Central Administrative Tribunal - Delhi
Shri Gianender vs Union Of India & Ors Through on 8 December, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.2096/2009 New Delhi, this the 8th day of December, 2009 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) 1. Shri Gianender S/o Shri Bhajan Singh, R/o WZ-527, Tihar Village, Tilak Nagar, New Delhi 2. Shri Bhim Singh, S/o Late Shjri Suba Singh, R/o DA-242, Sheesh Mahal Apartment, Shalimar Bagh, Delhi-88 3. Shri Ashok Kumar, S/o Shri R.R. Arya, R/o 323, Sector-7, R.K. Puram, New Delhi 22 4. Shri Vijay Singh, S/o Shri Hukam Chand, 28, Income Tax Colony, Uttri Pitampura, New Delhi 5. Shri Ashok Kumar Anand, S/o Shri Shiv Charan Singh, H-34A, Vijay Chowk, Laxmi Nagar, Delhi-92 6. Smt. Manju Bala, W/o Shri Sunil Kumar, R/o C-44/1, New Govindpura, Delhi 51 .Applicants (By Advocate: Shri M.K. Bhardwaj) Versus Union of India & Ors through : 1. The Secretary, Department of Revenue, Ministry of Finance, New Delhi 2. The Chairman, Central Board of Direct Taxes, South Block, New Delhi 3. The Chief Commissioner of Income Tax, Delhi 1, CR Building, IP Estate, New Delhi Respondents (By Advocate: Shri R.N. Singh) O R D E R By Dr. Veena Chhotray, Member (A):
The applicants, six in number and belonging to the SC category, are working as Income Tax Inspectors under the respondents. They are aggrieved at alleged denial of promotions as ITO in spite of fulfilling all the eligibility conditions and promotion of much junior General category candidates by ignoring the provisions of DOPT OM dated 22.4.1992 and by misinterpreting the provisions of OM dated 11.7.2002 By way of relief, the OA seeks quashing the impugned panel of promotion of juniors along with the following directions:-
(a) promote the applicants to the post of ITO as per their seniority against available vacancies without raising the objection of non-availability of reserved points
(b) direct their promotion on own merit
(c) pass any other order deemed fit.
2. As per the relevant rules i.e. Ministry of Finance, Department of Income Tax Officers, Group B Posts, Recruitment Rules 2004, these posts are to be filled 100% by promotion on selection. The feeder grade prescribed is from Inspectors of Income Tax in the pay scale of 6500-10500 with three years regular service in the grade (Annex.-3). Besides as per the Departmental Examination Rules for ITO 1998, the candidates have to pass a departmental examination before being considered eligible for promotion The prescribed percentages for qualifying were 60% for General candidates and 55% for SC category candidates. Subsequently, vide the amendment in 2008, these percentages were respectively lowered to 50% and 45% (Annex. A-3). Para 4 of the letter dated 29.5.2008 specifically states about these amendments being effective for the Departmental Examination held in 2007 and subsequent examinations but not to the Examination held in the year 2006 or prior to that.
3.1 The applicants before us have all passed the departmental examination prior to the aforesaid amendments coming into force. However, the same was under the relaxed pass percentage for SC categories. Para 4.3 of the counter affidavit submits the following details in a tabular form:-
SI No. Name of applicant Year of passing Pass Percentage Qualifying percentage without relaxation
1. Sh. Gianender 2002 55.0% 60%
2. Sh. Bhim Singh 2006 57.2% 60%
3. Sh. Ashok Kumar 2006 58.3% 60%
4. Sh. Vijay Singh 2003 56.5% 60%
5. Sh. Ashok Kumar Anand 2006 58.9% 60%
6. Ms. Manju Bala 2002 55.0% 60% 3.2 However, despite being otherwise eligible, the applicants could not be considered for promotion as they were not coming within the zone of consideration.
4.1 The grievance of the applicants is that for the vacancies for the year 2009-2010 despite their falling within the zone of consideration as per the seniority, they have not been promoted as ITOS on the ground of non-availability of reserved category vacancies as per the roster for the SC. In support, they have also referred to the list of Income Tax Inspectors forwarded by the respondents for vigilance clearance having their names as well.
The respondents stand is that the eligible SC category candidates as per their seniority have been adjusted against the SC vacancies as per the roster. In response to an RTI, application by one of the applicants, the respondents had replied that 10 Inspectors of reserved categories had been empanelled during the recruitment year 2009-10. Since the consistent stand of the respondents is that applicants have not been promoted because of non-availability of SC vacancies, particulars of the candidates who filled these slots, assume importance. The closer look of the eligibility list at Annex. A-4 reveals that many of these persons are lower in seniority to some of the applicants before us.
4.2 The following comparative chart has been prepared by juxtaposing the information given under the RTI (Annex. A-1) with the eligibility list of IT Inspectors referred for vigilance clearance (Annex. A/4).
The persons empanelled:
Sl. No. Name Sl.No. as per Seniority Number the list at A/4 as per List A/4 1. Shri B.S. sangwaiya 4 1221 2. Shri Vijay Kishore 6 1311 3. Shri Ram Kumar Mehra 10 1412 4. Shri Radhey Shyam 15 1557 5. Shri Devender Kumar 16 1560 6. Smt. Sushma Sinha 41 1712 7. Shri Balvir Singh 44 1716 8. Shri Sunil Kumar 46 1718 9. Shri Surender Pal 52 1727 10. Shri Ram Het Meena 78 1767 The applicants before us: Applican-ts No. Name Sl. No. as per the list at A/4 Seniority No. Remarks 1. 2. Gianender Bhim Singh 43 42 1714 1713 Above in seniority ranking to Balvir Singh & Sunil Kumar 3. 4. 5. Ashok Kumar Vijay Singh Ashok Kumar Anand 47 45 48 1720 1717 1723 Above in seniority ranking Surendra Pal Above in seniority ranking Sunil Kumar & Surendra Pal Above in seniority ranking Surendra Pal 6. Manju Bala 55 1730 Above in seniority to Ram Het Meena
As all these Inspectors had qualified the departmental examination and also fulfilled the prescribed 3 years regular service in the grade of ITO, the reasons for non-consideration of the cases of the applicants vis-`-vis those who have been empanelled against SC vacancies are not forthcoming from the averments before us. It is not the case of the respondents that the applicants, despite their seniority could not be considered even against the SC vacancies for some other impediment such as lack of vigilance clearance, other disabling factors like a disciplinary proceeding etc, or not fulfilling the prescribed benchmark for the purposes of filling up these selection posts.
4.3 However, the controversy in the present OA is running on different lines. As per the applicants, if they could not be considered against the SC vacancies, they were as well entitled to be considered against the General vacancies by virtue of their seniority even among the general candidates. However, this proposition is not found tenable by the respondents on the ground that the applicants, who had qualified the departmental examination only as per the relaxed pass percentage, could not now raise a claim for being considered for promotion in the general quota.
4.4 Different arguments have been given by both the sides in support of their stands. The applicants have multiple planks which sometimes even appear mutually inconsistent. In his passionate espousal to the cause of the applicants, the learned counsel Shri M.K. Bhardwaj would sometimes aver that considering the subsequent lowering of qualifying percentage, the applicants could not be considered as having qualified the departmental examination under any relaxed standards. It would also be submitted that in any case, the applicants were never asked for an option at any point of time as to whether they wanted to be considered qualified under the normally prescribed pass percentage or the concessional ones. This point was particularly relevant because as per the rules while a candidate got several opportunities to clear the departmental examination the same enabling provisions did not encompass improvement of performance within its purview.
The sore point with the applicant would be that earlier they were deprived of consideration for want of not falling within the zone of consideration and subsequently, even when as their own general seniority, they deserved to be promoted the fact of their having cleared the departmental exam with relaxed standards was being held as an impediment against them. They felt further aggravated as their juniors in the General category had been allowed to steal a march over them.
5.1 The respondents, by the counter affidavit, and an equally determined submissions by the learned state counsel Shri RN Singh, would submit the claims of the applicants as not tenable in the light of the Government policy and clear instructions on the subject. By way of preliminary objections, it would be submitted that the instant application is barred by the principle of judicata / res judicata in view of already decided cases by the Tribunal. Further the plea of non-joinder of private parties whose promotions have been challenged as vitiating the OA would also be raised.
5.2 The main stand of the respondents rests on their action being in consonance with the Government policy as clearly defined by the DOPT, the nodal department, through various communications. In this context, reliance has been placed on the specific clarification furnished by the DOPT vide ID No. 36028/11/2007-Estt (Res.), dated 24.7.2007. A copy of the same has been enclosed as R-1 with the counter; since it touches the core issues raised in this OA, it is being reproduced in toto:
Reference D/o Revenues notes on pre page.
2. As informed by the Department of Revenue, the post of Income Tax Officer (ITO), according to Recruitment Rules, is filed by promotion by selection from the grade Income Tax Inspector. Only such Income Tax Inspectors are considered for promotion who qualify the Departmental Examination. A general candidate is considered to qualify the departmental Examination if he obtains atleast 60% marks. The SC/ST candidates who obtain atleast 55% marks are treated to have qualified the examination.
3. The basic question raised by the Department of Revenue is whether the SC/ST candidates who qualify the departmental examination with less than 60% marks would be eligible for promotion against unreserved vacancies.
4. The matter was referred to this Department earlier also. At that time this Department had tendered the following advice.
The OM dated 11.7.2002 inter-alia clarified that SC/ST candidates failing in the consideration zone cannot be denied promotion on the plea that no post is reserved for them. When no post is reserved, SC/ST candidates failing in the consideration zone should be considered for promotion along with other candidates treating them, as if they belong to general category. If any of them is selected, he should be appointed to the post and should be adjusted against unreserved point. Candidates so promoted are treated as promoted on their own merit. To determine whether an SC/ST candidate in the consideration zone can be promoted or not when there are no reserved posts, it should be seen whether the candidate would have been promoted if he did not belong to SC or ST category. If yes, he should get promotion otherwise not.
5. Unreserved vacancies are open for all categories of persons including SCs STs and OBCs. However, while making appointment/promotion to an unreserved vacancy, no relaxation/concession is permissible for any category of candidates. This departments OM No.36011/1/98-Estt. (Res) dated 1st July, 1998 provides that an SC/ST/OBC candidate would be treated as unavailable for an unreserved vacancy, if he has availed any relaxation/concession including that of age limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates etc. The advice as given earlier and indicated in para 4 above, is in line with the instructions contained in the above OM. The advice so given is re-iterated. Thus as per this clarification, while SC/ST candidates falling within the consideration zone, when not accommodated against reserved posts, are also to be considered along with the general candidates treating them as such, and to be considered on their own merit. However, this also carries with it the stipulation that for extending such consideration to them, the SC/ST candidates should not have availed of any relaxations or concessions whatsoever. Further, as a logical corollary such appointments/promotions are not to be adjusted against reservation roster points.
The aforesaid clarification by the DOPT had been circulated by the CBDT through out the Department vide a forwarding letter dated 1st August 2008 as the policy to be followed regarding treatment of SC/ST candidate promoted on their own merit.
5.3 The respondents have also relied upon two earlier decisions of the Tribunal on identical issues. The CAT (Principal Bench) in the OA No. 205/2003 decided on 27.11.2003 (Behari Lal and Ors. Vs. Union of India & Ors.) had taken the following view:-
In our view this departmental examination is a part and parcel of the promotion scheme and is not part of essential academic qualification to adjudge eligibility so we held that the person having qualified the examination with relaxed standards cannot as a matter of right claim that they should be considered as having qualified the examination on their own merit at par with general category candidates. It has to be held that they have qualified the examination with relaxed standards.
5.4 Another case relied upon is CAT Jabalpurs decision in OA 778 of 2008 dated 28.5.2009 (Siya Ram Meena & Ors. Vs. UOI & Ors.) extracted again in para 5B of the counter affidavit and enclosed as Annex. R-4:
Admittedly, the applicants have qualified the written examination with relaxed standard and as per settled instructions on the subject they could compete only against reserved vacancies SC/ST candidate who pass the written examination based on general standard can certainly compete against the unreserved posts as he does not require the clutches of reservation for promotion. The converse is not justified.
6.1 The reliance by the respondents on the aforesaid decisions of the Tribunal has been sought to be rebutted by the learned counsel for the applicants by submitting a copy of the recent decision dated 18.9.2009 of the Hyderabad Bench of the Tribunal in the OAs 607 and 628/2008 (Shri M. Sathya Harnath & Ors. Vs. UOI), where while dealing with a wide gamut of issues, this particular aspect was also dealt. The issues No. III and IV, as formulated by the Tribunal dealt specifically with the aspects being considered in the present OA:
(iii) Whether the concept of own merit is relevant in promotions in the cadre of ITO from the cadre of ITI and if so, who can be treated as come up on their own merit?
(iv) Whether SC/ST candidates who secured between 55% and 60% aggregate with minimum marks between 45% and 50% in each subject in the departmental examinations held prior to 2007 are not entitled to be considered for promotion to the cadre of ITO against unreserved vacancies though they are otherwise entitled to be considered? After extensive consideration of the various OMs issued by the DOPT as well as the relevant recruitment rules for ITOS and the provisions regarding the departmental examinations, the Tribunal had arrived at the following conclusive finding:
For all the above said reasons, we are of the considered view that the concept of own merit and the OMs issued in this regard are not all relevant for this case as no two standards are prescribed for promotion to the cadre of ITO from the cadre of ITI and that all those who have completely passed the departmental examination and completed three years of service and reached the zone of consideration are required to be placed before the DPC for consideration and the CCIT, Hyderabad has no power to exclude the applicants from the normal zone of consideration. Thus, all these points are found in favour of the applicants. Allowing the OAs, the Tribunal had directed the Chief Commissioner of Income Tax, Hyderabad to constitute a review DPC and place the names of the applicants in both the OAs before such DPC for consideration for promotion to the cadre of ITO.
6.2 Considering the diametrically opposite views being taken by the Coordinate Benches would have put us in a fix, but for the immediate challenge to the decision of the Hyderabad Bench before the High Court by the unofficial respondents in the aforesaid two OAs. The learned state counsel Shri RN Singh would submit before us a copy of the order of the Division Bench of Andhra Pradesh High Court on the subject. The Honble High Court observed as follows:
We are, prima facie, of the opinion that the conclusions arrived at by the Tribunal and the contention advanced by the learned counsel for the applicants are contrary to various rules and official memos issued from time to time by the Central Government with regard to the entitlement of the reserved candidates for promotion in the general category. The reserved candidates are entitled to compete for the unreserved vacancies, if they qualified without availing any concession. That is the plain reading of the OM dated 24.7.2007, but the Tribunal reads it in a different manner. Therefore, we are inclined to suspend the operation of the order of the Tribunal. Accordingly, the order of the Tribunal is suspended, pending further orders. 6.3 Even though the learned counsel Shri M.K. Bhardwaj would still stick to his stand with the submission that there had been no formal staying of the Hyderabad Bench of Tribunals order, in the light of the very clear view taken and the Honble High Court being seized with the matter till the final decision, it would not be appropriate for us to act upon the same. As a logical corollary, the view by the two coordinate Benches in Vinod Bihari Lals case and Siya Ram Meenas case would hold the field.
7. In view of the forgoing, we do not find the applicants claims for being considered against the General vacancies in the year 2009-10 as tenable. However, still in the interest of equity, we find a case for a relook regarding their non-consideration against the SC vacancies themselves. Taking into account our detailed observations in paras 4.1 and 4.2 of this order, the respondents would have a re-look on the subject and pass a speaking and reasoned order. In the event of there being a legitimate ground being found in favour of the applicants, a review DPC would need to be constituted considering the cases for promotion of the applicants against the SC vacancies vis-`-vis many of the persons presently empanelled despite lower seniority. As these persons have not been impleaded in the OA before us, before taking any action that could potentially adversely affect the interests of already empanelled candidates the respondents would given them an adequate opportunity for explaining their case. The aforesaid directions are to be complied within 3 months from the date of receipt of a copy of this order. The OA thus stands disposed with these directions, with no order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU)
MEMBER (A) MEMBER (J)
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