THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE G.KRISHNA MOHAN REDDY WRIT PETITION Nos. 32540 of 2010 and 905 of 2011 Dated: 24-11-2011 Between Union of India, rep. by its Secretary, Govt. of India, Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, New Delhi and others …Petitioners And Adusumilli Chandra Shekar and others …Respondents Common Order: (Per Hon’ble Sri Justice Goda Raghuram) The two writ petitions, the first by the official respondents and the second by non- official respondents in O.A.No. 141 of 2010 on the file of the learned Central Administrative Tribunal (for short ‘the Tribunal’) are directed against the order of the Tribunal dated 5-8-2010. The Tribunal allowed an application filed by the eight applicants who are arrayed as respondents 1 to 8 in W.P.No. 32540 of 2010 and as respondents 6 to 13 in W.P.No. 905 of 2011. The Tribunal invalidated the letter dated 8-5-2000 of the CBDT; another letter dated 26-5-2000 of the Directorate of Income Tax and the proceedings dated 5-2-2010 of the Commissioner of Income Tax, in-charge of Examinations, Hyderabad, in so far as the applicants are concerned and directed the Chief Commissioner of Income Tax, Hyderabad to take up the issue with the Union of India and the Central Board of Direct Taxes (CBDT) for according one time exemption for the applicants in respect of their candidature in the Income Tax Inspectors examination held in 1999 and observed that the seniority of the applicants would be considered on the basis that they had passed the Income Tax Inspectors examination in June, 1999. Time was fixed for compliance with the order. The lis before the Tribunal was occasioned by a laid back and meandering course of administrative intransigencies by the official respondents. The relevant facts may be noted in brief: The applicants who were serving as Lower Division Clerks (LDCs) in the unit of the Commissioner of Income Tax, Hyderabad were promoted ad hoc as Upper Division Clerks (UDCs) by the proceedings of the Commissioner dated 29-1-1999, in vacancies earmarked in the rules for direct recruitment. Posts in the UDC category, under the Rules are to be filled up by two methods i.e., direct recruitment or by promotion. The applicants were not eligible for appointment as UDCs through the promotion channel as their turn had not yet arrived. Since direct recruitment could not processed in time, in administrative exigencies the applicants were temporarily promoted along with several others as UDCs vide Commissioner’s proceedings dated 29-1-1999. This order clearly stipulated that the promotion is ad hoc basis, for a period of one year or till the direct recruitees recommended by the Staff Selection Commission are appointed to these posts, whichever is earlier; and that these promotions are made against vacancies meant for direct recruitment. The constitution of the Non-Gazetted Ministerial Class III Staff of the Income-Tax Department covered by Recruitment Rules issued in this behalf enumerates a category of Inspector of Income Tax. Recruitment to this category is by direct recruitment and by promotion as well. 66% or 2/3rd of the vacancies in this category are to be filled by promotion. Promotions are by two methods. Upper Division Clerk and Higher Ministerial grades, Stenographers (ordinary grade) and Stenographers (Selection grade), with three years service in the respective grade, who have qualified in the Departmental Examination for Income Tax Inspectors are to be arranged in two separate lists. The first list is arranged, for qualified feeder categories aforementioned in the order of seniority and the second list of qualified persons, according to the date/year of passing the departmental examination. Promotion to the post of Income Tax Inspector is stipulated from these two lists arranged as above alternatively. Rule III of the Rules for Departmental Examination for Income Tax Inspectors, 1998 (for short ‘the 1998 Rules’) specifies the eligibility criteria for examination for Income Tax Inspectors, to be held from 1999 onwards. Clause (2) of Rule III reads: “Any person holding the post of Supervisor Grade-II, Head Clerk, Tax Assistant, UDC, Stenographer Grade-I, II and III provided that he has passed the Departmental Examination for Ministerial staff (emphasis added).” The Commissioner of Income Tax, Hyderabad on 3-3-1999 addressed the Director of Income Tax (Examinations) to clarify whether ad hoc UDCs (the applicants category) could appear for the Income Tax Inspectors examination. On 6-4-1999 the Commissioner issued a memo clarifying that officials promoted on ad hoc basis may also apply for appearing for the Income Tax Inspectors examination, since the Directorate of Income Tax in its letter dated 3-3-1999 informed that the matter regarding the eligibility of ad hoc officials to appear examination was referred to the CCIT and the CCIT’s advice in the matter is awaited. This Memo of the Commissioner stated that the candidature of ad hoc promoted officials is on provisional basis and their result could be withheld till the decision of the Board is received. The applicants appeared for the Income Tax Inspectors examination, pursuant to the Memo of the Commissioner dated 6-4-1999. Notwithstanding the caveat recorded by the Commissioner in his Memo dated 6-4-1999, in December, 1999 results of the Income Tax Inspectors examinations were declared including of the applicants and other ad hoc UDCs who qualified at the said examination. The applicants qualified and were so declared. On 25-1-2000 the Chief Commissioner of Income Tax, Hyderabad cancelled the ad hoc promotions made to the category of UDCs from LDCs including of the applicants. The applicants stood reverted to the substantive post of LDC. It would appear that on 8-5-2000 the CBDT addressed the Directorate of Income Tax informing that the Department of Personnel and Training, Union of India had confirmed that an employee promoted on ad hoc basis will not be eligible to sit for the examination appropriate to his grade. On 17-5-2002 the CBDT informed the Commissioner of Income Tax (Examinations), New Delhi, on a similar query pertaining to the Delhi Unit that in view of its earlier clarification vide letter dated 8-5- 2002, the Delhi Commissioner’s proposals regarding declaration of results of the departmental examination, in respect of ad hoc employees/promotees, is not acceptable. The applicants were not informed of this decision by the CBDT nor were the results of their Income Tax Inspectors examination declared in December, 1999 cancelled till 5-2-2010. More of this later. There was a restructuring in the Income Tax Department in the year 2001. In so far as relevant and material for the purpose of this lis, suffice it to record that the post of LDC continued pre and post-restructuring; the post of UDC was re-designated as Tax Assistant; the post of Tax Assistant as Senior Tax Assistant; Assistant as Office Superintendent and Office Superintendent as Inspector of Income Tax. The category of Tax Assistant thus became the re-designated post of the erstwhile UDC. Since the applicants had the requisite technical qualifications, they were re-designated as Tax Assistants from the erstwhile designation of LDCs and in 2006-07 were promoted as Senior Tax Assistants (formerly Tax Assistants). 9 ½ years after the CBDT’s clarification dated 8-5-2000, that ad hoc UDC promotees are not qualified to appear at the Income Tax Inspectors departmental examination, the Directorate of Income Tax on 4-12-2009, informed the Commissioner of Income Tax, Hyderabad that ad hoc UDCs cannot appear for the examination. Thereafter, by the order dated 5-2-2010 (impugned by the applicants, before the Tribunal), the Commissioner of Income Tax, Hyderabad rescinded the results of the Income Tax Inspectors examination (declared in December, 1999) in so far as the results pertained to temporarily promoted UDCs (including the applicants). Assailing the order dated 5-2-2010; the CBDT’s clarification regarding the temporary UDCs ineligibility to appear for the Income Tax Inspectors examination vide its letter dated 8-5-2000 and the reiteration of this clarification by the CBDT vide its letter dated 17-5-2002 (addressed to the Commissioner of Income Tax, New Delhi), the O.A. was filed. The petitioners in W.P.No. 905 of 2011 were not initially parties to O.A.No. 141 of 2010. They impleaded themselves, since they felt aggrieved by the relief sought in the O.A. By the order impugned, the Tribunal allowed the application and issued the operative order, already adverted to. The Tribunal framed two issues. (1) Whether the applicants were eligible to appear in the examination held in 1999; and (2) whether the cancellation in 2010 of the results published in June, 1999 is sustainable? On issue No.1 the Tribunal after observing that a plain reading of the 1998 Rules for conduct of departmental examinations does not rule out the eligibility of ad hoc UDCs to appear for the Income Tax Inspectors examination, did not record a categorical ruling on the eligibility of ad hoc UDCs to appear for the Income Tax Inspectors examination and merely observed that the CBDT would have taken a view on this aspect after consultation with the Department of Personnel and Training. However, the Tribunal on issue No.2 and on a cogent analysis of the chronology of events (adverted to hereinbefore); held that the cancellation of the results published in December 1999, of the applicants’ Income Tax Inspectors examination could not have been legitimately ordered in 2010. The O.A. was therefore allowed. Sri Srinivas Karra, learned counsel for the petitioners in W.P.No. 905 of 2011 strenuously contends that if the results of the applicants’ Income Tax Inspectors’ examinations declared in 1999 is restored the petitioners in W.P.No. 905 of 2011 are senior to the applicants in the category of UDCs and in the re-designated category of Senior Tax Assistants would be prejudiced. According to these petitioners they are not senior enough to obtain promotion to the Income Tax Inspectors category in the first promotional channel based on seniority. They have to compete for the second stream which is based on seniority in the order of passing the Income Tax Inspectors examination. These petitioners have passed the Income Tax Inspectors examination during the years 2000 to 2003, subsequent to the applicants passing the examination in December, 1999. In the second promotional stream, as already noted, promotions to the category of Income Tax Inspectors is based on the date/year of passing the Income Tax Inspectors examination and for this stream the applicants would score a march over the petitioners in W.P.No. 905 of 2011, if their 1999 results are operative. This is a substratum of the grievance presented in W.P.No. 905 of 2011. Sri B.Narasimha Sharma, learned counsel for Income Tax, while equivocally admitting the administrative lapses in not taking expeditious decision in rescinding the results of the applicants’ Income Tax Inspectors examination for over a decade, would contend that the applicants are not qualified, as ad hoc UDCs to appear for the Income Tax Inspectors examination in 1999. He would further contend that inadvertently, despite the caveat in the Commissioner’s notification dated 6-4-1999, results of the applicants’ examination was declared in December, 1999. He further contends that only substantively and regularly appointed UDCs are eligible to appear at the Income Tax Inspectors examination, since the post of UDC is the feeder category for the post of Income Tax Inspector and not LDC. Since LDC is ineligible to be promoted as Income Tax Inspector, a substantive LDC ad hoc holding the post of UDC cannot be considered eligible to appear at the Income Tax Inspector examination. Support for this contention is drawn on the CBDI’s clarification dated 8-5-2000 and its reiteration on 17-5-2002. It requires to be noticed that the issue as to whether an ad hoc UDC is eligible to appear for the Income Tax Inspectors examination was briefly adverted to in the order of the Tribunal but was not categorically pronounced upon. The question whether a person holding the post of UDC on temporary basis is eligible to appear for the Income Tax Inspectors’ examination would necessarily to turn upon construction of the relevant provisions of the 1998 Rules. Rule III (2) which is relevant for the purpose has already been extracted. On a true and fair construction of the phraseology of clause (2) of Rule III, the inference is compelling that any person holding the post, inter alia of UDC is eligible to appear for the departmental examination for Income Tax Inspectors. It is a well settled principle of statutory construction that a strained or nuanced interpretation could be employed only when the Statute suffers from an ambiguity, grammatical or syntactic. In the absence of any ambiguity, there is no invitation to the judicial branch to employ creative interpretation techniques. The trajectory of Rule III (2) of the Departmental Promotion Rules is clear, unambiguous and linear. Accordingly any person holding a post in the specified categories enumerated in Rule III (2) of these Rules is eligible to appear for the departmental examination. In the absence of a specification that a person should hold the post in a substantive or regular capacity or that he should have a lien on the post, it is not permissible to interpret Rule III (2) as enjoining that only a person substantively appointed to any of the enumerated feeder category posts is eligible to appear for the departmental examination for Income Tax Inspectors. On the above construction of the relevant provisions of the 1998 Rules, the conclusion is irresistible that the applicants who were promoted as UDCs, albeit on an ad hoc basis on 29-1-1999 and were holding the posts of UDCs as on the date of notification of the Income Tax Inspectors examination as well as on the date of declaration of results of such examination (in December, 1999) were eligible to appear for the Income Tax Inspectors departmental examination. The clarification issued by the CBDT with or without consultation of DoPT is an administrative construction of the 1998 Rules and would not in any manner derogate from the jurisdiction and authority of this Court to authoritatively interpret the relevant Statutory provisions. While the administrative construction may provide a guidance to interpretation of the Rules, it is neither conclusive nor determinative. On this analysis, we hold that the applicants, though holding the posts of UDCs during 1999-2000 on ad hoc basis, having been promoted out of their turn and in vacancies earmarked for direct recruitment, were nevertheless eligible to appear for the departmental examination and the results of such examination at which they succeeded, in December, 1999 cannot be rescinded or invalidated by any legitimate and reasonable exercise of power. The cancellation was also without notice and opportunity to the applicants. Consequently the clarification of the CBDT dated 8-5-2000, reiterated on 17-5-2002 and the order of the Commissioner of Income Tax, Hyderabad, dated 5-2-2010 rescinding the results of the Income Tax Inspectors examination at which the applicants had passed vide the results in December, 1999, are unsustainable. On this analysis, we concur with the conclusions of the learned Tribunal. In the result, the writ petitions merit rejection and are accordingly dismissed. There shall in the circumstances however, be no order as to costs. __________________________ GODA RAGHURAM, J 24th November, 2011 ________________________________ G.KRISHNA MOHAN REDDY, J GRR