Appeal No 297 of 1955
Appeal from the judgment and decree dated April 7 1954 of the Patna High Court in Misc
Judicial Case No 327 of 1951
A V Viswanatha Sastri and B K Sinha for the appellant
K N Rajagopala Sastri R H Dhebar and D Gupta for the respondent
October 1
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This is an appeal with the certificate issued by the High Court of Judicature at Patna under section 66A2 of the Income tax Act hereinafter called the Act and it raises a short question of the construction of section 341b of the Act
This 12 question arises in this way
Proceedings
taken by the Income tax Officer Special Circle Patna against Maharaja Bahadur Rama Rajaya Prasad Singh the father of the appellant to levy income tax for the year 1945 46
The total income assessed to income tax by the said order was Rs 160602
This amount included the sum of Rs 93604 received by the assessee on account of interest on arrears of rent due to him after deduction of collection charges
It was urged before the Income tax Officer by the assessee that this amount was not liable to be taxed in view of the decision of the Patna High Court in Kamakshya Narain Singh vs Commissioner of Income Tax 1
The Income tax Officer however held that since the department had obtained leave to appeal to the Privy Council against the said decision the matter was sub judice and so be would not be justified in accepting the assessee s contention
In the result he included the said amount in the total income for the purposes of assessment but ordered that the realisation of the tax on the aid amount should be stayed till the decision of the Privy Council or March 31 1947 whichever was earlier
This order was passed under section 233 of the Act on December 31 1945
Against this order the assessee preferred an appeal before the Appellate Assistant Commissioner of Income tax Patna
On May 8 1946 the appellate authority held that the Income tax Officer was bound to follow the decision in the case of Kamakshya Narain Singh supra 1 and so he set aside the order under appeal in regard to the amount of Rs 93604 and directed the Income tax Officer to make fresh assessment
He also observed that it was not clear as to what portion of the said amount was interest on arrears of agricultural rents and what portion related to interest on arrears of non agricultural rents
The Income Tax Officer was accordingly directed to determine the latter amount and to levy tax on it
Pursuant to this appellate order the Income tax Officer made a fresh assessment under sections 233 and 31 of the Act on August 20 1946
By this order the 1 1946 13 total amount of income liable to tax was determined after deducting the whole of the amount of Rs 93604 from it
Some other minor reductions were also allowed in compliance with the appellate order
The department did not challenge either the appellate order or the subsequent order passed by the Income tax Officer in pursuance of the said appellate order
Subsequently on July 6 1948 the appeal preferred by the department to the Privy Council against the decision of the Patna High Court in Kamakshya Narain Singh s case 1 was allowed and it was held that interest on arrears of rent payable in respect of agricultural land is not agricultural income for it is neither rent nor revenue derived from land
As a result of this decision the Income tax Officer issued a notice to the assessee under section 34 of the Act on September 25 1948
This notice called upon the assessee to file a fresh return as the Income tax Officer had reason to believe that a part of the assessee s income assessable to income tax for the year ending March 31 1946 had escaped assessment
It appears that this notice was found to be defective and so under the provisions of section 34 as amended a fresh notice was issued by the officer to the assessee on March 18 1949
The proceedings thus taken by the officer under section 34 ultimately led to a revised assessment order passed under section 233 and section 34 of the Act and the amount of Rs 93604 was added to the assessment amount as interest on arrears of rent
This revised assessment order was passed on April 30 1949
The assessee appealed against this order but the appellate authority dismissed the assessee s appeal and confirmed the said order on July 26 1949
He held that the subsequent decision of the Privy Council in the case of Kamakshya Narain Singh supra 1 was information within the meaning of cls
a and b of section 341 and that the Income tax Officer bad reason to believe that a part of the assessee s income had escaped assessment
The assessee then moved the Income tax Appellate Tribunal but on August 21 1 14 1950 the tribunal confirmed the order passed by the appellate authority and dismissed the assessee s appeal
It was held that the provisions of a 34 as amended in 1948 applied to the case and that the decision of the Privy Council brought it within the purview of sub section
1b of section 34
Meanwhile the assessee died and the appellant succeeded to the estate of his deceased father
He then filed an application under section 661 of the Act requiring the tribunal to refer the question of law raised in the case to the Patna High Court for its opinion
The tribunal rejected this application on February 27 1951
Thereupon the appellant moved the Patna High Court under section 662 of the Act his application was allowed and the tribunal was directed by the High Court on December 15 1951 to state the case and refer the question of law for its opinion
In compliance with the requisition of the High Court the tribunal by its order passed on July 23 1952 submitted a statement of the case and referred to the High Court for its opinion the question of law raised by the appellant
The question thus raised is  Whether in the circumstances of the case the assessment order under section 34 of the Act of the interest on arrears of rent is legal  On April 7 1954 this reference was heard by V Ramaswamy and C P Sinha JJ
of the Patna High Court and the question was answered by them in favour of the department
The appellant then applied for and obtained a certificate from the Patna High Court on September 13 1954
The High Court has certified under section 66A sub section
2 of the Act that the case raises a question of law of a substantial kind and is otherwise a fit case for appeal to this court
That is how the present appeal has come before us and the question which it raises for our decision is about the true construction of section 341b of the Act
Section 34 of the Act has been amended in 1939 and in 1948
It is conceded by Mr Viswanatha Sastri for the appellant that the present case is governed by the section as it was amended in 1948
This amended section 34 sub section
1 deals with cases of income escaping assessment in two clauses
Clause a covers cases 15 where income has escaped assessment by reason of the omission or failure on the part of the assessee to make a return of his income under section 22
We are not concerned with this clause
Clause b of section 341 provides inter alia that  notwithstanding that there has been no omission or failure as mentioned in cl
a on the part of the assessee if the Income tax Officer has in consequence of information in his possession reason to believe that income profits or gains chargeable to income tax have escaped assessment for any year or have been under assessed or assessed at too low a rate or have been made the subject of excessive relief under the Act or that excessive loss or depreciation allowance have been computed he may at any time within four years of the end of that year serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub section
2 of section 22 and may proceed to assess or reassess such income profits or gains or recompute the loss or depreciation allowance and the provisions of this Act shall so far as may be apply accordingly as if the notice were a notice issued under that sub section 
It is clear that two conditions must be satisfied before the Income tax Officer can act under section 341b
He must have information in his possession which in the context means that the relevant information must have come into his possession subsequent to the making of the assessment order in question and this information must lead to his belief that income chargeable to income tax has escaped assessment for any year or that it has been under assessed or assessed at too low a rate or has been made the subject of excessive relief under the Act
Two questions are raised by Mr Sastri under this sub section in the present appeal
He contends that the relevant information means information as to facts and cannot include the decision of the Privy Council on a point of law and he argues that where income has been duly returned for assessment and an assessment order has been passed by the Income tax Officer it cannot be said that any income has escaped assessment within section 341b
Thus the appellant s case is that both the conditions required by section 341b 16 have not been satisfied and so the order of revised assessment passed against the appellant is illegal
It is not disputed that according to its strict literal  meaning the word  information  may include knowledge even about a state of tile law or a decision on a point of law
The argument however is that the context requires that the word  information  should receive a narrower construction limiting it to facts or factual material as distinguished from information as to the true state of the law
In support of this argument Mr Sastri referred to the marginal notes of sections 19A and 20A as well as the province s of section 223 and section 28 and urged that the information contemplated by these provisions is information as to facts or parti culars and has no reference to the state of law or to any question of law and so the said word in section 341b should be construed to mean only factual information
We are not impressed by this arguments If the word  information used in any other provision of the Act denotes information as to facts or particulars that would not necessarily determine the meaning of the said word in section 341b
The denotation of the said word would naturally depend on the context of the particular provisions in which it is used
It is then contended that sections 33B and 35 confer ample powers on the specified authorities to revise Income tax Officer s orders and to rectify mistakes respectively and so it would be legitimate to construe the word information  in section 341b strictly and to confine it to information in regard to facts or particulars
This argument also is not valid
If the word information  in its plain grammatical meaning includes information as to facts as well as information as to the state of the law it would be unreasonable to limit it to information as to the facts on the extraneous consideration that some cases of assessment which need to be revised or rectified on the ground of mistake of law may conceivably be covered by sections 33B and 35
Besides the application of these two sections is subject to the limi tations prescribed by them and so the fact that the said sections confer powers for revision or rectification would not be relevant and material in construing 17 section 341b
The explanation to section 34 also does not assist the appellant
It is true that under the explanation production before the Income tax Officer of account books or other evidence from which material facts could with due diligence have been discovered by the Income tax Officer would not necessarily amount to disclosures within the meaning of the said section but we do not see how this can have any bearing oil the construction of cl
b in section 341
On the other hand one of the cases specifically mentioned in section 341b necessarily postulates that the word information must have reference to information as to law
Where in consequence of information in his possession the Income tax Officer has reason to believe that income has been assessed at too low a rate he is empowered to revise the assessment and there can be no doubt that the belief of the Income tax Officer that any given income has been assessed at too low a rate may in many cases be due to information about the true legal position in the matter of the relevant rates
If the word  information  in reference to this class of cases must necessarily include information as to law it is impossible to accept the argument that in regard to the other cases falling under the same provision the same word should have a narrower and a more limited meaning
We would accordingly hold that the word  information  in section 341b includes information as to the true and correct state of the law and so would cover information as to relevant judicial decisions
If that be the true position the argument that the Income tax Officer was not justified in treating the Privy Council decision in question as information within section 341b cannot be accepted
in regard to the other condition prescribed by section 341b
When can income be said to have escaped assessment Mr Sastri argued that the word assessment  does not mean only the order of assessment but it includes all steps taken for the purpose of levying the tax and during the process of taxation
That no doubt is true but the wide denotation of the word 3 18  assessment does not really assist the appellant it only shows that along with the order of assessment which is an important act in the process of taxation other acts and steps adopted in the course of taxation are also included in the word  but it is with this  most critical act in the process of taxation  with which we are concerned in the present appeal
Then it is urged that the word escaped  according to the Oxford English Dictionary means to elude observations search etc to elude the notice of a person   and the contention is that it is only where income has not been returned for assessment that it can be reasonably said that income has escaped assessment
The dictionary meaning of the word does not support Mr Sastri s contention
According to the same dictionary the word  escape  also means  to get clear away from pursuit or pursuer to succeed in avoiding anything painful or unwelcome so that judging by he dictionary meaning alone it would be difficult to  confine the meaning of the word  escape  only to cases where no return has been submitted by the assessee
Even if the assessee has submitted a return of his income cases may well occur where the whole of the income has not been assessed and such part of the income as has not been assessed can well be regarded as having escaped assessment
In the present case interest on arrears of rent received by the assessee from his agricultural lands were brought to the notice of the Income tax Officer the question as to whether the said amount can be assessed in law was considered and it was ultimately held that the relevant decision of the Patna High Court which was binding on the department justified the assessee s claim that the said income was not liable to be assessed to tax
There is no doubt that a part of the assessee s income had not been assessed and in that sense it has clearly escaped assessment
Can it be said that because the matter was considered and decided on the merits in the light of the binding authority of the decision of the Patna High Court no income has escaped assessment when the said Patna High Court decision has been subsequently reversed by the Privy Council  We see no 19 justification for holding that cases of income escaping assessment must always be cases where income has not been assessed owing to inadvertence or oversight or owing to the fact that no return has been submitted
In our opinion even in a case where a return has been submitted if the Income tax Officer erroneously fails to tax a part of assessable income it is a case where the said part of the income has escaped assessment
The appellant s attempt to put a very narrow and artificial limitation on the meaning of the word escape  in section 341b cannot therefore succeed
Mr Sastri however argues that the narrow construction of the expression has escaped assessment  for which he contends has been approved by the Privy Council in Rajendranath Mukherjee vs Income tax Commissioner 1
He relies more particularly on the observation made in the judgment in this case that the fact that section 34 requires a notice to be served calling for a return of income which has escaped assessment strongly suggests that income which has already been duly returned for assessment cannot be said to have escaped assessment within the statutory meaning
In order to appreciate the effect of this observation it would be necessary to examine the material facts in the case and the specific points raised for the decision of the Privy Council
It appears that in 1930 the Income tax Officer had made an assessment order on Burn  Co which was an unregistered firm assessing them  to income tax and super tax for the year 192728 under the Act
The individual partners of Burn  Co who were the appellants before the Board contended that it was not competent to the officer to make the impugned assessment on the firm after the expiry on March 31 1928 of the year in respect of which the assessment was made
The Commissioner of Income tax met this plea by referring to the other relevant facts which explained the delay in making the assessment order
Towards the end of 1926 27 the partners of the registered firm of Martin  Co had purchased the business and assets of Burn  Co This transaction was effected not on behalf of the firm 1 1933 61 IA IO 16
20 of Martin  Co but by the partners of the firm as individuals
In April 1927 the Income tax Officer of District I issued a notice to Burn  Co under section 222 calling for a return of their total income for the year ending March 31 1927 with a view to assessing them for the year 1927 28
A similar notice was issued by the Income tax Officer of District 11
When these notices were issued both the officers did not know that the business of Burn  Co had been bought by the partners of Martin  Co Subsequently this transaction was brought to the knowledge of the income tax authorities whereupon Burn  Co s file was transferred by the officer dealing with District 11 and in February 1928 an assessment order was made on Martin  Co in respect of the combined incomes returned by Martin  Co and Burn  Co on the footing that the business of Burn  Co had become a branch of Martin  Co Martin  Co appealed against this assessment and their appeal was allowed by the High Court in May 1930
It was held that an income of a registered firm cannot for the purpose of the Act be aggregated with the income of an unregistered firm but that the income of each must be separately assessed irrespective of the fact that the persons interested in the profits of both concerns are the same
In consequence of this decision the assessment made on Martin  Co was amended by the elimination therefrom of the income returned by Burn  Co and in November 1930 an assessment was made on Burn  Co on their income as returned by them in Janu ary 1928
It was this assessment which was the subject matter of the appeal before the Privy Council
It would thus be noticed that the principal question which the appellants raised before the Privy Council was Whether the assessment made under section 231 on the appellants in November 1930 for the year 1927 28 was a legal assessment  The argument was that on a true construction of the Income tax Act it was obligatory on the Income tax Officer to complete the assessment proceedings within the year of assessment and in the event of such assessment not being so completed the only remedy open to the income tax 21 authorities was to proceed under section 34
This argument was repelled by the Privy Council
Their Lordships held that neither section 23 nor any other express provision of the Act limited the time within which an assessment must be made
They then examined the other argument urged by the appellants that section 34 implied a prohibition against the making of an assessment after the expiry of the tax year
In dealing with this argument section 34 was construed and it was observed that the argument sought to put upon the word assessment  too narrow a meaning and upon the word  escaped  too wide a meaning
It was in this connection that their Lordships approved of the observation made by Rankin C J in Re Lachhiram Basantlal 1 that I  income has not escaped assessment if there are pending at the time proceedings for the assessment of the assessee s income which have not yet terminated in a final assessment thereof 
In other words the conclusion of the Privy Council was that so long as assessment proceedings are pending against an assessee and no final order has been passed thereon it would be premature to suggest that any income of the assessee has escaped assessment
It is only after the final order levying the tax has been passed by the Income tax Officer that it would be possible to predicate that any part of the assessee s income has escaped assessment
In the result their Lordships held that  since proceedings pursuant to the notice issued against the appellants under section 222 had been pending and no order had been passed against the appellants in the said proceedings it would not be possible to accept their argument that the Income tax Officer should have taken action against them in respect of the income for the relevant year under section 34 of the Act 
If this decision is considered in the light of the relevant facts and the nature of the argument raised before the Privy Council by the appellants it would be difficult to accept the contention that according to the Privy Council section 34 would be inapplicable wherever notice under section 222 has been issued against an assessee a return has been submitted by him and 1 1030 ILR  912
22 a final order has been passed by the Income tax Officer in the said assessment proceedings
To say that so long as the assessment proceedings are pending it is impossible to assume that any income has escaped assessment is very much different from saying that income cannot be said to have escaped assessment wherever assessment proceedings have been taken and a final order has been passed on them
We must therefore hold that this decision does not support Mr Sastri s contention about the inapplicability of section 34 in the present case
In this connection it may be relevant to refer to the decision of the Calcutta High Court in Be Lachhiram Basantlal supra 1 because as we have already pointed out the statement of the law made by Rankin C J in regard to the effect of section 34 of the Act in this case has been expressly approved by the Privy Council in the case of Rajendra Nath Mukherjee supra 2
While dealing with the assessees  argument that the order of assessment was invalid Since it had been passed more than one year after the expiry of the relevant financial year and that the Income tax Officer might have acted under section 34 Rankin C J stated that income cannot be said to have escaped assessment except in the case where an assessment has been made which does not include the income
It is true that this observation is obiter but it is fully consistent with the subsequent statement of the law made by the learned Chief Justice which has received the approval of the Privy Council
Mr Sastri has also relied on the decision of this Court in Messrs Chatturam Horliram Ltd vs Commissioner of Income tax Bihar  Orissa 1 in support of his construction of section 34
In Chatturam s case supra 3 the assessee had been assessed to income tax which was reduced on appeal and was set aside by the Income tax Appellate Tribunal on the ground that the Indian Finance Act of 1939 was not in force during the assessment year in Chota Nagpur
On a reference the decision of the tribunal was upheld by the High 1 Cal
909 912
2 1933 61 IA10 16
3  23 Court
Subsequently the Governor of Bihar promulgated the Bihar Regulation IV of 1942 and thereby brought into force the Indian Finance Act of 1939 in Chota Nagpur retrospectively as from March 30 1939
This ordinance was assented to by the Governor General
On February 81944 the Income tax Officer passed an order in pursuance of which proceedings were taken against the assessee under the provisions of section 34 and they resulted in the assessment of the assessee to income tax
The contention which was raised by the assessee in his appeal to this Court was that the notice issued against him under section 34 was invalid
This Court held that the income profits or gains sought to be assessed were chargeable to income tax and that it was a case of chargeable income escaping assessment within the meaning of section 34 and was not a case of mere non assessment of income tax
So far as the decision is concerned it is in substance inconsistent with the argument raised IVY Mr Sastri
He however relies on the observations made by Jagannadhadas J that  the contention of the learned counsel for the appellant that the escapement from assessment is not to be equated to non assessment simpliciter is not without force  and he points out that the reason given by the learned judge in support of the final decision was that though earlier assessment proceedings had been taken they had failed to result in a valid assessment owing to some lacuna other than that attributable to the assessing authorities notwithstanding the chargeability of income to the tax
Mr Sastri says that it is only in cases where income can be shown to have escaped assessment owing to some lacuna other than that attributable to the assessing authorities that section 34 can be invoked
We do not think that a fair reading of the judgment can lead to this conclusion
The observations on which reliance is placed by Mr Sastri have naturally been made in reference to the facts with which the Court was dealing and they must obviously be read in the context of those facts
It would be unreasonable to suggest that these observations were intended to confine the application of section 34 only to cases where 24 income escapes assessment owing to reasons other than those attributable to the assessing authorities
Indeed Jagannadhadas J has taken the precaution of adding that it was unnecessary to lay down what exactly constitutes escapement from assessment and that it would be sufficient to place their decision on the narrow ground to which we have just referred
We are satisfied that this decision is of no assistance to the appellant s case
It appears that the construction of section 34 has led to a divergence of judicial opinion in the High Courts of this country and so it would be necessary to refer briefly to the decisions to which our attention was invited in this appeal
In Madan Lal vs Commissioner of I T Punjab 1 the majority decision of the Full Bench of the Lahore High Court held that section 34 of the Act as it stood then was not confined to cases where income had not been returned at all
It applied also to cases where an item of income is included in the return made by the assessee but is left unassessed by the Income tax Officer or if assessed in the first in stance the assessment is cancelled by any appellate or revisional authority
Din Mohammad J who delivered the majority judgment has expressed his agreement with the opinion of Coutts Trotter C J in The Commissioner of Income tax vs Raja of Parlakimedi 2 that the words  escaped assessment  apply even  to cases where the Income tax Officer has deliberately adopted an erroneous construction of the Act as much as to a case where an officer has not considered the matter at all but simply omitted the assessable property from his view and from his assessment 
The next case which has been cited before us is the decision of the Bombay High Court in The Commissioner of Income tax Bombay vs Sir Mahomed Yusuf Ismail 3
In this case Beaumont C J construed the word  definite information  in section 34 and held that in order to take action under the said section there must be some information as to a fact which leads the Income tax Officer to discover that income 1 2  28
3 1944 12 ITR B 26 has escaped assessment or has been under assessed
The learned Chief Justice however added that the fact may be as to the state of the law for instance that a case has been overruled or that a statute has been passed which has not been brought to the attention of the Income tax Officer
Chagla J who delivered a concurring judgment was inclined to hold that the word  information  in the section must be confined only to information as to facts or particulars and cannot include information as to law
In his opinion  a mistake of law or misunderstanding of the provisions of the law is not covered by the language of the section as amended in 1939 
It may be pointed out that in coming to this conclusion the learned judge appears to have relied on the observations of Rowlatt J in Anderton and Halstead Ltd vs Birrell 1 that the word I discover  in section 125 of the English Act does not include a mere change of opinion on the same facts and figures upon the same question of account ancy being a question of opinion 
Incidentally we may observe that this statement of the law by Mr Justice Rowlatt appears to have been overruled by the Court of Appeal in Commercial Structures Ltd vs R A Briggs 2
Soon after the decision of the Bombay High Court was reported the same question was raised before the Madras High Court in Raghavalu Naidu  Sons vs Commissioner of Income tax Madras 3
Leach C J who delivered the judgment of the court agreed with the construction which had been put on the expression definite information  by the Bombay High Court on the ground that it is very desirable to avoid conflict on such a question 
He however added that in view of the opening words of the amended section as it was amended in 1939 the word  discovers  means something more than has reason to believe  or  satisfies himself  and that consequently it would not be right to regard the English decisions on the meaning of the word  discovers  in section 125 of 1 1932 I K B 271
2 1949 117 ITR Supplement 30
3  197
4 26 the English Act as being in point
He also made it clear that in following the Bombay decision they did not imply that the definite information must relate to a pure question of fact because it was impossible to lay down a rule to cover all cases in which this section can be invoked
In the Calcutta High Court conflicting views have been expressed on this point
In Maharaja Bikram Kishore of Tripura vs Province
of Assam 1 Harries C J and Mukherjea J had to deal with the construction of section 30 of the Assam Agricultural Income tax Act Assam IX of 1939 which corresponds to section 34 of the Act
They held that where a certain income has been included in his return by the assessee but was not assessed on the ground that it was not assessable it cannot be treated as income which has escaped assessment and reassessed under section 30 of the Assam Agricultural Income tax Act
In his judgment the learned Chief Justice has mentioned that the earlier decisions of the Calcutta High Court were no doubt against the contentions of the appellant but he took the view that the question was really concluded by the decision of the Privy Council in Rajendra Nath Mukherjee s case supra 2
The Privy Council decision was read by the learned Chief Justice as supporting the view that section 34 would be inapplicable to cases where income has been returned assessment proceedings have been taken and a final order of assessment has been passed by the Income tax Officer against the assessee
We have already pointed out that the decision of the Privy Council does not support this view
In Raja Benoy Kumar Sahas Roy vs Commissioner of 1
T West Bengal1 Chakravartti C J and Lahiri J have taken a contrary view
They have held that information as to the true state or meaning of the law derived freshly from an external source of authoritative character is definite information within the meaning of section 34
It appears that in construing the scope and effect of the provisions of section 34 the High Courts have had 1 2 1933 61 1A 10 16
3 27 occasion to decide whether it would be open to the Income tax Officer to take action under section 34 on the ground that he thinks that his original decision in making the order of assessment was wrong without any fresh information from an external source or whether the successor of the Income tax Officer can act under section 34 on the ground that the order of assessment passed by his predecessor was erroneous and divergent views have been expressed on this point
Mr Rajagopala Sastri for the respondent suggested that under the provisions of section 34 as amended in 1948 it would be open to the Income tax Officer to act under the said section even if he merely changed his mind without any information from an external source and came to the conclusion that in a particular case he had erroneously allowed an assessee s income to escape assessment
We do not propose to express any opinion on this point in the present appeal
In the result we hold that the Patna High Court was right in coming to the conclusion that the decision of the Privy Council was information within the meaning of section 34 1b and that the said decision justified the belief of the Income tax Officer that part of the appellant s income had escaped assessment for the relevant year
The appeal accordingly fails and must be dismissed with costs
Appeal dismissed


Summary:
Rule 5 of the Haryana Service of Engineers Class I PWD Public Health Branch Rules 1961 requires 50 per cent of the posts of Executive Engineers to be filled by promotion from mtubers of Class II Service
Rule 93 renders a member of service ineligible for promotion to the rank of Executive Engineer unless he renders five years  service as an Assistant Executive Engineer and has passed the depart mental examination
The first proviso thereto grants pre fernce to an Assistant Executive Engineer over an eligible Class II Officer in the matter of promotion
The second proviso empowers the Government to reduce the period of five years  service as an Assistant Executive Engineer
Rule II prescribes two years  probation case of direct recruits to the Service
Rule 15 requires officers appointed to the Service to pass departmental examination within such period as may be prescribed unless they have already done so
Rule 22 empowers Government to relax the requirement of Rules In cases of undue hardship
Respondent No 3 a direct recruit to the post of As sistant Executive Engineer in the Public Health Branch was promoted to the post of Executive Engineer Class I Service defeating the claim of the appellants members of Class II Service of Engineers In the said Department
They assailed his appointment by means of a writ petition under Article of the Constitution on the ground that the respondent was not eligible for promotion as he had not rendered five years  service as an Assistant Executive Engineer and further he had not passed the departmental examination which was the minimum requisite qualification for promotion to the post of Executive Engineer
Before the High Court the State Govern ment s plea was that it had relaxed the requirement of Rule 93a not only to respondent No 3 but to other officers also
The High Court dismissed the writ petition on the view that there was no infirmity in the Government s order grant ing exemption to respondent 465 In appeal in addition to the pleas raised before the High Court it was further submitted that respondent No 3 was not eligible for promotion as he had not completed two years  probationary period as Assistant Executive Engineer on the date of his promotion
Dismissing the appeal the Court HELD 1
There was no legal infirmity in the promotion of respondent No 3
The State Government had granted relax ation to him by reducing the period of service under clause a to Rule 93 in exercise of its power under the second proviso to the said Rule
This relaxation was granted as he was the only officer in the department who was a direct recruit to Class I Service
In addition to that Rule 22 further confers power on the State Government to grant relaxation with regard to the operation of the Rules
The Government s order granting relaxation in favour of respond ent No 3 was sustainable under Rule 22 also
468B D JC Yadav  Ors
vs State of Haryana  Ors
 1990 1 SCR470 referred to 2
The respondent s promotion to the post of Executive Engineer was not rendered illegal merely because he had not undergone departmental examination in the Public Health Branch
He had been working as Sub Divisional Engineer in the Public Works Department Buildings and Roads Branch for a period of 6 12 years prior to his recruitment to the post of Assistant Executive Engineer in the Public Health Branch and during that period he had passed departmental examina tion
The syllabus prescribed for the departmental examina tion in the Buildings and Roads Branch as well as in the Public Health Branch was almost the same
The Government was satisfied that there was no necessity for him to pass the examination again
469B 468EG 469A 3
Non completion of probationary period of two years on the post of Assistant Executive Engineer by respondent No 3 did not affect the validity of his promotion to the post of Executive Engineer under the Rules
There is no specific provision in the Rules requiring completion of probationary period for the purposes of promotion within the Service
It was relevant only for the purpose of confirmation in Class I Service
469E C D