S. Mohan, J.
1. The petitioner was appointed as an Upper Division Clerk in the Corporation of Madras on 25th August, 1949. He is a Graduate of the Madras University. Subsequent to the appointment, he passed all the departmental tests including the Account and Revenue Tests, thereby qualifying himself for the post of an Assistant Revenue Officer, and also by his 26 years of service and unblemished record.
2. He is the owner of properties bearing premises No. 2|8 and No. 7, pereira Street, Park Town, Madras-3 within the Corporation limits. In respect of these properties, arrears of tax had fallen due. On 14th June, 1975, the following memorandum was issued to him by the Commissioner.
Thiru P.D. Balasubramaniam Assessor, R.D., who is the owner of premises Nos. 2|8 and 7, Pereira Street, Dn. 40 is in arrears of property taxes amounting to Rs. 8,002.06 for the half years from 2|72.73 to 2|74.75 for the premises No. 2|8, Pereira Street, Dn. 40 and Rs. 6,462.43 for the premises No. 7, Pereira Street for the half years from 2|72.73 to 2|74.75.
As an Assessor, he should have known the Rules and Regulations relating to levy and collection of property tax. It is strange that he himself is in arrears of tax.
He is therefore directed to show cause within 3 days why his promotion should not be withheld for his failure to pay property taxes and setting an example to other rate payers.
If no explanation is received within the time specified, it will be deemed that he has no explanation to offer and the matter will be decided on merits.
The petitioner submitted his explanation stating how the tax had fallen into arrears and urging that in any event that was not a ground on which his due promotion could be denied. Nevertheless, the second respondent was promoted over and above the petitioner. Hence,this writ petition for mandamus to promote the petitioner to the post of Assistant Revenue Officer.
3. In the counter of the 1st respondent, it is stated:
The petitioner was not only an Assessor but entrusted with responsibilities of collecting the taxes and supervising the work of the tax collectors in the collection of taxes. The post of Assistant Revenue Officer is such that he has to collect over Rs. 60 to 65 lakhs per half year and supervise the collection work of about 20 to 25 outdoor officials engaged in out-door work, the matter of collection of property tax and other taxes and fees and also he has to supervise the work of the indoor officials, viz., Section Managers, Assistant Clerks, Examiners, Posters etc. So a person to an Assistant Revenue Officer's post must have an aptitude to work hard and able to administer and be able to exercise control over the work of the officers under him. His past conduct and his inefficient work do not justify a promotion as Assistant Revenue Officer. When the petitioner was to be an example to other tax- payers, the petitioner himself has not paid his arrears inspite of repeated reminders. Though the post is by promotion, mere seniority alone cannot be taken into account. The facts as mentioned above are relevant factors and after consideration of the factors, the petitioner was not promoted as Assistant Revenue Officer and the second respondent was promoted as Assistant Revenue Officer since he had all the necessary qualifications for promotion to that post. It is deliberately false to state that it is an attempt of the first respondent who deliberately overlooking the seniority of the petitioner had promoted the second respondent.
Thus, it is stated that the refusal to promote is not arbitrary.
4. I have not the slightest hesitation in holding that absolutely on an irrelevant ground, acting highly arbitrarily, the petitioner has been denied his promotion. No doubt, the counter-affidavit would state that the post of Assistant Revenue Officer is a selection post and mere seniority alone cannot count. Nevertheless, if, as seen from the impugned memo. dated 14th June, 1975 extracted above, the petitioner is sought to be denied the promotion merely because he had not paid the taxes for his properties, that can have no bearing as far as his promotion is concerned. That can hardly be a ground to deny him the promotion. Inasmuch as the respondent 1 has denied the petitioner his promotion on this score, the writ petition will have to be allowed and it is accordingly allowed.
5. However, the prayer is to direct the respondent 1 to promote the petitioner to the post of an Assistant Revenue Officer. That cannot be granted, since admittedly the said post of Assistant Revenue Officer is a selection post. Therefore, the claim of the petitioner for promotion will have to be duly considered without regard to his non-payment of property taxes. For this purpose, the matter will stand remitted to the Commissioner of Corporation.
6. I make it clear that notwithstanding the retirement of the petitioner on 31st October, 1977, his promotion shall be considered since, if he was entitled to promotion, the consequential monetary benefits would be available to him.
7. The petitioner will be entitled to his costs. Counsel's fees Rs. 250.