Skip to content


S.M. Hadi Abedi and ors. Vs. Commissioner of Income-tax, Andhra Pradesh, Hyderabad - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 124 of 1962
Judge
Reported inAIR1963AP324; [1965]58ITR840(AP)
ActsConstitution of India - Articles 226 and 309
AppellantS.M. Hadi Abedi and ors.
RespondentCommissioner of Income-tax, Andhra Pradesh, Hyderabad
Appellant AdvocateP.A. Chowdary, Adv.
Respondent AdvocateT. Venkatappa, Adv. for ;C. Kondaiah, Adv.
DispositionPetition dismissed
Excerpt:
.....in all respects for appointment. it is difficult to contend that the educational standards prescribed by rule 6 are not what they ought to be, the contention that graduates are better qualified than first class or high second class intermediates has no relevancy in the matter of interpreting the rule. i have so far refrained from considering the elucidations and clarifications subsequently issued by the government inasmuch as i have reached the conclusion that a degree examination should be deemed to be a better or higher educational qualification than that prescribed in rule 6, as it originally stood. a perusal of the note (already extracted) to part ix of the rules, shows that success in the examination confers no right to appointment unless government are satisfied, after such..........first class or high second class intermediates has no relevancy in the matter of interpreting the rule. the rule lays down certain basic educational qualifications for those who seek to compete for selection to the post of income-tax inspector. it may be that the rule making authority could have permitted graduates, notwithstanding that they have passed their examination in third class, to appear for the examination. but it is not the function of courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law.21. the argument that upto the year 1958, the educational qualification prescribed for candidates who wished to compete for the post was only a degree examination, does not help the petitioners'.....
Judgment:
ORDER

Satyanarayana Raju, J.

1. This is a petition, under Article 225 of the Constitution praying for a writ of mandamus directing the Commissioner of Income-tax, Andhra Pradesh, to permit the petitioners to appear for the Income-tax Inspectors' Examination which was to be held on the 6th and 7th of February, 1962, at Hyderabad.

2. The facts on which the present petition is based are these : The petitioners, 9 in number are Graduates some of the Andhra University and the others of the Osmania University. They are at present employed in the Income-tax Department in various capacities.

3. By a notification, dated 30-10-1961, issued by the Ministry of Finance, Government of India, persons eligible to apply and possessing the prescribed educational qualifications were invited to appear for the examination to be held by the Directorate of Inspection (Income-lax) in 1962 for selection of candidates for appointment to the posts-of Inspectors of Income-lax. Pursuant to the notification, the petitioners duly submitted their applications after paying the prescribed fee. The examination was notified to be held on the 6th and 7th of February, 1962. Before the date of the examination, however, the petitioners were informed that certificates of admission for the examination would not be issued to them.

4. The petitioners aver that the refusal of the respondent to permit them to appear for the examination was the result of a wrong interpretation placed by him on Rule 6, which prescribes the minimum educational qualification as a first class nr high second class Intermediate or its equivalent. It is also averred by the petitioners that the rule in question, as is clear from the language used therein, prescribes only the minimum qualification and that they being Graduates and double Graduates, do satisfy the requirements of the rule. They say that the respondent has wrongfully denied them the right to appear for the examination. Under the circumstances, they have prayed for the issue of a Writ for the relief mentioned above.

5. The respondent, the Commissioner of Income-tax, has in the main contended that Rule 6 originally issued was subsequently elucidated and clarified by the Government of India and that read in the light of the elucidations and clarifications, the petitioners are not qualified to appear for the examination. The respondent has also raised an objection with regard to the jurisdiction of this Court to issue a writ as prayed for.

6. By an interim order, dated 2nd February 1962, the petitioners were permitted to appear for the examination, which was held on the notified dates. However, their results have been withheld pending the determination of this writ petition.

7. Before considering the points urged on behalf of the petitioners, it will be convenient to refer to the relevant rules relating to the examination for selection of candidates io the post of Inspector of Income-tax.

8. By a notification, dated 30th October, 1961, the President of India, pursuant to the power vested in him under the proviso to Article 309 of the Constitution, was pleased to make rules to regulate the method of recruitment of Inspectors in the Income-tax Department. The Directorate of Inspection (Income-tax) was to hold the examination for the selection of candidates. Part II of the rules specify the categories of persons eligible to apply for admission to the examination. They are:

'(a) a citizen of India, or

(b) a subject of Sikkim, or

(c) a subject of a former French possession in India, or

(d) a person of Indian origin who has migrated from Pakistan with the intention of permanently setting in India.'

Rule 5 provides that the decision of the Commissioner as to the eligibility or otherwise of a candidate for admission to the examination shall be final. Part III of the rules prescribes the educational qualifications. Rule 6, which is the material rule, reads:

'The minimum academic qualification is first class/or/ high second class in Intermediate/Senior Cambridge/Higher Secondary or equivalent examination.

NOTE: (1) Where an examination does not provide first or second class, candidates who have secured 60 per cent or above of the total marks will be deemed to have passed in the First Class, and those who have secured more than 55 per cent but less than 60 per cent of the total marks will be deemed to have passed in high Second class.

(2) The undermentioned examinations ' have been recognised as equivalent to 'Intermediate' :

(i) Pass in the First Year Examination of the Degree Course of those Indian Universities which have three years degree course.

(ii) Pre-professional/Pre-Technological course conducted one year after the Pre-University stage of the Madras University or any other University having such a course.

(iii) Jamia Senior Examination of Jamia Millia Islamia, New Delhi.'

9. Part IV prescribes the upper and the lower age limits. Rule 7 (vi) prescribes the age of 30 on the 1st January, 1962, in the case of departmental candidates who have completed two years' service in the Income-tax Department. Part V lays down the standard and syllabus of the examination. Part VI prescribes the application and examination fees which have to be paid by a candidate along with his application. Parts VII and VIII are not material for the purposes of the present petition and may therefore be left out of consideration. Part IX empowers the Commissioner io prepare a list of suitable number of successful candidates. There is a note appended to this part which reads:

''Success in the examination confers no right to appointment unless Government are satisfied, after such enquiry as may be considered necessary, that the candidate is suitable in all respects for appointment.'

10. It may be mentioned here that in the Original notification calling for applications, the last date for sub-Mission of the applications was fixed as the 30th November, 1961.

11. On November 25, 1961, the Central Board of Revenue forwarded to the Directorate of Inspection, (Income-lax), New Delhi, with copies to all the Commissioners of Income-tax, a note elucidating the minimum educational qualifications prescribed in the notification, dated 30th, October, 1961, which is as follows:

'(i) A candidate who has obtained a 1st class or a high second class in his graduate and/or postgraduate examination (though he did not obtain 1st class or high second class in the Intermediate/Senior Cambridge/Higher Secondary or equivalent examination) will be deemed to possess the minimum educational qualification.

(ii) Lower second class/third class graduates/postgraduates will not be deemed to possess the minimum educational qualifications unless they have obtained 1st class/Higher Second class/in the Intermediate/Senior Cambridge/Higher Secondary or equivalent examination'

12. On December 15, 1961, the Central Board of Revenue issued a corrigendum to the advertisement originally issued with regard to the recruitment of Inspectors. The material part of this corrigendum reads:

' ..... it has since been decided that persons who have obtained at least Second Class in Graduate and/or post-graduate examination (though they may not have obtained first class or High second class in Intermediate/Senior Cambridge/Higher Secondary or equivalent examination) will also be eligible for appearing at the competitive examination to be held in February, 1962, for recruitment of Income-lax Inspectors.'

The time for submission of applications was subsequently extended till the 30th December, 1961.

13. The main complaint of the petitioners is that the educational qualifications prescribed by Rule 6 provide only for the minimum qualification and that they being graduates are entitled to appear for the examination.

14. With regard to the objection raised by the respondent to the jurisdiction of this Court to issue the writ prayed for, the petitioners say that it is the respondent who is vested with the power to decide the question of the eligibility or otherwise of a candidate for admission to the examination and that, therefore, this Court has juristion to issue the writ sought for by them.

15. At the outset, it is necessary to mention that the petitioners have none of them the minimum educational qualifications prescribed by sub-rule (ii) of Rule 6, which is a pass in first class or high second class in the Intermediate/Senior Cambridge/Higher Secondary or equivalent examination. So too, none of them has obtained a first class or a high second class in his graduate or post-graduate examination. They do not also possess the qualification laid down in the corrigendum dated 15th December, 1951, which is a second class in Graduate or post-graduate examination.

16. Learned counsel for the petitioners has contended that the subsequent elucidation and clarification cannot be taken into account in determining whether the petitioners have the necessary educational qualifications by reason of the fact that they were not rules made by the President of India pursuant to the power conferred on him by the proviso to Article 309, or, at any rate, by reason of the fact that they were not duly published. With regard to the qualifications prescribed in Rule 6, originally notified on the 30th October, 1961, it is argued that the rule lays down only the minimum qualification, and by reason of the fact that the petitioners are graduates, which is a higher academic qualification than the minimum qualification prescribed in the rule, they are entitled to appear for the examination. It is incidentally stated that in the examination conducted in the year 1958, the qualification prescribed by the rule was only that graduates could appear for the examination.

17. The stress of the argument of the learned counsel, therefore, rests on the meaning to be given to the word 'minimum' occurring in Rule 6. The petitioners' learned counsel contends that the word means 'basic' or 'essential' and what the rule requires is that a candidate for admission to the examination should have at least the qualification mentioned therein. The learned counsel argues that a graduate in arts, science or commerce possesses a qualification higher than the one specified in the rule. It is a debatable point whether a pass in the third class of a Degree examination is a higher qualification than a first class or high second class in Intermediate.

18. The fact however remains that Article 309 empowers the appropriate Legislature to regulate the recruitment and conditions of service of persons appointed to Public services and posts in connection With the affairs of the Union or of any State. The proviso to Article 303 is in the following terms;

'Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor or Rajpramukh of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.'

19. From the above provision, it is manifest that it is within the competence of the President of the Union or such person as he may direct in the case of services and posts in connection with the affairs of the Union, to make rules regulating the recruitment and the conditions of services of persons appointed to such services and posts. The Rules relating to the selection of candidates to the post of Inspector of Income-tax have been made by the President under the proviso to Article 309. The prescribing of educational qualifications and standards for recruitment to the services is comprehended within the scope of Article 309. The qualifications may vary with the different branches of the services. Special qualifications or aptitudes for particular types of services may be laid down based on physical fitness, marks obtained in examination, and so on. They must, however, be reasonably relevant to the recognised purposes of the services, and the qualifications prescribed must be the same for all citizens seeking admission to the service. It is true that it is not permissible to lay down wholly fanciful, arbitrary or irrational tests unrelated to the requirements of the service.

20. Therefore, so long as the qualifications prescribed for the recruitment of candidates are within the scope of the power comprehended by Article 309, there can be no possible complaint. It is difficult to contend that the educational standards prescribed by Rule 6 are not what they ought to be, The contention that graduates are better qualified than first class or high second class intermediates has no relevancy in the matter of interpreting the rule. The rule lays down certain basic educational qualifications for those who seek to compete for selection to the post of Income-tax Inspector. It may be that the rule making authority could have permitted graduates, notwithstanding that they have passed their examination in third class, to appear for the examination. But it is not the function of Courts of Law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law.

21. The argument that upto the year 1958, the educational qualification prescribed for candidates who wished to compete for the post was only a degree examination, does not help the petitioners' contention. That that was the pre-existing qualification must have been within the knowledge of the rule-making authority, and the fact it was removed and some other qualification substituted, indicates that the authority concerned had intentionally substituted other qualifications for those existing before.

22. It is argued for the respondent that this Court has no jurisdiction to entertain this petition. I have so far refrained from considering the elucidations and clarifications subsequently issued by the Government inasmuch as I have reached the conclusion that a degree examination should be deemed to be a better or higher educational qualification than that prescribed in Rule 6, as it originally stood. If the elucidation and clarification subsequently made by the Government are to be taken into account, there is no doubt that the petitioners do not possess the prescribed qualification.

23. It is argued that the denial of an opportunity to graduates to appear for the examination and compete for the post of Inspector would deprive them of the right guaranteed under Articles 16 and 19(1)(g) of the Constitution. This contention raises the question as to whether this Court has jurisdiction to issue a Writ of the nature sought for, against the Government of India. Here, it may be mentioned that the stand taken by the respondent is that this Court is not empowered to issue writs and directions to the Government of India. In Hari Vishnu v. Ahmad Ishaque, A!R 1955 SC 233, it has been held by their Lordships of the Supreme Court that the jurisdiction to issue 3 Writ is co-extensive with the territorial jurisdiction of the Court and that the power can be exercised only over any person or authority in the territories in relation to which the Court exercises its jurisdiction. Therefore, the respondent is right in his contention to this extent that this Court has no jurisdiction to issue a writ against the Government of India if what the petitioners seek is to question the legality and the correctness of the elucidations and clarifications issued by them. But this objection cannot be maintained with regard to the power of this Court to issue a writ against the respondent who is certainly amenable to the jurisdiction of this Court and who, in fact, has been vested with the power to admit or reject a candidate to the examination.

24. Now, assuming that the petitioners are entitled to invoke the jurisdiction of this Court to the limited extent indicated above, the question is, are they entitled to claim any relief? A perusal of the note (already extracted) to Part IX of the Rules, shows that success in the examination confers no right to appointment unless Government are satisfied, after such enquiry as may be considered necessary, that the candidate is suitable in all respects for appointment. It is not disputed that this note confers an over-riding power on the appointing authority to take into consideration the suitability of the candidate in all respects and that the appointment cannot be claimed as a matter of right even if he conies out successful in tha examination.

25. The petitioners, in order to be entitled to the issue of the writ of mandamus must at least have a clear legal right to the performance by the respondent of the particular legal duty sought to be enforced, that is, there must be a clear legal right in the petitioners and a corresponding duty on the part of the respondent, against whom the writ is sought. Judged by this test, the petitioners are not entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution.

26. The petitioners have been permitted to sit for the examination by an interim order passed by this Court. Their results have, however been withheld pending the determination of this writ petition. The only relief sought for by the petitioners is that they should be permitted to appear for the examination, and this they have already been granted.

27. On a consideration of the language of Rule 6 and the other material circumstances, I find myself unable to give any redress to the petitioners. I have, however, considered whether the petitioners should be entitled to the limited relief of having their results published. But even on the assumption that all or some of the petitioners have been successful in the examination, that would not give them a legal right to be appointed.

28. It is stated that the petitioners have loyally and efficiently served the Department for a number of years and that petitioners 1 and 7 have, in fact, taken the examination earlier and have come out successful therein, but that they have not been appointed to the posts of Inspectors for want of vacancies. These are all matters which the petitioners must place before the appropriate authority. To give redress to all the petitioners, or to such of them as are deserving, is the prerogative of the Government, and I can only hope and trust that their cases, will be considered by the appropriate authority in the light of the above circumstances.

29. For all the reasons stated above, this petition is dismissed; but, in the circumstances of the case, I make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //