MEGHMALA DISCRETIONARY FAMILY TRUST vs. INCOME TAX OFFICER
What did the High Court hold?
The High Court dismissed the petition, primarily on the grounds of delay and laches. It noted that the petitioner approached the court more than three years after his representation was rejected and approximately 12 years had passed since the 2011 examination results were declared. The court cited the Apex Court's decision in *Ranvijay Singh and others vs. State of Uttar Pradesh and others* (2018) 2 SCC 357, which emphasizes that courts should be slow to grant relief when claimants have lost time or whiled it away without asserting their rights promptly. The court also referred to *Vikesh Kumar Gupta vs The State Of Rajasthan*, holding that it is not open for a Division Bench to examine the correctness of questions and answer keys against the opinion of an Expert Committee. While acknowledging that the issue of merits was kept open, the court found no reason to entertain the petition due to the significant delay and the principle of laches, and also noted that there were no apparent wrong answers concerning the Income Tax Act itself.
What were the facts?
The petitioner, Shailendra Kumar Gupta, an Inspector of Income Tax, challenged the Central Administrative Tribunal's (CAT) order dated April 5, 2022, which dismissed his application. The petitioner sought to be declared as having passed the departmental examination for Income Tax Officer held in 2011, claiming he was declared fail due to wrong answer keys. He entered service on October 20, 2008, and was promoted to Income Tax Officer on December 22, 2014. The departmental examination, governed by the Amended Departmental Examination Rules for Income Tax Officers, 2009, required 50% marks in each of the four papers and in aggregate, with a provision for grace marks. The petitioner applied for recounting of Paper IV marks after the 2011 result, but no error was found. He later passed the examination in September 2013. He discovered potential errors in answer keys for Paper II and an unchecked portion in Paper IV after invoking the Right to Information Act.
What were the issues?
1. Whether the petitioner is entitled to be declared as having passed the departmental examination held in 2011, considering alleged errors in the answer keys and an unchecked portion of his answer sheet, thereby affecting his seniority and consequential benefits? (Question of mixed law and fact, concerning the interpretation and application of the Amended Departmental Examination Rules for Income Tax Officers, 2009). Assessee's Contentions: The petitioner argued that the department's answer key for Paper II contained incorrect options for questions 52 and 99, and that a part of his answer sheet for Paper IV (Question No. 1(B)) was not checked. He contended that these errors led to his failure in the 2011 examination, and that a subsequent revision of answer keys in another examination indicated potential flaws in the department's evaluation process. He relied on the principle of treating similarly situated persons alike. Revenue's Contentions: The judgment does not explicitly record the revenue's contentions. However, the Tribunal's decision, as challenged by the petitioner, implies that the revenue likely defended the original examination results and the Tribunal's dismissal of the application. The High Court's reasoning later focuses on delay and laches, suggesting the revenue may have argued against entertaining the petition after such a long period.
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT (PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
The petitioner seeks to challenge the judgment and order dated 05.04.2022 of the Central Administrative Tribunal in Original Application No.116 of 2015 dismissing the application by denying the petitioner the seniority of declaring him to be clearing the examination in the year 2011 with the following reliefs: “5… a. Writ of Certiorari or Writ, order or direction in the nature of Ceriorari quashing the order dated 05.04.2022 of Central Administrative Tribunal in Original Application No.116/2015 dismissing original application of petitioner and by allowing petitioner benefit of seniority by declaring petitioner as pass in the result of the examination held in 2011, wherein he was declared as fail, due to wrong answer keys by the respondent no.3 and to allow all consequential benefits; b. Pending further hearing and final disposal of this petition, to allow benefit of seniority by declaring petitioner as pass in the result of the examination held in 2011, wherein he was declared as fail, due to wrong answer keys by the respondent no.3 for all further promotions by DPC; c. Pass any other order(s) as this Hon’ble Court may deem fit and more appropriate in order to grant interim relief to the petitioner; d. Any other and further relief deemed just and proper be granted in the interest of justice; e. To provide for the cost of this petition.”
Brief facts leading to the present petition are as follow:
1 The petitioner is a post graduate in a science stream (M.Sc.) who entered the service of Income Tax Department as direct recruit in the cadre of Inspector of Income Tax on 20.10.2008 in pursuance of the selection for the recruitment year 2005-06. He was granted the promotion to the post of Income Tax Officer by the order dated 22.12.2014. He had an unblemished service record.
2 While he was working as an Income Tax Inspector in Surat in September 2011, the respondent No.3 conducted a departmental examination for Income Tax Officer, which was for the promotion to the post of Income Tax Officer (ITO) as governed by the Amended Departmental Examination Rules for Income Tax Officers, 2009. They were made applicable from the year 2010 and onwards. The examination is held by the Director of Income Tax, New Delhi once in a year, on behalf of the CBDT, New Delhi. A CIT is nominated by the CCIT being the Cadre Controlling Authority which is responsible for the proper conduct of the departmental examination.
3 The departmental examination comprises of 4 papers having maximum 100 marks namely Paper-I Income Tax Law and Computation (Without
Books),
Paper-II
Advanced Accountancy (Without Books), Paper-III Allied Laws (Without Books) and Paper-IV Income Tax and Accountancy (Combined Practical) (With IT Act and Rules). The Ist, IInd and IIIrd papers comprised of objective type questions and the IVth one i.e. Income Tax and Accountancy would be a subjective type questions.
4 To qualify in the departmental examination candidate is required to obtain minimum 50% marks in each subject and 50% marks in aggregate. The grace marks maximum are 7 under the provision.
5 The petitioner offered his candidature to take part in the departmental examination and when in the last week of December 2011, the result was uploaded in the official website, he could know that he was awarded 53 marks in the first paper, 48 marks + 2 grace marks for the second paper, 53 marks for the third paper and 43 marks for the fourth paper and hence, he was declared fail.
6 The petitioner since expected higher marks in the fourth paper and as Rules 2009 permitted him to seek recounting of the marks for the subjective type paper, he had immediately made an application on 06.01.2012 with its enclosures through proper channel praying for recounting of the marks of paper IV. The department on the basis of the aforesaid result of the departmental examination had come out with an office order dated 12.01.2012, whereby 35 candidates have been declared to have qualified in the departmental examination including some of the persons who were junior to the petitioner in the cadre of Inspector of Income Tax.
7 On 11.05.2013, the petitioner received a communication issued by CCIT, Surat where on considering his request for recounting of the marks in paper IV, no error was detected.
8 It is the say of the petitioner that having resigned to his fate, he again appeared in paper-IV of the departmental examination held in September 2013, where he was declared as having passed the said examination.
9 In the month of May 2014, it was noticed by him that one Shri Rajivkumar Pawan serving as Senior Tax Assistant appeared in a similar departmental examination meant for grant of promotion to the post of Inspector of Income Tax and made a representation praying for re- evaluation of his answer in Paper-I and the said authority in CBDT vide letter dated 01.05.2014, acceding to his request for revision of the marks, has considered the said request and found his answers correct of both the questions. 2.10 The petitioner, therefore, invoked his rights under Right to Information Act, 2005. He had sought for the copies question papers of a series of ITO Examination of FY 2011-12 of Paper I, II, III and IV. Answer Sheets of all papers, Answer Keys of the papers, etc.
11 It was realized that in Paper-II objective type (Advanced Accountancy), the correct answer for question No.52 the option given was (b) whereas the department in its answer key has taken the answer option (a). In question No.99 also the option given was (b) whereas the department in its answer key had given the option (d). The subjective paper-IV of Income Tax Law and Accountancy the answer sheet for paper- IV the question No.1(B) had not been checked and he was awarded 8 marks out of 10 for A Part of question No.1, whereas in Part B, question carrying 10 marks the same is totally unchecked. It is his case that he could have been declared successful in the departmental examination.
12 The petitioner,
therefore, approached
the Tribunal
when
his representation had been rejected on the basis of technicalities like restriction of re-evaluation of questions contested by him and then it was also rejected on merits of the answer keys. The Tribunal after detailed discussion has not entertained the original application and that has aggrieved the petitioner.
We have heard extensively learned advocate, Mr.Hardik Vora, who has taken us through various scheme of Examination Rules. The scheme of the Amended Departmental Examination Rules for Income Tax Officers, 2009, which are applicable for the departmental examination from Calender Year 2010 onwards. According to him, the requests are being entertained for re-evaluation or retotalling of the answer sheets for the objective type papers as well. The fetter which has been placed of 45 days in subjective type papers is not available in objective type. He has also further relied on communication in case of one Mr.Rajivkumar Pawan, who appeared in the year 2013 for the examination and whose request was acceded to by the Directorate of Income Tax (IT Exam). He has emphatically pointed out as to how the answer keys of question No.52 and 99 in first paper of accounting are not correct. They may be true for Income Tax Papers, but not for the Accounting Papers. The right answers are the answers given by these applicants. He urges that if the petitioner clears these two questions, the grace marks which have given in that objective type of paper No.II can be given to him in paper No.IV where he missed by two marks as the total grace marks available to any candidate is seven marks. This also has a major impact on his promotional career and hence, he has requested that the department ought to have taken into consideration his request.
We notice that the result of examination conducted by the respondent being the examination for the Income Tax Officers is out on 12.01.2012, whereas this representation was made on 26.08.2014. This was under the background that he had already cleared the examination in a subsequent attempt in the month of September 2013 and he was declared as successful. However, in the month of May 2014, when it came to his notice that one Mr.Rajivkumar Pawan serving as Senior Tax Assistant in Patan, Gujarat appeared in this similar departmental examination of the year 2013 meant for grant of promotion to the post of Income Tax Inspector made a representation on 17.01.2014 to the DIT (Exam), CBDT, New Delhi and requested for re-evaluation of his answers in paper-I objective type. The authority had entertained the same and acceded to his request and also the request of one Mr.Sureshkumar for evasion his marks.
We shall need to reproduce Rule X of the Amended Departmental Examination Rules for Income Tax Officers, 2009 here: “X a) A candidate aggrieved by the order of punishment by the Competent Authoirty under Rule VIII may within 30 days of the receipt of the said order represent to the Director General of Income Tax (HRD), New Delhi for the review of the punishment order. The Director General of Income Tax (HRD), New Delhi shall have the powers to condone the delay in filing of the review petition for a further period of 30 days from the date of receipt of the said order of punishment by the candidate.
1 It is quite clear that no request is to be entertained for re-evaluation or re-totalling of any answer sheet for the objective type papers. It further prohibits entertaining of any request of recounting of the marks in subjective type papers through representation. If the candidate approaches the Chief Commissioner or Commissioner In-Charge of the examination beyond the period of 45 days from the date of issuance of the result by the directorate or 30 days of the declaration of the result by concerned CCIT or CIT exam whichever is earlier. The date of uploading of the result on the departmental website is to be take as the date of issuance of the result by the directorate. This Rule makes it quite clear that for re-evaluation of answer sheets of the objective type of papers, no request is to be entertained. It is also to be noted that request for recounting is entertained for subjective type papers if the representation is submitted within 45 days to the Chief Commissioner or Commissioner In-charge of the examination from the date of issuance of result by the directorate or 30 days of the declaration of the result by concerned CCIT.
2 It is quite apparent from the record that the Rule does not encourage entertaining of any application for re- evaluation or re-totalling of the answer sheet of the objective type papers. For subjective type papers 45 days from the date of declaration of the result by the Chief Commissioner or 30 days from CCIT or CIT exam.
Here, the result is declared in the year 2012 whereas the petitioner was sitting as a fence sitter has chosen to approach the concerned authority in the year 2014 when he realized that the candidate from other examination from the year 2013 for his objective type of papers had approached the authority. It is to be noted that his result had been out in December 2013 and he approached the authority concerned on 17.01.2014, which is admittedly within 45 days, assuming that the Rule was for subjective type of papers and there was entertainment for objective type of papers and some leniency is shown the 45 days from the exam conducted by the Chief Commissioner or Commissioner In- quoted hereunder: “19.Some other judgments on the same principle of laches and delays are taken note of in paras 9 to 11 which are as follows:
“9. Similarly in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows: “The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Union of India v. Virpal Singh Chauhan, (195) 6 SCC 684. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage.”
In Union of India v. C.K. Dharagupta, (1997) 3 SCC 395, it was observed as follows:
“9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3- 1987, gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3- 1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief.”
In Govt. of W.B. v. Tarun K. Roy, (1997) 3 SCC 395, their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows:
“34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v. Debdas Kumar, 1991 Supp (1) SCC 138. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law.” 20.The Court also quoted following passage from the Halsbury's Laws of England: “12…In determining whether there has been such delay as to amount to laches, the chief points to be considered are: (i) acquiescence on the claimant's part; and (ii)any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.” 21.Holding that the respondents had also acquiesced in accepting the retirements, the appeal of U.P. Jal Nigam was allowed with the following reasons:
“13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?” 22.The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under: 22.1 The Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.”
M.M.MIRZA
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