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PETITIONER: UNION OF INDIA AND ORS.

       Vs.

RESPONDENT: SYED MOHD. RAZA KAZMI AND ORS.

DATE OF JUDGMENT13/03/1992

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. RAMASWAMI, V. (J) II YOGESHWAR DAYAL (J)

CITATION:  1994 AIR  805            1992 SCR  (2) 280  1992 SCC  Supl.  (2) 534 JT 1992 (3)   309  1992 SCALE  (1)699

ACT:         Civil Services :      Income   Tax  Department-Creation  of  cadre   of   Tax Assistants-Intermediary  cadre between Upper Division  Clerk and  Head  Clerk-Promotion to the post of Head  Clerk  along with  UDCs  on the basis of seniority in the cadre  of  UDC- Claim of Tax Assistants for being declared en bloc senior to Upper  Division Clerks-Validity of  the  claim-consideration of-Policy  decisions  regarding  promotions-Interference  by Court/Tribunal-When justified. ^

HEADNOTE:     The  Respondents  joined  service  in  the  Income  Tax Department  as Upper Division Clerks. In the  normal  course after five years of service and after passing a  ministerial staff  examination,  they would have been promoted  as  Head Clerks.   Since   there  was  stagnation,   the   Government constituted  a grade of Tax Assistants, as  an  intermediary cadre  between Upper Division Clerks and Head  Clerks.  One- third  of  the cadre strength of UDCs was  upgraded  as  Tax Assistants.  The recruitment to the post of  Tax  Assistants was  entirely  by promotion of UDCs, on a  selection  basis. UDCs  with a minimum service of three years who had  secured atleast  40 per cent marks in atleast four subjects  in  the departmental   examination  for  the  post  of  Income   Tax Inspectors, were considered for selection as Tax Assistants.      Having   fulfilled   the  above   qualifications,   the Respondents were promoted as Tax Assistants.      Even  after the creation of the post of Tax  Assistant, the  recruitment rules for the post of Head  Clerk  remained unaltered. As such, only UDCs were eligible for promotion as Head  Clerk; the Tax Assistants were not eligible.  For  the post  of  Income  Tax Inspector,  the  Tax  Assistants  were eligible  subject  to  their  completing  the   departmental examination  therefor.  Since the eligible  candidates  from higher ministerial cadres were con-                                                      281 sidered  first,  the Tax Assistants had to  wait  for  their turn.      The  department,  after considering the fact  that  Tax

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Assistants formed a grade higher than that of UDCs, and that it  would  be  inequitable to deny them  promotion  as  Head Clerk, issued instructions to the effect that Tax Assistants would  also be considered along with UDCs for  promotion  as Head  Clerk.  However, they were to be  considered  only  in accordance  with  their  seniority in  the  cadre  of  UDCs, irrespective  of  their  confirmation in the  grade  of  Tax Assistants.  This resulted in a peculiar  situation  wherein UDCs  who could not qualify for the post of  Tax  Assistants could become Head Clerks, and the Tax Assistants, who formed a  higher grade, were considered along with such  UDCs,  for promotion to the post of Head Clerks.      Being   aggrieved   by  the  said   instructions,   the respondents approached the Central Administrative  Tribunal, contending that the Tax Assistants should be treated en bloc as a cadre senior to UDCs, as was the position in regard  to promotion  for  the post of Income Tax Inspector,  and  that they should not be made to wait for their turn in  seniority as UDC, for promotion to the post of Head Clerk.      The Tribunal was of the view that the Government should evolve  a  proper  scheme to tide  over  the  situation  and suggested  three alternative methods, viz., (i) A  quota  or roster  on the same lines as in the case of  Inspectors  for promotion  to the post of Head Clerks should be fixed;  (ii) Option  should be invited from such of the TAs who  want  to opt  for HC’s posts and thereafter for  supervisors’   posts and (iii) the post of HCs should be filled not by  seniority alone  but by an open competition where all UDCs of  certain minimum years of service are allowed to compete.      The department considered the suggestions given by  the Tribunal  and  felt  that  since  the  existing  scheme   of promotion of Tax Assistants to Head Clerk had stood the test of  time  and  since  it was in the  best  interest  of  the department  and  all  the feeder cadres  of  employees,  any change would create enormous difficulties for the department whose  offices are located all over the country.  Therefore, the department decided to continue the existing scheme.      The Department having stood its ground, the Respondents again  moved  the  Tribunal questioning  the  stand  of  the department and certain                                                        282 amendments   to  the  Recruitment  Rules  made   after   the Tribunal’s  order. The Tribunal felt that the  amendment  in the Rules were intended to defeat the respondent’s claim for promotion.  It also took the view that the respondents  were entitled  to promotion posts under the earlier  rules,  such rights having crystallised by virtue of its orders passed in 1988.  The  Tribunal directed that in case  the  respondents were found entitled for promotion, their appointment to such promotion posts would take effect from the date of its order and not from the date they were subsequently promoted.      Against  this  order of the  Tribunal,  the  department preferred the present appeal by special leave.      Allowing the appeal, this court,      Held  :  1.  No right had  crystallised  in  favour  of respondents  as  a  result  of  the  earlier  order  of  the Tribunal.  At that time, the Tribunal was inclined to  think that the grade of Tax Assistants being higher than the grade of Upper Division Clerks, the department should evolve  some scheme whereby the respondents could be made eligible to  be considered  for promotion as Head Clerks otherwise  than  in their  turn  of  seniority as  Upper  division  Clerks.  The earlier  order did not however, give any specific  direction to the department. [291 E, F]      2.  Neither  the original rules nor the  amended  rules

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provided for the promotion of Tax Assistants to the post  of Head  Clerk. The amended rules in respect of Inspectors  did not   also   place  the  respondents   under   any   greater disadvantage than before in the matter of their promotion as Inspectors.    The   reference   to    higher    ministerial establishments  contained in the earlier rules was  replaced by  a more detailed specification by a reference being  made to "Supervisors Grade-I, Supervisors Grade-II, Head  Clerks, Tax  Inspectors,  Upper Division Clerks  and  Stenographers" providing a similar arrangement of gradation as earlier  and creating  quotas for ministerial grades on the one hand  and the  stenographer’s grades on the other. There is  no  basis for  the  Tribunal’s  conclusion  that  the  department  had attempted  to  by-pass any direction or  conclusion  of  the Tribunal by the amendments to the rules. [292 C-E]      3.  The respondents are no doubt better than the  other Upper  Division  Clerks  in that they have  qualified  in  a limited manner in the                                                        283 Income-tax  Inspector’s  Examination which the  other  Upper Division Clerks have not done. Therefore, the Tax Assistants have been given a promotion and they have been in receipt of higher  grades of salary right from the beginning  from  the day  they become Tax Assistants. To this extent,  they  have gained  a march over the other UDCs who could  not  qualify, wholly or partly, in the Income Tax Inspectors  examination. They  have  also  gained  a  preference  for  promotion   as Inspector over UDCs who do not qualify as Tax Assistants but who pass the Inspectors’ examination in due course. It is no doubt  true  that the promotion of the  respondents  as  Tax Assistants has not been carried to its fullest local  sequel by  giving them promotion as Head Clerks treating them as  a cadre  higher  to UDCs. But this was a  calculated  decision taken in the difficult situation of having to reconcile  the claims  of  the  large  number of UDCs  who  would  be  left otherwise  with no avenues of promotion and of the UDCs  who had   already  earned  some  advantages  by   becoming   Tax Assistants. [294 E-G]      4.  The policy decision taken by the department is  not arbitrary  or meaningless. It has a background and it has  a purpose.  It is for the department to decide on policies  of promotion which will be consistent with the interests of all employees  belonging  to various cadres. It is not  for  the Administrative Tribunal or for the Courts to interfere  with this  and  to  dictate the avenues of  promotion  which  the department  should  provide for its various  employees.  The courts  cannot direst that Tax Assistants should be  made  a direct feeder post to Head Clerks superior to Upper Division Clerks.  No  doubt  the court will  interfere  if  there  is arbitrariness  or  resultant  discrimination.  There  is  no arbitrariness  or  discrimination. There is  no  ground  for interfering with the policy of the department which has been in force since 1978. The Tribunal has had no opportunity  to hear  the  point  of view of the larger  category  of  Upper Division  Clerks  who  have  not  qualified  to  be   either Inspectors or officers and whose future is fully jeopardised by  the  directions given by the Tribunal. This  is  another reason  why the Tribunal was not justified in giving such  a direction  as  it  did to the effect  that  the  respondents should  be  promoted  as Head Clerks  by  treating  them  as belonging to a cadre higher than Upper Division Clerks. [294 H; 295 A-D]

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JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2255 of 1992.      From  the Judgment and Order dated 9.5.1991 of  Central Administra-                                                        284 tive Tribunal, Allahabad in O.A. No. 348 of 1990.      K.T.S.  Tulsi, Addl. Solicitor General, A.S.  Rao,  Ms. Sushma Suri, P.Parmeshwaran, Niranjan Singh, T.C. Sharma and C.V.S. Rao for the Appellants.      Respondent appeared in person with Arun K. Sinha.      The Judgment of Court was delivered by      RANGANATHAN,  J.  Leave is granted and  the  appeal  is disposed of after hearing counsel for both parties.      The  four respondents joined service in the  Income-tax department as Upper Division Clerks. Their scale of pay  was Rs.  330-560. In the normal course of events, after  putting in  five  years of service and passing a  ministerial  staff examination,  they would have been promoted as  Head  Clerks (H.C.)  on the scale of Rs. 425-700. Perhaps because of  the stagnancy of a large number of Upper Division Clerks  (UDCs) without any promotion, the Government constituted a grade of Tax  Assistants (T.As.) by an order dated 11th March,  1978. The pay-scale of the post of Tax Assistants was fixed at Rs. 380-12-EB-15-560-EB-20-640.  In  other words, the  cadre  of T.As.  was created as an intermediary cadre between  U.D.Cs. and  H.Cs.  classifying it also as a  ministerial  cadre  in Group C of the Central Services. This was done by  upgrading as T.As. one third of the cadre strength of U.D.Cs. The idea was provide more experienced and competent ministerial staff to  deal  with important clerical work particularly  in  the Companies’  and  investigation circles. 4,140 posts  of  TAs were  created by upgrading an equal number of posts of  UDCs with the result that a corresponding number of posts of UDCs got  abolished from time to time as posts of Tax  Assistants got filled up in the respective charges. The recruitment  to the post of TAs was entirely by promotion from the cadre  of UDCs  on a selection basis on the recommendation of  a  duly constituted departmental promotion committee out of those of the  UDCs  as had (a) rendered a minimum  service  of  three years  and  (b) secured at least 40 per cent  marks  in  the paper  on  four  subjects in  the  departmental  examination conducted  for  the post of Income-tax  Inspectors  (I.T.I.) from time to time.      This may be described as a limited qualification in the I.T.I. Examination. A pass in every paper of the examination with 50% marks and                                                      285 an  overall average of 60% made the candidates eligible  for consideration  for promotion to the post of ITIs which is  a non-gazetted, non-ministerial post in Class III (Group C) of the Central Services.      The   four   respondents  had  obtained   the   limited qualification  referred to above in the ITI  examination  in 1976  and 1977 and, as such, they were all promoted  as  TAs and have been functioning as such.      There  were two promotional avenues for Upper  Division Clerks. They could become Head Clerks after putting in  five years of service and passing a ministerial staff examination as  already mentioned. They were also eligible,  along  with staff in higher ministerial grades and stenographers, to  be considered for the post of Inspectors provided they had also completed  and departmental examination for ITIs.  For  this purpose,  persons in the higher grades got  preference  over the  persons working in the lower grade. An  Upper  Division

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Clerk could become an Inspector only after persons in higher ministerial  grades  had  been duly  considered.  But  Upper Division  Clerks could become Head Clerks and Inspectors  in due course of time, subject to their passing the  respective qualifying  examination. When the post of Tax Assistant  was created,  the rules of recruitment for Head Clerks  was  not modified. In other words, so far as the post of Head  Clerks was  concerned,  that had to be filled up 100  per  cent  by promotion   only  from  Upper  Division  Clerks.   The   Tax Assistants  were not eligible for promotion as Head  Clerks. They were, however, eligible for consideration as Inspectors on  completing the I.T.I. examination. Thus  Tax  Assistants could be promoted only to the posts of Inspectors but  there also  they stood in the queue till all  eligible  candidates from   higher  ministerial  cadres  had   been   considered. Considering  that they formed a grade higher than the  grade of  Upper  Division  clerks, it was  inequitable  that  they should  be denied promotion to the post of Head Clerks.  The Department, therefore, issued instructions that promotion to the  grade  of Head Clerks could be made not only  form  the cadre  of Upper Division Clerks but also from the  cadre  of Tax Assistants but added, as a rider, that in so doing,  the Tax   Assistants  would  be  considered  only  in  turn   in accordance  with  their  seniority in  the  cadre  of  Upper Division Clerks, irrespective of the fact that they may have been  confirmed  in  the  grade  of  Tax  Assistants.  These instructions  appear to have been issued in 1978 itself  but were  reiterated  by another Memorandum  dated  26th  March, 1982. The result of this was that though Tax Assistants  got promotion as Head Clerks, it was available                                                        286 only  according to their order of seniority among the  Upper Division Clerks. They felt that it was very inequitable that they, who belonged to a higher cadre than the Upper Division Clerks  should  get  promotion as  Head  Clerks  much  after persons who continued to remain as Upper Division clerks and had  not qualified for appointment as Tax Assistants.  This, they felt, amounted to putting a premium on inefficiency.      The Tax Assistants, thus aggrieved, went to the Central Administrative  Tribunal for redress. They  contended  that, for  promotion  as  Head Clerks, Tax  Assistants  should  be treated  en  bloc  as a cadre senior to  UDCs  (as  was  the position regarding promotion as ITIs) and should not be made to wait for promotion to HCs for their turn in seniority  as UDC. To illustrate their grievance, it may be mentioned that respondent Syed  Mohd.  Raza Kazmi (who  was  the  applicant before   the  Tribunal)  had  completed   the   departmental examinations for Income-tax Inspectors as early as 1977  and had qualified for becoming and had become a Tax Assistant by reason  of complete success in the above  examination  which made   him  eligible  even  for  promotion   as   Income-tax Inspectors  subject,  of course, to his  seniority.  On  the other  hand,  though promoted as Tax Assistant as  early  as 1977 he found himself continuing as a Tax Assistant even  as late as 1988, whereas if he had been treated as belonging to a  higher grade of employees than Upper Division  Clerks  he would  have  been promoted as Head  Clerk  w.e.f.  7.3.1984. There was also another hurdle in the way of this  respondent in  that  he  could  not  appear  in  Income-tax   Officers’ Examination,  (Group-B), until promoted as a Head Clerk.  To sum  up,  his  promotion as a Head  Clerk  was  inordinately delayed;  his promotion as Inspector was  also  consequently delayed  because  Tax  Assistants could  be  considered  for promotion  as Inspectors only after Head Clerks; and he  was also  under  a  handicap in regard to  his  eligibility  for

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appearing   in  the  officers’  examination.   The   Central Administrative Tribunal felt that there was an injustice  in this situation. The Tribunal observed:                "It is not under dispute that the post of Tax          Assistants  is  an intermediatary cadre post  in  a          higher  grade  and is considered as  a  promotional          post  from the grade of UDC. The only  reason  that          has  been  emphasised in the replies filed  by  the          respondent for not giving any consideration to  the          fact that it is an intermediatary cadre and  higher          grade post and a promotional post from the grade of          Upper Division Clerk, is that in case this was                                                        287           made  a channel of promotion of UDCs (sic) who  do          not  appear  in the  departmental  examination  for          promotion  to  the post of ITIs and  who  wait  for          promotion  avenue and will stagnate and  retire  on          the  same post i.e. Upper Division Clerks.  To  our          mind,  this  explanation  is not  founded  on  well          considered  principles and the chances  of  further promotion for TAs should also have been safeguarded  because once  they  took  a  chance  to  appear  in  a  departmental examination and qualify through a DPC for promotion as  TAs, which  is  a  higher  grade post they  cannot  be,  for  the purposes of consideration for further promotion to the grade of  Head Clerks, (in) made to lose their rights  accrued  to them by virtue of their promotion and by virtue of occupying a  post  which  is  without any doubt  a  higher  grade  and promotional  post. At the same time, when these  posts  were created,  only  part of the cadre of Upper  Division  Clerks i.e. 1/3rd was upgraded to those posts. Therefore,  majority of  UDCs still remain in the parent cadre of UDCs.  A  plain reading  of the manner in which the post of  Tax  Assistants have  been created also does not leave any doubt that  these posts  could very well be treated in the regular  avenue  of promotions  from  the post of UDC to that of H.C.  but  this would  have resulted in a peculiar situation i.e.  all  UDCs would have to pass through the post of H.C. which posts  are definitely not in large numbers and thereby there would have been  no stability and continuity in the incumbency  of  the post  of  HC as he would have thereafter moved  for  further promotion  to the category of Supervisor Grades I and II  or ITI. The respondents raised a contention in their reply that if  TAs  were  allowed to occupy the post  of  HC  and  they already have a chance for promotion as a Inspector, which is a higher grade post than that of Head Clerk, they would have not been able to find sufficient number of staff to man  the post  of Supervisor Grade I and II who are in the avenue  of promotion of Head Clerks (sic) can also not be just right."      Considering  the above aspects the Tribunal was of  the opinion that the Government should evolve a proper scheme by which the fact of the Tax Assistants being in a higher grade is not ignored and the difficult                                                   288 situation  facing  the  applicants could  be  overcome.  The Tribunal  proceeded to suggest three alternative methods  by which  such  an  improvement  in  the  situation  could   be achieved.           (i) A quota or roster on the same lines as in  the          case  of  inspectors for promotion to the  post  of          Head Clerks should be fixed;           (ii) Option should be invited from such of the TAs          who  want to opt for HC’s posts and thereafter  for          supervisors, posts; and           (iii)  The  posts of HCs should be filled  not  by

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        seniority  alone but by an open  competition  where          all  UDCs  of certain minimum year of  service  are          allowed to compete.      The   respondents  filed  an  application  for   review praying,  inter  alia, that "specific orders  for  immediate implementation  be  passed that the TAs be  given  seniority over  UDCs  for  promotion  to  HCs  w.e.f.  31.5.78".  This application was dismissed by the Tribunal on 28.4.1989. Then they  preferred petitions for special leave to  the  Supreme Court  being  SLP Nos. 15854-63 of 1991 with  the  following observations:                "The Tribunal has formulated the scheme which          we  hope  will  be implemented  by  the  Department          within reasonable time. The Special Leave Petitions          are dismissed".      The  Department  claims  that  it  has  given   careful consideration to the various suggestions made by Tribunal. A propos  the  three  suggestion made  by  the  Tribunal,  the department’s comments are as follows:           4.  That the Government has carefully  re-examined          various alternatives suggested in the directions of          Central   Administrative   Tribunal.   The    first          alternative suggested was that a quota system could          be  introduced  for promotion to the grade  of  Tax          Assistant  (TA). This has been examined  carefully.          The quota system in the grade of Inspectors,  (ITI)          referred  to  by  the CAT is only  for  the  feeder          categories as provided in the relevant  recruitment          rules.  This position is not obtaining in the  case          of   TAs.   The  quota/Roster  system   cannot   be          introduced for promotion to the post of Head Clerks          (HC) as under the                                                        289           recruitment rules for HCs, the TA is not a  feeder          grade  for  promotion  to  the  post  of  H.C.  The          Quota/Roster  system for promotion to HC would  not          be  advantageous to the TAs as at present they  are          eligible  for  consideration for promotion  to  all          available  posts  of  HCs on  the  basis  of  their          seniority   as  UDC.  That  if  quota   system   is          introduced  it is likely that junior UDCs  may  get          promotions to the post of HCs earlier than some  of          the  TAs who may be senior in the grade of  LDC  as          promotion  of TA to HC would than be restricted  to          the  fixed quota only. They may be senior  as  UDCs          but  cannot get promoted to the grade of HC due  to          the proposed fixation of quota for TAs/UDCs. Hence,          fixation  of  quota  system for  promotion  of  Tax          Assts. to H.C. is not considered feasible.           5.  That as regards the suggestion that option  be          obtained from TAs, it is considered that it  should          be  a retrograde step to obtain from TAs, who  want          to be absorbed in the Ministerial cadre,  foregoing          their  chances  for  promotion  in  the  grade   of          Inspectors. The efficiency of the Income-tax Deptt.          would  suffer if such a step is taken. The  purpose          behind  creation of the grade of TAs senior to  the          level  of  UDC,  would be  defeated  if  option  is          allowed   to   the  TAs  for  absorption   in   the          ministerial cadre.           6.  That  the  TA perform work  of  Technical  and          complicated nature in the Income-tax Deptt.  having          qualified in the Departmental examination of  ITIs.          Promotion to the ministerial cadre posts of HCs and          above  are  basically provided for UDCs,  who  form

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        part  of  the ministerial cadre. However,  TAs  are          also  considered for promotion to HC as  per  their          place in the UDC seniority list.           7.  That  the  TAs have  been  made  eligible  for          promotion  as HC, as a concession and they  do  not          have a statutory right for such promotion, as their          line of promotion is in the Executive cadre of ITI.           8.   That  the  Government  has   issued   special          executive   orders  making  the  TA  eligible   for          promotion  to the post of HC on the basis of  their          seniority as UDC alongwith other UDCs who                                                          290          have not received promotion to the grade of TA.          9. That giving an over-riding seniority to the  the          post  of TA in the matter of promotion to HC  would          be   doing  injustice  to  the  UDCs  and  is   not          contemplated  in  the recruitment rules.  It  would          also  be against the general principles of  natural          justice.          10. That thirdly, the post of HCs cannot be  filled          by open examination as no open examination is  held          for  such  supervisory post in  any  department  of          Govt. of India.          11.  As  already  explained  all  the  above  three          alternatives   have  been  duly  considered   after          detailed examination and the Department of  Revenue          have come to the conclusion that existing system is          in  the  best interest of the  Department  and  all          feeder  categories  of employees and could  not  be          changed.      The department was of the view that the existing scheme of  promotion of Tax Assistants to the grade of Head  Clerks by virtue of their seniority in the grade of Upper  Division Clerks  had  stood  the test of time. It  was  in  the  best interests of the department and all the feeder categories of employees.  No  representations  had been  received  by  the department from the staff side for any change in the scheme. No  difficulties had also been experienced so far  from  any other  charge  of the department which is located  all  over India.  On  the other had, any change made  in  the  present scheme,  it was thought, would create enormous  difficulties for  the department. It was, therefore, decided to  continue the existing system.      With   the  department  taking  up  this   stand,   the respondents  had  no option but to go back  to  the  Central Administrative  Tribunal.  They submitted  to  the  Tribunal          that,  though  the  department  had   categorically          admitted  that they accepted the earlier  order  of          the  Tribunal, it was declining to give  effect  to          the directions contained in the said order. On  the          other  hand, certain amendments to the  recruitment          rules  to various promotional posts that  had  been          made  in  the meanwhile were also  brought  to  the          Tribunal  as  placing  the  respondents  in   worse          position.  The Tribunal also seems to have  thought          that  the amendment in the rules were  intended  to          defeat  the respondents’ claim for  promotion.  The          Tribunal  also took the view that  the  respondents          had  become entitled to the promotion  posts  under          the  earlier rules as they existed in view  of  the          Tribunal’s directions                                                   291 on the earlier applications. Their rights for promotion thus crystallised  since  1988,  they  observed,  could  not   be defeated  because  of subsequent amendments, in  the  rules.

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They  commented  adversely on the department’s  failure  "to formulate  a  scheme  even after judicial  orders  had  been passed which had to be obeyed and implemented by them".  The Tribunal directed (in terms which are not quite clear in the copy of the order furnished to us):           "We  direct that the respondents (sic) with  rules           along with as per the order of the Tribunal  dated           26.8.88 referred to above notwithstanding the fact           there  was any failure on their part to  formulate           the  scheme.  In  case the  applicants  are  found           entitled, their appointment will take effect  from           the  date  they were  subsequently  promoted.  Let           compliance  of this order be made within a  period           of  two  months and one week from today.  As  this           order  has  been  passed in the  presence  of  the           counsel   and   officials  of   the   Income   Tax           Department,  it is not necessary to say  that  the           order  is  to  be implemented  from  the  date  of           receipt of copy of the same."      It  is from this order of the Tribunal  dated  9.5.1991 that the Union of India had preferred the present appeal.      We  are  afraid that the Tribunal’s order is  based  on confusion and misapprehension. In the first place, we do not think  that  any  right had crystallised in  the  favour  of respondents,  as  a  result  of the  earlier  order  of  the Tribunal.  At that time, the Tribunal was no doubt  inclined to think that, the grade of Tax Assistants being higher than the  grade of Upper Division Clerks, the  department  should evolve  some  scheme whereby the respondents could  be  made eligible  to  be  considered for promotion  as  Head  Clerks otherwise than in their turn of seniority as Upper  Division Clerks. The earlier order did not however, give any specific direction  to the department. The operative portion  of  the order only read thus:           "We   dispose  of  this  application  only  by   a           direction  to the respondents to evolve  a  scheme           considering   the   suggestions   given   in   our           observations along with any other scheme that they           may  be  able to evolve to  remove  the  anomalous           situation  whereby the incumbents  of  promotional           post  which are in intermediary cadre are  clubbed           for their seniority with persons                                                         292           in  a lower grade for consideration for  promotion           to the post of Head Clerk."      It  is, therefore, difficult to see how any rights  had got  crystallised  in favour of the respondents  which  have been  taken away by the department subsequently. The  second major  impression  underlying the order of the  Tribunal  is that   the  department  had  defeated  the  rights  of   the respondent  by the subsequent amendments made in the  rules. This,  again, is an incorrect impression as  the  amendments did  no  such  thing. Neither the  original  rules  nor  the amended  rules provided for the promotion of Tax  Assistants to the post of Head Clerks. The amended rules in respect  of Inspectors  did  not also place the  respondents  under  any greater  disadvantage  than before in the  matter  of  their promotion  as  Inspectors.  Only, the  reference  to  higher ministerial  establishments contained in the  earlier  rules was replaced by a more detailed specification by a reference being  made  to "Supervisors Grade-I  Supervisors  Grade-II, Head  Clerks,  Tax  Inspectors, Upper  Division  Clerks  and Stenographers", providing a similar arrangement of gradation as earlier and creating quotas for ministerial grades on the one  hand and the stenographer’s grades on the other.  There

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is   no  basis  for  the  Tribunal’s  conclusion  that   the department  had  attempted  to  by-pass  any  direction   or conclusion of the Tribunal by the amendments to the rules.      It  is  no doubt true that, by its earlier  order,  the Tribunal   had  suggested  to  the  department   that   some alternative  schemes should be thought of and some  solution should   be  evolved  to  redress  the  grievances  of   the respondents.  But  no specific direction was given  and  the mere fact that  the department has not found it feasible  to          accept any of the suggestions made by the  Tribunal          cannot  justify  the  grant  of  the   respondent’s          prayer. The only effect of the order dated  26.8.88          not  being  implemented is, therefore, to  put  the          parties back in the position in which they were and          to call for a fresh consideration of their plea  on          the merits.      Now  the  short  question  is  whether  there  is   any injustice suffered by the respondents which can be  remedied by the Tribunal or the Court. The respondents no doubt  have a grievance that, though promoted to a grade higher than the Upper  Division  Clerks,  they  are  being  considered   for promotion  as  Head  Clerks only in  accordance  with  their seniority  in  the  cadre of  Upper  Division  Clerks.  This creates  two types of anomalies. One is that a UDC (who  has not qualified as TA) can become HC earlier than                                                   293 one  who has, by virtue of his seniority as UDC. The  second is that a senior UDC, who qualifies as a TA much latter than a  UDC junior to him can become HC earlier, thought, as  TA, he  would  be  junior to the latter. But  as  against  these anomalies  , one has to consider the difficulties  faced  by the  Department in giving TAs as a class  higher  preference than  UDCs for promotion as Head Clerks. For one thing,  the recruitment  rules of 1969 did not, naturally, envisage  TAs as a feeder post for promotion as HCs and, when the posts of TAs were created, it was deliberately decided not to include them   as  such;  the  rules  were  not  amended   and   the instructions  only  put them on par with  other  UDCs.  This remained  unchallenged  and, even when challenged  in  1987, the  Central Government as such was not made a party and  no specific  directions for the amendment of the rule  in  this behalf  were  prayed  for.  But,  this  apart,  there   were insuperable difficulties in the way. The figures given to us indicate that there were about 13,000 Upper Division  Clerks in  1978. Their promotional avenue was only to  become  Head Clerks  by passing the ITI examination. There were UDCs  who could  do  this  and  get such  promotions  in  due  course. Secondly,  there  were Upper Division Clerks  who  were  not capable  of passing the Income-tax  Inspectors’  Examination but  were  able to qualify in the  lower  grade  ministerial examination which made them eligible to become Head  Clerks. There  was third category of Upper Division Clerks who  fell in  between  these two categories. They did  not  completely pass the Income-tax Inspectors’ Examination but qualified in it  with  sufficient marks to justify the view  that,  given some  encouragement,  they would be able to  move  into  the Inspectors’  executive line. The department was also in need of  a  category  of persons who would not  be  simply  doing clerical work but who showed such promise of developing into Inspectors.  In this situation, the department  created  the post  of Tax Assistants and promoted to these posts  persons who  had  not fully completed the ITI  examination  but  had secured  a "limited" pass therein . This gave the  UDCs  who had  achieved  this  distinction two  advantages:  (i)  they became  immediately  entitled to higher scale  of  pay  than

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other  UDCs  and  (b) they acquired  higher  eligibility  to become  Inspectors  of Income-tax for which  selection  they stood  in  between  Head Clerks  and  other  Upper  Division Clerks. But they suffered this advantage that they would not become   Head  Clerks;  their  ability  to  pass   the   ITI examination  was taken as an indication of their  propensity to move to an executive line and so, promotion for them  was to be only as ITIs in due course. So far as the rest of  the UdC  staff was concerned, who had qualified neither  in  the Income-tax   Inspector’s   Examination,  nor  in   the   Tax Assistant’s Examina                                                          294 tion,they continued to be Upper Division Clerks. The depart- ment felt that, if the Tax Assistants were  also  allowed to compete  for the post of Head Clerks by the mere  reason  of their  limited qualification in the  Income-tax  Inspectors’ Examination  at a level higher than UDCs, there would  be  a tremendous  stagnation  amongst the Upper  Division  Clerks. More  than  2/3rd  of the Upper  Division  Clerks  would  be completely shut out from all chances of promotion.  However, realising  that, to deny the Tax Assistants  completely  any promotion  as  Head Clerks would also amount to  an  anomaly since  they  were  in no way inferior  to  the  other  Upper Division  Clerks who were eligible for such  promotion,  the department decided that while Tax Assistants should normally await  promotion  as Income-tax Inspectors, they  should  be enabled  as and when their normal seniority in the  rank  of Upper  Division Clerks warranted it, to be promoted as  Head Clerks  though, strictly speaking, they belonged to a  grade from which there would be no promotion to the posts of  Head Clerks. This was a via media found by the department between the  two  alternatives  (a) of altogether  denying  the  Tax Assistants promotion as Head Clerks and (b) of treating  the Tax Assistants as a cadre superior to Upper Division  Clerks in all respects including promotion as Head Clerks. It was a concession  shown to the TAs, standing in the  longer  queue for  ITIs, by permitting them to join the queue for HCs  but with  no precedence over other senior UDCs already  standing in  this  second  queue.  In  this  situation,  it  is  very difficult   to   agree  that  the   department   has   acted unreasonably  or  unjustly.  The respondents  are  no  doubt better  than  the other Upper Division Clerks in  that  they have  qualified  in  a  limited  manner  in  the  Income-tax Inspector’s  Examination  which  the  other  Upper  Division Clerks  have  not done. But, for this  "achievement",   they have been given a promotion and they have been in receipt of higher  grades of salary right from the beginning  from  the day  became Tax Assistants. To this extent, they have gained a  march  over the other unenterprising UDCs who  could  not qualify, wholly or partly, in the ITI examination. They have also  gained a preference, for promotion as ITIs, over  UDCs who do not qualify as TAs but who pass the ITI’s examination in due course. It is no doubt true that the promotion of the respondents  as  TAs  has not been carried  to  its  fullest logical  sequel  by  giving them promotion  as  Head  Clerks treating them as  a cadre higher to UDCs  entitled  to  such promotion.  But this was a calculated decision taken in  the difficult situation of having to reconcile the claims of the large  number  of UDCs who would be left otherwise  with  no avenues  of  promotion  and the UDCs who  had  already  some advantages  by  becoming TAs.  The policy  decision  is  not arbitrary or meaningless.  It has a background                                                   295 and it has a purpose.  It is for the department to decide on policies  of  promotion which will be  consistent  with  the

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interests of all employees belonging to various cadres.   It is  not  for the Administrative Tribunal for the  Courts  to interfere with this and to dictate the avenues of  promotion which   the  department  should  provide  for  its   various employees.   The  courts cannot, we think, direct  that  TAs should be made a direct feeder post to HCs superior to UDCs. No doubt the Court will interfere if there is  arbitrariness or  resultant discrimination.  But, after  considering  very carefully  all aspects the situation, we are unable  to  say that  there is any such arbitariness or discrimination.   We are unable to see any ground for interfering with the policy of  the department which has been in force since  1978.   We may  also point out that, in the proceedings before it,  the Tribunal has had no opportunity to hear the point of view of the  larger category of Upper Division Clerks who  have  not qualified  to  be either Inspectors or  officers  and  whose future  is fully jeopardised by the directions given by  the Tribunal.   This is also an additional reason why  we  think the Tribunal was not justified in giving such a direction as it did to the effect that the respondents should be promoted as HCs by treating them as belonging to a cadre higher  than UDCs.      For   the  above  reasons,  we  quash  the   Tribunal’s direction to give promotion to the respondents on the  basis indicated  it  its order.  We would only like to  add  that, while  there  is no doubt some ground for complaint  on  the part  of the respondents, it should not be  forgotten  that, for the "limited" qualification they had obtained, they have had  clear and tangible benefits by being appointed  to  the higher post of TAs. They are better off than they would have been  had they not qualified as TAs at all.  We,  therefore, do not consider it necessary to interfere in the matter.      The  appeal is allowed, but, in the  circumstances,  we make no order regarding costs. G.N.                                          Appeal allowed.                                                   296