Central Administrative Tribunal - Delhi
Subhash Sahni vs Union Of India on 30 June, 2009
Central Administrative Tribunal, Principal Bench
OA No. 2107/2008
with
OA No. 2358/2008
New Delhi, this the 30th day of June, 2009
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. L.K.Joshi, Vice Chairman (A)
OA-2107/2008
1. Subhash Sahni
Deputy Commissioner of Income Tax,
Central Revenue Building, ITO,
New Delhi
2. S.K. Sharma
Deputy Commissioner of Income Tax,
Central Revenue Building, ITO,
New Delhi
3. Horam Singh
Deputy Commissioner of Income Tax,
Central Revenue Building, ITO,
New Delhi
4. R.K. Mehta
Deputy Commissioner of Income Tax,
Central Revenue Building, ITO,
New Delhi
5. S.K. Mehra
Deputy Commissioner of Income Tax,
Central Revenue Building, ITO,
New Delhi
6. S. Vardarajan
Deputy Commissioner of Income Tax,
Central Revenue Building, ITO,
New Delhi
7. M.S. Attri
Deputy Commissioner of Income Tax,
Central Revenue Building, ITO,
New Delhi
8. Khushi Ram
Deputy Commissioner of Income Tax,
Central Revenue Building, ITO,
New Delhi Applicants
(By Advocate: Shri Reetesh Singh)
OA-2358/2008
Pradeep Kumar Singh,
Deputy Commissioner of Income Tax
Central Revenue Building, ITO,
New Delhi .Applicant
(By Advocate: Shri Reetesh Singh)
V e r s u s-
1. Union of India,
Through Secretary,
Department of Revenue,
Ministry of Finance, Central Secretariat,
New Delhi-110001.
2. The Central Board of Direct Taxes,
through the Chairman
North Block, Central Secretariat,
New Delhi-110001. ...Respondents
(By Advocate: Shri V.P. Uppal)
ORDER
Mr. L.K.Joshi, Vice Chairman(A):
By this common order, we are disposing of two OAs No.2107/2008 and 2358/2008 as they are founded on common questions of fact and law. The Applicants are posted as Assistant Commissioner (Senior Scale)/ Deputy Commissioner [AC(SS)/DC] of Income Tax and have been promoted to these posts with effect from 1.01.2006. They are claiming promotion to the aforesaid posts with effect from 1.01.2005 or from a date prior to the date their juniors including Shri S.K. Shukla were granted promotion to the post of AC(SS)/DC.
2. Brief facts of the case are mentioned in the following paragraphs.
3. The Applicants were promoted to the post of Income Tax Officer in June, 1987. They were promoted as Assistant Commissioner of Income Tax (Junior Administrative Grade) on 7.11.2001. These appointments were made against the vacancies of the year 2000 and the Applicants were given seniority of the year 2000. In the order of promotion dated 7.11.2001 (Annex A-1 colly), the Applicants have been shown at the following serial numbers in their order of seniority:
Serial No. Names 78 Subhash Sahani 85 S.K. Sharma 87 Horam Singh 88 R.K. Mehta 89 S.K. Mehra 93 S. Vardarajan 94 M.M.S. Attri 96 S.C. Mittal 115 Khushi Ram
4. It is also stated that Shri S.K. Shukla, who is junior to the Applicants, is at serial number 272 in the order of promotion dated 7.11.2001. The Applicants figure in the Civil List of the Indian Revenue Service showing seniority as on 10.01.2007 in the following order:
Civil List No. Names 00575 Subhash Sahani 00582 S.K. Sharma 00584 Horam Singh 00585 R.K. Mehta 00586 S.K. Mehra 00590 S. Vardarajan 00591 M.M.S. Attri 00593 S.C. Mittal 00612 Khushi Ram
5. Shri S.K. Shukla has been shown at serial number 00768 in the civil list. Shri Shukla was promoted to the post of AC(SS)/DC with effect from 1.01.2005. The order dated 6.12.2006, promoting Shri S.K. Shukla with effect from 1.01.2005 is placed at Annex A-3. Shri Shukla was promoted on the direction of this Tribunal in OA No.502/2004, which was decided on 29.03.2005 by the Jaipur Bench of this Tribunal. Shri S.K. Shukla had approached the Tribunal on not being considered for promotion against the vacancies of the year 2004. The Tribunal allowed the OA and directed the Respondents to consider the case of the Shri S.K. Shukla for promotion as AC(SS)/DC and in case he was found fit, he should be given promotion from the due date (1.01.2005) with all consequential benefits. The Respondents had carried the matter to the Honourable High Court of Rajasthan in Civil Writ Petition No.5885/2005. The High Court upheld the order of the Tribunal. The matter was then agitated before the Honourable Apex Court by way of SLP. The Honourable Apex Court gave the following direction:
We see no reasons to interfere. The Special Leave Petition is dismissed. The consideration, however, shall be made in accordance with the Rules. The aforesaid order of the Honourable Apex Court is dated 26.02.2007.
6. Advertence may be made at this stage to the Recruitment Rules for various grades of the Indian Revenue Service, regarding promotion from one grade to the other in the service. The Recruitment Rules are placed at pages 45-49 of the paper book. In Schedule II, the eligibility for promotion from Junior Scale to Senior Scale is as follows:
S.No. Grade Method of recruitment Field of selection and the minimum qualifying service for promotion
5. Senior Scale By promotion on the basis of seniority-cum-fitness Officers in the Jr. Scale with not less than 4 years regular service in that Grade
6. Junior Scale (1) 50% by promotion on the basis of selection
(i) 50% by direct recruitment sub rule (2) of rule 7 Income-tax officers with not less than 3 years regular service in that grade.
Note: If an officer appointed in any post in the service is considered for the purpose of promotion to a higher post all persons senior to him in the grade shall also be considered notwithstanding that they may not have rendered the requisite number of years of service. (emphasis added)
7. The learned counsel for the Applicant has emphatically pointed to the note in the Recruitment Rules, which has been reproduced above. It has been pointed out that in the list of promotion dated 7.11.2001, the Applicants are at the serial numbers, as mentioned in paragraph 3 of this order and Shri S.K. Shukla is at serial number 272. Similarly, it has been pointed out that in the Civil List of 2006 also, the Applicants are above Shri S.K. Shukla in the seniority as seen from the extract of the Civil List, which has been quoted in paragraph 4 of this order. It is further pointed out by the learned counsel for the Applicants that as per the Civil List, in the second column, the date of appointment of the Applicants to Group `A has been shown as 7.11.2001 and that of Shri S.K. Shukla is also shown as 7.11.2001. In the same Civil List, in the remarks column, it is shown that Shri S.K. Shukla has been given senior scale with effect from 1.01.2005 whereas the Applicants have been given the senior scale from 1.01.2006. It has also been urged that in the order dated 29.03.2005 of this Tribunal (Jaipur Bench), the Respondents had admitted that there was a provision in the IRS Rules that if a directly appointed officer in any post is considered for promotion, all persons senior to him in the grade shall also be considered, notwithstanding that they may not have the requisite number of years of service. The relevant paragraph of the order in the above mentioned OA is quoted below :
The respondents are contesting the O.A. They admit that the AC(JS) officers are eligible for promotion to the AC(SS) on the basis of seniority-cum-fitness. They must possess 4 years of regular service as qualifying service for being eligible to be considered for promotion. It is also submitted that there is a provision in the IRS Rules that if a directly appointed officer in any post, all persons senior to him in the grade shall also be considered notwithstanding that they may not have rendered the requisite number of years of service.
8. It is further submitted that the Applicants had given representations on several dates between 20.11.2006 to 10.01.2007 for their promotion on the ground that a person junior to them had been considered for promotion and had actually been promoted. The first Respondent had replied to the representations by letter dated 23.01.2007 (Annex A-7) stating that the matter was before the Honourable Supreme Court in the SLP filed by the respondents and that no action on such representations could be considered till the matter was decided by the Honourable Supreme Court. It is stated that in spite of the SLP being dismissed and the Honourable Apex Court directing that the consideration should be in accordance with the Rules, the Respondents had not considered the case of the Applicants. The learned counsel has also stated that the Jabalpur Bench of this Tribunal, while considering OA No.27/2008 in the case of Shri Lakhan Lal Choubey and Shri Shamshi Mohan Srivastava had directed the respondents to dispose of the representations filed by the aforesaid applicants in OA No.27/2008. The representations of the above two officers of the Indian Revenue Service were also for seeking promotion from 1.01.2005 to the post of AC(SS)/DC instead of from 1.01.2006 on the same basis as of the Applicants in the OA in hand. The representations were rejected by the first respondent on the ground that Shri Lakhan Lal Choubey and Shri Shamshi Mohan Srivastava had not completed four years service in the Junior Scale and hence they were not eligible for promotion with effect from 1.01.2005. It also noted that they had rightly been granted senior scale from 1.01.2006, after they had completed four years of service in the junior scale in accordance with the Recruitment Rules of Indian Revenue Service. The respondents also placed reliance on the order of the Honourable Supreme Court in the SLP that the consideration for promotion has to be in accordance with the Rules.
9. The learned counsel for the Applicants takes serious exception to this interpretation of the direction given by the Honourable Apex Court. It is strenuously urged that the note in the Recruitment Rules is an integral part of the Rules. The Rules cannot be read without the note at the bottom of Schedule-II. The Rule unequivocally provides that in case an officer appointed in any post in the service is considered for the purpose of promotion to a higher post, all persons senior to him in the grade shall also be considered notwithstanding that they might not have rendered the requisite number of years of service.
10. The Respondents, on the other hand, have opposed the cause of the Applicants on the ground that the Applicants are not eligible to be given senior scales because they have not acquired the minimum qualifying service of four years for promotion as provided in the Rules. It is the contention of the learned counsel for the Respondents that the true purport of the note in Schedule-II of the Recruitment Rules, adverted to in the preceding paragraphs, is that if a person is considered for promotion after fulfilling the eligibility condition of completion of four years service in the junior scale, then only his seniors would also be considered for promotion. He would contend that Shri S.K. Shukla had not completed four years of service in the junior scale but was promoted on the direction of the Tribunal/Court. The learned counsel for the Respondents would also place reliance on the OM dated 3.03.2008 of the Department of Personnel and Training (DoP&T) dealing with relative seniority of direct recruits and promotees. The learned counsel has pointed to paragraphs 2 and 3 of the above OM to drive home the point that the fixation of seniority shall be from the actual year of appointment. He would contend, therefore, that the Applicants, who are promoted from 7.11.2001, could not be given seniority of the year 2000 and on the basis of which, they could be considered to have completed four years of service in the year 2004. The relevant paragraphs of the DoP&T OM are reproduced below:
2. Para 2.4.1 and 2.4.2 of the O.M. dated 3.7.1986 contains the following provisions:
2.4.1 The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees, which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
2.4.2 If adequate number of direct recruits does not become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees.
3. Some references have been received seeking clarifications regarding the term `available used in the preceding para of the O.M. dated 3.7.1986. It is hereby clarified that while the inter-se seniority of direct recruits and promotees is to be fixed on the basis of the rotation of quota of vacancies, the year of availability both in the case of direct recruits as well as the promotees, for the purpose of rotation and fixation of seniority shall be the actual year of appointment after declaration of results/selection and completion of pre-appointment formalities as prescribed. It is further clarified that when appointments against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. year of vacancy/panel or year in which recruitment process is initiated) but should get the seniority of the year in which they are appointed on substantive basis. The year of availability will be the vacancy year in which a candidate of the particular batch of selected direct recruits or an officer of the particular batch of promotees joins the post/service.
11. It is the contention of the learned counsel that since the Applicants were promoted as Assistant Commissioner of Income Tax on 7.11.2001, they would complete four years of regular service only on 6.11.2005 and after that they were eligible for promotion to the senior scale with effect from 1.01.2006 in view of the model calendar circulated by the DoP&T by OM dated 8.09.1998 in which it is stated that the eligibility for promotion would be seen on 1st January of the vacancy year. The learned counsel has also placed reliance on the judgments of the Honourable Supreme Court in the following cases:
K. Madhavan and another Vs. Union of India and others, (1987) 4 SCC 566;
State of Uttaranchal and another Vs. Dinesh Kumar Sharma, 2006 (13) SCALE 246;
Union of India and others Vs. K.K. Vadera and others, 1989 Supp (2) SCC 625;
Union of India and others Vs. Majji Jangammayya and others, AIR 1977 SC 757;
I.C.A.R. and another Vs. T.K. Suryanarayan and others, 1997 (5) SLR 217;
Faridabad CT. Scan Centre Vs. D.G. Health Services and others, (1997) 7 SCC 752; and Bihar Public Service Commission Vs. Kamini, 2007 (5) SCALE 735
12. We are in full agreement with the learned counsel for the Applicants that the note appended to the Schedule to the Rules cannot be separated from the Rules. It is fully a part of the Rules and it has to be taken into account in the interpretation of the Rules. The note to the Schedule-II of the Indian Revenue Service Recruitment Rules has been reproduced in paragraph 6 of this order. The contention of the learned counsel for the Respondents that the purport of the Rule is that if a junior officer is considered for promotion after completing four years of service then only officers senior to him, who have completed four years of service, would be considered for promotion is misplaced as it is adding something to the Rule, which does not exist. In this context, we may advert to the reply of the Respondents, para 4(vi) to 4 (viii) of the OA, which is as follows:
As stated above, in terms of the Rules the person should put in four years of regular service before a person can be considered for promotion to the Senior Time Scale. Further, there is a provision in the IRS Rules that if an officer appointed in any post in the service is considered for the purpose of promotion to a higher post, all the persons senior to him in the grade shall also be considered notwithstanding that they may not have rendered the requisite number of years in service. In the cases of Shri C.J. George (Code No.00505), Shri R.C. Nivsarkar (Code No.00521), etc. cited by the applicants, these officers have been promoted before completion of requisite four years of regular service since their juniors have completed four years of regular service and granted senior scale. Similarly, the promote offices who joined on 12.1.2001 but granted seniority of 1998 batch and 1999 batch were also promoted before completion of requisite four years of regular service since their juniors have completed four years of regular service and granted senior scale. However, this is not the case with the applicants as none of their junior has completed four years of service and promoted to senior scale before 1.1.2006
13. There is no such provision in the note that seniors would be considered for promotion even if they have not completed four years of service for promotion to senior scale, if a junior, who has completed four years of service, has been promoted. This is reading something in the rule, which does not exist in it. We do not see any ambiguity in the rule, which would call for such a laboured interpretation. It is very clear that the purport of the Rule is that if a person is considered for the purpose of promotion to a higher post, then all persons senior to him in the grade shall also be considered even if they have not rendered requisite number of years of service. There is not even a hint that it would apply only if the junior has completed the requisite number of years of service. In so far as reference to the OM of DoP&T dated 3.03.2008, on which the Respondents have placed reliance is concerned, it would be clearly seen that it does not apply to the facts and circumstances of the present case. In the present case, the seniority of the Applicants and of the person junior to them, namely, Shri S.K.Shukla is not in issue. Both the Respondents as well as the Applicants agree that the Applicants are senior to Shri S.K.Shukla. Therefore, the OM has no relevance as far as the present case is concerned.
14. We have also carefully perused the judgements of the Honourable Apex Court cited by the learned counsel for the Respondents. We are sorry to note that the learned counsel has cited seven judgments in his favour, yet not one judgement is relevant in the facts and circumstances of the present case.
15. In K. Madhavan (supra), the issue related to the seniority of Shri Madhavan and another officer who were directly recruited as Deputy Superintendent of Police in the CBI and Shri O.P.Sharma, who was brought on deputation to the CBI from Rajasthan Police. There was not even a whisper of the issue which we are considering in the present OA.
16. In Dinesh Kumar Sharma (supra), the issue under consideration was whether the seniority is to be granted from the date of substantive appointment or from the date of occurrence of vacancy. In this case, the Honourable Apex Court adverted to the U.P.Agricultural Group II Service Rules, 1995 in which, inter alia, Rule 8(3)(ii) provide that the seniority would be not from any earlier date but would be counted from the date on which the appointments are made. Therefore, the Honourable Supreme Court held that the seniority would be counted from the date of appointment to the service and not from the year in which the posts were created.
17. In K.K.Vadera (supra), the claim of the Junior Scientific Officers of the Defence Research & Development Organization was that they should be promoted to the post of Scientist `B from 1.07.1984 instead of from 16.10.1985 when the promotional posts were created. The Honourable Supreme Court held that the promotions would be from the date of the year of promotion and not from the date the posts were created.
18. In Majji Jangammayya (supra) also, the Honourable Supreme Court held that no employee had any right to have a vacancy in the higher post filled as soon as the vacancy occurred.
19. In T.K.Suryanarayan (supra), the ratio laid down by the Honourable Supreme Court was that if in some cases erroneous promotions had been given contrary to the Recruitment Rules, an employee cannot base his claim for promotion contrary to the statutory rules in law courts. It held that incorrect promotions either given erroneously by the department by misreading the said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory Service Rules.
20. In Faridabad Ct. Scan Centre (supra), the ratio laid down by the Honourable Supreme Court was that wrongful grant of exemption given to a hospital for import of some equipment cannot be extended merely because such benefit had been wrongly extended to one party.
21. It would be clearly seen that none of the above judgements would apply to the facts and circumstances of the present case.
22. It is also not a case where wrong promotion has been given to a person by judicial orders. In S.K.Shuklas case, he has been given promotion by the order of this Tribunal, which has been upheld by the Honourable Apex Court. The Honourable Apex Court had only directed that consideration should be based on Rules. We have clearly seen that the note appended to Schedule II of the Indian Revenue Service Recruitment Rules provides, inter alia, that if a junior person is considered for promotion then all the persons senior to him should also be considered. It is conceded by the Respondents that Shri S.K.Shukla is junior to the Applicants and was promoted to the post of AC(SS)/DC on 1.01.2005, before the Applicants who are senior to him. There cannot be any doubt that as per the Recruitment Rules for the officers of the Indian Revenue Service, once Shri S.K.Shukla was considered for promotion, then all others who were senior to him should also have been considered for promotion notwithstanding that they had not completed four years prescribed service in junior scale.
23. On the basis of the above discussion, the OAs succeed. The respondents are directed to consider the Applicants for promotion to the post of AC(SS)/DC of Income Tax from 1.01.2005. The aforesaid directions should be complied with as early as possible but not later than four months from the date of receipt of a certified copy of this order. No costs.
A copy of this order may be placed in OA 2358 of 2008.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/