Central Administrative Tribunal - Ernakulam
Chakrapani Dilip Warrier vs Union Of India on 15 December, 2015
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.180/403/2015
Tuesday, this the 15th day of December, 2015
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE MRS.P.GOPINATH, ADMINISTRATIVE MEMBER
Chakrapani Dilip Warrier
S/o.Late Sri.C.R.C.Warrier
Income Tax Officer, IAP 2
O/o Commissioner of Income Tax (Audit)
Kochi, Residing at Sreesivam
Friends Colony, Thiruvankulam P.O
Ernakulam 682 305 .... Applicant
(By Advocate Mr.M.R.Hariraj)
Versus
1. Union of India, represented by the Secretary
to Government, Ministry of Finance
New Delhi 110 001
2. Central Board of Direct Taxes
represented by its Chair Person
North Block, New Delhi 110 001
3. Principal Chief Commissioner of Income Tax
Kerala, CR Buildings
IS Press Road, Kochi 682 018
4. Union Public Service Commission
represented by its Secretary
Dholpur House, Shajahan Road
New Delhi 110 069
5. K.R.Deepa, Income Tax Officer
Ward 3(1), Office of Commissioner
of Income Tax, 1, 63, Race Course Road
Coimbatore 641 018
6. P.S.Aravind, Income Tax Officer I&CI
Office of Director of Income Tax I&CI
Ayakar Bhavan, New Block, 121, MG Road
Nungambakam, Chennai 600 034 .... Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil for R4, Mr.Sandeep
Gopalakrishnan for R5&6) and Mr.T.C.Krishna for R 1 to 3)
This Original Application having been heard on 12 th November 2015
this Tribunal on 15.12.2015 day delivered the following :
ORDER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant commenced service as Income Tax Inspector on 26.12.1990. The applicant was promoted as Income Tax Officer on 18.06.2001. This promotion was subjected to challenge before this Tribunal on the ground that reservation was not applied to the filling up of upgraded posts. There was a direction to consider the representation of applicants therein. The date of promotion of the applicant was refixed as 28.11.2001 pursuant to the challenge on the same referred above. Due to reassignment of date of promotion applicant was promoted as Income Tax Officer on 18.06.2001 In implementation of the directions of the Honourable Supreme Court in Union of India v. N.R Parmar (2012) 13 SCC 340 the seniority of the applicant in the cadre of Income Tax Inspector was refixed granting him the deemed date of joining as Income Tax Inspector as 30.04.1990. Consequently, his date of promotion as Income Tax Officer was again assigned as 18.06.2001. Seniority list of the Kerala Charge was accordingly published.
2 Persons who were granted promotion to the higher category of Assistant Commissioner on 13.05.2013 will thus rank junior to the applicant in the All India list. The applicant will therefore get entitled to be considered for promotion to the grade of Assistant Commissioner of Income Tax on 13.05.2013. By virtue of Annexure A-8 the date of notional appointment of the applicant in the cadre of Income Tax Inspector is changed as 30.04.1990 and the date of promotion as Income Tax Officer is again fixed as 18.06.2001. By virtue of the revised dates, the applicant will rank senior to the personnel from Sl.No.1390 (R.K.Tiwari) in Annexure A-5. It is submitted that personnel from 1390 to 1946 who are juniors to the applicants in the All India Seniority list have already been promoted to the cadre of Assistant Commissioner.
3 The inordinate delay in recasting the All India Seniority list based on the decision in N.R.Parmar's case is causing serious prejudice to the applicant. It is submitted that it is reliably understood that move is on to again make promotions to the cadre of Assistant Commissioner rank without properly fixing the seniority. Promotions are again sought to be made based on Annexure A-5, which admittedly contain wrong dates and figures. Such further promotions will imperil the rights of the applicant to be considered for promotions in accordance with law. Applicant prays for the following reliefs:
(i) Quash Annexure A-10 and declare that the applicant is entitled to have his seniority as Income Tax Officer at all India Level, recast based on the revision of seniority in the cadre of Income Tax Inspector and Income Tax Officer published by Annexure A-8 and A-9 with all consequential benefits and to direct the respondents to assign the applicant seniority in the cadre of Income Tax Officer at all India level reckoning his change in seniority in Income Tax Inspector and Income Tax Officer as indicated in Annexures A-8 and A-9 with all consequential benefits
(ii) to direct the respondents to consider the applicant for promotion to the cadre of Assistant Commissioner of Income Tax with effect from the date of promotion of his juniors and to grant him such promotion in preference to any of his juniors based on the revised seniority assigned to him as per Annexure A-8.
4 In the reply statement respondents submitted that the Original Application is premature. All India Seniority list of Income Tax Officers are being revised on the basis of the judgment of the Apex Court in N.R.Parmar's case. The same has to be made on completion of exercise of revision of seniority in the cadre of Income Tax Officers by all Principal CCITs in the same country. It is a long drawn out process which spreads across number of years starting from 1986-87 onwards and involves various cadres. Advisories were issued on different occasions to ensure speedy implementation of the judgment. In spite of the above, the implementation process could not be completed. It has been completed only in 4 regions that is Nagpur, NER, Kerala and UP (East). In the remaining regions the implementation is in different stages. Only after receiving the same from all the charges, all India inter-se seniority list of Income Tax Officers can be revised. All efforts are being taken to ensure that the same is completed at the earliest. As such, the above Original Application is premature and is liable to be dismissed on that ground itself.
5 Respondents further submitted that it is true that the applicant commenced his service as Income Tax Inspector with effect from 26.12.1990. Subsequently he was promoted as Income Tax Officer. The seniority of the applicant was fixed at serial no.2286 in the All India Seniority list of Income Tax Officers as on 01.01.2009 only on the basis of regional seniority list of Income Tax Officers furnished by the Cadre Controlling Authority, Kerala Region. This is however, prior to the Apex Court judgment in N.R Parmar case. 6 Annexure A-6 and A-7 orders were issued after conducting DPC for promotion from the post of Income Tax Officers to the grade of Assistant Commissioners Income Tax for the vacancy years 2012-2013 and 2013-14 and the same were convened only after taking concurrence of both DOP&T and DOLA on the Hon'ble Supreme Court judgment in N.R Parmar Case. Moreover, the effect of the Apex Court judgment on the DPC for promotion from Income Tax Officers to the grade of Assistant Commissioners Income Tax was not direct, because the issue decided by the said judgment was inter-se seniority of Direct Recruit and Promotee Inspectors, which is not the feeder cadre for promotion to the grade of Assistant Commissioners Income Tax. The feeder cadre for promotion to Assistant Commissioners Income Tax is Income Tax Officers, a promotional post for Inspector of Income Tax. The judgment of the Honourable Supreme Court in N.R Parmar case is directly affecting the Inspector's seniority and its effect on All India inter-se seniority list of Income Tax Officers is consequential. For finalizing the all India seniority list of Income Tax Officers, recasting of seniority at Income Tax Inspectors, Stenographers, Tax Assistants, UDC and LDC in each of the 18 Pr.CCIT Regions in the country for a period of over 29 years i.e. since 1986 is to be made. This implies conducting of a very larger number of Review DPCs that is, nearly 150 DPCs all over India. Further it involves publishing of seniority list in each of the feeder cadre, getting representations/objections and addressing them before finalizing the list moving to next higher cadre. Once all the regions complete the exercise, all India seniority list of the ITOs has to be drawn, published, objections addressed and list finalized before entire exercise is completed.
7 It is also submitted by the respondents that there are directions from various judicial forums that no promotions can be carried out in the Group C cadres unless the inter-se seniority between Direct Recruits and promotees is refixed in accordance with the N.R Parmar decision. This exercise of conducting formal Review DPC's may also result in demotion of some officials in a particular year and their promotion again in a subsequent year. The seniority of Direct Recruits is to be refixed inter se with promotees in the respective grades in accordance with the N.R Parmar decision for complying with the decision of the Supreme Court at the earliest.
8 Respondents are taking all necessary steps for completing the entire exercise at the earliest. Advisories were issued on different occasions to ensure speedy implementation of the judgment. Meetings chaired by Pr.DGIT (HRD) were held on 30.03.2015 and 10.04.2015 with the representatives of all the 18 regions and the Income Tax Employees Federation for chalking out measures for faster implementation of the judgment. Deadline of 31.07.2015 was given to the field formations for the implementation of the judgment Workshop was also organised for mitigating the doubts and the problems faced by the field in the implementation. In spite of the above, the implementation process could not be completed. The same has been carried out only in 4 regions that is Nagpur. NER, Kerala and UP (East). In the remaining regions the implementation is that different stages. Numerous problems are being faced in the implementation which has delayed the entire process due to the long period of 29 years involved.
9 Respondents submit that in terms of DOP&T's OM No.22011/2/2002- Estt(D) dated 06.01.2006, the size of extended zone of consideration is 5 times the number of vacancies for inclusion of SC/ST officers in the eligibility list. The existing All India inter-se seniority list of Income Tax Officers as on 01.01.2009 which have left only 394 officer to be promoted could not complete the size of the zone of consideration in respect of SC/STs. Therefore, to complete the size, the draft All India Seniority list of Income Tax Officers as on 01.01.2012 has been finalized.
10 The seniority of the applicant which was earlier fixed at Sl.No.2286 in the all India seniority list of Income Tax Officers as on 01.01.2009 has now been replaced and falls at Sl.No.163 in the all India seniority list of Income Tax Officers as on 01.01.2012 on the basis of Regional Seniority list of Income Tax Officers furnished by the Cadre Controlling Authority, Kerala Region prior to revision of inter-se seniority by the said region giving effect to Apex Court judgment in NR Parmar Case. As per fixation of his seniority in the All India inter-se seniority list of Income Tax Officers, applicant was not eligible for promotion to the grade of Assistant Commissioner Income Tax for the vacancy years 2012-2013 and 2013-
14. 11 The effect of NR Parmar's case has to be implemented on all India basis on completion of exercise of revision of seniority in the cadre of Income Tax Officers by all Principal CCIT. Therefore, on receipt of such revised seniority lists from all charges, the all India seniority list will be revised and the petitioner will be placed at the appropriate place in the list. The all India seniority list of Income Tax Officers as on 01.01.2012 has been finalized by incorporating in it the existing all India seniority list of Income Tax Officers as on 01.01.2009 by placing the officers in the same position. The officers who have already been promoted to the grade of Assistant Commissioner Income Tax for the vacancy years 2012- 13 and 2013-14 need not require to be included in the all India seniority list of Income Tax Officers as on 01.01.2012. CBDT has only published all India seniority list of Income Tax Officers on the basis of Region wise seniority list of Income Tax Officers promoted from 19.06.2001 to 31.12.2011 for having the 5 times zone of consideration for SC/ST and by incorporating in it the existing all India seniority list of Income Tax Officers as on 01.01.2009. It has not issued any promotion orders in respect of promotion of Income Tax Officers to the grade of Assistant Commissioner of Income Tax from the new seniority list of Income Tax Officers.
12 All India seniority list of ITOs in accordance with NR Parmar decision can be prepared only after all the DPCs are held in all the cadres for over 29 years as stated above, in all the regions, which is a humongous task. Delay in granting promotions because of it, from ITO to ACIT rank is adversely affecting the smooth and proper functioning of the department. It is also affecting the officers to be promoted as well. There are more than 400 ITOs belonging to 2001 batch who are yet to be promoted at the rank of ACIT. In spite of eligibility of 3 years residency in the rank of ITO, they have been waiting for 15 years for the promotion. Further, the aforesaid exercise of revision of list after the DPCs may not also result more than 5-10% change in the list. On receipt of revised seniority lists based on the judgment in NR Parmar's case from all charges, the seniority of the affected officers will be revised in the All India Seniority list of Income Tax Officers as on 01.01.2012 at appropriate places. Applicants seniority position will also be revised in the all India inter-se seniority list of Income Tax Officers as on 01.01.2012 and his suitability to the post of Assistant Commissioner of Income Tax shall be placed before the review DPCs for promotion to the grade of Assistant Commissioner of Income Tax on regular basis thereafter.
13 Heard the counsel for applicant and respondents and perused the detailed submissions made. Whereas the applicant is submitting his grievance, the respondents are expressing their helplessness in completing the exercise of ensuring implementation of the Parmar judgment in all Commissionerates. No doubt it is a massive exercise which has to be addressed accurately and is bound to consume a lot of time.
14 One aspect that comes across clearly is that recasting the All India seniority list of Income Tax Officers (ITOs) on the basis of the Apex Court judgment in N.R Parmar Case in all the Commissionerate's in the Country is an uphill task and hence holding up the promotions to the post of Assistant Commissioner of Income Tax on account of the delay will be unfair to the officers of the department, which will also affect the work of the Department due to demoralisation on account of non-grant of timely promotion. Hence, we have to find a solution which will get around both these bottle necks. Whereas the Commissionerates should be directed by the Finance Ministry to finalise the exercise of implementing N R Parmar judgment by a time bound targetted date which should be strictly adhered to by frequent monitoring, the Commissionerates should also set up special teams who have to address this task within specified dates.
15 The applicant is seeking promotion to the cadre of ACIT with effect from date of promotion of his juniors based on the revised seniority assigned to him as per Annexure A-8. Seniority has not been recast as ITO at All India level based on revision of his seniority in the Commissionerate cadre of Income Tax Inspector and Income Tax Officer as per Annexure A-8 post Apex Court decision in N.R.Parmar case and Annexure A-9 proceedings of Review DPC held on 18.12.2014 to review the proceedings of the DPC/Review DPC of the earlier years from 1994-95 to 2013-14. The applicant is seeking promotion to the cadre of ACIT with effect from date of promotion of his juniors based on the revised seniority assigned to him as per Annexure A-8. The Kochi Commissionerate has revised the seniority of applicant as per Annexure A-8 based on Apex Court directions in N.R Parmar case. The applicant seeks to have his seniority as Income Tax Officers at All India Level recast based on the revision of seniority in the cadre of Income Tax Inspector and Income Tax Officer published by Annexure A-8 and Annexure A-9 by the Kochi Commissionerate and assign appropriate seniority in the cadre of Income Tax Officers at the all India level with consequential benefits. That part of the claim made by the applicant is not unjustified. But its validity in the larger perspective of non-completion of post b� Parmar revision exercise by all the Commissionerates is liable to be questioned. The non-compliance of the direction in N.R Parmar by some Commissionerates should not be allowed to supercede or multiply the compliance of the Kochi Commissionerate.
16 The respondents submit that the exercise of revision of seniority in the cadre upto Income Tax Officers is a long drawn exercise to be done from 1986- 87 onwards by all Principal CCIT's in all Commissionerates in India. Different Commissionerates are doing this task at different speeds. Only 4 regions, Nagpur, Kerala, NER and UP (East) have completed this task. Unless all Commissionerates complete this task, the all India inter-se seniority list of Income Tax Officer's cannot be drawn up.
17 The feeder grade for ACIT is ITO and the feeder grade for Income Tax Officers is Inspector of Income Tax. As per N.R.Parmar Case, revision of seniority is to be made from the level of direct recruit and promotee Inspector, the base line of the upward promotion channel. Recasting the seniority list for 29 years from 1986 to date is a voluminous exercise to be undertakien in the 18 Pr.CCIT Regions and will no doubt take time depending on availability of records and the routine unavailable and important official assignments, which cannot be put aside at all.
18 The issue which arises for consideration is whether till this voluminous exercise is undertaken all over the country, the promotion if any made to ACIT, would be improper as all persons in the zone of consideration are not entered at the appropriate slots in the seniority list in compliance of N.R.Parmar judgment of refixing inter-se seniority between direct recruits and promotees - an exercise which will result in dates of promotion to ITO undergoing a change by promotion or demotion to a later year. This exercise would also involve receiving and disposing representations which may be filed by those who are adversely affected by this exercise.
19 Two options occur to the Tribunal to resolve this matter:
(i) Keep the entire process pending till all the Commissionerates complete the exercise.
Or
(ii) Undertake the exercise of recasting ITO senioritry list by holding a review DPC as a piece meal exercise of a review DPC being held as and when a Commissionerate finalise casting of their post N.R.Parmar seniority list leading to a tentative revised all India Income Tax Officers seniority list being drawn up. This will be subject to revision as and when more Commissionerates complete the Parmar exercise and when the ITO seniority list and ACIT seniority list thereafter will again be recast. This will be subject to a further and final revision subsequently also when all Commissionerates join the seniority list. Hence the tentative seniority list of Income Tax Officers so drawn up and promoted to ACIT immediately thereafter as and when a Commissionerate completes the post- Parmar exercise will be purely provisional till data of seniority list of all Income Tax Officers of all Commissionerates in India is entered and the final all India seniority list of ACIT's drawn up on the basis of revised and all India integrated seniority list of all the ITOs in all the Commissionerates in the country. 20 The first option above though may be correct is not conducive to alleviate the grievance of ITOs. It would curtail or inhibit the chances of promotion which an officer can legitimately aspire for. The second option if undertaken will provide relief to the Commissionerates who have made the effort and completed the NR Parmar exercise. Such a move will also ensure that the staff federations of the non-compliance Commissionerates and the Income Tax Board will vigorously cooperate in the completion of NR Parmar exercise in the non-compliance Commissionerates. Hence we adopt the second course, as otherwise it will cause irreversible harm to the ITOs and to a great extent it will also affect the functioning of the Income Tax Commissionerate for want of sufficient number of ACITs. The above order is subject to the condition that the final all India seniority list will be drawn up and finally cast only on completion of the N.R Parmar exercise in all the Commissionerates in the country and till such time the seniority list will be strictly provisional. The seniority so fixed being fluid, till all the Commissionerates complete the exercise, the arrears on the basis of such a fixation of seniority would not be final. But the disbursement of arrears, if any, shall be only on condition that each applicant/officer should file an undertaking that in case the amount so disbursed is liable to be refunded on account of re- fixation of seniority, the amount so disbursed will be refunded and that no objection whatsoever will be raised against recovery of such excess amount. 21 The relief sought in the Original Application shall be considered by the second respondent immediately and hold DPC for ACIT of ITOs of Kerala Commissionerate and grant them promotion as ACIT with effect from date of promotion of their juniors with consequential benefits immediately at any rate within three months from the date of receipt of a copy of this order. Such a seniority list drawn up will be purely provisional subject to the ITO officers in all Commissionerates being included in the appropriate slot in the final all India ACIT seniority list .
22 The Original Application is disposed of accordingly for implementation as above.
(P.GOPINATH) (N.K.BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv