Central Administrative Tribunal - Delhi
Ram Narain Varma vs Union Of India Through Secretary on 3 January, 2011
fCENTRAL 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 OA. No. 1146/Madras/2009 New Delhi, this the 3rd day of January, 2011 HONBLE MR. JUSTICE V.K. BAIL, CHAIRMAN HONBLE MR. L.K. JOSHI, VICE CHAIRMAN(A) HONBLE MRS. MEERA CHHIBBER, MEMBER (J) 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: None. 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: None. 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: None. O.A. No. 1146/Madras/2009 R. Andi S/o A. Raman Inspector of Income Tax, Office of the Chief Commissioner of Income Tax, Madurai. Applicant By Advocate: Shri Y. Krishnan with Shri. M.P. Parthiban. Versus 1. Union of India represented by The Chief Commissioner of Income Tax, I & CCA, 121, Mahatma Gandhi Road, Nugambakkam, Chennai-34. 2. The Secretary, Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi. 3. The Commissioner of Income Tax, Chennai-I, Office of CCIT, Chennai-I, Chennai. 4. The Income Tax (HQ) (Pers.), Office of CCIT, Chennai. ..Respondents By Advocate: Shri R.N. Singh with Ms. Sangeeta Rai. ORDER
By Honble Mrs. Meera Chhibber, Member (J) The question whether the Scheduled Caste/Scheduled Tribe candidates who qualify departmental examinations with relaxed standards of marks would be eligible for promotion against unreserved/general promotional posts under relevant rules or instructions issued from time to time, has engaged the attention of the Benches of the Tribunal located at different parts of the country. Inasmcuh as, conflicting views of different Benches came to the notice of the Honble Division Bench initially seized of this matter, the question aforesaid has been referred to the Full Bench so as to give a quietus to the issue insofar as the Central Administrative Tribunal is concerned. We may mention at the very outset that this issue has since already been adjudicated by a Full Bench at Chandigarh, but when this matter was referred to the Full Bench, this development was neither known to the counsel for parties nor to the Bench. We may also mention that against the orders passed by the Tribunal at different Benches, writs have been carried in respective High Courts, a fact known to the Full Bench deciding the matter at Chandigarh, yet a decision was rendered by the Full Bench at Chandigarh so that within the Tribunal, same decision is followed.
2. The Full Bench had discussed the judgments given by Mumbai Bench and Hyderabad Bench and dealt with them in detail. The Full Bench had also noted that the judgment of Hyderabad Bench in OAs No. 607 and 628 of 2008 was challenged before the Honble High Court of Andhra Pradesh by filing Writ Petitions Nos. 22046 of 2009, 22084 of 2009 and 22087 of 2009 and the Honble High Court of A.P. were pleased to pass the following interim order:-
We are, prima facie, of the opinion that the conclusions arrived at by the Tribunal and the contentions advanced by the learned counsel for the applicants are contrary to various rules and official memos issued from time to time by the Central Government with regard to the entitlement of the reserved candidates for promotion in the general category. The reserved candidates are entitled to compete for unreserved vacancies, if they qualified without availing any concession. That is the plain reading of the O.M. dated 24.7.2007, but the Tribunal reads it in a different manner. Therefore, we are inclined to suspend the operation of the order of the Tribunal. Accordingly, the order of the Tribunal is suspended, pending further orders. meaning thereby that the OM dated 24.7.2007 was already explained by Honble High Court of Andhra Pradesh.
3. After referring to the rival contentions, the Full Bench narrowed down the controversy raised by the parties by framing 2 questions which read as follows:-
(1)Whether the SC/ST candidates who qualify the departmental examination with relaxed standards of marks would be eligible for promotion against unreserved/ general promotional posts under the relevant Rules or Instructions issued from time to time after R.K.Sabharwals judgment, reported in JT 1995 (2) SC 351 ?
(2)Whether those instructions were applicable only for competitive examinations held for direct recruitment and not for promotion as held by Hyderabad Bench of this Tribunal ?
4. After noting all the relevant OMs and clarifications and analyzing the same, the Full Bench of Chandigarh observed as follows:-
We are of the view that the Hyderabad Bench has misconstrued these instructions which are self-explanatory. Applying these instructions only for competitive examination or viva voce only for direct recruitment is against the true letter and spirit of the observations made in Sabharwals case as we should not forget that in fact Sabharwals case relates to promotees only who had come to the Court for redressal of their grievance.
When directions were given in this case to maintain the reservation rosters post-wise, it cannot be inferred that this was only for direct recruitment. First and second memorandum issued on 2.7.1997 are very clear on this aspect where it was mentioned that : There should be separate rosters for direct recruitment and for promotions where reservation in promotion applies. Therefore, in view of this original interpretation/OM, any further OMs issued thereafter are nothing but clarifications on the queries raised by different departments from time to time and are off-shoots of the O.M. dated 2.7.1997, therefore, it is held that these OMs are equally applicable for promotions also.
So far as holding these Departmental Examinations only to determine the eligibility for promotion to the cadre of ITO is concerned, in this regard also OMs dated 11.7.2002 and dated 24.7.2007 are very clear. There is no doubt about the fact that when a reserved candidate competes with a general candidate without any relaxation in standard prescribed and scores more marks, he can be appointed/promoted against general category post on the own merit concept.
This concept was introduced for the reason that if a reserved category candidate is able to compete with general category candidate without any relaxation, that means he has made himself able to compete with his own ability and merit, therefore, he certainly has a equal right of direct recruitment or promotion vis-`-vis general candidate.
But situation is not so, when he avails any relaxation as a reserved candidate and wants to compete fro general category seat, post or vacancy, may it be for direct recruitment or for promotion because he has brought himself at par with general candidates not with his own merit but with some relaxation which is only available to reserved category candidates.
In our considered opinion, this is equally applicable for departmental examination held to assess the eligibility for the purpose of promotion to the higher posts which are selection posts. In the present case also post of ITO is a selection post, therefore, it cannot be inferred by way of any stretch of imagination that these instructions or OMs are not applicable for departmental examination for the simple reason that had there been no provision for such relaxation of qualifying the departmental examination with relaxed standard, the reserved category candidates would have brought at par with general category to be considered for promotion for unreserved/ general post.
OM dated 1.7.1998 supra is also very clear on this aspect, wherein in Para 3 it has been specifically mentioned that the candidates who are selected on the same standard as applied to general candidates shall not be adjusted against reserved vacancies. It was further explained that when a relaxed standard is applied in selecting an SC/ST/OBC candidates, for example in the 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 SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies.
Therefore, we would like to reiterate for the reasons explained above that these OMs are applicable for promotions also and any instructions/clarifications contrary to these OMs issued by CBDT saying that the departmental examinations are purely qualifying in nature and it was nothing to do with merit, cannot override these instructions/ OMs issued by the DOP&T in consonance with the mandate of the direction of the judgments rendered by the Honble Supreme Court from time to time as referred to hereinabove and amendment made in the relevant provisions of Constitution of India accordingly.
We are of the firm view that if it is allowed that departmental examinations are held just to assess the eligibility for promotion by giving any relaxation to reserved category to compete for unreserved/ general category posts or vacancies by the reserved category candidate, it would be discriminatory to general candidates who would be in a losing situation from all angles, while giving double benefits to reserved category candidates. It can never be the intention of the Legislature as it would then amount to infringement of the Fundamental Right to Equality to general category candidates as enshrined in the Constitution of India.
Thus, after overall analysis of the matter as above and taking into consideration that consistency, certainty and uniformity in the field of judicial decisions are considered to be the benefits arising out of the Doctrine of Precedent in the context of the present case, we find that the prima facie opinion expressed by the Andhra Pradesh High Court and the interim relief in C.W.P. (supra) is also in favour of the respondents when it is observed that the conclusions arrived at by the Tribunal and the contentions advanced by the ld. Counsel for the applicants therein are contrary to various rules and Official Memos issued by the Government of India from time to time with regard to the entitlement of the reserved candidates for promotion in the General Category, certainly lends considerable support to us in our considered view that the decision given by the Hyderabad Bench does not appear to be laying down the law accurately and elaborately and rather is laconic in as much as if the reserved category candidates after having competed for reserved promotional posts are again allowed to compete with the general category candidates with concessions/relaxations, that would amount to discrimination against the open category candidates as has been observed by the Mumbai Bench of the Tribunal in its order dated 7.10.2009. We are conscious that the order referred to above passed by the Honble High Court of Andhra Pradesh is interim, and interim directions cannot be treated as a precedent. However, there would be no bar in taking them into consideration if our view may also be the same as has been expressed, even though prima facie, by the High Court. Thus, it is seen that while staying the decision of the Hyderabad Bench of the Tribunal, the Honble High Court of Andhra Pradesh has passed an interim order, which is found to be speaking one and the opinion expressed lends credence to a point of law to be considered at the time of final disposal of the matter, can also be relied upon for form a decision. We are of the view that Equality before Law is fundamental and none of the two categories, reserved or general, can be made to suffer.
Resultantly, in order to bring consistency and uniformity in decisions rendered by different Benches of this Tribunal, we agree to the view taken by the Chandigarh Bench in its order dated 11.12.2008 in the case of Harjinder Singh & Others (supra) and thereby the conflict/difference of opinion stands resolved in terms of the views expressed therein and the observations made hereinabove. The view taken by the Hyderabad Bench of the Tribunal in OA Nos. 607 and 628 of 2008 (supra), in our view, does not lay down the correct law and therefore, the same is overruled. The question involved stands fully answered as per clarification of DOP&T dated 24.7.2007 which is also an off-shoot of original OM dated 2.7.1997 which needs no further elaboration and is hereby upheld and, accordingly, the questions posed before the Full Bench for reference are answered as under:-
All these O.Ms referred hereinabove issued by GOI (DOP&T) are equally applicable for Departmental Examinations.
(2) The SC/ST candidates who qualify the departmental examination with relaxed standards would not be eligible for promotion against unreserved vacancies.
5. From above, it is absolutely clear that the issue framed before this Full Bench has already been answered in para 4 (supra) wherein it has been held that the view taken by Hyderabad Bench in OA Nos. 607 and 628 of 2008 does not lay down the correct law and, therefore, is overruled. It was also held that the SC/ST candidates who qualify the departmental examination with relaxed standards would not be eligible for promotion against unreserved vacancies.
6. Confronted with this position, counsel for the applicant in OA No. 1146/2009 submitted the earlier Full Bench is distinguishable inasmuch as the Full Bench at Chandigarh was dealing with the case of UDC/Stenographers who were seeking promotion to the post of Income Tax Inspectors whereas applicants in this batch are seeking promotion to the post of Income Tax Officer.
7. It is submitted by the applicants in OA No.1146/2009 that there is no mention of percentage of marks to be obtained by the candidate in the RRs. All that is required as per RR is, that Income Tax Inspectors should have qualified the examination, therefore, it makes no difference whether applicants had received less marks or had passed the examination with relaxed standard. So long they had qualified the examination, they were required to be considered for promotion to the post of Income Tax Officers in their turn as per their seniority even for unreserved vacancies. He further submitted that the Notification dated 29.3.2001 does not say that the SC/ST candidates who pass Income Tax Officer examination with relaxed standard would not be considered for unreserved vacancies. Relying on Notification dated 29.3.2001, learned counsel for the applicant submitted that since the applicant had secured 55% aggregate marks, therefore, he is entitled to be considered for promotion as ITO.
8. They have further submitted that as per OM dated 11.7.2002 the SC/ST candidates falling in the zone of consideration cannot be denied promotion on the plea that the post is not reserved for them. When the post is not reserved for SC/ST candidates, they should be considered for promotion along with other candidates treating them as if they belong to general category. Grievance of the applicants in this case is that even though they were senior and were very much within the zone of consideration, yet 5 of their juniors have been promoted as ITO vide order dated 31.7.2009 while denying the same to the applicants. They have thus challenged the order of promotion as illegal and have sought a direction to the respondent No.1 to promote them also as ITO with effect from the same date when 5 of their juniors were promoted and give them seniority above 5 of their juniors with all attendant monetary benefits.
9. Perusal of the earlier Full Bench shows that though the applicants in earlier Full Bench were UDCs/Stenographers who were seeking promotion as Income Tax Inspectors (hereinafter referred to as ITI) but the question of law raised and discussed was same.
10. In the said Full Bench, decided at Chandigarh, also the contention of the applicants was that once they had qualified the Departmental Examination, even though with relaxed standards, they stand at the same footing on which the candidates from the General Category stand. Therefore, they have a right to be considered for promotion against general/ unreserved posts and the instructions or office memorandum on which the respondents have placed reliance are not applicable in the facts of the case as they are applicable for Competitive Examinations, to be held for direct recruitment only. They had supplemented their contention by referring to OMs dated 23.1.1998, dated 21.1.2002 and dated 11.7.2002 and the clarifications issued by the Central Board of Direct Taxes (CBDT in short) from time to time. They had also relied on the judgment delivered by Hyderabad Bench and had submitted that there is no specific provision incorporated in the RRs to the effect that qualifying the examinations with relaxed standards would not entitle them for considering their names for promotion against unreserved posts. They had further contended that Departmental examinations cannot be equated with competitive examinations. The purpose of these Departmental Examinations, to qualify them with relaxed standards by reserved candidates, is to bring them at par with General Category candidates and once they qualify the examination irrespective of the fact that they have qualified with relaxed standard, they are to be treated at par with General Category candidates and being senior to these persons they are entitled to be promoted on their Own Merit as provided in the O.M. dated 11.7.2002.
11. The respondents on the other hand had placed reliance on judgment of Chandigarh Bench and had submitted that even if it is not so provided in the relevant rules, the instructions issued from time to time by the Nodal Ministry are self-explanatory leaving no doubt that to compete for unreserved posts, they have to qualify the examination without relaxed standards.
12. From narration of above facts and pleadings, it is absolutely clear that the legal issues raised in above Full Bench are same as in the present cases before us. The post of Income Tax Inspector was also a selection post required to be filled by way of seniority-cum-merit and it was necessary to qualify the departmental examination. In the cases before us though the post in question is different, i.e. Income Tax Officer (ITO) but this post is also a selection post and is required to be filled 100% by way of promotion from amongst the ITIs with 3 years of regular service in the grade. As per the RRs, ITI are also required to pass the departmental examination for ITO, therefore, the basic ingredients for both the posts were similar, except the feeder post was different. Therefore, simply on this ground that posts to which promotion is sought is different, it cannot be stated that the earlier Full Bench is distinguishable.
13. Since the judgment of Hyderabad Bench has already been overruled and it has already been held that the SC/ST candidates who qualify the departmental examination with relaxed standards would not be eligible for promotion against unreserved vacancies, nothing more remains to be adjudicated upon.
14. We agree with the views expressed by the earlier Full Bench. No other point is involved, it would, therefore, be futile exercise to send the matters back to the Division Benches. Accordingly, OAs are dismissed. No costs.
(MRS. MEERA CHHIBBER) (L.K. JOSHI) (V.K. BALI)
MEMBER (J) VICE CHAIRMAN (A) CHAIRMAN
Rakesh