Central Administrative Tribunal - Delhi
Ram Narain Varma vs Union Of India Through Secretary on 15 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No.1830/2009 M.A. No.1229/2009 With O.A. No.1836/2009 M.A. No.1230/2009 New Delhi, this the 15th day of April, 2010 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE MR. SHAILENDRA PANDEY, MEMBER (A) O.A. No.1830/2009 1. Ram Narain Varma, Income Tax Inspector, 2606, Indrapuri Colony, Opp. DAV High School, Gwalior Road, Jhansi (UP). 2. K.P. Anuragi, Income Tax Inspector, 2/8, Income Tax Colony, Muzaffar Nagar (UP). Applicants By Advocate: Shri M.L. Ohri. Versus 1. Union of India through Secretary, Ministry of Finance, Department of Revenue, New Delhi. 2. The Secretary, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training, New Delhi. 3. The Chairman, Central Board of Direct Taxes, Department of Revenue, North Block, New Delhi. 4. The Chief Commissioner of Income Tax (CCA) 16/69, Civil Lines, Kanpur. Respondents By Advocate: Shri V.P. Uppal. O.A. No.1836/2009 1. Lala Ram, Income Tax Inspector, 2/108, Chiranjeev Vihar, Ghaziabad (UP). 2. A.P.S. Dinesh, Inspector of Income Tax, AD-28, Avantika, Ghaziabad (UP). 3. Vijay Singh, Income Tax Inspector, 44, Pushp Kunj, Main Road, Dayal Bagh, Agra (UP). Applicants By Advocate: Shri M.L. Ohri. Versus 1. Union of India through Secretary, Ministry of Finance, Department of Revenue, New Delhi. 2. The Secretary, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training, New Delhi. 3. The Chairman, Central Board of Direct Taxes, Department of Revenue, North Block, New Delhi. 4. The Chief Commissioner of Income Tax (CCA) 16/69, Civil Lines, Kanpur. Respondents By Advocate: Shri V.P. Uppal. ORDER (ORAL)
By Honble Mrs. Meera Chhibber, Member (J) In both these OAs a common question of law has been raised by the applicants, both the counsel are the same and department is also the same, therefore, with the consent of both the parties, both these OAs were heard together and a common order is being passed. For the purpose of narrating facts, OA No.1830/2009 is being taken as a lead case.
2. Applicants have sought the following relief:-
Quash the advice given by the DOP&T vide their note dated 24.7.07 (Annexure A-1) to the effect that SC candidates qualifying the Departmental Examination for ITO with 55% marks will not be considered for promotion for un-reserved posts on their own merit.
quash the O.M. dated 6.1.2009 issued by Respondent No.4 (Annexure A-2) quash the O.M. dated 14.1.2009 issued by Respondent No.4 (Annexure A-3) direct the respondents to consider the SC candidates who have qualified the Departmental Examination for ITO with 55% marks eligible for promotion on their own merit against unreserved points along with the general candidates.
Pass such other orders or issue such direction / directions as may be deemed fit in the interest of justice.
Award cost to the applicants.
3. Applicants are Income-Tax Inspectors, who belong to SC category. It is stated by them that they were eligible for the post of Income Tax Officers as they had three years of regular service and had passed the departmental examination as is required by the Recruitment Rules (page 23 at 24) relevant contracts of which for ready reference are given below:-
11. Method of recruitment: Whether by direct recruitment or by promotion or by deputation absorption and % of the posts to be filled by various methods Promotion.
12. In case of recruitment by promotion/deputation/absorption, grades from which promotion/absorption to be made Promotion: Income tax Inspector in the scale of Rs.5500-9000 with three years regular service in the grade in respective charge and has passed Departmental examination for Income Tax Officer.
4. In the Manual of Office Procedure, Administrative (page 26 to 29) pass percentage was mentioned as follows:-
3.4 Pass Percentage, Carry Over and Aggregation - The Director of Inspection (Income-tax) has specified the following pass percentage for qualifying this examination.
A candidate is declared to have completely passed the Departmental Examination if he secures a minimum of 50% marks (45% in the case of S.C./S.T. candidates) in each of the subjects detailed above, and 60% (55% in the case of S.C./S.T. candidates) in the aggregate.
5. All the applicants had appeared in the departmental examination in the year 2007 and were declared as passed meaning thereby that they had secured minimum 45% in each subject and 55% in the aggregate but the actual marks obtained by them were not declared. The departmental examination rules were amended on 29.5.2008 with effect from 26.5.2008 (page 32), wherein it was provided that a candidate who has secured 50% (45% in the case of SC/ST candidate) or more marks in a particular subject or subjects in one examination, will be exempted from appearing in that subject or subjects in the subsequent examinations. The grievance of the applicants is that though they had passed the examination and were eligible as per rules, they were not considered for promotion as ITO in the year 2008. Being aggrieved, they had given a representation to the Chief Commissioner of Income Tax on 13.10.2008 (page 38). The respondents issued Office Memorandum dated 6.1.2009 but no clear reply was given to the applicants. Applicants are also aggrieved by the advice given by the DOP&T on 24.7.2007 which is annexed at page 14 of the OA and reads as under:-
Department of Personnel & Training Estt. (Res.) Section 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 filled 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 at least 60% marks. The SC/ST candidates who obtain at least 55% marks are treated to have qualified the examination.
3. The basic questions 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 11.7.02 inter-alia clarified that SC/ST candidates falling 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 falling 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 candidates would have been promoted if he did not belong to SC or ST category. If yes, he should get promoted other wise not. 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 reiterated.
It issues with the approval of JS (AT&A).
Sd/-
(A.K. Kashyap) Under Secretary 24/7/07.
6. Counsel for the applicants contended that since advice of the UPSC is contrary to the Recruitment Rules, it is not maintainable in law. The requirement under the RRs is only passing of the examination, therefore, it is not relevant whether the SC had availed any concession at the initial stage or not. He also submitted that this is discriminatory inasmuch as a General Candidate can avail the chance of improving his result but SC candidates could not improve the result as they had already passed on the basis of marks which were sufficient for them to pass the examination, therefore, they are being put in a disadvantageous position. Counsel for the applicant placed reliance on K. Kuppuswamy VS. U.O.I., 1998 (8) SCC 469, Shri C.L. Verma Vs. State of M.P. reported in 1991 SCC (L&S) 891 and D.S. Nakara Vs. U.O.I reported in 1983 (1) SCC 305 apart from the judgment given by Hyderabad Bench in OAs No.607 and 628 of 2008 decided on 18.9.2009 and OA No.948/1998 decided on 29.9.2000 in the case of Shri Raghubir Singh and Others Vs. U.O.I. & Others.
7. Respondents have opposed the OA. They have stated only those SC/ST candidates can be considered and promoted to the post of ITO (where the concept of merit is involved) against unreserved posts, who have qualified the eligibility exam without availing any relaxation/concession including that of lower percentage of marks in the examination in comparison to general category candidates. Since the applicant has passed the departmental examination with 58.9%, i.e. lower than that of general category candidate, he can not be considered against unreserved posts. Moreover, this issue has already been decided by the Jabalpur Bench in favour of the department in the case of Siya Ram Meena and Others Vs. U.O.I. & Others on 28.5.2009 in OA No. 778/2008. They have thus prayed that the OA may be dismissed.
8. We have heard both the counsel and perused the judgments relied upon by both the counsel.
9. It is noted that so far, 4 judgments have been pronounced on the issue as referred to above by different benches viz. Bangalore, Jabalpur, Mumbai and Hyderabad. It is rather strange that all the benches have expressed their own views by observing that they do not agree with the view of the other bench but no bench has referred the matter to the Full Bench. The status of all the 4 judgments is given below:-
(i) Bangalore Bench, in the case of Shri Dharmaraj B. Khode Vs. the Commissioner of Income Tax and Others (OA No. 510/2004 decided on 17.8.2005) (page 78) had observed as follows:-
a) The promotions of SC/ST candidate who were declared successful and qualified in the ITO departmental examination on relaxed standard could not be allowed to compete with general candidates as they could not have been promoted based on their own merits and not owing to reservation or relaxed qualification. The private respondents having not secured 390 marks out of 650 remain to be considered only as SC/ST candidates and could not be treated as general candidates for any purpose particularly for the purpose of consideration for promotion to the next higher post. They could be allowed to compete only for the vacancies meant for SC/ST candidate. Accordingly, respondents are directed to review the promotions made to the cadre of ITO in Karnataka Circle in terms of the directions issued by this Tribunal on 17.1.2003 as well as the observations made above. However, this judgment has been stayed by the Honble High Court of Karnataka at Bangalore on 16.3.2006 (page 103).
(ii) In Jabalpur Bench, OA was filed by the ST candidates challenging the order dated 16.8.2007 whereby they were reverted to the post of Income-tax Inspector. They had appeared in the departmental examination of ITO Group B of 2003 and qualified the same, yet they were not promoted even though they were within the zone of consideration. Being aggrieved, they had given a representation that persons who belonged to the general category and were junior to them had been promoted, therefore, they may also be considered. In response to the representation, review DPC was held by the department for the year 2006-07 and the applicants were promoted against unreserved vacancies. However, based on the advice given by the DOP&T on 24.7.2007, another review DPC was held in 2007 and they were reverted to the substantive post of Inspector. This order was challenged by the applicants before the Jabalpur Bench. The question framed by the Bench was as under:-
Whether applicants who had secured less than 60% marks could be termed to have passed written examination on their own merit. Whether said term own merit is relatable to written examination alone or it includes the marks awarded by the DPC to the ACR which are also basic inputs for making assessment.
After considering the rival contentions, it was held as under:-
13. 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. We may also observe that it is not their plea that any junior to them has been promoted. Further more, no challenge has been made to OMs issued and applied on the subject. Thus we are of the opinion that applicants have failed to make out any case for judicial interference.
14. In our considered view, we do not find any illegality committed by the respondents in re-reviewing the entire exercise and passing impugned order. The reasons assigned by the respondents that applicants were found ineligible for promotion, can not be doubted & no exception could be taken to such justification. We do not find any justification and substance in any of the contentions raised by the applicants. The OA was dismissed.
(iii) Subsequently the same issue came up before the Hyderabad Bench of the Tribunal, where OAs were filed by the SC/ST candidates who had qualified the departmental examination and had put in 3 years of regular service as per the RRs. Grievance of the applicants was that though DPC was convened for the post of Income Tax Officer, but vigilance clearance for the applicants were not called for even though they were within the zone of consideration but the same was called for their juniors. In these circumstances they had filed OA No. 607/2008 seeking a direction to consider and promote them to the post of ITO by treating them as eligible candidates on their own merit and based on the seniority, eligibility etc. Their grievance was that subsequent to their passing in the qualifying examination with more than 55% marks, the standard of pass marks has been reduced from 60% to 50% in respect of unreserved category and from 55% to 45% in respect of reserved category candidates. This reduced standard was made applicable to the departmental examination from 2007 onwards. Those who appeared in the departmental examination 2007 were declared passed even if they had secured 50% in the case of Unreserved candidates and 45% in case of reserved category candidates. The applicants were ignored on the ground that they had got less than 50% marks in one subject and had availed relaxation to pass in the qualifying test. The Hyderabad Bench observed as under:-
There is also no such provision in the examination Rules to permit the already passed candidates to appear again to improve their performance in the examination. In fact when Ankarama Rao, applicant No.3 in OA No. 628/2008 submitted a representation seeking permission to appear for 2008 examination, he was not permitted. The respondents contended that the said representation was made after the filing of this OA by way of an after thought. It is immaterial whether such representation was made after filing of this OA or earlier. The fact remains that he made such representation seeking permission to appear in the departmental examination of 2008 again and the same was not acceded to. Further, no material is placed before this Tribunal to show that any of the SC/ST candidates who passed the examination with less than 60% aggregate in the examination held prior to 2007 were permitted to appear again. On the other hand, as seen from the lettes dated 11.9.2006 and 7.12.2006 to the Chief Commissioner of Income Tax, Bhopal and also the letter dated 3.3.2006 addressed to the Chief Commissioner of Income Tax, Lucknow, which are filed by the official respondents along with their additional reply statement dated 17.3.2009 at pages 33, 34 and 35, it is clear that the CBDT itself issued instructions in consultation with the DOP&T to the Chief Commissioners of Income Tax Bhopal, Lucknow and Delhi to the effect that departmental examinations for ITO are only qualifying and pre-condition for promotion and are not competitive examinations.
It was further observed as follows:-
It is an admitted fact that not only the applicants who belonged to reserved category but also all others who are declared passed in the departmental examination are given the benefit of two advance increments. No discrimination was shown while granting two advance increments between those who passed with 60% and those passed with 55% aggregate. When no such discrimination was shown while granting two advance increments on the ground that they are declared completely passed the examination, there is no reason for showing discrimination while considering for promotion to the cadre of ITO, especially when the recruitment rules for ITO do not contain any provision for showing such discrimination. As per the recruitment rules, it is clear that all those who are declared pass in the departmental examination and completed three years regular service are entitled to be considered as per their seniority depending upon the vacancies available. At no point of time since 2002, the applicants were informed that they will not be considered for promotion against UR vacancies even if they reach the zone of consideration as per the seniority list maintained in the ITI cadre. Their seniority list in the cadre of ITI is not altered placing all those who secured 60% aggregate above those who secured less than 60% aggregate. No separate seniority lists are maintained, one for those who passed with 60% aggregate and the other for those who passed with less than 60% aggregate. It is also not the case of the official respondents that the applicants opted or requested the department to grant concession of 5% marks in the departmental examination. The Government of India, on its own, suo moto as a matter of policy prescribed pass marks as 55% aggregate and minimum of 45% marks in each subject for general candidates. Having given such benefit suo moto and having declared them completely passed along other passed candidates and having considered them as such all through, it is not open for the department to exclude them all of a sudden in the year 2008 from the zone of consideration for promotion when they reached the normal zone of consideration by virtue of their seniority in the feeder cadre. Ultimately, Hyderabad Bench allowed the OAs and directed the respondents to constitute review DPCs for consideration for promotion to the post of ITO and in the event they are found fit by the DPC, they shall be promoted from the dates their juniors were promoted with all consequential benefits. So far so good. However, it is relevant to note that while deciding this OA, Hyderabad Bench referred to the judgment of Jabalpur Bench in the case of Siya Ram Meena and Others (Supra) and noted that the facts of the cited cases are to a major extent similar to the facts of the case being heard by them yet ultimately the Hyderabad Bench observed as follows:-
The said recruitment rules passed under Rule 309 were not considered by the Division Bench. Further, on the crucial point, whether the departmental examination conducted in different years be treated as competitive written examination held for determining the suitability or otherwise for promotion to the cadre of ITO in spite of raising such contention by the applicants therein, there was no discussion at all on such crucial point to be determined. No reasons are also given in the orders to reject such contention. Therefore, in our considered view such a decision will not have precedential value. With due respect we are unable to concur with the view taken by the Division Bench of Jabalpur Bench in the cited case.
(iv) It is further relevant to note that the same issue came up for consideration before the Mumbai Bench. Mumbai Bench also noted in para 11 that many orders have been passed by the different Benches of the CAT. Divergent and conflicting views have been taken. Having noted this, the matter should have been referred to the Full Bench so that the matter could have been decided once and for all by an authoritative pronouncement. Unfortunately, the Mumbai Bench also did not refer the matter to the Full Bench and decided to give their own judgment following the views of Jabalpur Bench. Honble Members of Mumbai Bench referred to the judgment of Hyderabad Bench and observed as follows:-
Finally, there is an order rendered by CAT Hyderabad Bench as early as on 18th September, 2009. We have gone through this judgment very carefully and we cannot pursuade ourselves to hold otherwise than what is held by Bangalore Bench of the CAT.
10. In other words they did not agree with the view taken by the Hyderabad Bench. The situation that emerges from above narration is that different Benches of the Tribunal have taken different views in the matter which not only creates confusion but also uncertainty in the minds of the respondents as to which judgment should be followed and which should not be followed by them because rules are same for all the circles for promotion to the post of I.T.O. In this backdrop it would be relevant to refer to the judgment in the case of Sub-Inspector Rooplal and Another Vs. Lt. Governor through Chief Secretary, Delhi and Others reported in 2000 (1) SCC 644 wherein Honble Supreme Court has held as under:-
The manner in which a Coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same tribunal is most dissatisfying. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under the Indian system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in the judicial system. The Supreme Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate Court is bound by the enunciation of law made by the superior Courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. The law is thus clear that if a bench does not agree with the views expressed by an earlier bench, the matter should be referred to a Full Bench.
11. In the instant case, since different views have been expressed by different benches, it is a fit case for placing before the Honble Chairman on the administrative side for constituting a Full Bench so that the matter may be decided conclusively as to which of the judgments as referred to above has laid down the correct law and is required to be followed.
(SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER) Member (A) Member (J) Rakesh