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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-

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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