Central Administrative Tribunal - Delhi
Sh. Rakesh Kumar Sabharwal vs Union Of India Through on 8 January, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3204/2012
Reserved on : 06.01.2015.
Pronounced on : 08.01.2015.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
1. Sh. Rakesh Kumar Sabharwal,
S/o late Sh. Raj Kumar Sabharwal,
Working as Income Tax Inspector,
R/o D-6, Associated Apartments,
Plot No. 83, I.P. Extension, Patparganj,
Delhi-110092.
2. Sh. Om Prakash Verma,
S/o Sh. Moti Lal Verma,
Working as Income Tax Inspector,
A.C.I.T. Circle 37(1), Vikas Bhawan,
New Delhi.
3. Sh. Dev Prakash Katyal,
S/o late Sh. Sant Lal,
Working as Income Tax Inspector,
R/o 251, Ground Floor, Gagan Vihar,
Delhi-51. .. Applicants
(through Sh. R.K. Shukla, Advocate)
Versus
1. Union of India through
Secretary,
Ministry of Finance, North Block,
New Delhi.
2. Dy. Director of Income Tax (HRD),
Directorate of Income Tax,
Human Resource Development,
Central Board of Direct Taxes,
ICADR Bldg., Plot No. 6, Vasant Kunj
Institutional Area Phase-II,
New Delhi-110070.
3. The Director of Income Tax (IT),
5th Floor, Mayur Vihar, Connaught Circus,
New Delhi.
4. The Commissioner,
Income Tax Delhi-9(Examination),
Vikas Bhawan,
New Delhi.
5. Joint Commissioner of Income Tax,
Range 27 and Exam., Vikas Bhawan,
New Delhi. . Respondents
(through Sh. R.N. Singh, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) Applicant No.1 joined the office of the respondents as LDC on 06.06.1979 and subsequently got promoted as Income Tax Inspector (ITI) w.e.f. December, 2006. Applicant No.2 joined as ITI on 15.06.1995. Applicant No. 3 had joined as UDC on 27.11.1977 and got promoted as ITI in 2001. All the three applicants by virtue of their length of service as ITI had become eligible to appear in the departmental examination for promotion to the post of Income Tax Officer. Prior to 2009, they had taken this examination but could not clear all the papers. In 2009, the respondents amended the Departmental Examination Rules for Income Tax Officers and made the new Rules effective from 2010 Examination. Under the new Rules, those candidates who were yet to qualify all the papers of the old pattern of examination were treated as partially qualified candidates. Further, as per new Rules, fresh candidates were required to take the papers mentioned in Rule-5(A) whereas partially qualified candidates were required to take papers mentioned in Rule-5(B). The tables below would depict the pattern of examination for both types of candidates:-
Rule-5(A) For New Pattern candidate (including for New Pattern SC/ST candidates availing betterment chance S.No. Subject Type Maximum Marks
1.
Paper-1 Incomet Tax Law and Computation (Without books) Objective 100
2. Paper-2 Advanced Accountancy (Without books) Objective 100
3. Paper-3 Allied Laws (Without books) Objective
4. Paper-4 Income-tax & Accountancy (Combined Practical) (With I.T. Act & Rules Subjective 100 (B) For partially qualified Old Pattern candidates/SC/ST candidates who have qualified with relaxed standards in the Old Pattern and are availing Betterment chance The paper matching schedule shall be as under:
S. Number Qualified Paper of Old Pattern Matching Paper(s) to be taken by the candidates in the New Pattern Paper(s) to be specifically set for partially qualified Old Pattern candida-tes only Type Maximum Marks
1.
IT Law-I&II Paper-1:- Income Tax Law and Computation (Without Books) and Objective 100 Paper-4:- (IT & Accountancy) Combined Practical (With I.T Act & Rules
2. Book Keeping Paper-2:-Advanced Accountancy (Without Books) Objective 100
3. Other Taxes Paper-3:-Allied Law (Without Books) Objective 100
4. Office Procedure
--------
Paper-5 as per Old Syllabus (Without Books) Objective 100
5. Examination of Accounts & language Test
--------
Paper-6 To be conducted by the concerned CIT (Examination )as per past practice Subjective 150 The applicants have challenged the pattern of examination laid down for partial qualified candidates as mentioned in Rule-5(B) of the Amended Examination Rules, 2009 on the ground of invidious discrimination. According to them while the number of chances in both patterns was kept at 10, in new pattern age limit of 55 years prescribed under the old pattern had been removed. Further, in old pattern the candidates were required to clear six papers carrying a total of 650 marks whereas in the new pattern only four papers carrying a maximum of 400 marks were required to be cleared. Moreover, OFFICE PROCEDURE which was a necessary paper to be cleared in the old pattern was no longer required to be cleared in the new pattern. The applicants have argued that the respondents have erred inasmuch as they have not given equal treatment and discriminated between candidates who had taken the examination under the old pattern and the candidates who had taken the examination in the new pattern. They have argued that there should be no difference in the syllabus in the particular class of employees. According to them they had moved a representation against this discrimination but the respondents have still not considered the same. On the basis of the above grounds the applicants have sought the following relief:-
(a) to quash and set aside para 5(B) of the Amended Departmental Examination Rules for Income Tax effective from 2010 directing the respondents to amend the clause B of Rule 5 in terms of Clause A to Rule 5 thereby giving equal treatment and removing the subject of office procedures as has been removed from the syllabus of ITOs in particular class of employee which is called New Pattern, accordingly necessary amendment be made in clause B of Rule 5 treating at par with new pattern candidates;
(b) to declare Clause (ii) of Rule 4 as null and void ab-initio directing the respondents this should be amended in terms of (i) of Sub Clause (b) of Rule 4 i.e. age bar should be abolished to the candidates belonging to old pattern;
(c) to direct the respondents to re-examine the case of the applicants after making necessary amendments in the rule thereby exempting from office procedure test, they may be considered for promotion to the post of ITOs alongwith other in accordance with law.
(d) to direct the respondents to assess the promotion of the applicants from the date on which new rules took place as all the candidates/applicants have cleared the examination in terms of new syllabus which has been prescribed for new pattern candidates which constitute a case of discrimination.
(e) to direct the respondents to consider the case of applicants in terms of rules and regulations thereby exempting them from office procedure test.
(f) to allow the O.A. of the applicant in terms of para 4 of the Original Application.
(g) to pass any other and further order which this Honble Tribunal may deem fit and proper in favour of the applicant and against the respondents.
2. The respondents have filed their reply in which they have stated that framing of Rules, conducting of examinations etc. falls exclusively within the domain of the executive and it is settled law that this Tribunal cannot interfere in the same while exercising the powers of judicial review. In this regard, they have relied on the judgment of Apex Court in the case of Mallikarjuna Rao Vs. State of A.P., (1990) 2 SCC 707 wherein it has been held that it is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution. The respondents have also relied on the judgment of Honble Supreme Court in the case of P.U. Joshi & Ors. Vs. The Accountant General, Ahmedabad & Ors., 2003(2) SCC 632.
2.1 Further, the respondents have stated that the candidates/applicants cannot pick and choose the features/advantages of two different examination schemes, namely, the old pattern which was applicable upto the departmental examination of the year 2009 and the new pattern which has become applicable w.e.f. the departmental examination of the year 2010. If the applicants wanted to qualify under the old pattern, they were required to adhere to that pattern fully. Thus, they were required to pass all the papers which were laid down under the Old Scheme. Since Office Procedure paper was part of the erstwhile scheme of exams, any candidate desirous of being declared successful in the same was required to qualify that paper as well. The respondents have argued that the applicants were free to choose the new pattern of examination. However, if they had done so, they would have to forego their earlier results and appear as fresh candidates.
2.2 Further, the respondents have submitted that the reformed syllabus of examination which has been adopted came into force w.e.f. Departmental Examination, 2010. The applicants were misleading the Tribunal by saying that the Rule by which the office procedure test had been abolished is arbitrary because in old pattern it was mandatory to clear the same. In fact, the office procedure paper for old pattern candidates is a part of the compulsory paper for all candidates as per the Rules of Examination that came into force from 1998 and were applicable w.e.f. the date of Departmental Examination, 2000.
3. We have heard both sides and have perused the material on record. The respondents had argued citing the judgments of Honble Supreme Court that conduct of examination, framing of Recruitment Rules etc. is a policy matter lying exclusively in the domain of the executive and that it was not open to this Tribunal to interfere in the same while exercising powers of judicial review. To counter this, learned counsel for the applicants has relied on the judgment of Honble Supreme Court in the case of Md. Abdul Kadir & Anr. Vs. Director General of Police, Assam & Ors., 2010(1)AISLJ 125, in para-9.1 of the same the following has been held:-
But where an issue involving public interest has not engaged the attention of those concerned with policy, or where the failure to take prompt decision on a pending issue is likely to be detrimental to public interest, Courts will be failing in their duty if they do not draw attention of the concerned authorities to the issue involved in appropriate cases. While Courts cannot be and should not be makers of policy, they can certainly be catalysts, when there is a need for a policy or a change in policy. 3.1 In our opinion pubic policy can be interfered with while exercising powers of judicial review if the Courts found it to be discriminatory and violative of the Constitution. We, therefore, proceed to examine whether such is the case in the present O.A. 3.2 We notice from the material placed before us that the new pattern of examination came into force through the amended Departmental Examination Rules for Income Tax Officers, 2009. In Clause-5(A) of the same, candidates appearing under the new pattern were required to clear four papers each carrying 100 marks whereas under the old pattern the candidates were required to clear six papers carrying a total of 650 marks. Under the new pattern, all papers were objective type except for paper-4 of Income Tax and Accountancy which was subjective. Under the old pattern, the subjective papers were IT & Accountancy. Under the old pattern there was a paper of Office Procedure carrying 100 marks but under the new pattern this paper was dropped. Thus, significant changes have been made in the new pattern of examination as compared to the old pattern.
3.3 The applicants herein have passed all the papers except the paper on Office Procedure. For this they again appeared in the Departmental Examination, 2010 but could not clear the same. They moved a representation to the respondents on 10.06.2011 in which they requested that their result may be reconsidered by deleting the requirement of passing the paper on Office Procedure since it has not been considered necessary to pass this paper under the new pattern of examination. Thus, it is quite clear that when the applicants took the Departmental Examination in 2010, the Scheme of Examination was known to them. However, when they failed in the same, they made a representation requesting for deletion of requirement of Office Procedure paper and when they did not get favourable reply from the respondents, they approached this Tribunal. Learned counsel for the respondents had argued that having taken part in the examination process, the applicants were now estopped from challenging the Scheme of Examination. In our opinion, there is merit in the contention of the respondents. The applicants should have challenged the Scheme of Examination as soon as it was notified rather than acquiescing to take part in the same and challenging it when they are declared unsuccessful. In this regard the judgment of Honble Supreme Court in the case of General Manager, South Central Railway Secunderabad Vs. A.V.R. Siddhanti, 1974(4) scc 348 in which it has been held that a candidate once having appeared in the examination cannot be allowed to later challenge the procedure of selection. Again in the case of Suneeta Aggarwal Vs. State of Haryana & Others, 2000(2) SCC 615 the Honble Supreme Court has held as follows:-
The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of Vice Chancellor. 3.4 The main ground for challenge taken by the applicants is that the respondents have discriminated between the same class of employees by prescribing two different requirements for passing the departmental examination. Thus, while candidates appearing in the old pattern were required to clear the paper on Office Procedure also, there was no such requirement laid down for candidates appearing in the new pattern. If knowledge of Office Procedure was necessary for functioning as ITO, there was no need to delete the same from the new pattern of examination. On the other hand, if this was not necessary for functioning as ITO, there was no need to insist on passing the same for such promotion for old pattern candidates either. In reply, the respondents had argued that it was within the domain of the executive to prescribe such pattern of examination as was considered necessary. In our opinion, it is common knowledge that examining bodies are free to make changes in the examination pattern to suit the emerging requirements. They cannot be faulted for doing so as long as the pattern of examination is the same for all the candidates appearing in a particular year. No comparison can be made with candidates who had taken the examination in the previous years. If this was done, no changes can ever be made in any examination system, and in case any changes are made then the result of all the candidates who have taken the examination in previous years would need to be reviewed. This would obviously be unacceptable position. Hence, the argument of the applicants that there has been invidious discrimination against them lacks merit.
4. In the instant case, the applicants had a choice to appear either as partially qualified candidate or as fresh candidate. They chose to appear as partially qualified candidates to get credit for the papers that had already cleared in the previous years. The respondents had been fair to them and had provided for continuation of the same examination pattern for partially qualified candidates as was applicable to them in previous years. The applicants on their own accord chose to take benefit of this rather than appearing as fresh candidates in all the papers. The respondents are right in saying that since the applicants had chosen the old pattern of examination, they were required to adhere to the same in toto and cannot be permitted to claim that requirement of passing Office Procedure be not insisted upon because the same has not been provided for in the new pattern.
4.1 Also, we feel that no case of invidious discrimination is made out by saying that the total number of marks in all the papers put together which were 650in old pattern had been reduced to 400 in the new pattern, In our opinion, as mentioned above, no comparison can be made between candidates appearing in the examination in different years. Similarly, the respondents were also at liberty to prescribe different age limit in the new pattern though by CBDT Circular dated 10.11.2010 age limit for old pattern was brought at par with the new pattern.
5. In view of the above analysis, we are of the opinion that this O.A. is devoid of merit and is accordingly dismissed. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/