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TMI Blog2019 (6) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... ental Examination. C. To direct the respondents to promote the applicant as Income Tax Officer w.e.f 7.4.2005, the date on which his immediate junior was promoted and grant him consequential monetary benefits including re fixation of pension and other terminal benefits. D. Any other appropriate order or direction this Hon'ble Tribunal deem fit in the interest of justice. He got amended the original application subsequently to bring in challenge against the modified rules, evidenced from Annexure A12 and to add the following prayers in that regard:- E. To declare that the Modified Rules as evidenced by Annexure A12 for the Departmental Examination for Income Tax Officers is deemed retrospective and the applicant is eligible to be promoted to the category of Income Tax Officer with retrospective effect. F. To declare that the stipulation of cutoff date as 26.5.2008 for implementation of rule VI of the Modified Rules contained in Annexure A12 is arbitrary, violative of Articles 14 and 16(1) of the Constitution of India and may be declared so. 2. The respondents resisted the claims and contentions of the petitioner by filing reply statement. After considering the rival co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arks in the next year examination so as to obtain a pass in the examination for the purpose of promotion, he approached the Tribunal by filing O.A.No.287 of 2005. He contended that in the examination held in the year 2000, for the subject 'Book Keeping', he obtained 64 marks and thereby secured four marks in excess of the prescribed qualifying mark of 60. In the examination held in 2001, in the subject 'Office Procedure', he obtained 60 marks and for Accounts and Language test, he scored 90 marks out of 150. It is to be noted that by the year 2003, he got Income Tax Law (consisting of two papers viz., Income Tax Law-I and Income Tax Law-II) to be cleared. In fact, he appeared for the said papers in the year 2002 and then, in the year 2003. In the year 2002, he obtained only 57 and 56 marks and in the year 2003, he obtained 44 and 37 marks respectively for the said papers. It is in the said circumstances that he took up the contention that to make good the shortage of three marks for Income Tax Law-I and four marks in Income Tax Law-II excess marks scored by him for Book Keeping and the other subjects mentioned hereinbefore should be reckoned and adjusted. Raising su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Annexure A12 as regards Departmental Examination for Income Tax Officers reducing the pass mark from 60% to 50% should be given retrospective effect; 2. Giving effect to Rule VI: 'PASS PERCENTAGE' of the modified rules contained in Annexure A12 only from 26.5.2008 would tantamount to stipulation of cut off date as 26.5.2008 hence, leading to unreasonable classification and thereby violation of Articles 14 and 16(1) of the Constitution of India. 5. In fact, the Tribunal, on appreciation of all the contentions including the aforesaid twin contentions, found that the attempt on the part of the petitioner is to get the benefit granted by the Modified Rules extended to the year 2003 disregarding the specific provisions to the contra and held that results of the Departmental Examinations for a particular year are to be evaluated in the light of rules then in vogue and the attempt of the petitioner seeking application of the Modified Rules as regards examinations conducted in the year 2003 ignoring the Rules then in force viz., Departmental Examination Rules for Income Tax Officers, 1998 is absolutely impermissible. The Tribunal had also considered the contentions raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egards 'pass percentage' in Departmental Examination for Income Tax Inspectors. What was actually done thereunder is not correction of a mistake and it was nothing but a reduction of pass percentage from 60% to 50%, in the manner specifically mentioned therein consequent to the introduction of Departmental Examination Rules for Income Tax Officers, 2007 in place of 1998 Rules. Among other the question whether it would be possible for the Executive or Legislature to remove a defect which is the cause for discrimination only prospectively when the said action was declared as violative of the provisions of Part III of the Constitution by the Court, was considered by the Hon'ble Apex Court. The case on hand carries a totally different situation. We have already found that the modification, rather the amendment, brought in as per Rule VI 'PASS PERCENTAGE' is not correction of a mistake. So also, it is to be noted that it is a case where the claim for promotion of the petitioner from the year 2003 was already decided against him and it had attained finality with Annexure-A8 order. In short, the contention based on the decision in Indra Sawhney's case is absolutely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to Rule VI: 'PASS PERCENTAGE' of the modified rules in Annexure A12 (Ext.P5) and Rule VI(1) thereunder reads thus:- A candidate will be declared to have completely passed the Departmental Examination for ITOs if he secures a minimum of 50% (45% in the case of SC/ST candidate) in each of the following subjects: (i) Income Tax Law (2 papers) Combined aggregate of 50% (45% in the case of SC/ST candidate) in both papers. (ii) Other Taxes (iii) Book-Keeping (iv) Office Procedure (v) Examination of accounts and Language Test Paper. It is thus obvious that this reduced percentage of pass mark is applicable only from 26.5.2008. For considering the contention further, it is relevant to refer the 'introduction' to the modified rules and also Rules-IV, therein. They read thus:- INTRODUCTION These rules may be called the Modified Departmental Examination Rules for INCOME TAX OFFICERS, 1998. These rules will be applicable for the Departmental Examination to be held in 1998 onwards and will not have any retrospective application (All the Departmental Examinations for ITOs held upto 1997 and results declared thereon would cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumably because of the doubtful position likely to arise on perusal of the aforesaid recital in the introductory part. There can be no doubt with respect to the position that every legislation is prima facie prospective unless it is expressly or by necessary implication given retrospective operation. It is the well settled rule of interpretation hallowed by time and sanctified by judicial decisions that unless the terms of the statute expressly or by necessary implications require retrospective operation it should not be given retrospective effect. Virtually, an amendment as regards the requisite percentage of marks in the matter of promotion to the post of Income Tax Officer was brought down from 60% to 50% only by the Modified Rules only with effect from 26.5.2008. Attaching retrospectivity would definitely lead to chaos and anarchy in administration inasmuch as persons who were ineligible to be promoted under the erstwhile rules and thereby denied promotion would get a right to get promoted with retrospective effect and in such eventuality, it may, rather it would, entail reversion of persons who got qualified for promotion by passing the Departmental Examinations as per the ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India v. Tarsem Singh [2009 (1) KLT 101 (SC) and in the said circumstances. In paragraph 7 of the judgment, the Apex Court held:- 7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a Writ Petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the introduction of the Modified Rules and only after being unsuccessful in his attempt to get promotion based on the contentions mentioned earlier raised in O.A.No.287/2005. Indubitably, in the meanwhile, several persons obtained promotions. 11. We have already extracted the prayers sought for by the petitioner in O.ANo.955 of 2014. In the aforementioned context, it is only appropriate to refer to the reliefs sought for by the petitioner in the Original Application earlier filed by him viz., O.A.No.287 of 2005. It reads thus:- "8(i) To call for the records leading to Annexure A1 and set aside the same in so far as it does not declare the applicant passed in the Examination. (ii) To call for the records leading to Annexure A-5 and set aside the same. (iii) To declare that the applicant is deemed to have been succeeded in the Examination for Income-Tax Officers held in 2003 and eligible to be promoted as Income-Tax Officer in the available vacancy in preference to his juniors, with consequential fixation of pay. (iv) To direct the Respondents to grant two advance increments to the applicant in the category of Income-Tax Inspector w.e.f. 17.11.2003, the last date o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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