Central Administrative Tribunal - Ernakulam
G Vijayan Nair vs D/O Revenue on 18 March, 2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00285/2020
Monday, this the 18th day of March, 2024
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
G. Vijayan Nair, aged 67 years,
S/o Late V.K. Gopala Pillai,
Joint Commissioner of Income Tax (Retd.)
O/o The Chief Commissioner of Income Tax(CCA), Kochi
Residing at 'Sujind', CC 44/675 H,
Metro Gardens, Kaloor,
Kochi-682 017 -Applicant
[By party in person]
Versus
1. Union of India,
Represented by the Secretary,
Department of Revenue,
Ministry of Finance,
North Block, New Delhi-110 001.
2. The Chairman,
Central Board of Direct Taxes,
Ministry of Finance,
North Block, New Delhi-110 001.
3. The Principal Chief Commissioner of Income Tax,
Kerala, Central Revenue Buildings,
I.S. Press Road,
Kochi-682 018. -Respondents
[By Advocate : Mr. Thomas Mathew Nellimoottil, SPC]
2
This Original Application having been heard on 21.02.2024, the
Tribunal on 18.03.2024 delivered the following:
ORDER
Mr. K.V. Eapen, Administrative Member The Applicant, who retired on 31.01.2013, on superannuation as Joint Commissioner of Income Tax JCIT) (Ad hoc), was working as JCIT under the 3rd respondent, Principal Chief Commissioner of Income Tax, Kerala, Kochi. He has filed the OA as he is aggrieved by the fact that though he had been promoted as JCIT (Ad hoc) as per the Central Board of Direct Taxes (CBDT)'s order dated 30.03.2011 he was not included in the Board's later order dated 12.11.2013 regularising the promotion. He submits that he should have been included in the order dated 12.11.2013 and that his services as JCIT should have been regularized for the period from his date of joining as JCIT (Ad hoc) on 31.03.2011 to 31.01.2013, the date of superannuation or from the date on which similarly placed Deputy Commissioner of Income Tax (DCIT)'s had been promoted as JCIT on regular basis. In this connection, he relies on the order of this Tribunal dated 19.06.2018, in the OA No.180/00999/2014, through which one Shri Samuel Thomas, was promoted as JCIT with effect from 23.10.2010 even though he had retired from service on 28.02.2011. Thus he prays for a OA No180/00285/2020 3 direction for promoting him as JCIT on regular basis with effect from 23.10.2010, making accordingly eligible for fixation of pay and consequential financial benefits. Further, he also prays for grant of an increment on 01.07.2011 and to re-fix his pay and consequential pension benefits accordingly.
2. The applicant submits that he had been promoted as Deputy Commissioner of Income Tax (DCIT) with effect from 01.01.2006. He was one among the DCITs, who had been considered by the Departmental Promotion Committee (DPC) for promotion to the post of JCIT in its meeting held in September 2010 (concluded on 23.09.2010). He was found fit for promotion to the post of JCIT by the DPC. However there were pending litigations in the Principal Bench of this Tribunal as well as in the High Court of Delhi regarding the correctness of the seniority of DCIT's as per the Civil list. Hence, the actual promotion to the post of JCIT got delayed for some time even after the clearance by the DPC. Then the CBDT, by order dated 30.03.2011, promoted 295 DCITs as JCITs on an ad hoc basis. The applicant too was promoted accordingly as JCIT by the order dated 30.03.2011. He then assumed the charge of JCIT on 31.03.2011 and continued to work as JCIT till his retirement on superannuation on 31.01.2013. It is submitted that on promotion as JCIT his pay as on 31.03.2011, was fixed at R.27360/- with Grade Pay (GP) of Rs.7600/-. The OA No180/00285/2020 4 applicant further submits that the annual increment in his pay was being granted on the first day of July, as per the CCS{Revised Pay(RP)} Rules 2008. However, he was not granted the increment in pay on 01.07.2011, even though he was promoted and had taken charge as JCIT on 31.03.2011. He was granted increment in pay only on 01.07.2012. In other words, he submits that from his date of promotion to JCIT on 31.03.2011 upto the date of his retirement on 31.01.2013 he had been given only one increment, on 01.07.2012. He submits that he was eligible for two increments, on 01.07.2011 and 01.07.2012, as provided in CCS(RP) Rules 2008. He submits that if he had continued as DCIT, he would have received two increments.
3. The applicant submits that he had made a request to the Principal Chief Commissioner of Income Tax, Kochi, the 3rd respondent to grant him one more increment on 01.07.2011 and to re-fix his pay and consequential pension benefits. However, it is to be noted that this representation was filed only on 21.01.2019, much after his retirement and addressed to the 3rd respondent. A copy of the representation is produced at Annexure A-3. The 3rd respondent vide letter dated 03.04.2019, produced as the impugned communication at Annexure A-4, pointed out that his promotion to the grade of JCIT on 31.03.2011 had been on an ad hoc basis and that he performed duties in such capacity till the date of his OA No180/00285/2020 5 superannuation/retirement on 31.01.2013. The Board had subsequently regularized the ad hoc promotion vide order dated 12.11.2013, but such regularization is prospective in nature and cannot be applied retrospectively. Since the applicant had superannuated, his name had not been included in the said regularization order. Thus it was stated in the Annexure A-4 communication that the Competent Authority had not acceded to his request for grant of an additional increment on promotion to JCIT(ad hoc).
4. The applicant submits in the OA that it had come to his knowledge that the 2nd respondent, CBDT had issued orders on 19.06.2018, promoting his former colleague Shri Samuel Thomas as JCIT with effect from 23.10.2010. He submits that the said Shri Thomas was one among those DCITs found fit for promotion by the DPC conducted in September 2010. In fact Shri Thomas had not got promotion even on an ad hoc basis unlike the applicant herein as he had retired from service on 28.02.2011 on superannuation. The applicant has produced the CBDT order dated 19.06.2018 in the matter relating to Shri Samuel Thomas at Annexure A-5. He points that the Annexure A-5 order had been issued in compliance to the orders passed by this Tribunal on 09.03.2016 in OA No.180/00999/2015. A copy of the said order of this Tribunal is produced at Annexure A-6. The applicant submits that an appeal filed by the OA No180/00285/2020 6 respondents against the Annexure A-6 order had been dismissed by the Hon'ble High Court of Kerala in its judgement dated 23.10.2017 in OP(CAT) No.294/2016. A copy of the judgement is produced at Annexure A-7. The applicant submits that it is in these circumstances that he submitted another representation dated 18.05.2019 to the 2nd respondent CBDT. In this representation he requested for regularisation of his promotion to the post of JCIT and to grant the due increments after fixation of pay. He also requested for granting of the financial benefits consequent to the said fixation of pay and pension on promotion. A copy of this representation dated 18.05.2019 has been produced at Annexure A-8. The applicant had requested in the representation for promotion on a regular basis with effect from 23.10.2010, as had been done in the case of Shri Samuel Thomas in the Annexure A-5 order. It is this representation that was responded to by the CBDT by way of the impugned OM at Annexure A-12. The CBDT rejected the request to regularize the promotion and to allow fixation of pay granting the requested increment. It is submitted by the applicant that both the Annexure A-4 order and Annexure A-12 OM are illegal and unsustainable in the facts and circumstances of the matter.
5. The Annexure A-12 order is a detailed order issued by the CBDT. It is to be noted that most of the contentions taken by the applicant have been OA No180/00285/2020 7 addressed in the OM. Among the contentions that were rejected was the applicant's eligibility for grant of increment on 01.07.2011. Further, the direction of Principal Bench of this Tribunal in its order in OA No.1052/2010 holding that officers included in the list approved for promotion in the DPC held from 20.09.2010 to 23.09.2010 are also eligible for promotion even after retirement in case they retire after the conclusion of the DPC and before the issue of promotion orders was not also followed. Hence the applicant is aggrieved by the fact that though he had been promoted as JCIT as per the CBDT order dated 30.03.2011, he was not included in the Board's order dated 1.11.2013 regularising the said promotion. It is contended that this non-inclusion is in violation of the order of the Principal Bench, New Delhi. The applicant also draws attention to another point made by him in his representation at Annexure A-8 that, as per Rule 15 of the CCS(RP) Rules, 2008, that the provisions of the said CCS(RP) Rules, 2008 have an over riding effect over the provisions of the Fundamental Rules and the earlier Pay Rules. He had thus contended, therefore, that as such, even in cases of ad hoc promotion, the exercise of option and fixation of pay on the date of next increment could be permitted. He thus claimed eligibility for postponement of fixation of pay on promotion upto the date of his next increment. However, it was indicated in the Annexure A-12 order that the competent authority, after examining these contentions, had observed that the Principal Bench of OA No180/00285/2020 8 this Tribunal in its order dated 02.11.2010 in OA No.1052/2010 filed by Shri V.K. Suryawanshi had directed, inter alia, that the official respondent shall, within a period of two weeks by applying the Rules, draw up a seniority list and thereafter two weeks time will be allowed to the affected parties to represent. It was further directed that the official respondents, on receipt of the representations would within a further two weeks time thereafter examine them and finalise the seniority list, which would then be published. It was directed that, thereafter, they were at liberty, as per the seniority position, to hold the DPC associating the UPSC. Meanwhile, the promotions effected through the DPC held by the official respondents would not be acted upon and the claim of the 'promotees' as per the final settled seniority list would be specifically considered for promotions. Further those who have retired during this interregnum shall if found fit on empanelment, be accorded the promotions with all consequences.
6. It has been indicated in the Annexure A-12 OM that this Order in OA No.1152/2010 was passed on 02.11.2010. By then since a large number of posts were lying vacant, it was decided to make promotions on an ad hoc basis. Accordingly, on the basis of recommendations of Screening Committee, 295 IRS officers including applicant herein were appointed in the grade of JCIT on an ad hoc basis vide orders dated 30.03.2011. Further, the matter was taken on appeal to the Hon'ble High OA No180/00285/2020 9 Court of Delhi. It is indicated in the Annexure A-12 order that the Hon'ble High Court of Delhi in its judgement dated 06.07.2012 held that the recommendations of the DPC held from 20.09.2010 to 23.09.2010 be implemented, subject to the outcome of the references to be decided by the Tribunal. After this, the matter was again challenged by a few officers by filing SLP(C) No.21339/2012 with IA No.2/2013 in the Hon'ble Supreme Court. These officials also filed a stay application which was however dismissed on 10.05.2013. At that time the DoP&T was approached for advice and they had advised the CBDT vide their opinion dated 22.03.2013 that when the issue had been decided by the High Court and there had been no stay on its judgement, the promotion order may be issued. However, this may be done with the stipulation that the promotion is provisional and subject to the final decision of the Tribunal/Court. After getting further advice from the Learned Additional Solicitor General, the CBDT issued the promotion order No.211 of 2013 dated 12.11.2013 in respect of 185 officers for their promotion as JCIT. It was issued with the stipulation that the same would be subject to the outcome of SLP(C) No.21339/2012 along with IA No.2/2013. It is further indicated in the Annexure A-12 OM that the matter was dismissed by the Hon'ble Supreme Court vide judgement dated 01.03.2017 stating that there was no ground to interfere with the impugned order of the High Court. It is then indicated in the OM of the CBDT at Annexure A-12, that from the preceding details it is clear that the OA No180/00285/2020 10 issuance of promotion order to the grade of JCIT based on the recommendations of the DPC held on 20th -23, September, 2010, was not due to administrative delays, but was due to the litigation filed by various officers on the seniority issue. Since the applicant herein had superannuated from Government service on 31.01.2013 as JCIT on an ad hoc basis, he was not therefore, entitled to be included in the promotion Order No.211/2013 dated 12.11.2013. The order had excluded him and he cannot be promoted to the grade of JCIT on regular basis merely on the ground that he had been assigned the seniority of 2001 batch.
7. As regards his pay fixation/increment etc, the Annexure A-12 OM points out that he had been given the charge in the promoted post of JCIT on ad hoc basis on 31.03.2011. His pay was thus fixed under the CCS(RP) Rules 2008 as per the provisions of FR 22(1), taking into account that the CCS(RP) Rules 2008 had mandated that there would be an uniform date of annual increment viz 1st July of every year. Further, the said RP Rules provided that those officers who have completed six months service and above in the grade as on 01st July only will be eligible to be granted the next increment on 01st July of that year. The applicant herein had not completed the mandatory eligibility period of 6 months service in JCIT (ad hoc) grade in the GP of Rs.7600/- as on 01.07.2011. Therefore as per provisions contained in CCS(RP) Rules 2008, his date of next OA No180/00285/2020 11 increment had been fixed on 01.07.2012. His grievance petition was considered and disposed of by the Annexure A-4 order dated 03.04.2019.
8. Further, in relation to the matter of Shri Samuel Thomas, the Annexure A-12 OM indicated the issue of promotion from a retrospective date to Shri Thomas had been taken up with the DoP&T. The DoP&t had opined that officers who had been recommended by the DPC for regular promotion to JCIT but have retired as DCIT before grant of ad hoc promotions cannot be granted benefits of promotion after their retirement. The CBDT had acted in accordance with the advice of the DoP&T and had agitated the matter before the High Court of Kerala. Later, it was taken up before the Apex Court by an SLP vide Diary No.12887 /2018 filed on 05.04.2018, which was disposed as dismissed. At that stage the Department had no other option but to implement the CAT's order dated 09.03.2016 in the matter of Shri Thomas as a special case, subject to filing of a Review Petition before the Hon'ble Supreme Court. In other similar cases the DoP&T has clearly opined that, in view of the provisions contained in instructions in its OM dated 12.10.1998 and reiterated in its OM dated 04.11.2014, read with the Government's policy on date of effect of promotion as contained in OM dated 10.04.1989, an officer can be promoted only with effect from date of assumption of charge in the promotional grade. Since an officer after retirement is not available to OA No180/00285/2020 12 assume charge of the higher post, they should not be given promotions to the higher grade, though they are required to be included in the zone of consideration.
9. It is finally indicated in the OM at Annexure A-12 that given the above consideration and details, the applicant herein is not entitled for promotion to the grade of JCIT on a regular basis. The order dated 12.11.2013 did not include him as he had already retired from Government service on 31.01.2013. Further, it is indicated in the OM that none of his juniors had been promoted to the grade of JCIT on a regular basis before his retirement. As per DoP&T guidelines /advice since the officer after retirement is not available to assume the charge of the higher post, he cannot be given promotion to the higher grade. Hence, the competent authority had not found any merit in the representation dated 18.05.2019 at Annexure A-8 of Shri G. Vijayan Nair, IRS (Retd) asking for grant of additional increments and consequential benefits thereto. The applicant has sought the quashing of this order in this Original Application. The grounds taken by him include the fact that the Principal Bench of this Tribunal in OA No.1052/2010 had held that the officers included in the list approved for promotion as per the DPC held from 20.09.2010 to 23.09.2010 are eligible for promotion even after retirement in case they retire after conclusion of the DPC and before the issue of promotion orders. He OA No180/00285/2020 13 submits that he had been promoted as JCIT on ad hoc basis by the CBDT orders dated 30.03.2011 but not included in the orders dated 12.11.2013 regularising the above promotion. Thus, he has been discriminated as he was not in any way responsible for the delay that occurred in issuing the orders regularising the ad hoc promotions. According to him the Hon'ble High Court also upheld the orders of the Principal Bench of this Tribunal.
10. The applicant has contended that the Annexure A-12 OM did not take into consideration the reason for issuing ad hoc promotion orders instead of regular promotion orders. It was done due to the litigation pending before judicial authorities and not due to lack of sufficient vacancies or non-availability of suitable and eligible candidates. He submits that the DoPT's instructions referred to only relate to the existence of disciplinary proceedings or criminal prosecution against any of the candidates. This was also not the reason for the ad hoc nature of the promotion. It is therefore submitted that the direction of the Principal Bench of this Tribunal has been ignored by the 2nd respondent. The three OMs that the respondents had relied on i.e.. Office Memorandums dated 12.10.1998, 14.11.2014 and 10.04.1989, are partly produced at Annexures A-10 and A-11 respectively. It is submitted that these OMs too are not relevant to the facts of the case as they are in reference to cases where candidates have retired from service before the convening of the DPC, but OA No180/00285/2020 14 coming within the zone of consideration. Such cases are to be included in the list for consideration by the DPC even though they are not eligible for promotion for correctness of the list for consideration. The OM dated 10.04.1989, while dealing with ad hoc promotions, describes the procedure to be adopted in the case of persons against whom disciplinary proceedings or criminal prosecutions are pending. It is submitted that the applicant was actively in service on 23.09.2010, the date of conclusion of the DPC. He was found fit for promotion by the DPC and he had continued in service for more than 28 months after conclusion of the DPC, i.e. upto 31.01.2013. Further no disciplinary proceedings or criminal prosecution had been ever initiated against the applicant. Hence, the conclusions arrived at are irrelevant, arbitrary and devoid of legal foundations.
11. The applicant also submits that the contention at Annexure A-12 OM dated 04.03.2021 that he would have not been available to assume charge of higher post due to his retirement and hence he could not be given promotion to the higher grade was irrelevant and misleading. The respondents have accepted that when ad hoc promotion was followed by regular promotion without break, the benefits of regular promotion take effect from the date of assuming charge on ad hoc promotion. Hence, all those promoted by the order dated 12.11.2013 produced at Annexure A-13 get the benefit of regular promotion from the date of this ad hoc promotion.
OA No180/00285/2020 15 The Fundamental Rule (FR) 22(1)(a) and OM No.13/2/2007-Pay I dated 10.08.2007, produced at Annexure A-9, contain the instructions in this regard. The non-availability of the applicant to take charge of the higher post was the only reason arrived at for coming to the conclusion that he was not eligible for regularizing his promotion. However, he had already assumed charge in the higher grade as JCIT on 31.03.2011 and had continued to hold that charge until 31.03.2013 the date of his retirement. Thus, he had discharged the statutory functions and administrative functions in the grade of the JCIT without break from 31.03.2011 upto 31.01.2013. To hold that he is not available to take charge in the higher grade was a suppression and denial of facts that existed.
12. It is submitted that there is no difference in functions of a JCIT, whether it is discharged on a regular basis or ad hoc basis. Hence, the Annexure A-12 OM is arbitrary and discriminatory. The findings in the Annexure A-12 OM dated 04.03.2021 that none of the juniors to the applicant had been promoted to the grade of JCIT on a regular basis before the applicant's retirement is also incorrect and misleading. It is submitted that all the 92 officers from Sl.No.94 to 185 in the promotion order dated 12.11.2023 are juniors to the applicant. They were given the benefits of promotion from the date of ad-hoc promotion on the basis of FR 22(1)(a) and the OM dated 10.08.2007. Hence, all of them got the benefit from the OA No180/00285/2020 16 date of ad hoc promotion itself. The wordings 'with immediate effect' in the orders of regular promotion dated 12.11.2013, produced at Annexure A-13 and the statements and subsequent observations that the promotion order was prospective in nature does not alter the real and practical effect of the Order as it was made effective from the date of ad hoc promotion itself. The applicant had discharged the functions and duties of JCIT from 31.03.2011 on ad-hoc promotion upto 31.01.2013, the date of retirement as was the case of his juniors. Thus, when they are given the benefits of regular promotion from the date of ad hoc promotion, the applicant was also eligible for the same treatment. Further, the case of Shri Samuel Thomas, a similarly placed officer, who was accorded promotion implementing the order of this Tribunal, even though he had not even got ad-hoc promotion before he retired from service is relevant. The applicant is much more eligible for regular promotion as compared to Shri Samuel Thomas. Shri Thomas was promoted with effect from 23.10.2010. The contents of the OM at Annexure A-12 dated 04.03.2021 in respect of inapplicability of Shri Samuel Thomas's case should be considered as arbitrary and discriminatory. The statement in the OM that the applicant is not eligible to postpone the date of fixation of pay on promotion was relying on a procedure and rules which give rise to an anomalous situation, where equals are discriminated and the Fundamental Right of Equality is violated.
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13. It is submitted that the fixation of pay on promotion after 01.01.2006 is to be done as provided in Rule 13 of the CCS (Revised Pay) Rules 2008. The distinction between regular promotion and ad hoc promotion is only a feature of the FR 22(1). As per Rule 15 of the CCS(Revised Pay) Rules 2008, the said Rules have over riding effect over the provisions of the Fundamental Rules and earlier CCS(Revised Pay) rules. The pay of the applicant on promotion as JCIT should thus have been fixed allowing him to earn his increment due on 01.07.2011 irrespective of the nature of promotion whether ad-hoc or regular. The applicant thus seeks the following relief:-
1. Call for the records leading to Annexure A-4 and A12 orders and quash them as unsustainable and illegal as they are opposed to the orders of the Hon'ble Tribunal and the Hon'ble High Court and as they are relying on irrelevant office memorandums, in the circumstances of the case.
2. Declare that the Applicant is entitled for two increments on 01.07.2011 and 01.07.2012 after Annexure A2 pay fixation on his promotion as JCIT and to direct the respondents to grant the same and to refix pay and pension and to draw and disburse the arrears immediately and
3. Direct the respondents to issue necessary orders treating 23.10.2010 as the effective date of promotion as JCIT as the delay in promotion was not attributable to the applicant and to grant all consequential monetary benefits to this applicant and
4. Declare that the applicant is eligible for all pecuniary benefits consequent to the fixation of pay and pension as claimed in this Original Application and to direct the respondents to draw and disburse the same including the arrears to the applicant forthwith and / or OA No180/00285/2020 18
5. Issue any other order or direction as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
14. The respondents had filed reply statement dated 15.03.2021. This was followed by a more detailed reply statement in response to the rejoinder filed by the applicant on 18.01.2022. Subsequently, in response to an additional rejoinder filed by the applicant, the respondents filed another reply statement on 10.06.2022. The contentions taken in taken in these reply statements are largely an expansion of the reasons given in Annexure A-12 OM dated 04.03.2021 passed by the CBDT in relation to the representations given by the applicant. The reasons contained for rejecting the representation particularly at paragraph 4 (xiii to xix) of the Annexure A-12 OM are further explained in detail in these reply statement. It is submitted that the applicant had been promoted as JCIT purely on ad hoc basis by the CBDT order dated 30.03.2011. It is contended that such appointments shall not confer any right to the officers for continued officiation or seniority or for regular promotion. The applicant assumed the charge of JCIT on 31.03.2011. His pay was fixed on the same day as option for fixation of pay on the date of next increment in the lower grade is not admissible to those appointed to a post on an ad hoc basis. His increment was on 01.07.2011 could not be granted because a six month period of qualifying service after such fixation was not completed by that OA No180/00285/2020 19 date. It is submitted that if the ad hoc promotion is followed by a regular promotion without break, the Government Servant can exercise an option within one month from the date of such regular appointment. The option shall be admissible from the date of promotion, which was ad hoc in nature. Thus, in case if the official opts for fixation of his pay after such regular appointment, from the date of his next increment, his pay shall be re-fixed from initial date of appointment at a stage next above his pay in the lower grade from the date of next increment. But the fact of the matter was that the applicant had retired on 31.03.2013. The CBDT had regularized the ad hoc promotions vide order dated 12.11.2013. The order of the CBDT regularizing the ad hoc promotions can only be prospective in nature, the same cannot be applied retrospectively. Hence, the applicant was not eligible for any postponement of fixation of pay on promotion upto the date of his next increment as claimed by him to 01.07.2011. Since the applicant had superannuated/ retired from service on 31.01.2013, his name did not find a place in the regularization order dated 12.11.2013 issued by the CBDT. In other words, since he was not in service when regular promotion based on recommendations of DPC was effected, he was not allowed the option for pay fixation on regular promotion available under FR 22(I)(1).
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15. The applicant had also submitted that in arriving at the conclusion that he, along with a few other retired officers, are not eligible for promotion on regular basis, the respondents seem to have relied on the provisions of DoPT's OM dated 12.10.1998, OM dated 14.11.2014 and OM dated 10.04.1989. It is submitted by the respondents that these OM are in relation to the procedure to be followed by the Departmental Promotion Committees(DPCs) in regard to retired employees. In Annexure A-10 OM dated 12.10.1998, it has been held that when the DPC is being held, while preparing the year-wise zone of consideration/panel, the names of the retired officials are to be included in the panel(s). However, such retired officials would have no right for actual promotions. In Annexure A-11 OM dated 14.11.2014 this point is once again repeated. The respondents reiterate the position taken by them in the Annexure A-12 OM, that the applicant is not entitled for promotion to the grade of JCIT on regular basis as per the order dated 12.11.2013, as he had already retired from Government service on 31.01.2013. None of his juniors had been promoted to the grade of JCIT on regular basis before his retirement. As per DoPT guidelines/advice, as the officer after retirement is not available to assume the charge of higher post, he cannot be given promotion to the higher grade.
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16. It is further submitted by the respondents that notional promotion to retired Government officials is to be granted only under certain conditions. These being when the official is found fit by review DPC after retirement {DoPT's OM dated 15.11.2018} or when the official is exonerated in disciplinary proceedings after retirement {DoPT's OM dated 25.01.2016}. It should be noted that the applicant is thus not covered by the conditions referred in these OMs. It is submitted that there are no instructions for grant of notional promotion to retired Government Servants like the applicant. Further, explaining the matter in relation to grant of increment, the respondents point out that after the 6th CPC, the rules regarding grant of next increment was changed. As per these rules the annual increment could be granted on 1st July of every year and the qualifying period for earning an increment was six months as on 1st July. The applicant's regular increment was on 01.07.2011, which could not be granted because six months' qualifying service after pay fixation on 31.03.2011 was not completed. It could not be granted on any date immediately after completing six months because the annual increment can be granted only on 1st July of every year. As already pointed out this would arise only in the cases of ad hoc promotion. Those who were getting regular promotion could exercise the option within one month from the date of promotion/appointment to have pay fixed either from the date of promotion itself or from the date of accrual of next increment in the lower grade/post.
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17. It was only in the additional reply statement that the respondents referred to the matter which is strongly relied upon by the applicant i.e. the applicability of the finding in the case of his colleague Shri Samuel Thomas to the case of the applicant. As noted by the applicant, Shri Thomas had been extended (even after retirement) promotion from a retrospective date, which the applicant, therefore, claim should also be granted to him. It is submitted by the respondents that the DoPT had been consulted in the matter. They have opined that the officers who have been recommended by the DPC for regular promotion to JCIT grade but have retired as DCIT before grant of the promotion cannot be granted such promotion after their retirement. As noted earlier, it was in accordance with this advice of DoPT that the Department filed OP(CAT) 294/2016 before the Hon'ble High Court of Kerala. As the OP(CAT) was dismissed, an SLP was also filed before the Hon'ble Apex Court vide Diary No.12887/2018 on 05.04.2018, which was also dismissed. In other words, having no other option the Department had implemented this Tribunal's order dated 09.03.2016 in OA 999/2014 as a special case, subject to the filing of Review Petition before the Hon'ble Apex Court. Hence it is contended that the benefit of that case would be applicable only to the applicant therein.
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18. All the contentions made by the respondents have been sought to be met by the applicant through a series of rejoinders and argument notes. As noted, one of his main contentions is that the reason why his promotion only on ad hoc basis along with others was issued after the DPC was conducted was due to the pendency of litigations before the Principal Bench of the Tribunal as well as in the Hon'ble High Court of Delhi on the matter of seniority. It was not that vacancies did not exist or that there was a dearth of qualified officers or that Recruitment Rules did not exist. The DPC had been convened and a select list of officers finalized. Further, the Principal Bench of this Tribunal had protected the rights of the retiring officers by holding that the officers included in the list approved for promotion as per the DPC held from 20.09.2010 to 23.09.2010 were eligible for promotion even after retirement in case they retire after conclusion of the DPC and before the issue of promotion orders. It is his contention this order was confirmed in its entirety by the High Court of Delhi. The correctness of seniority list which was disputed before the Principal Bench and the High Court was upheld by the order dated 06.07.2012 of the Hon'ble High Court of Delhi. What the applicant seeks to establish is that judgement of the High Court in relation to the seniority of the officials was available more than six months before his retirement. However, the Annexure A-13 order was issued only much later on 12.11.2013. It is submitted by the applicant that this order as well as OM OA No180/00285/2020 24 of the CBDT in relation to him dated 04.03.2021, at Annexure A-12, are both in violation of the orders of the Principal Bench of this Tribunal as well as the orders of the Hon'ble High Court of Delhi. Even the SLP filed against the High Court order was dismissed later on 01.03.2017. Hence, the opinion of the DoPT as well as OMs of DoPT relied upon are nor relevant to the facts of the case. The DoPT opinion was in respect of DCITs who retired without getting even an ad hoc promotion and hence had not assumed charge as Joint Commissioner. The DoPT's OM relied upon by the respondents relate to instances where notional promotion can be given to the retired Government official. It is submitted by the applicant that these OMs do not put a bar for considering other eligible cases for such notional promotion and do not exclude other eligible cases from such benefits. Thus, a candidate found fit by the original regular DPC will be even more eligible for promotion in such cases after retirement. In other words, a candidate who has been found fit by original DPC should be considered for promotion even after retirement. Finally, it is also submitted that CCS(RP) rules do not make any distinction between regular promotion and ad hoc promotion and thus by invoking Rule 15 of these Rules there is no issue of exercise of option for postponement of date of pay fixation or eligibility of increment as on 01.07.2011.
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19. We have carefully considered all the above contentions. In addition, at the oral hearing; the respondents adopted another strong contention. This was in relation to the issue of limitation of the OA, an argument which they had not made in any of the written reply statements. It is argued by the respondents, that the applicant is seeking an increment with effect from 01.07.2011, as well as fixation of his pay with effect from the same date as the fixation of pay of Shri Samuel Thomas i.e. from 23.10.2010. However, he had filed the OA only on 23.06.2021, without giving any reasons as to why he had filed it so late. The respondents rely on various judgements of the Hon'ble Apex Court such as in State of Karnataka and others v. S.M. Kotrayya and Others {(1996) 6 SCC 267}; State of Uttaranchal and Another v. Shiv Charan Singh Bhandari and others {(2013) 12 SCC 179} and State of Uttar Pradesh & ors. v. Arvind Kumar Srivastava & ors. {(2014) 12 SCR 193}. They also cited the order of the Principal Bench of this Tribunal in OA No.989/2018 dated 12.04.2023. They sought to establish their contention that unexplained delay and laches in filing the petition defeats the claim. The applicant on the other had argued that the facts in all these cases are not similar to his matter and that none of the principles of law laid down by the Hon'ble Supreme Court are against his case. Instead, the principles which have been observed by the Hon'ble Supreme Court in M.R. Gupta v. Union of India & Ors. {(1995) SCC(5) 628} and Union of India & OA No180/00285/2020 26 Anr. v. Tarsem Singh {(2008) (8) SCC 648} are relevant for his case. These cases have held that mistakes in pay fixation are a continuing wrong, which gives rise to a recurring cause of action each time when the salary is paid. Further he contends that he had submitted the Annexure A-3 representation on 21.01.2019. The Annexure A-4 reply rejecting it is dated 03.04.2019. Further, the Annexure A-8 application was given on 18.05.2019. Since there was no response to it, the OA was filed on 24.06.2020. According to the applicant this meets the time limit as mentioned under Section 21(1) of the Administrative Tribunal Act. Further, in relation to the matter of increment, it is submitted that the dispute of fixation of pay consequent to the ad hoc promotion in Annexure A-1 order itself was subject to the outcome of the WP (C)No.8018/2010 in the High Court of Delhi in the matter of Union of India v. V.K. Suryawanshi & Ors. The High Court issued its judgement on 06.07.2012. However, the judgement of the Hon'ble High Court of Delhi was again challenged before the Hon'ble Supreme Court in SLP(C) No.21339/2012 along with IA No.2/2012. It is pointed out that even the Annexure A-13 order on regular promotion had indicated that the promotion is subject to the outcome of the judgement in SLP(C) No.21339/2012 along with IA No.2/2012 pending before the Hon'ble Supreme Court of India in the matter titled Vikas Keraba Suryavanshi & Ors. v. Union of India and others. The Hon'ble Supreme Court OA No180/00285/2020 27 dismissed the SLP only on 11.03.2017. The Annexure A-3 representation to the 3rd respondent was filed on 21.01.2019 and was within two years from the dismissal of the SLP on 01.03.2017. Hence, the applicant claims that there was no delay in approaching the 3rd respondent in claiming the increment as the 2nd and 3rd respondent had considered the representation and then issued the orders.
20. It is quite obvious to us that the above contentions/explanation for delay does not overcome the issue of limitation as prescribed in the Administrative Tribunal Act as well as the Rules. It has been made clear in a catena of judgements and in the Rules that responses to representations made late, much after the original orders were passed affecting the employee, cannot be later used to get over the issues of limitation. The relevant section of the Administrative Tribunals Act provide that an application has to be filed within one year of the order passed, which aggrieved the employee concerned. Hence purely on these grounds, there could be an issue of limitation in this case. However, as we already noted, the respondents did not flag this issue at any stage including in any of the three reply statements filed by them. It was not raised or noted at any time over the past three years after the O.A was filed in September, 2020. Nor was any order passed during the time of admission or later that an issue in respect of delay in filing the O.A would considered later at the time of final OA No180/00285/2020 28 hearing. Hence, to flag the issue of delay at this late stage of oral submissions, in our view, would not be appropriate. We, therefore, on balance, after viewing all aspects, feel that the delay in this matter can be condoned, particularly, in view of the strong issue that had to be considered on merit.
21. However, even while attempting to consider the matter on merit, we have run into another issue. As noted, the applicant has strongly relied on the findings of this Tribunal in the matter of his colleague Shri Samuel Thomas. It is noted that CBDT had on 19.06.2018 issued an order promoting Shri Thomas as JCIT with effect from 23.10.2010. The said Shri Thomas was one among the DCITs who had been found fit along with the applicant in the DPC conducted in September, 2010. However, he had not even got ad hoc promotion, unlike the applicant herein, as he retired from service on 28.02.2011. The ad hoc promotion order of the CBDT in the case of 295 officials was issued only on 30.03.2011. The Annexure A-5 order dated 19.06.2018 passed in the case of Shri Samuel Thomas was issued in compliance of an order dated 09.03.2016 of this Tribunal in OA No.180/00999/2014. A copy of this Order has been produced by the applicant at Annexure A-6. It is seen that this Tribunal after examining the matter noted therein that the respondents had not disputed the fact that the applicant (Shri Samuel Thomas) had been found fit by the DPC held on 20- OA No180/00285/2020 29 23.09.2010 for promotion to the post of JCIT. It was only because of pendency of the case and stay order passed that ad hoc promotion could not be effected at the relevant time. This Tribunal noted that the judgement of the High Court and the decision of the Full Bench of the Tribunal had held that the promotion to the officers including the applicant (Shri Samuel Thomas), found fit in the DPC for promotion, but retired before the issuance of promotion order, will relate back with consequences. The Tribunal noted that it is the admitted case that in the DPC, the last date of which is 23.09.2010, the applicant was found fit for promotion. The Principal Bench of C.A.T. had already ordered that those who had retired during the interregnum, if found fit on empanelment, should be accorded promotion with all consequential benefits. Hence the respondents cannot now contend that the applicant is not entitled to the benefit of promotion on the premise that the applicant retired prior to 30.03.2011, the date of promotion. There was no case for the respondents that sufficient numbers of vacancies were not in existence so as to promote the applicant as well. Therefore, when there was no evidence to the contrary, it has to be held that the vacancies were available and that the applicant was not promoted only because there was an order of stay from the Court. The Tribunal thus concluded that the applicant was entitled for promotion as JCIT with effect from 23.10.2010 and entitled to get consequential relief and monetary benefits.
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22. The above order of the Tribunal was then challenged before the Hon'ble High Court in OP(CAT) 294/2015. The Hon'ble High Court noted the following in its judgment:-
"36. Chronologically examined, the Division Bench of the Tribunal first permitted the Department to promote the promotee officers but subject to the pending decision. We could not gather when this interim order was issued. But it must have been, at least, in the middle of 2010. Later, once the case was referred to the Principal Bench, it issued another interim direction on 20th September 2010 that the Department could proceed with the promotions subject to sealed cover procedure. The High Court of Delhi, in fact, urged the Department to waste no more time and to proceed with promotions subject to the outcome of the reference before the Principal Bench.
37. First, as is evident, the second interim order was on 20th September, 2010; Samuel Thomas retired on 28th February 2011; and the Department acted on the interim direction on 30th March 2011. Had it acted promptly, the ad hoc promotions could have been effected before 28h February 2011, before Samuel Thomas's retirement. Nothing prevented it. Let the delay not recoil on an unsuspecting employee.
38. Second, the High Court of Delhi, as we have shown above, has not diluted the Principal Bench's directions in Annexure A-1 save the finding that Civil List could not be relied on. The principle of merger does not affect the Tribunal's observations protecting the rights of the retired employees.
39. Third, we were told that those that had been promoted, some being juniors to Thomas, were given retrospective promotion. We cannot, though, be certain on it.
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40. At any rate, viewed from any perspective, denial of promotion to Samuel Thomas fails to pass judicial muster. On this count, we cannot find fault with the findings and directions of the Central Administrative Tribunal, Ernakulam Bench, in its Ext.P4 order. Even guided by the principles of judicial review in the matters of certiorari, we reckon that the impugned order does not call for any interference."
23. As noted earlier the SLP in this regard was later dismissed by the Hon'ble Apex Court. The CBDT has implemented the Tribunal's order dated 09.03.2016, as a special case. What the applicant has submitted is that his case is even stronger than that of Shri Samuel Thomas, because Shri Thomas had retired even before getting ad hoc promotion. The applicant on the other hand had got ad hoc promotion by the order dated 30.03.2011 and had even assumed charge as JCIT ad hoc on 31.03.2011. He continued in the post right upto his superannuation on 31.01.2013. Hence it is his contention that he should also be promoted on regular basis with effect from 23.10.2010, as done in the case of Shri Samuel Thomas. This was his request which was contained in Annexure A-8 representation, which was then disposed and rejected by Annexure A-14 order dated 03.04.2019. However, at the time of oral hearing learned Senior Panel Counsel for the respondents brought to our notice a more recent order of the Principal Bench of CAT in OA No.539/2019 passed on 13.02.2020. This was in the matter of S.K. Mehra, a retired DCIT vs. Union of India and others. It is noted that OA No180/00285/2020 32 this order also was in relation to the same series of promotions carried out from among the DCIT to the post of JCIT. It was also in relation to the matter of seniority among the officials in OA No.1052/2010 of the Principal Bench. In its order in OA No.539/2019 dated 13.02.2020, the Principal Bench noted that the DPC for promotion to the post of JCIT had met on 23.09.2010. It was also noted that the Full Bench of the Tribunal directed that the recommendation of DPC be not implemented till the seniority list is finalized. The High Court however directed that the recommendations of DPC be implemented and the resultant orders of promotion were issued on 12.11.2013. It was noted that the applicant, Shri S.K. Mehra had retired from service on 31.01.2011. He had filed the OA with a prayer to direct the respondents to promote him to the post of JCIT with effect from 23.09.2010, the date of which the DPC had cleared his name, along with other officers of 2000 and 2001 batch. It was his contention that DPC had been delayed on account of litigation and since the DPC had met on 23.09.2010, he was entitled to be granted the benefit.
24. In the above matter the Principal Bench noted that the matter in OA No.1052/2010, which was later dealt by the Hon'ble High Court had been affirmed by the Hon'ble Supreme Court in SLP(C) No.21339/2012 dated 01.03.2017. The result was that the recommendations of the DPC that met on 23.09.2010 was implemented only after inordinate delay of about 3 years OA No180/00285/2020 33 on 12.11.2013. The applicant had retired much earlier on 31.01.2011. The Principal Bench in its orders then noted as follows in paragraph 12 onwards:-
"12. We would have certainly granted the relief in the form of notional promotion to the applicant, if only any junior to him was promoted to the post of JCIT, with effect from a date, anterior to his retirement. Once the promotions were effected only on 12.11.2013, i.e. long after his retirement, the question of granting notional promotion does not arise. The promotions, that were effected in March, 2011, were on ad hoc basis and even by that time the applicant was not in service.
13. The applicant, who argued the case in person, submits that the denial of promotion would be contrary to the directions issued by the Hon'ble High Court. If that is so, he can pursue the remedy before the Hon'ble High Court. We are only applying the general principles of law in the instant case.
14. We do not find any merit in this OA. It is accordingly dismissed."
(emphasis added)
25. These are some aspects to be noticed from the above orders of two Benches of this Tribunal, in relation to the matters of Shri Samuel Thomas and Shri S.K. Mehra. First, Shri S.K. Mehra as well as Shri Samuel Thomas as well as applicant herein, had all been considered in the same DPC held on 20 - 23.09.2010 for promotion to the post of JCIT and were OA No180/00285/2020 34 found fit for promotion. Similar to Shri Samuel Thomas, Shri S.K. Mehra retired from service on 31.01.2011, before the ad hoc promotion ordered on 30.03.2011. Shri Thomas retired on 28.02.2011 also before the ad hoc promotion. However in the case of Shri Samuel Thomas, this Bench of the Tribunal issued an order allowing the promotion with effect from 23.10.2010 in OA No.999/2014, disposed on 23.09.2016. The Principal Bench of this Tribunal however did not allow the promotion of Shri S.K. Mehra, a similarly situated official, in OA No.539/2019 in its order dated 13.02.2020. From a reading of the two orders it appears that the Principal Bench of the Tribunal was not made aware of the contents of the Annexures A-5, A-6 and A-7 orders/judgements passed by the CBDT, the Ernakulam Bench and High Court of Kerala in the matter of Shri Thomas. Hence, these appear to be two contradictory orders passed in the case of two similarly placed officers by two different Benches of this Tribunal. The applicant has contended in the O.A to distinguish his case from Shri.Samuel Thomas on the ground that he has even a stronger case because he has got adhoc promotion unlike Shri.Samuel Thomas. The matter of Shri.S.K.Mehra is similar in the sense that he too had not got adhoc promotion, but as we noted that it does not appear from the order of the Principal Bench that the contents of Annexure A-5, Annexure A-6 and Annexure A-7 orders/judgments passed by the CBDT, Ernakulam Bench and Hon'ble High Court of Kerala in the matter of Shri.Samuel Thomas OA No180/00285/2020 35 had been noted by the Principal Bench while disposing the matter of Shri.S.K.Mehra. Further, as in the case of Shri.Samuel Thomas, Shri.S.K.Mehra had also not even got the adhoc promotion unlike the applicant herein. In view of this, we feel that we are bound to follow what has been upheld by the Hon'ble High Court of Kerala in the matter of Shri.Samuel Thomas.
26. Hence, in view of the above considerations and in the light of the order passed by the Hon'ble High Court in O.P.(CAT) No.294/2016 in the matter of Shri.Samuel Thomas in which a S.L.P filed by the department was later dismissed by the Hon'ble Supreme Court, we feel that the applicant herein is also entitled to get a similar treatment. We, therefore, allow the O.A in the light of the orders passed by this Tribunal in O.A.No.999/2014 dated 09.03.2016. Necessary follow up orders may be issued treating 23.10.2010 as the effective date of promotion as JCIT in the case of the applicant. The increments etc., due to the applicant may be fixed accordingly taking 23.10.2010 as the effective date of promotion. Further, in relation to the relief sought at Sl.No.4 in respect of arrears etc., once the above fixation of pay and pension is done, the drawal of arrears will be limited to three years prior to filing of the O.A in terms of the orders passed by the Hon'ble Apex Court in the matter of Union of India & Anr. Vs. Tarsem Singh (2008) 8 SCC 648. In other words, the pay OA No180/00285/2020 36 and pension may be notionally fixed but the arrears may be drawn only for a period beginning three years before the filing of this O.A. The arrears etc., may be released to the applicant within a period of two months from the date of receipt of a copy of this order. The O.A is allowed accordingly. We make no other order as to costs.
(Dated this the 18th day of March, 2024)
K. V. Eapen Justice Sunil Thomas
Administrative Member Judicial Member
va
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List of Annexures
Annexure A-1- True copy of the order dated 30.03.2011 issued by the 2nd Respondent promoting 295 Deputy Commissioners as Joint Commissioner on adhoc basis Annexure A-2- True copy of the pay fixation dated 15.06.2011 Annexure A-3- True copy of the applicant's representation dated 21.01.2019 to the 3rd Respondent Annexure A-4- True copy of letter F.No.Pr.CCCHN/B&P/Pen Gr/2018- 19 dated 03.04.2019 issued by the 3rd Respondent Annexure A-5- True copy of the order No.C-18011/10/2018/AdV I dated 19.06.2018 issued by the 2nd Respondent Annexure A-6- True copy of the order in OA No.180/00999/2014 dated 09.03.2016 passed by this Tribunal Annexure A-7- True copy of the judgement dated 23.10.2017 of the Hon'ble High Court of Kerala in OP(CAT) No.294/2016 Annexure A-8- True copy of Representation dated 18.05.2019 sent by the applicant to the 2nd Respondent Annexure A-9- True copy of the Office Memorandum No.13/2/2007- PayI dated 10.08.2007 Annexure A-10- True copy of the OM No.22011/4/98-Estt (D) dated 12.10.1998 Annexure A-11- True copy of the OM No.22011/1/2014-Estt.(D) dated 14.11.2014 Annexure A-12- True copy of the Office Memorandum No.C-
18011/(s)/80/2020-50(V&L) dated 04.03.2021 Annexure A-13- True copy of the order F.No.A-32012/2/2011-AD.VI dated 12.11.2013 Annexure A-14- True copy of the Office Memorandum No.22011/3/2013-Estt(D) dated 15.11.2018 OA No180/00285/2020 38 Annexure A-15- True copy of the OM No.22011/3/2013-Estt(D) dated 25.01.2016 Annexure A-16- True copy of the OM No.1453545/2021-Estt(PayI) dated 24.06.2021 **** Annexure R-1- A true copy of the OM in F.No.C-18011(S)/80/2020- SO(V&L) dated 04.03.2021 ******* OA No180/00285/2020