Judgment

RANGANATHAN, J. - Leave is granted and the appeal is disposed of after hearing counsel for both parties.

2. 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 (HC) 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 HCs. 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 to 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 papers on four subjects in the departmental examination conducted for the post of Income-tax Inspectors (I.T.I) from time to time.

3.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 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.

4. 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.

5. 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 the departmental examination for ITIs. For his purpose, persons in the higher grades got preference over the persons working in the lower grade. An Upper Division 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 ITI 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 th