Central Administrative Tribunal - Delhi
Union Of India vs State Of Up And Others ... on 7 March, 2012
Central Administrative Tribunal Principal Bench New Delhi OA No.3857/2011 Reserved on : 29.02.2012 Pronounced on : 07.03.2012 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) 1. Manu Tentiwal, S/o Shri Ashok Kumar Tentiwal, R/o C-101, Krishna Apra Residency, Sector 61, Noida. 2. Prashant Kumar Jha, S/o Shri Hari Kumar Jha, Dy. Commissioner of Income Tax, R/o DDA, Flats, Mayapuri, New Delhi. 3. Vimal Anand, S/o Shri Ramanand Dass, Under Secretary (TPL-11), CBDT, R/o L-902, Ratnagiri Apartment, Kaushambi, Ghaziabad, Uttar Pradesh. 4. Anil Kumar Bhardwaj, S/o Shri Parmanand Sharma, Under Secretary (ITJ), CBDT, Addressed At-Room No.702, HUDCO Vishala, Bhikaji Cama Place, New Delhi. 5. Pushpendra Singh Chaudhary, S/o Shri Murlidhar Chaudhary, Under Secretary (A&PAC-I), CBDT, R/o L-702, Girnar, Kaushambi, Ghaziabad, Uttar Pradesh. 6. Rajesh Kumar, S/o Shri Budh Sain, Dy. Commissioner of Income Tax, R/o 6016/2, Pocket-6B, Sector-D, Vasant Kunj, New Delhi. (By Advocate: Shri Maninder Singh, Sr. Advocate with Shri Kirtiman Singh,T. Singh Dev, Shri Zartab Anwar) Versus 1. Union of India, Represented bys the Secretary to the Government of India, Department of Revenue, Ministry of Finance, New Delhi. 2. The Chairman, Central Board of Direct Taxes (CBDT), Department of Revenue, North Block, New Delhi. 3. Department of Personnel & Training, Through its Secretary, Government of India, North Block, New Delhi. 4. Union Public Service Commission, Through its Chairman, Shahjahan Road, New Delhi. 5. Joint Secretary (Admn.), Central Board of Direct Taxes (CBDT), Department of Revenue, North Block, New Delhi. -Respondents (By Advocate : Shri Amit Anand and Shri A.K. Behera) ORDER
Dr. Ramesh Chandra Panda, Member (A) Six applicants who are direct recruits of Indian Revenue Service (IRS) appointed on 01.09.2003, have joined together in the present OA, having been aggrieved by the action of the official respondents in promoting the promotee category of ITS officers to the grade of Joint Commissioner of Income Tax (JCIT in short) and claiming that they are senior to the said promotees, and have, therefore, approached the Tribunal under Section 19 of the Administrative Tribunals Act, 1985, with the following prayers:-
(i) Declare that all Direct Recruits appointed on 01.09.2003 are entitled to promotion prior to promotees appointed on 05.12.2003 and further direct the Respondents to take all necessary steps pursuant and in furtherance thereof.
(ii) In the alternative, call for the records pertaining to the Screening Committee (DPC) meeting dated 17/18.10.2011 held under the aegis of the Department of Revenue and all orders/circulars/communications issued pursuant thereto and quash the same; and
(iii) Pass any other orders as this Honble Court may deem fit and proper in the facts and circumstances of the present case.
2. It is the case of the applicants that their appointment date in the entry grade of IRS (ACIT) as direct recruits is 01.09.2003 whereas the promotees have been appointed to the ACIT grade by promotion as on 05.12.2003. The service conditions of members of IRS irrespective of their appointment by direct recruitment or promotion are governed by the Indian Revenue Service Rules 1988 (the Rules 1988 in short) which inter alia stipulates that the vacancies will be filled up in the ratio of 50:50 between direct recruits and promotees. Rule 9 (iii) provides that the relative seniority will be also in the ratio of 1:1. Some of the applicants approached this Tribunal in OA No.1052/2010 which was considered by the Full Bench. The background of the reference to Full Bench was as follows:-
Correctness of law laid by the Ahmedabad Bench of the Tribunal in Shri Sanjeev Pugalia & Others v. Union of India & Others (OA-417/2005) decided on 26.2.2007, insofar as following the rota rules concerned, contained in Rule (iii) of Indian Revenue Service Rules, 1988 (hereinafter referred to as Rules) maintaining 1:1 ratio in the seniority between the promotees and direct recruits as well as correctness of the directions in Prabhakant Ayodhya Prasad & Others v. Union of India & Others, 2003 (1) SLJ 317 CAT holding validity of relaxation on quota rules and observing that rota rule cannot be relaxed in the backdrop of wide ramifications on the issue of seniority as large number of Indian Revenue Officer (Income Tax) (for short IRS) being involved, has been referred the Full Bench for a clear and authoritative pronouncement on the subject. After hearing the parties, the Tribunal passed following order on 2.11.2010 in the said OA:
38. Resultantly, we answer the reference as follows:
The official respondents shall, within a period of two weeks by applying the Rules, draw the seniority list and thereafter two weeks time will be allowed to the affected parties to represent. The official respondents, on receipt of the representation(s) within further two weeks time thereafter, finalize the representation(s) and also the seniority list, which shall be published and thereafter they are at liberty as per the seniority position to hold the DPC associating UPSC. In such an event, law shall take its own course. Meanwhile, the promotions effected by the DPC held by the official respondents shall not be acted upon and as per the settled final seniority list, claim of the promotees specifically shall be considered for promotion and those who have retired during this interregnum shall, if found fit on empanelment, be accorded the promotions with all consequences. The time limit laid down by us is to be scrupulously and meticulously followed on strict basis.
39. By answering the reference aforesaid, we have substantially dealt with the grievance raised by the applicants in the OA, as such, keeping in light the time bound directions issued by us, it will be an exercise in futility to send the case back to the Division Bench. Accordingly, OA stands disposed of in the above terms. No costs.
Against the aforesaid judgment, a writ petition was filed before Honble High Court of Delhi. The WP(C) No.8018/2010 is admittedly pending in the High Court, as the order has been reserved, on 18.07.2011, when the arguments were finally heard, the Honble High Court considered the CM No.4376/2011 as infructuous as it was noted that the petitioners had already made ad hoc promotions. It thus emerges that the inter se seniority between the direct recruit and promotee IRS Officers at the ACIT i.e. entry grade having not yet been finally settled. The Department of Revenue has granted both the applicants promotion to the DCIT grade from different dates. Recently, the promotee IRS Officers have been promoted on ad hoc basis to the JCIT grade, after the Screening Committee meeting on 17.10.2011. Even though the applicants representation dated 16.09.2011 is pending with the respondents. Challenging the said ad hoc promotion, they have approached the Tribunal in the present OA.
3. On 08.11.2011, when the case came up, MA No.2971/2011 was allowed in following order:
Present : Shri Maninder Singh, Sr. Advocate with Sh.
Kritman Singh and Sh. T. Singhdev counsel for applicant. Sh. U. Srivastava and Sh. A. K. Behera counsel for respondents.
Mr. A. K. Behera has filed MA No.2971/2011 seeking impleadment of Income Tax Gazetted Officers Association and Mr. Satpal Singh as a party respondent. A copy of the same has been given to Mr. Kritman Singh, learned counsel for the applicant to which he has no objection. The same is allowed in terms of prayer made therein. Income Tax Gazetted Officers Association and Mr. Satpal Singh are made as a party respondent. The office will carry out necessary corrections in the memo of parties. The original and added respondents may file their reply before the next date of hearing. Let the reply be filed even on the date fixed in the court but a copy of the same must be given to the counsel for applicant two days in advance who may respond to the same by filing rejoinder even on the date fixed in the court itself. It is made clear no further adjournment shall be given.
List on 29.11.2011. During the hearing on 29.11.2011, it was considered necessary that DOP&T should file the reply affidavit. But, on subsequent dates (15.12.2011 and 04.01.2010) as the DOPT was found not properly represented, we issued the following directions on 04.01.2012:
Present : Sh. Maninder Singh, Sr. Advocate with Sh.
Kritiman Singh and Sh. T. Singhdev counsel for applicant.
Sh. A. K. Behera and Sh. Amit Anand counsel for respondents.
Order dated 15.12.2011 reads as follows:-
Despite order dated 29.11.2011, no reply on behalf of DOP&T has been filed. Let the same be filed two days before the next date fixed with an advance copy of the same to the counsel opposite. Copy of this order be sent to the Secretary, DOP&T, who would ensure filing of their reply. The applicant may also convey this order to the Secretary, DOP&T. At this stage, Mr. R. N. Singh, learned counsel, appears and says that he will have necessary instructions in the matter and reply shall be filed by the next date.
List on 4.01.2012. Process Dasti. Shri R. N. Singh, learned counsel, states that the DOP&T has already instructed Mr. Amit Anand to defend the case. Mr. Amit Anand, on the other hand, has shown to us a letter dated 15.12.2011 which states that DOP&T is only a proforma party and the matter be defended by the same counsel who is representing the department.
Mr. Maninder Singh, Sr. Advocate would state that in his view DOP&T is a necessary party to file the reply as the stands taken by the department and DOP&T are at variance. Mr. Amit Anand would ascertain the correct position and if it be still instructions that the DOP&T is a proforma party, it may adopt the written statement filed by the department. In case, however, there will be a conflict of interest/view, the DOP&T must file reply by the next date of hearing. It is made clear that no further adjournment shall be given.
List again on 24.01.2012.
At this stage, Mr. Maninder Singh, learned Senior Advocate would state that the record of the DOP&T should be made available to the Tribunal for appropriate adjudication of the controversy in issue. We direct DOP&T to at least have the relevant records available for perusal of the Tribunal on the date fixed. Process Dasti. This case was adjourned on 24.01.2012, and while adjourning the OA on 08.02.2012, Shri Amit Anand, the learned counsel defending the respondents stated that the DOP&T would like to know the variance of views, we took up the case again on 17.02.2012, 27.02.2012 and finally heard the case on 29.02.2012.
4. Shri Maninder Singh, learned Senior Counsel assisted by Shri Kirtiman Singh, Shri T. Singhdev, and Shri Zaftab Anwar, learned counsel argued the case on behalf of the applicants. He anchored his principal grounds on the following contentions. (i) The applicants having been appointed prior to the induction of promotee officers to IRS, the relative seniority cannot be changed through backdoor method. He elaborates the same to state that the respondent Department is showing the promotees as Members of IRS from 2001 and 2002 batches whereas they have been inducted in the year 2003 after the appointment of the applicants. The seniority of promotees is, therefore, erroneously shown. In respect of inter se seniority of direct recruits and promotees, he placed his reliance on the judgment of Honble Supreme Court in Uttranchal Forest Rangers Association (Direct Recruit) and Others versus State of UP and Others [2006-10-SCC-346] and Pawan Pratap Singh versus Reevan Singh [2011-3-SCC-267]. (ii) Some of the promotee officers were designated as DCIT in Senior Scale after completion of merely three years as ACIT as they joined on 05.12.2003. Referring to the IRS Civil List as on 01.01.2007 (Annexure-A4) Shri Maninder Singh submits that as on 01.01.2007 the promotees were shown in the Senior Scale whereas the direct recruits who joined IRS on 01.09.2003 have been granted Senior Scale w.e.f. 01.01.2003. This approach of the Department is termed as invidious discrimination. (iii) In respect of promotion to the JCIT i.e. Junior Administrative Grade (JAG), the qualifying service as per the Rules for the eligibility to be considered is (a) four years of regular service in ACIT and (b) five years of regular service in DCIT. The promotees who joined as ACIT on 05.12.2003 by no stretch of imagination could be considered on 17/18.10.2011 for promotion to the JCIT grade, despite relaxation of one year of regular service. He terms the promotion of the promotee officers to JCIT rank even on ad hoc basis as an arbitrary decision of the Department. (iv) Even the DOP&T while granting one year relaxation for ad hoc promotion has questioned the grant of senior scale to promotee officers when they have not even fulfilled the minimum eligibility condition of 4 years in the Junior Scale i.e. as ACIT. (v) Shri Maninder Singh drew our attention to the Table in the OA to say that the Department has for many years under reported the vacancies for the direct recruits whereas no such under reporting has been resorted to for the promotees. This practice has distorted the rota rule of 1:1 to the disadvantage of the applicants. (v) Though the respondents referred to the minutes of the DPC to say that Panel/Vacancy years for which the Panels were recommended being 2001-02 and 2002-03, Shri Maninder Singh would contend that the order promoting those officers to ACIT for induction to IRS being silent about the vacancy and panel year, the promotee officers could not have been given retrospective promotion which was presumptive on the part of the respondent Department.
5. On receipt of notice from the Tribunal, the official respondents have submitted reply affidavit on 28.11.2011 through Shri Amit Anand, learned Senior Central Government Counsel. DOP&T did not file any reply affidavit but Shri Amit Anand represented DOP&T in the final hearing. As the MA No.2971/2011 was allowed by us, the newly impleaded respondents filed their affidavit on 28.11.2011 through Shri A. K. Behera, learned counsel.
6. Shri Amit Anand, learned Senior Central Government Counsel representing the official respondents would submit that as per Schedule-II to IRS Rules 1988, Officers who have completed 5 years regular service in the Senior Scale i.e. DCIT would be eligible to be considered for promotion to the grade of JAG i.e. JCIT and the applicants being an IRS Officers of 2003 batch, promoted as DCIT with effect from 1.1.2008 would be eligible to be considered for promotion as JCIT on 1.1.2013. He hastened to add that CBDT has already initiated the process to promote the IRS Officers of 2003 batch as JCIT by seeking relaxation of one year from DOPT and it is submitted that after completion of the processing they would be promoted as JCIT (JAG) on purely ad hoc basis, subject to the outcome in the pending litigation which in the view of CBDT would be in line with the earlier ad hoc promotion effected on 30.03.2011 and 27.10.2011 for the IRS Officers of 2000, 2001 and 2002 batches. Referring to the induction of promotee officers as ACIT, he submits that the Order No.184 of 2003 dated 5.12.2003 promoting 126 ITOs as ACIT on regular basis has been consequent to the DPC held on 28th and 29th October, 2003 against the panel years 2001-02 and 2002-03. In the said Order, Officers at Sr. No.1 to 13 (K. Vishwanathan to Sat Paul) were against Panel year 2001-02 and officers at Sr. No.14 to Parameshwaran to P. Jayaramulu) were promoted against Panel year 2002-03. Shri Amit Anand referred to the Minutes of DPC in support of his above argument. Further, he submits that while determining relative seniority of promotees and Direct Recruits of 2002 (who were 59 in number) first 59 promotees of Panel year 2002-03 i.e. Sr. No.14 to 72 of Order No.184 of 2003 (viz. C. R. Parameshwaran-02501 to Jayanta Kr Mukhopadhyay-02559) have been rotated with 59 Direct Recruits of 2002 with Civil List No.02001 to 02059. Thereafter, all the left over promotees of panel year 2002-03 i.e. Sr. No.73 to 126 of Order No.184 of 2003 (viz. Subrata Kr Nag-02560 to P. Jayaramulu-02613) have been bunched and kept at the bottom of 2002.
7. Shri A. K. Behera, learned counsel representing the private respondents raised a preliminary objection. He submits that on the principle of constructive res judicata, the present OA is not maintainable. The applicants 2 to 6 were co-applicants in OA No.1052/2010 agitating therein the inter se seniority position against the promotee officers mainly on the ground that promotees were more in numbers and promoted after the applicants joined the IRS as direct recruits. The OA was decided on 2.11.2010 which was challenged in the WP (C) No.7990/2010, WP(C) No.8017 and WP (C) No.8018/2010 which after hearing the arguments, the Honble High Court of Delhi has reserved the judgment on 15.07.2011. Further, the ad hoc promotion of promotee officers to the grade of JCIT was raised in the CM No.4376/2011 in WP(C) No.8018/2010 where the prayer was same as being sought in the instant OA for interim relief. The said CM has already been decided having become infructuous. As no stay was granted by the High Court in the CM, a Special Leave Appeal was moved in the Honble Supreme Court (CC No.6144/2011) and was withdrawn by the applicants. His contention is that in the present OA stay of ad hoc promotion of the promotee officers to the JCIT grade is not being insisted. The main relief is challenge of their promotion. His contention is that the principles of constructive res judicata will not be applicable to the present OA. At this stage, we considered the contentions of the parties. We note that inter se seniority of the applicants and the promotee officers is the issue pending adjudication before the Honble High Court. Of course, once the judgment is delivered, the parties will know their respective position. Challenge in the present OA is against the ad hoc promotion of promotees to the rank of JCIT. The applicants claim is that they should have been considered for promotion to JCIT grade even on ad hoc basis and even after granting relaxation. But their non promotion on ad hoc basis was not the issue before the High Court. In our considered view the principles of constructive res judicata will not be applicable in the present OA.
8. Endorsing the views expressed by the Counsel for the official respondents, Shri A. K. Behera would contend that at the level of DCIT, the private respondents were promoted earlier than the applicants and the said order is not under challenge. The DOP&T granted one year relaxation for consideration of DCIT to be promoted on ad hoc basis to the JCIT grade. The private respondents fulfilled the said relaxation whereas the applicants could not. Therefore, he submits that the applicants claims have no merits and the OA should be dismissed.
9. After hearing the above contentions of the parties, we have given careful consideration of the relief(s) prayed in the OA. We also perused the documents on record in the OA.
10. Admitted facts need recapitulation.
The applicants joined IRS as ACIt on 01.09.2003 as direct recruits having been selected in the Civil Services Examination, 2002.
The Private respondents were promoted from the ITO grade and inducted to the Indian Revenue Service as ACIT vide order dated 05.12.2003.
The applicants and private respondents were appointed as DCIT with effect from 01.01.2006 and 01.01.2007 vide orders dated 10.10.2008 and 21.04.2008 respectively.
It is also admitted fact that due to optimization and other policy decisions taken by the Government, number of posts for which direct recruitment and promotion took place was not in the ratio of 1:1. It is further noted that at the entry grade of IRS i.e. ACIT, more promotees were inducted than the direct recruits appointed to the grade.
The dispute of inter se seniority of the private respondents vis-`-vis the direct recruit applicants is pending final adjudication before the Honble High Court in a batch of writ petitions.
11. Taking into account the above admitted facts and the status as on the date of final hearing, we find that disputes are still persisting between the applicants and the promottee officers with regard to their inter se seniority. Regular promotion to the level of DCIT and subsequently to the JCIT would be basically dependent on their inter se seniority at the entry level, namely, ACIT. The said dispute being the subject matter for determination in the Honble High Court of Delhi, we would not, therefore, give our views with regard to the seniority issues of the parties.
12. However, it is noticed that the official respondents have granted promotion to the promotee officers in the JCIT grade on ad hoc basis after getting the relaxation of one year from the DOP&T. The relaxation is applicable irrespective of the fact whether promotee officers or direct recruits are concerned. On a query from the Bench, the learned counsel for the official respondents submitted that the Department of Revenue is already at that point considering the grant of ad hoc promotion to the applicant as JCIT by granting relaxation of the regular qualifying service, and the exercise will take few more weeks to complete.
13. Considering the totality of facts and circumstances of the case, we are of the considered opinion that the applicants deserve to be granted appropriate years of relaxation by the DOP&T to make them eligible to get promotion to the JCIT on adhoc basis. Let the exercise for the same as conveyed to us during the final hearing by the counsel for official respondents be completed as expeditiously as possible and positively within a period of three months from the date of receipt of a certified copy of this order.
14. In terms of our above directions, the OA is disposed of. No costs.
(Dr. Ramesh Chandra Panda) (V.K. Bali)
Member (A) Chairman
/PJ/