JUDGMENT
1. These appeals have been preferred by Additional Commissioner and Commissioner of Income Tax, aggrieved by the direction of the learned Single Judge to include the names of the petitioners in the list of candidates who had passed the departmental examination of Income Tax Officers after assigning them their appropriate place in the seniority list with consequential reliefs.
2. Writ petitions were preferred seeking a direction to quash the order dated July 22,1997 by which it was decided to withdraw instructions contained in Office Memoranda, OM No. 8/12/69-Estt.(SCT) dated December 23,1970 and OM No. 36021/10/76-Estt.(SCT) dated January 21, 1977 in so far as those provided lower qualifying marks for Scheduled Caste and scheduled Tribe candidates in departmental examinations for promotion. Petitioners had also sought for a declaration that they had passed the departmental examination of Income Tax Officers Group B from the last date of the examination and also for the consequential reliefs.
3. Central Board of Direct Taxes for the departmental examinations of Income Tax Officers was following the rules called the Departmental Examination Rules of Income Tax Officers from the year 1994 in effecting appointments to above mentioned posts. Clause VI of the rules says that a candidate would be declared to have completely passed the departmental examination for Income Tax Officers if he secures a minimum of 50% (45% in the case of Scheduled Caste and Scheduled Tribe) in each of the following subjects, namely, Income Tax Law (2 papers) (combined aggregate of 50% in both the papers (45% in case of Scheduled Caste/Scheduled Tribe); Other Taxes; Bank Keeping; Office Procedure and Examination of Accounts and Language Test Paper, and secures 60% marks (55% in the case of SC/ST candidates) in the aggregate. Following the above mentioned rules, departmental examination was conducted in June 1997 and results were declared by Office of the Commissioner of Income Tax, Amritsar vide proceeding dated February 17,1998. On the same day, the above mentioned office issued another order giving the names of candidate who had successfully passed the departmental examination of income Tax Officers held in June 1997. In that list, petitioners’ names did not figure.
4. Petitioner in SWP No. 784-A/1998 filed a representation stating that his name ought to have been included in the list of successful candidates. Since the same was not done on the basis of the office memorandum dated July 22,1997 and aggrieved by the same, the petitioner approached this Court. The learned Single Judge allowed the writ petition and granted the reliefs prayed for.
5. Mr. D.S. Thakur, learned Counsel, appearing for the Income tax Department submitted that the learned Single Judge was not justified in directing the appellants to include the names of the petitioners in the list of successful candidates by holding that the office memo dated July 22,1997 would not apply to the case of the petitioners.
6. Reason for issuance of the memorandum was highlighted by the counsel, placing reliance on two decisions of the Apex Court in Indra Sawhney v. Union of India 1992 Supp. (3) SCC215, and S. Vinod Kumar v. Union of India . Learned Counsel appearing for the respondents, Mrs. S. Kour, placed reliance on the decision of the Apex Court in Haridas Parsedia v. Urmila Shakya , and submitted that since the petitioners had taken the examination before issuance of the OM dated July 22,1997, they will be deemed to have passed the examination on last date of the conduct of the examination. Counsel submitted that the learned Single Judge was justified in issuing a declaration that OM dated July 22,1 997 would not apply to the petitioners.
7. We may, at the outset, point out that the departmental examination rules in question are not statutory in nature. The examination was conducted by the department in the light of the above mentioned rules and names of successful candidates were published on February 17,1998 and in that list the petitioner’ names did not figure. The mere fact that petitioners had taken the examination would not confer any legal right on them to claim promotion. Before declaration of results, the rules were amended by OM dated July 22,1997 in line with the decision of the Apex Court in Indra Sawhney v. Union of India (supra). It has been clearly stated in office memorandum dated July 22,1997 as follows:
The validity of such lower qualifying marks/lesser standards of evaluation was called into question in courts in the context of the judgment of the Supreme Court in the case of Indra Sawhney v. Union of India. The Supreme Court in the case of S. Vinod Kumar v. Union of India has held that provision for lower qualifying marks/lesser levels of evaluation in the matter of promotion provided for candidates belonging to the Scheduled Castes and Scheduled Tribes under Government instructions is not permissible under Article 16(4) in view of the command contained in Article 335 of the Constitution. The Court has further observed that even if it is assumed for the sake of argument that reservation is permitted by Article 16(4) in the matter of promotion, a provision for lower qualifying marks or lesser levels of evaluation is not permissible in the matter of promotion by virtue of Article 335. The Court also held that the protection for reservation in promotion for five years, given by Supreme Court vide para 829 of the judgment in Indra Sawhney’s case did not save the provisions for lower qualifying marks/lesser level of evaluation.
8. Paragraph 831 of the judgment of Indra Sawhney is also relevant for our purpose and, hence, extracted hereunder:
We must also make it clear that it would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. The relaxation concerned in Thomas and the concessions namely carrying forward of vacancies and provisions for in-service coaching/training in Karamchari Sang are instances of such concessions and relaxations. However, it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would compromise the efficiency of administration. We reiterate that while it may be permissible to prescribe a reasonably lesser qualifying marks or evaluation for the OBCs, SCs and STs – consistent with the efficiency of administration and the nature of duties attached to the office concerned in the matter of direct recruitment, such a course would not be permissible in the matter of promotions for the reasons recorded hereinabove.
9. The Apex Court in S. Vinod Kumar v. Union of India (supra) also followed the above dictum. The Court took the view that even if it is assumed, for the sake of argument, that reservation is permitted by Article 16(4) in the matter of promotions, a provision for lower qualifying marks or lesser level of evaluation is not permissible in the matter of promotions, under Article 335.
10. We are of the view that the above mentioned judgments squarely apply to the facts of the case.
11. The Commissioner of Income-tax and his officers are bound by the law declared by the Supreme Court. Following the principles laid down by the Supreme Court, one has to see that efficiency of administration is not compromised. Before publishing the results of the successful candidates, the respondents had applied the above principles laid down by the Apex Court which cannot be said to be arbitrary or illegal.
12. In the above legal and factual situation, we are of the view that the learned Single Judge was not justified in giving a direction to the respondents to include the names of the petitioners in the list of successful candidates, as they were not eligible for relaxation to be included in the list.
13. In the result, these appeals are allowed and the orders of the learned Single Judge set-aside
