Central Administrative Tribunal - Bangalore
Ravi Kumar vs Income Tax Department on 2 June, 2023
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OA.No.170/00253/2022/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00253/2022
DATED THIS THE 02ND DAY OF JUNE, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Ravi Kumar
S/o Shri Dasappa, aged 59,
R/o Income-tax Officer, Ward-1(1)(1),
BMTC Building, Koramangala,
Bangalore 560 095 .... Applicant
(By Shri T.C. Gupta, Advocate)
Vs.
1. Union of India,
Through the Finance Secretary,
Ministry of Finance, North Block,
New Delhi 110 001
2. Pr. Chief Commissioner of Income Tax,
Karnataka & Goa Region,
Queens Road, Bangalore 560 001
3. Pr. Commissioner of Income Tax-1,
BMTC Building,
Koramangala, Bangalore 560 095 ...Respondents
(By Shri S. Prakash Shetty, Senior Panel Counsel)
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OA.No.170/00253/2022/CAT/BANGALORE
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"A) In view of the facts and grounds enumerated above, it is most respectfully prayed that the respondents order dated 10.06.2022 (Annexure-A1) may kindly be quashed and the respondents directed to grant grade pay of Rs. 5400/- from 05.08.2020, on completion of four years' service as ITO, with all consequential benefits and interest at 10% for the period of delay.
B) Any other appropriate writ, order or direction, which may be considered just and proper in the facts and circumstances of the case, may be issued in favour of the applicants."
2. The facts in brief as narrated by the applicant are that, he is working as Income Tax Officer (ITO) from 05.08.2016. On completion of four years service as ITO, he was eligible for grant of grade pay of Rs. 5400/- from 05.08.2020. As the respondents did not grant grade pay of Rs. 5400/- from 05.08.2020, the applicant filed representation dated 02.03.2021. Being aggrieved by the non- consideration of his representation, the applicant had preferred OA 3 OA.No.170/00253/2022/CAT/BANGALORE No. 100/2022 before this Tribunal and the same came to be disposed of vide order dated 25.02.2022 directing the Principal Chief Commissioner of Income Tax, Karnataka & Goa Region, Bangalore to decide the applicant's representation dated 02.03.2021 and pass a reasoned and speaking order in accordance with law after providing an opportunity of hearing to the applicant within a period of 2 months from the date of receipt of a certified copy of the said order. Accordingly, the Respondent No. 2 has considered the representation and rejected the same vide order dated 10.06.2022. Being aggrieved against the rejection of the representation, the applicant is before this Tribunal.
3. Learned counsel appearing for the applicant placing reliance on the ruling of Hon'ble High Court of Madras in the case of M. Subramaniam vs Union of India and Ors. in Writ Petition No. 13225/2010 dated 06.09.2010 submitted that for grant of corresponding grade pay of Rs. 5400/-, the period of four years is to be counted with effect from the date on which an officer is placed in the corresponding grade pay of Rs. 4800/-. The Hon'ble Apex Court has upheld the view of the Hon'ble High Court of Madras 4 OA.No.170/00253/2022/CAT/BANGALORE dismissing the appeal filed by the Union of India in M. Subramaniam's case, supra.
4. Learned counsel further submitted that the clarification issued by CBDT dated 14.09.2009 referred in the impugned order inasmuch as the expression "regular service" is not justifiable since regular service means the continuous service of four years in grade pay of Rs. 4800/- notwithstanding ad hoc/regular promotion or ACP. The fact that the applicant was promoted as Income Tax Officer from 05.08.2016 on ad hoc basis, further extended and promoted as Income Tax Officer - Regular on 17.08.2020 has no effect on the issue under consideration. The issue involved in the present matter is not of seniority or promotion but of fixation of pay and salary. Hence, the request of the applicant for grant of higher level of pay (Level 9) corresponding to pre-revised grade pay of Rs. 5400/- ought to have been considered favourably by the respondents. Accordingly, seeks for interference of this Tribunal.
5. Learned counsel Shri S. Prakash Shetty representing the respondents justifying the impugned order submitted that the applicant was promoted as Income Tax Officer - Regular from 5 OA.No.170/00253/2022/CAT/BANGALORE 17.08.2020 only, hence his promotion as Income Tax Officer on ad hoc basis cannot be considered for grant of higher level of pay - grade pay of Rs. 5400/- . Learned counsel further submitted that ad hoc promotions are made for a period of one year or till regularization of their promotion, whichever is earlier. Such appointment shall not confer any right to the officers. Distinguishing the judgment of the Hon'ble High Court of Madras in M. Subramaniam, supra, learned counsel submitted that the said judgment was rendered in the context of ACP and the same is not applicable to the facts of the present case. Reliance was placed on the CBDT clarification dated 14.09.2009.
6. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
7. The moot question that arises for our consideration is whether higher grade pay of Rs. 5400/- has to be granted on completion of four years of regular service as Income Tax Officer i.e. whether the period of service held as Income Tax Officer - ad 6 OA.No.170/00253/2022/CAT/BANGALORE hoc to be counted for determination of four years of completed regular service for grant of higher grade pay of Rs. 5400/-?
8. The applicant was promoted as Income Tax Officer - ad hoc vide order dated 05.08.2016 which was made for one year or till regularisation of promotion, whichever is earlier. The order dated 05.08.2016 was extended upto 31.12.2020. However, the applicant was promoted as Income Tax Officer - Regular on 17.08.2020 and he assumed charge in the forenoon of 17.08.2020. The promotion on regular basis vis-a-vis promotion on ad hoc basis stand on different pedestal. DPCs for ad hoc promotions and DPCs for regular promotions are held separately. DPCs for filling up ad hoc vacancies are conducted ordinarily on administrative exigencies for smooth functioning in the posts held by promoted persons. Such persons hold their regular seniority and position in their pre-promoted cadre only. The persons empanelled as per the ad hoc DPCs are promoted as and when the real vacancy arises. The regular service in a cadre starts from the date when such persons are promoted against a regular vacancy as per the empanelment recommended by the DPC for regular vacancies. Hence, the period of post held as Income Tax Officer - ad hoc 7 OA.No.170/00253/2022/CAT/BANGALORE against an ad hoc vacancy cannot be reckoned as regular service, against which the applicant was holding his post. For consideration of non-functional upgradation, the mandatory requirement is to have a regular service in a cadre.
9. The CBDT vide clarification dated 14.09.2009 has clarified that only the regular service in the cadre of Income Tax Officer can be reckoned for counting four years service for grant of higher grade pay of Rs. 5400/-. Similarly, DOPT has issued various instructions on ad hoc appointment. One such DOPT instructions issued in Office Memorandum dated 03.04.2013 contemplates that ad hoc appointments/promotions should be made only in rare cases and for exigencies of work, where the post cannot be kept vacant until regular candidate becomes available and it is limited to one year period. Any extension of such ad hoc tenure beyond the limited period requires approval from DOPT. The service rendered in ad hoc post being only an intermittent arrangement in case of exigency, it cannot be considered as regular service.
10. In the case of M. Subramaniam, supra, the Hon'ble High Court of Madras has examined the issue of grade pay of Rs. 8
OA.No.170/00253/2022/CAT/BANGALORE 4800/- on regular basis on grant of ACP. The challenge was with respect to the CBEC circular dated 11.02.2009 which stated that grade pay of Rs. 5400/- could not be given to those who are drawing the salary of Superintendents by way of financial upgradation under ACP. In that context, the Hon'ble High Court of Madras has held that:
"6. It is not in dispute that the Government of India vide its resolution, dated 29.8.2008 granted grade pay of Rs.5400/- in Pay Band 2 on non-functional basis to the Group B Officers of the Department of Posts, Revenue, etc. who completed four years of regular service in the grade pay of Rs. 4800/- in Pay Band 2. According to the petitioner, he has already reached the pay scale of Rs.7500-250-12000 by way of ACP Scheme on 1.1.2004 which is corresponding to the pay scale of Superintendent of Central Excise (Group B Post) and therefore, on completion of four year, he is entitled to the grade pay of Rs. 5400/- with effect from 1.1.2008. In support of his claim, the petitioner also relied upon a clarification issued by the Central Board of Excise and Customs in Letter F.No.A2601/98/2008- AdIIA, dated 21.11.2008 clarifying that the four year period is to be counted from the date on which an officer is placed in the pay scale of Rs.7500-12000. However, the claim of the petitioner was denied based on the clarification issued by the Central Board of Excise & Customs, dated 11.2.2009, wherein, it was clarified that the Officers who got the pre-revised payscale of 7500-12000 (corresponding to grade pay of Rs 4800) by virtue of financial upgradation under ACP would not be entitled to the benefit of further non-functional upgradation to the pre-revised pay-scale of Rs. 8,000-13,500 (corresponding to grade pay of Rs. 5400) on completion of 4 years in the pre-
revised pay scale of Rs. 7500-12000.
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OA.No.170/00253/2022/CAT/BANGALORE
7. We are unable to agree with this clarification given by the Under Secretary to Government on India, since in an earlier clarification, dated 21.11.2004 of the Deputy Secretary to Government of India, it was clarified as to how the 4 year period is to be counted for the purpose of granting non- functional upgradation to Group-B Officer, i.e. whether the 4- year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (Pre- revised) or with effect from 1.1.2006, i.e. the date on which the recommendation of the 6th CPC came into force, It was clarified that the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7,500-12000 (Pre-revised).
8. Thus if an officer has completed 4 year on 1.1.2006 or earlier, he will be given the non-functional upgradation with effect from 1.1.2006 and if the officer completes 4-year on a date after 1.1.2006, he will be given non-functional upgradation from such date on which he completes 4-year in the pay scale of Rs. 7,500-12000 (pre-revised), since the petitioner admittedly completed 4 year period in the pay scale of Rs. 7500-12000 as on 1.1.2008, he is entitled to grade pay of Rs. 5,400/-. In fact, the Government of India, having accepted the recommendations of the 6th pay commission, issued a resolution dated 29.8.2008 granting grade pay of Rs. 5400/- to the Group B Officers in pay Band 2 on non-functional basis after four years of regular service in the grade pay of Rs. 4800/- in pay band 2. Therefore, denial of the same benefit to the petitioner based on the clarification issued by the Under Secretary to the Government was contrary to the above said clarification and without amending the rules of the revised pay scale, such decision cannot be taken. Therefore, we are inclined to interfere with the order of the Tribunal."
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OA.No.170/00253/2022/CAT/BANGALORE
11. The issue of ad hoc promotion was not the subject matter considered by the Hon'ble High Court of Madras. In our considered view, promotion on ad hoc basis being different from promotion on regular basis, no same yardstick can be applied for reckoning four years of regular service. The word "regular" plays a significant role in reckoning the four years regular service, for grant of grade pay of Rs. 5400/-.
12. In the case of State of Haryana vs Haryana Veterinary & A.H.T.S. Association and Anr., reported in (2000) 8 SCC 4, the Hon'ble Apex Court while dealing with the issue whether ad hoc service rendered on ad hoc appointment can be considered for earning benefits of selection grade on completion of 12 years of service held thus:
"15.........services rendered either on ad hoc basis or as a stopgap arrangement, as in the case in hand from 1980 to 1982 cannot be held to be regular service for getting the benefits of the revised scale of pay or of the selection grade.........the prior service rendered by him on ad hoc basis cannot be held to be regular service and nor can it be tagged on to the later service for earning the benefit........"11
OA.No.170/00253/2022/CAT/BANGALORE
13. In the case of Punjab State Electricity Board and Ors vs Jagjiwan Ram and Ors reported in (2009) 3 SCC 661, the Hon'ble Apex Court has held thus:
"15. What to say of work-charged employees, even those appointed on ad hoc basis cannot claim parity with regular employees in the matter of pay fixation, grant of higher scales of pay, promotion etc......."
14. In the case of State of Punjab and Ors vs Ishar Singh and Ors reported in (2002) 10 SCC 674, the Hon'ble Apex Court has observed thus:
"2........The question for consideration is whether the ad hoc service rendered by them is to be included for the purpose of calculating 8 or 18 years' service which is required for giving them the higher scale of pay under the proficiency step-up scheme for seniority etc. This question was considered by this Court in the case of State of Haryana v. Haryana Veterinary & AHTS Assn. [(2000) 8 SCC 4], in which a three-Judge Bench of this Court held that the ad hoc service rendered by the employees is not to be included for the purpose of calculating 8/18 years of service; only regular service is to be counted for the purpose."12
OA.No.170/00253/2022/CAT/BANGALORE The same view is reiterated in State of Punjab and Ors vs Gurdeep Kumar Uppal and Ors reported in (2003) 11 SCC 732.
15. In the case of Anand Purohit vs Union of India and Ors in OA No. 1010/2010 dated 07.08.2013, CAT, Jabalpur Bench, Jabalpur, it has been observed thus:
"While it is true that the regular service has not been specifically defined in FR, there is no reason to accept adhoc service as regular service, as otherwise there was no need to make separate mention about ad hoc promotion in FR 22 and other rules under FR. The approved scheme for grant of higher Grade Pay of Rs.5400/- specifically mentions that only those officers are eligible, who complete four years of regular service as an Income Tax Officer. Thus, four year period is to be counted from the date of regular promotion and not from the date of ad hoc promotion."
16. In the case of Rajinder Kumar Sharma vs Union of India and Ors in OA No. 244/2010 dated 22.09.2011, CAT, Jammu Bench has held thus:
"7. The issue involved in this case is a short one i.e. as to whether the adhoc service rendered by the applicants in the grade pay of Rs.4800 is to be counted as eligible service of four years for grant of grade pay of Rs.5400 or not. The applicants 13 OA.No.170/00253/2022/CAT/BANGALORE claim that the term service used in the table showing fixation of pay, would include adhoc service also and thus their promotion made in 2003 cannot be excluded. If we accept this interpretation of learned counsel for the applicants, it would result in absurd results inasmuch as if a person is promoted on adhoc basis and such period is counted towards giving him grade pay of Rs.5400/-, then it would result in an anomalous situation, if he is reverted. The term service used in the Revised Service Rules, has to be taken as regular service only and as such the service rendered by the applicants on adhoc basis cannot be counted for grant of higher grade pay of Rs.5400/- and this has to be given only on completion of 4 years of regular service unless, the adhoc period is also regularized by the authorities, if it is so permissible under the rules."
17. In the light of the ratio enunciated by the Hon'ble Apex Court and the CAT referred to supra, the resultant position that emerges is that the period of ad hoc service cannot be included in calculating the period of service for giving the higher scale of pay. It is not in dispute that the applicant was promoted on regular basis only on 17.08.2020 against regular vacancy, as such, the applicant is eligible for grant of higher level of Pay Matrix (Level 9) corresponding to pre-revised grade pay of Rs. 5400/- only on completion of four years of regular service from 17.08.2020, i.e., the date he was promoted as Income Tax Officer - Regular. The period of ad hoc service rendered by him as Income Tax Officer - 14
OA.No.170/00253/2022/CAT/BANGALORE ad hoc, from 05.08.2016 to 16.08.2020 cannot be counted for determining four years of regular service in the cadre of Income Tax Officer. Hence, the impugned order cannot be faulted with.
18. For the reasons aforesaid, OA lacks merit and accordingly stands dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/