Central Administrative Tribunal - Allahabad
Chandrahas Kumar vs Income Tax Department on 9 February, 2023
O.A. No.194/2022
(Reserve on 25.1.2023)
Central Administrative Tribunal, Allahabad Bench
Allahabad
****
Original Application No. 194/2022
Pronounced on 9th day of February, 2023.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Chandrahas Kumar aged about 43 years son of Shri
Ram Suresh Prasad presently working as ITI under Addl.
CIT, ReFAC (AU)I(2) Faizabad stationed at Gorakhpur
presently residing at G-4, Income Tax Colony, Civil Lines,
Gorakhpur, Permanent r/o village and Post Basudeopur
via Navranga, District- Samastripur, Bihar-848102.
Applicant
By Advocate: Sri Santosh Kumar Kushwaha
Versus
1. Union of India through the Finance Secretary,
Ministry of Finance, Department of Revenue, CBDT,
Govt. of India, New Delhi-110001.
2. Principal Chief Commissioner of Income Tax, U.P.
(East) 57, Ram Tirath Marg, Lucknow-226001.
3. Principal Commissioner of Income Tax,Aayakar
Bhawan, Civil Lines, Golghar, Gorakhpur.
4. Principal Commissioner of Income Tax, Re FAC
(Assessment Unit-I) Annexe Hotel, Krishna Palace,
Civil Lines, Faizabad.
5. Zonal Accounts Officer in the office of Principal
Chief Controller of Accounts, CBDT , 28 MG Marg,
Ayakar Bhawan, Allahabad.
6. Chandan Kumar Ranjan, ITI in O/o Assistant Dy.
Director of Income Tax (Investigation),Ayakar
Bhawan, Civil Lines,Gorakhpur.
Respondents
By Advocate: Sri Chakrapani Vatsyayan.
ORDER
By Hon'ble Mr. Justice Om Prakash VII, Member (J) This O.A. has been filed by the applicants U/s 19 of the AT Act, 1985 for quashing the impugned orders dated 11.12.2019, 9.8.2021, 26.11.2021 and 31.1.2022.
Page 1 of 12 O.A. No.194/20222. The facts of the case in brief are that applicant was appointed on the post of Tax Assistant through Staff Selection Commission, while respondent No. 6 was also appointed as Tax Assistant. Applicant and respondent No. 6 had passed the ministerial exam on 6.11.2009. In the draft gradation list issued on 1.2.2011, applicant was shown at Sl.No. 106 and respondent No. 6 was shown at Sl.No. 112. Applicant while working as Tax Assisant appeared in the Income Tax Inspector Exam, 2010 an declared successful. Applicant along with other persons including respondent No. 6 were promoted to the post of Senior Tax Assistant vide promotion orders dated 16.6.2011 and 4.8.2011. Respondents have allowed the pay fixation to the post of Senior Tax Assistant w.e.f 17.6.2011 @ 9100 + 4200/- vide memo dated 9.8.2011. Respondents have granted two advance increments to the applicant for passing I.T.I exam, as such he was allowed to draw more pay, in consequence of passing the departmental higher post exam, in respect of his junior i.e. respondent No. 6 vide memo dated 10.8.2011. Due to grant of two advance increment, pay of the applicant was increased from 1.1.2011 from Rs. 8120+ 2400 to Rs. 8770+ 2400 and further increased due to addition of his natural increment on 1.7.2011 @ 9100+ 24000/- fixe fixation memo dated 25.11.2011. Respondent No. 6 passed the departmental exam for Income Tax Inspector- 2013 but at that time, there was no provision for grant of 2 advance increments on passing of Income Tax Inspector exam by Senior Tax Assistant. Respondents have issued gradation list of Senior Tax Assistant on 14.8.2014, in which name of applicant finds place at Sl. No. 49 and name of respondent No. 6 at Sl. No. 55. Vide letter dated 27.3.2015, respondents decided to give 2 advance increments to Senior Tax Assistants or Stenographers, if they passed the Income Tax Inspector's exam and due to Page 2 of 12 O.A. No.194/2022 induction of this letter, respondent No. 6 had been given 2 advance increments due to passing of I.T.I exam, as such his pay was fixed on 1.7.2014 at Rs. 11470+ GP 4200 and as on 1.7.2015 @ 11940 +G.P. 4200 vide memo dated 16.6.2015. Due to this reason, pay of the respondent No. 6 got higher than the applicant. Hence applicant had represented for stepping up of pay in respect of his junior vide representation dated 15.7.2015. Vide letter dated 20.6.2018, applicant was allowed stepping up of pay and fixation order was issued on 6.7.2018 (both are annexed collectively as Annexure No. 17 to the O.A.). Thereafter, vide letter dated 29/30.3.2019 (Annexure No. 18 to the O.A.), stepping up of applicant was revised arrears of pay was directed to be recovered. In response to letter dated 29/30.3.2019, vide letter dated 12.4.2019(Annexure No. 19 to the O.A.),, Joint Commissioner of Income Tax had explained the rules under which stepping up of pay was legally granted to the applicant and stated that objection of respondent No. 5 is incorrect. It is also stated that Hon'ble CAT, Bangalore Bench in the case of Gautam Kumar and others Vs. UOI directed to step up of pay but respondent No. 5 vide letter dated 25/26.6.2019 (Annexure No. 21 to the O.A.), communicated that benefit of the aforesaid judgment cannot be given to the applicant and only OMs/ Rules will be considered in the matter of stepping up of pay. Thereafter, vide order dated 11.12.2019 (Annexure No. 1 to the O.A.), cancelled the order granting stepping up of pay. Applicant filed representation against the order dated 11.12.2019. Vide order dated 9.8.2021 (Annexure No. 2 to the O.A.), respondents have declared that drawl of higher pay by junior is attributable to grant of advance increment after passing the departmental exam, not constitute pay anomaly for stepping up of pay of Seniors . Vide letter dated 31.1.2022 (Annexure No. 4 to the O.A.), Page 3 of 12 O.A. No.194/2022 it is stated that O.M. dated 9.8.2021 contains merely clarification regarding anomaly of pay arisen due to grant of advance increment on passing departmental exam while the rules for stepping up of pay exists since long and directed that stepping up in the case of applicant is not justified and immediate recovery is required.
3. Learned counsel for the respondents filed counter reply, stating therein that respondents have rightly issued letters dated 22.6.2019 and 21.8.2019 and the same is in accordance with para 18 (c ) under Rule 22 and para 23(2) (d) and there is no illegality in the aforesaid letters. Recovery proceedings has been initiated on the advice of ZAO, CBDT, Allahabad and Field Unit, Gorakhpur ZAO has instructed that no steeping up in pay of seniors is allowed if the junior is drawing more pay by virtue of any advance increment granted to him. Hence there is no illegality in the impugned orders.
4. Heard learned counsel for the parties.
5. Learned counsel for the applicant argued that applicant is senior to respondent No. 6 and both were initially appointed as Tax Assistant. Thereafter, promoted as Senior Tax Assistant. In all the gradation list, applicant was shown senior to respondent No. 6. Applicant qualified the I.T.I exam while he was working as Tax Assistant in the year 2010 whereas respondent No. 6 passed the I.T.I exam in the year, while he was working as Senior Tax Assistant. Since the rate of increment in the pay scale of Tax Assistant is less than the rate of increment of Senior Tax Assistant, hence the pay of respondents No. 6 got higher than the applicant. Applicant represented for stepping up of pay and on the request of the applicant, applicant was allowed stepping up of pay but later on the same was cancelled, which is arbitrary and incorrect. It is also stated that pay of junior cannot higher than the pay of his senior.
Page 4 of 12 O.A. No.194/20226. Learned counsel for the applicant also filed written submission by which he has reiterated the facts as stated in the O.A. and relied upon on the following case laws:-
i) O.A. No. 50/2017 (Gautam Kumar and others Vs. UOI and others decided on 22nd March, 2019 by CAT, Bangalore Bench, which was affirmed by High Court of Karnataka in W.P. No. 49498 of 2019 decided on 23rd February, 2021.
ii) Dr. Elizabeth K. Syriac Vs. The Registrar, Kerala Agriculture University and others (W.P. (C ) No. 26611 of 2011 dated 18th September, 2020 (High Court of Kerala at Ernakulam passed by the single judge and affirmed by Division Bench in WA No. 154 of 2022 decided on 17th March, 2022.
iii) Sr. Pravat Chandra Pani Vs. Comptroller and Auditor General of India LAWs (ORI) 2009 95 decided by Hon'ble Court of Orissa in OJC No. 14579 of 2001.
iv) Manjit Sandhu and another Vs. State of Punjab and others LAWs (P&H) 2016 8 226 (High Court of Punjab and Haryana in Civil Writ Petition 21633 of 2011, 18599 of 2014 decided on 8th August, 2016.
5. E. Sarasian Vs. Secretary, CBDT, New Delhi 1991 (17) Administrative Tribunals Cases page 673.
6. Gurcharan Singh Grewall Vs. Punjab State Electrictity Board 2009 (3) SCC 94.
7. Central Pollution Control Board and others Vs. Dharmendra Gupta and others LAWS (DLH) 2011 (3) page 480.
7. Learned counsel for respondents argued that pay of the respondent No. 6 was increased than the applicant due to allowing two advance increment on passing of I.T.I exam and the applicant was wrongly allowed stepping up of pay and on found illegality, the same was cancelled in accordance with para 18 (c ) under Rule 22 and para 23(2) (d) of fundamental rules and there is no illegality in Page 5 of 12 O.A. No.194/2022 the aforesaid letters. Recovery proceedings has been initiated on the advice of ZAO, CBDT, Allahabad and Field Unit, Gorakhpur ZAO.
8. Learned counsel for respondents has also filed written submission, by which he has reiterated the facts as stated in the Counter Reply. However, it is further stated that appropriate authority has taken the decision to initiate the recovery process vide letter dated 26.11.2021 on the advice/recommendations of the ZAO, CBDT, Allahabad and Field Pay Unit, Gorakhpur. It is further stated that CCIT, Bareily directed to take decision as per the directions given by ZAO, CBDT vide his letter dated 7.1.2022.
9. We have considered the rival submissions of the parties and have gone through the entire record.
10. From perusal of pleadings, it is clear that applicant was senior to respondent No. 6 at all stages. He qualified the Income Tax Inspector Exam in the year 2010 when he was working as Tax Assistant and got two increments in the pay scale of Tax Assistant whereas respondent No. 6 qualified I.T.I. Exam in the year 2013 when he was working as Senior Tax Assistant and got two increments in the pay scale of Senior Tax Assistant. Since the pay scale of Senior Tax Assistant is higher than the pay scale of Tax Assistant, hence pay of respondent No. 6 has got higher than the applicant. On representation of the applicant, respondents have allowed stepping up to the applicant but later on the same has been cancelled by the respondents.
11. Fundamental Rule 22 deals with removal of such anomaly. The Government of India, Ministry of Finance has issued executive instructions dated 5.01.1989 and the same is reproduced under:-
"INSTRUCTION NO.1804/1989 Dated 5.1.1989 Page 6 of 12 O.A. No.194/2022 Grant of advanced increment to officials in the income-tax department on passing the departmental examination for next higher grade Removal of anomaly in pay:-
In accordance with this Ministry's letter F.No.2(29)/Ad. VII/53 dated the 24th July, 1955, F.No.6/83/57-Ad.IX dated the 8th December, 1960 and F.No.A-26017/2/76-Ad.IX dated 16.2.1976, two advance increments are allowed to LDCs, UDCs, Inspectors, Stenographers, etc. in the Income tax Department on their passing the Departmental 9 Examination of the next higher grade. It has been brought to the notice of this Ministry that the officials who passed the departmental examination of the next higher grade before 1.1.86 and thereby got the benefit of the advance increments at a lower rate in the pre-revised scales, are drawing less, pay than their juniors who passed the examination on or after 1.1.86 and thereby drew the advance increments at a higher rate in revised scale of pay.
2. It has decided to remove anomaly in such cases by stepping up the pay of the senior official with reference to the pay of his junior, from the date of the date of grant of advance increments to the latter. The orders refixing the pay of the senior be issued in accordance with aforesaid decision under FR 27. He will draw his next increment from the date of drawal of increment by the junior with reference to whom the stepping up of pay has been allowed. The arrears of pay will be drawn accordingly.
3. This sanction issues with the concurrence of the Department of Personnel & Training, A.R. Estt (Pay) and the Department of Expenditure vide Dy.
Nos. 327/88/Pay 1 dated 7.4.88 and 2117/Estt/888 dated 9.5.88, respectively.
4. They may be brought to the notice of all officers working in your region.
(F.No.A26017/70/87-Ad.IX dated 5-1-1989 from Central Board of Direct Taxes)"
12. In the case of Gautam Kumar Vs. UOI (supra), in identical case, CAT Bangalore Bench has allowed the O.A. vide order dated 22nd March, 2019, which was challenged before the Hon'ble High Court of Karnataka in Page 7 of 12 O.A. No.194/2022 Writ Petition No. 49498 of 2019, which was allowed by the Hon'ble High Court. In this case also, advance increments were given to the applicants after passing of the Income Tax Inspector Exam. Rate of increment in the year 2010 was Rs. 320 and in the year 2011 was 400. Therefore, the seniors were granted Rs. 640/- on account of two increments in the year 2010 and junior was granted Rs. 800/- on account of two increments in the year 2010. Hon'ble High Court after following Fundamental Rule 22 and relying on paragraph 15 of the judgment passed in Writ Petition No. 5602/2013 (State of Karnataka and another Vs. Mohammed Ilyas, passed the following orders:-
"11. The learned counsel for Union of India has placed reliance on the judgment delivered in W.A.No.5602/2013 (State of Karnataka and another v/s Mohammed Ilyas). This Court has carefully gone through the aforesaid judgment and paragraph 15 of the said judgment reads as under:-
"15. The particulars of the pay drawn by the respondent and Sri. Karunakaran are as hereunder:-
Sri Mohammed Illyas Sri K.Karunakaran
Date Basic pay (Rs.) Date Basic Pay
(Rs.)
1.1.74 140.00 Annual 1.6.74 140.00 Annual
Increment increment
18.10.74 156.00 Two advance
Increments for
Graduation
1.4.75 164.00 Annual increment 1.6.75 148.00 Annual
increment
1,1,77 500.00 Revised scale 1977 1.1.77 480.00 Revised scale
1977
1.6.77 500.00 Annual
increment
29.11.77 55.00 two
advance
Increments for
Proficiency in
Shorthand
1.1.78 525.00 Annual increment 1.6.78 575.00 Annual
increment
1.1.79 550.00 Annual increment 1.6.79 600.00 Annual
increment
Page 8 of 12
O.A. No.194/2022
With reference to the aforesaid pay particulars of the respondent and Sri. Karunakaran, it is evident that the respondent is senior and he was drawing higher pay than that of Sri. K. Karunakaran till 29.11.1977. The respondent was granted two advance increments for acquiring B.A., graduation qualification w.e.f. 18.10.1974 in terms of the G.O. No. FD 73 SRP (1) 69 dated 18.2.1970. He was drawing basic pay of Rs.172/- in the pre-revised scale as on 1.1.1977. In the case of Sri. Karunakaran, without there being benefit of any advance or additional increment he was in the basic of Rs.156/- in the pre-revised scale as on 1.1.1977. In view of the Karnataka Civil Service(Revised Pay) Rules, 1977, the pay of the respondent who was drawing the basic pay of Rs.172/- was fixed at the stage of Rs.500/- as on 1.1.1977 on the other hand, Sri. Karunakaran who was drawing a basic pay of Rs.156/- was fixed at Rs.480/-. In view of the G.O. No.EV 14 SRP (1) 77 dated 24.5.1977 for acquiring the qualification of proficiency in Shorthand two advance increments is permissible. With reference to the said Government Order read with acquisition of proficiency in shorthand qualification by Sri. Karunakaran on 29.11.1977 two advance increments were granted, consequently pay of Sri. Karunakaran was enhanced from Rs.480/- to Rs.550/- (annual increment was granted as on 1.6.1977 by which the pay was enhanced from Rs.480/- to Rs.500/- + two advance increments). In view of the aforesaid circumstances read with Government orders dated 18.2.1970 and 24.05.1977 the respondent has not made out a Page 9 of 12 O.A. No.194/2022 case so as to step up his pay on par with Sri. Karunakar."
12. In the considered opinion of this Court, the aforesaid judgment does not help petitioner in any manner and it is distinguishable on facts.
13. Resultantly, no case for interference is made out in the matter.
Writ petition is dismissed. No orders as to costs. "
13. In the case of E. Sarasian Vs. Secretary, CBDT, New Delhi, similar controversy has been considered by the CAT, Madras Bench, and allowed the O.A.
14. In the case of Dr. Elizabeth K.Syriac Vs. The Registrar, Kerala Agricultural University (supra) and Hon'ble High Court of Kerala at Ernakulam relying on the judgments of Hon'ble Supreme Court in the case of Gurcharan Singh Grewall Vs. State of Punjab State Electricity Board (supra) and in the case of Director NIT Calicut Vs. Dr. Muraleedharan C and other 2020 SCC Kerala 1755 allowed the writ petition and directed the respondents to refix the salary of the petitioner on the basis of the immediate junior and grant the consequential benefit to the petitioner.
15. In the case of Sri Pravat Chandra Pani Vs. Comptroller and Auditor General of India (supra), Hon'ble Apex Court has held that "pay of seniors is required to be stepped up to figure equal to pay as fixed for juniors in higher post. In the case of Gurcharan Singh Grewal and Anr. Vs. Punjab State Electricity Board (supra), the Apex court considered Rule 27 of the Fundamental rules and held that a Senior cannot be paid less than his juniors, even if anomaly in senior's pay is due to difference of incremental benefits. Senior's pay has to be stepped up with reference to higher pay of juniors."Page 10 of 12 O.A. No.194/2022
16. In the case of Manjit Sandhu and another Vs. State of Punjab and others (supra), High Court of Punjab and Haryana held that "The fact remains that whatever may be the reason, the juniors of the petitioners were getting higher pay than the petitioners. In terms of the judgment Annexure P-1, the pay of the senior is to be stepped up equal to the pay of their juniors."
17. Controversy involved in the present case is similar to the case of Gautam Kumar Vs. UOI. In the instant case, applicant was senior to respondent No. 6 at all stages. He qualified the Income Tax Inspector Exam in the year 2010 when he was Tax Assistant whereas respondent No. 6 qualified I.T.I. Exam in the year 2013 when he was Senior Tax Assistant. Applicant got two increments in the pay scale of Tax Assistant whereas respondent No.6 got two advance increment in the pay scale of Senior Tax Assistant. Since the pay scale of Senior Tax Assistant is higher than the pay scale of Tax Assistant, hence pay of respondent No. 6 has got higher salary than the applicant. On representation of the applicant, respondents have allowed stepping up to the applicant but later on the same has been cancelled by the respondents. Joint Commissioner of Income Tax, Range 2,Gorakhpur vide letter dated 12.4.2019 written to Principal Commissioner of Income Tax, Gorakhpur observed that pay fixation order of the applicant is in accordance with the established rules and thus observation of Sr. Accounts Officer, ZAO, CBDT, Allahabad is not tenable. Under the circumstances, Sr. Accounts Officer, ZAO, CBDT Allahabad may be requested to reconsider his observation. The court is of the opinion that aforesaid view taken by the court in the case of Gautam Kumar and others Vs. UOI and other Page 11 of 12 O.A. No.194/2022 cases are fully applicable to the case of the applicant and O.A. deserves to be allowed.
18. Accordingly, O.A. is allowed. Impugned orders dated 11.12.2019, 9.8.2021, 26.11.2021 and 31.1.2022 are quashed. Respondents are directed to refix the salary of the applicant at par with the respondent No. 6 with all consequential benefits. The above direction shall be carried out within a period of three months from the date of receipt of certified copy of this order.
19. There shall be no order as to costs.
(Dr. Sanjiv Kumar) (Justice Om Prakash-VII)
Member (A) Member (J)
HLS/-
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