, the provisions governing bequest for religious or charitable uses were considered based on the ground of lacking intelligible differentia having nexus with object sought to be achieved. We are at a loss to understand as to how the said decision is relevant and applicable to the case on hand where provision regulating departmental examinations to qualify for promotion as regards the pass percentage was reduced by introducing modified Rules and was given effect only from 26.5.2008. The decision in Belwant Singh's case (supra) restated the position that the Constitution cast a duty on State and its authorities to ensure that every citizen's cherished guaranteed rights under the Constitution are respected and preserved and he should be allowed to enjoy them in letter and spirit, subject to reasonable restrictions. Here again we do not understand how the said decisions could be made applicable. It may be true that the petitioner had been cherishing promotion as Income Tax Officer from 2003. But, there is no fundamental right to get promotion under the Constitution. It guarantees only consideration for promotion ahead of juniors. In this case, promotion to ITO is not based on mere seniority and pass in Departmental Examination is a quintessential qualification for the same. The pass percentage at the relevant point of time was 60% and it was modified and prescribed only with effect from 26.5.2008. He must have had the chance of promotion as Income Tax Officer in case he had passed the departmental examination while he was in service. He retired from service on 30.9.2008 and the provision under Rule VI in Annexure A12 was given effect only from 26.5.2008. 9. In the contextual situation, it is relevant to refer to Rule VI: 'PASS PERCENTAGE' of the modified rules in Annexure A12 (Ext.P5) and Rule VI(1) thereunder reads thus:- A candidate will be declared to have completely passed the Departmental Examination for ITOs if he secures a minimum of 50% (45% in the case of SC/ST candidate) in each of the following subjects: (i)Income Tax Law (2 papers) Combined aggregate of 50% (45% in the case of SC/ST candidate) in both papers. (ii) Other Taxes (iii) Book-Keeping (iv) Office Procedure (v) Examination of accounts and Language Test Paper. It is thus obvious that this reduced percentage of pass mark is applicable only from 26.5.2008. For considering the contention further, it is relevant to refer the 'introduction' to the modified rules and also Rules-IV, therein. They read thus:- INTRODUCTION These rules may be called the Modified Departmental Examination Rules for INCOME TAX OFFICERS, 1998. These rules will be applicable for the Departmental Examination to be held in 1998 onwards and will not have any retrospective application (All the Departmental Examinations for ITOs held upto 1997 and results declared thereon would continue to be governed by the Rules for the Departmental Examination for ITOs issued under this Directorate's letter F No.EG(20)(8)93/DIT/6603 to 6625 dated 18/26.11.1993 as amended from time to time. Rule IV: CHANCES PERMISSIBLE AND AGE LIMIT A maximum of 10 number of chances may be availed of by a candidate provided his or her age as on 1st April of the year of examination does not exceed 55 years (in the case of SC/ST candidate, there shall not be any age limit)

The petitioner is obviously relying on the introductory part, more particularly, that portion of the same which makes 'the Modified Rules' applicable for the Departmental Examination to be held in 1998 onwards. True that the words 'to be held in 1998 onwards' were used therein. But, the fact is that examinations for the year 1998 and subsequent years were completed by then and hence, the petitioner could not be heard to contend that based on the lowering of the 'Pass Percentage' from 26.5.2008, he should be declared to have passed the examination. True that it was made clear therein that all the Departmental Examinations for Income Tax Officers held upto 1997 and the results of which were declared would continue to be governed by the Departmental Examination for ITOs issued under the Directorate's letter F.No.EG(20) (8) 93/DIT to 6625 dated 18/26.11.1993 as amended from time to time. As noticed hereinbefore, the petitioner had appeared for the Departmental Examinations to be cleared for promotion to the post of Income Tax Officer in the years 2000, 2001, 2002 and 2003. During those relevant periods, it was being governed by the Rules for the Departmental Examination for Income Tax Officers-1998. The rules relating to the conduct of the Departmental Examinations were modified and the percentage required for a pass was reduced to 50% for each paper only as per the 'Modified Rules' and Modified Rules relating to pass percentage viz., Clause VI was given effect only from 26.5.2008. Hence, how can the petitioner bring in a challenge on the ground of discrimination and canvass the position that it should be deemed to have come into operation with retrospective effect from 1998 as relates 'pass percentage'? In Clause VI, it was specifically made clear that the Modified Rules relating lowering of 60% to 50% would be effective only from 26.5.2008, presumably because of the doubtful position likely to arise on perusal of the aforesaid recital in the introductory part. There can be no doubt with respect to the position that every legislation is prima facie prospective unless it is expressly or by necessary implication given retrospective operation. It is the well settled rule of interpretation hallowed by time and sanctified by judicial decisions that unless the terms of the statute expressly or by necessary implications require retrospective operation it should not be given retrospective effect. Virtually, an amendment

To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a Writ Petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc, affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In fact, we are also of the view that the Tribunal need not have undertaken such a consideration of the contentions of the petitioner, as has been done under the impugned order. This is because of the following indisputable aspects. As noticed hereinbefore, earlier the petitioner had approached the Tribunal by filing O.A.No.287 of 2005. Essentially, the claim therein was for making good the shortage of marks required for achieving 'pass percentage' in respect of the two papers of Income Tax Law by adjusting the excess marks obtained by him in other subjects. The said original application was dismissed by the Tribunal as per Annexure A6 order dated 4.6.2007. He challenged Annexure A6 order by filing W.P.(C).No.30706 of 2007 and it was dismissed as per Annexure A7 judgment dated 17.10.2007. As noticed hereinbefore, the petitioner had thereupon unsuccessfully challenged Annexure A7 judgment before the Apex Court by filing SLP (C) No.6116 of 2008. The said SLP was dismissed as per Annexure A8 order dated 21.10.2013. Admittedly, the Modified Rules was introduced while his pursuit for achieving promotion in the aforesaid manner was pending, in the year 2007. The petitioner has not chosen to raise the claim and contentions now raised in O.A.No.955 of 2014 appropriately, immediately on the introduction of the Modified Rules. It is true that it was introduced only after the institution of O.A No.287 of 2005 and the order passed thereon had ultimately attained finality only upon passing Annexure-A8 dated 21.10.2013 by the Hon'ble Apex Court. Despite its introduction, the petitioner has chosen only to pursue with his claim and contentions originally raised in O.A.287 of 2005. As can be seen from Annexure A8, the claim and contentions raised in the said O.A was rejected by the Tribunal as per Annexure A6 order and it had become final, against the petitioner as per Annexure A8 judgment of the Apex Court. Even thereafter, the petitioner had not chosen to approach the Tribunal raising challenge against the Modified Rules, more particularly against Rule 6 therein, within a reasonable time. Obviously, he approached the Tribunal raising such challenge only in the year 2014 i.e., after about 7 years since the introduction of the Modified Rules and only after being unsuccessful in his attempt to get promotion based on the contentions mentioned earlier raised in O.A.No.287/2005. Indubitably, in the meanwhile, several persons obtained promotions.

We have already extracted the prayers sought for by the petitioner in O.ANo.955 of 2014. In the aforementioned context, it is only appropriate to refer to the reliefs sought for by the petitioner in the Original Application earlier filed by him viz., O.A.No.287 of 2005. It reads thus:- “8(i) To call for the records leading to Annexure A1 and set aside the same in so far as it does not declare the applicant passed in the Examination. (ii) To call for the records leading to Annexure A-5 and set aside the same. (iii) To declare that the applicant is deemed to have been succeeded in the Examination for Income-Tax Officers held in 2003 and eligible to be promoted as Income-Tax Officer in the available vacancy in preference to his juniors, with consequential fixation of pay. (iv) To direct the Respondents to grant two advance increments to the applicant in the category of Income-Tax Inspector w.e.f. 17.11.2003, the last date of Departmental Examination for Income Tax Officers 2003, consequently on the declaration as sought above. (v) To direct the respondents to promote the Applicant as Income Tax Officer, forthwith. (vi) Any other appropriate order or direction this Hon'ble Tribunal deem fit in the interest of justice.”

A mere comparison of the prayers made by the petitioner particularly, prayer Nos.'B' and 'C' in O.A.No.955 of 2014 and prayer Nos.8(iii) and (iv) in O.A.No.287 of 2005, would reveal that they are virtually one and the same. In this context, it is only proper to have a comparison of the prayers sought for in those two OAs and they read as follows:- O.A.No.287 of 2005 O.A.No.955 of 2014 (iii) To declare that the applicant is deemed to have been succeeded in the Examination for Income-Tax Officers held in 2003 and eligible to be promoted as Income-Tax Officer in the available

A perusal of the reliefs sought for by the petitioner in O.A No.287 of 2005 and in O.A No.955 of 2014 would reveal that in essence, they are one and the same made with a purpose to redress his grievance regarding non-grant of advance increments with effect from 17.11.2003 and to obtain promotion to the category of Income Tax Inspector with retrospective effect. Whatever be the ground such prayers were dismissed by the Tribunal and the verdict of the Tribunal in O.A No.287 of 2005 was confirmed by this Court and concluded and attained finality with Annexure A8 order passed by the Apex Court. Merely by mounting challenge against the modified rules, the petitioner cannot be permitted to resurrect the aforesaid questions based on the principle of res judicata. The petitioner cannot be permitted to raise new contentions in the light of the 'ought and might' principles contained in the doctrine of constructive res judicata. For the foregoing reasons, we find absolutely no ground to interfere with the order passed by the Tribunal in O.A.No.955 of 2014. Consequently, this original petition is dismissed. C.T.RAVIKUMAR JUDGE V.G.ARUN JUDGE