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Ratan Kumar Choubey Versus Union of India through Directorate of Income Tax (Examination) , Chief Commissioner of Income Tax (CCA) , Dy. Commissioner of Income Tax (AQRS)

2017 (4) TMI 769 - JHARKHAND HIGH COURT

Promotion on the post of Income Tax Officer - qualification in the examination - number of attempts - Held that:- Upon going through the rules, it is crystal clear that in the calculation maximum number of chances actually availed by the candidate, the chances for which he is allowed to appear in the examination shall be taken into account irrespective of the fact whether the candidate appears in the examination or not. Thus, there cannot be any dispute on this point as the rule position is very .....

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o support his case they have rightly rejected his case. The Tribunal cannot give any direction contrary to the Rules. Accordingly, the OA is dismissed.” In the earlier order of the Tribunal dated 17.11.2014, the Tribunal had observed that, “in his representation, the applicant had admitted that he was fully aware of the fact that filing of application for examination is considered as an attempt for the said examination, whether the candidate appeared or not in the said examination" - W. P. (S) N .....

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Tribunal, Circuit Bench at Ranchi in O.A. No. 051/ 00072/ 15 whereby the learned Tribunal has been pleased to decline to pass direction to grant him promotion on the post of Income Tax Officer. Further prayer has been made for quashing the order dated 24.01.2012 whereby it has been presumed by the respondents that the petitioner has appeared 12th times though he has attempted for 8 times and finally in 2011 he qualified the same but the respondents have declared him as fail. Petitioner has furt .....

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the post of Income Tax Inspector in the year 2001 and since then he is rendering his service as such with an unblemish career record. Thereafter, to meet the channel of next promotion as Income Tax Officer, the petitioner applied for the departmental examination held for the same in the year 2011. The forms were duly verified and scrutinised by the competent authorities and the petitioner appeared and duly qualified in the examination in the year 2011 itself. However, to utter surprise of the pe .....

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2 times and as such, his case should be reconsidered. However, when no heed was paid to the representation filed by the petitioner, he pleaded for reconsideration of his case for promotion on the basis of his performance in the examination held in the year 2011 as it was his 8th attempt and not 12th. The petitioner's application was also strongly recommended by the authorities. However, when the case of the petitioner was not considered by the respondents authorities, he preferred an applica .....

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nd non-speaking manner vide order dated 16.02.2015. Being aggrieved, the petitioner again moved before the Central Administrative Tribunal, Circuit Bench at Ranchi against the said non-speaking order which was however dismissed vide order dated 07.07.2015 passed in O.A. No. 051/ 00072/ 15. Thereafter, the petitioner having no alternative, moved before this Court by filing instant writ petition. 6. Mr. Anil Kumar Sinha, learned Sr. Counsel assisted by Mr. M.A. Khan, by assailing the order dated 0 .....

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g the attempt in the examination availed by the petitioner. It is case of the petitioner that he has availed the examination for eight times i.e. in the year 1995, 1996, 2001, 2002, 2008, 2009, 2010 and 2011 and the respondents have illegally come to a conclusion that the applicant had availed 12 chances, which is beyond the record. Learned Senior Counsel further argued that attempt in the examination can be counted on actual number of times the petitioner appeared in the examination held by the .....

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der year 2010 onwards. A copy of the said Rule was also brought on record before the Central Administrative Tribunal. It is relevant to quote Rule-IV of the said Rule: RULE-IV: CHANCES PERMISSIBLE AND AGE LIMIT. (i) For New Pattern Candidates (a) A maximum of 10 number of chances may be availed of by a candidate; (b) There shall be no bar on age limit for appearing in the Departmental Examination. EXPLANATION(s): In calculation of maximum number of ten chances, the chances availed by the candida .....

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hese candidates shall be same as laid down by Rule IV of erstwhile Departmental examination Rules for ITOs - 1988 i.e. the age of the candidate on 1st April of the year of examination should not exceed 55 years (in the case of SC/ST candidates, there shall be no age limit) and the maximum number of chances a candidate can avail is ten. EXPLANATION: For the purpose of counting the number of chances available to a candidate for availing the concession mentioned in 1st Proviso to Rule III above, th .....

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iso of Rule III referred to in Rule IV reads as follows: Provided that the partially qualified candidates of the Old Pattern Examination shall also be eligible to appear, for the unqualified papers/ paper only, in the New Pattern examination, 2010 and subsequent years, as per paper matching schedule given in Rule V(B) below subject to the age limit and ceiling of number of chances stipulated in Rule IV(ii) below. This eligibility is for the limited purpose of allowing the Old Pattern candidates, .....

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ered in the case of Oblum Electrical Industries Pvt. Ltd., Hyderabad Vs. Collector of Customs, Bombay reported in (1997) 7 SCC 581. Para-11 of the said Judgment reads as under:- 11. It is true that in clause (viii) of the Explanation to the notification the expression materials has been defined to mean goods which are raw materials, exponents, intermediate products or consumables used in the manufacture of resultant products and their packings or mandatory spares to be exported in the resultant .....

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ween the words materials required for the purpose of manufacture of products and the words materials used in the manufacture of the resultant products in the main par of the definition. Reliance was also placed in the case of Bihta Coop. Development and Cane Marketing Union Ltd. V. Bank of Bihar reported in AIR 1967 SC 389. It was further argued that if the Rule subsides the way of promotion of an employee then this Court has ample power to shut down such arbitrary clause of the Rule. The respon .....

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jected on the ground that his application is against the rule and when after recommendation he appeared in the examination, 'Zero marks was awarded to him in order to eliminate him from the promotion which is a clear case of arbitrariness at the hands of the respondents. Learned Sr. Counsel further drew attention of this Court to Annexure-3 i.e. letter of the Additional Director of Income Tax (Inv.), Ranchi dated 24.01.2012 written to the Director of Income Tax (Inv.), Patna recommending the .....

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at even the Department was aware that injustice has been done to the present petitioner and it was pointed out that even in prestigious examination like UPSC, only appearance in the concerned examination is considered as an attempt and as such action of the respondents authorities in denying legitimate claim of the petitioner is totally dehorse the rule and unconstitutional and violative of Articles 14 and 16 of the Constitution of India. Learned Sr. Counsel assailing the order of the Tribunal a .....

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ara 13 to 16 of the writ petition it is humbly stated that rules for department examination are made with the approval of CBDT and it is uniformly applicable to all the candidates. Further, it is clearly stated in the explanations to rule IV (i) & (ii) of the amended departmental examination rules for ITOs 2009 (effective from 2010 examination onwards) that in the calculation of maximum number of chances actually availed by the candidate the chances for which he is allowed to appear in the e .....

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me Tax after taking into consideration all facts and circumstances of the case and justifying the impugned order. Mr. Deepak Roushan, learned counsel for the respondents, submitted that the contention of the petitioner is incorrect as the Hon ble Central Administrative Tribunal, after considering all the facts, has passed the reasoned order by dismissing the position of the petition. 8. Considering rival submission of the parties and going through the impugned order, this Court is of the view th .....

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