Central Administrative Tribunal - Chandigarh
Vinod Kumar Kharra S/O Sh. Kishan Lal vs Union Of India Through Chairman on 14 December, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
OA No. 060/00268/2015
Pronounced on : 14.12.2016
Reserved on : 08.12.2016
CORAM: HONBLE MR.SANJEEV KAUSHIK, MEMBER(J)
HONBLE MRS.RAJWANT SANDHU,MEMBER(A)
1. Vinod Kumar Kharra S/o Sh. Kishan Lal, Office of the Additional Commissioner of Income Tax, Range-2, Gurgaon.
2. Jwale Kant Patel S/o Late Sh. Ramkishun Mahto Office of the Commissioner of Income Tax (Audit), Chandigarh.
3. Ashutosh Kumar S/o Sh. Ravi Bhushan Sharma Office of Income Tax Officer Ward 3(4), Chandigarh.
4. Akhilesh Kumar Parmatma Ji S/o Sh. Tripurari Sahay Office of The Pr. Commissioner of Income Tax-2, Chandigarh.
.Applicants
BY ADVOCATE: Sh. Rohit Seth
VERSUS
1. Union of India through Chairman, CBDT, North Block, New Delhi.
2. Principal CCIT, North West Region, Aayakar Bhawan, Sector 17, Chandigarh.
3. Director General of Income Tax (HRD), Directorate of Income Tax, ICADR Building, Plot No. 6, Vasant Kunj, Institutional Area Phase II, New Delhi 110 070.
..Respondents
BY ADVOCATE: Sh. K.K. Thakur
ORDER
HONBLE MRS. RAJWANT SANDHU, MEMBER(A):-
1. The present OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s):-
(i) Quash action of respondents in not promoting the applicants as Inspectors against panel year 2013-14 by giving effect to the recommendations made by the review DPC Meeting held on 25.11.2014, which met after acceptance of eligibility of applicants in their O.A NO. 060/00432/2014 titled as Akhilesh Kumar Parmatma Ji and others versus Union of India and Anr. decided on 31.10.2014 (Annexure A-14) from fruits of which respondents are depriving the applicants, in which 92 persons including applicants stood recommended for promotion as Inspectors against panel year 2013-14 including 68 Chain vacancies, based upon which promotion orders as Inspectors dated 28.11.2014 (Annexure A-17) were issued qua 24 incumbents while Principal CCIT sought clarification from the CBDT vide letter dated 29.09.2014 and 24.11.2014 (Annexure A-18 Colly) with regard to operation of chain vacancies which clarification has not come till date.
ii) Direct the respondents to promote the applicants as Inspectors of Income Tax by operating the panel of year 2013-14 from due dates when other incumbents in eligibility lists were first promoted against said panel with all consequential benefits by giving effect to the recommendation by the review DPC meeting dated 25.11.2014 by operating the chain vacancies in the light of DOPT O.Ms dated 08.09.1998, 06.10.1999, 10.04.1989, 15.05.2007 and 06.01.2006 (Annexure A-24 to A-28).
2. It is stated in the OA that the applicants on the basis of their selection by SSC in Tax Assistant Examination 2006 joined as Tax Assistant in the pay scale of Rs. 4000-100-6000 (pre-revised) on 10.04.2008, 13.02.2009, 27.02.2008 and 23.01.2008 respectively. Names of some of their batch mates namely Sh. Bipin Kumar, Sanjay Prasad and Pankaj Vishwakarma were also included in the allocation list at serial No. 617, 1929 and 2424. The particulars of those persons are annexed (Annexure A-3). These persons who are junior to the applicants in SSC list and stood promoted to the post of Inspector of Income Tax for the panel year 2013-14 by taking into account Chain Vacancies in their respective regions. The extract of promotion orders of aforesaid persons pertaining to Mumbai Region dated 19.06.2014 of Sh. Bipin Kumar who is reflected at serial no. 283 dated 22.09.2014 as to promotion against chain vacancies, Promotion Order of Bhopal Region dated 05.06.2014 of Sh. Sanjay Parshad, Order of Pune Region dated 25.11.2014 of Sh. Pankaj Vishawkarma, relevant extract of aforesaid orders are enclosed (Annexure A-4 Colly, A-5 and A-6). Applicants have also come across another order passed by Principal CCIT, Chennai dated 02.09.2014 (relevant extract Annexure A-7) promoting the incumbents to the rank of Inspectors by taking into consideration chain vacancies for the panel year 2013-14.
3. Since the respondents had earlier taken a view that for promotion as Inspector, three years qualifying service was required as Sr. TA, applicants No. 3 & 4 approached the Tribunal through OA No. 060/00432/2014 titled as Akhilesh Kumar Parmatma Ji & Ors. Vs. UOI & Anr. decided on 31.10.2014 (Annexure A-14). Vide order dated 31.10.2014, a direction was given to the respondents to complete the process of promotion of eligible applicants to the post of Inspector within a period of three months. An eligibility list of 90 Office Superintendents, Sr. TAs/Stenographers was thereafter circulated on 03.11.2014 (Annexure A-15) for conducting the review DPC. The names of the applicants were mentioned at Sr. No. 26, 50, 82 and 88 based upon the seniority at Sr. No. 79, 81, 87 and 90 in the eligibility list based upon date of passing of the Inspector Grade Examination. The list dated 03.11.2014 was later on revised vide letter dated 17/18.11.2014 (Annexure A-16) in which 94 persons were reflected to be eligible for promotion. Review meeting of DPC was held on 19.11.2014 and only 24 vacancies were provided for making promotion to the post of Inspectors. Another review meeting of DPC was held on 25.11.2014 in which 92 persons were recommended for promotion as Inspectors against panel year 2013-2014 including 61 chain vacancies. However, promotion orders were issued only regarding 24 Sr. TAs, leaving behind other eligible candidates including applicants who were duly recommended by the DPC.
4. Later on, eligibility list for consideration and promotion as Inspectors for the panel year 2014-2015 was circulated vide letter dated 03.12.2014 (Annexure A-20) in which names of the applicants were also reflected. Due to the lapse of time in considering and promoting the applicants against panel year 2014-2015, many more incumbents came to be placed over and above them in the eligibility list as those persons who were not eligible to be considered and promoted as Inspectors for panel year 2013-2014, became eligible by clearing the Departmental Examination for Income Tax Inspector. The action of the respondents in not promoting the applicants against the panel year 2013-2014 by taking into consideration the chain vacancies, the respondents have treated the applicants unjustly. Hence this OA.
5. In the written statement filed on behalf of the respondents, it has been stated that the applicants joined service as Tax Assistant in the pay scale of Rs.4000-100-6000 (pre-revised) on 10.04.2008, 13.02.2009, 27.02.2008 and 23.01.2008 respectively. The claim of the applicants for promotion against panel year 2013-14 based on the plea that some of their batch mates who had joined Mumbai, Bhopal, Pune & Chennai Regions got promoted as Income Tax Inspectors in the Select Panel of Recruitment Year 2013-14 (Re-structuring). The Seniority List in the cadre of Tax Assistant, Senior Tax Assistant, Office Superintendent & Income Tax Inspectors is maintained on Regional Basis (i.e. at the level of Cadre Controlling Pr. CCsIT) and accordingly the DPC meetings for promotions from the grades of Tax Assistant to Inspector & Inspector to Income Tax Officer are conducted region wise on the basis of number of available vacancies and the Seniority List. Moreover, there are 18 Regions (Cadre Controlling Pr. CCsIT) in the country and each region has its own sanctioned strength and seniority list. Therefore, the promotions in one region cannot be equated / compared with the promotions in other regions as there is bound to be certain time gap among the candidates of same batch as they are posted in different Regions.
6. The Eligibility Lists for promotion to the post of Income Tax Inspector for Recruitment Year 2013-14 (Re-structuring) & Recruitment Year 2014-15 in the N.W. Region were circulated on 15.04.2015. The names of the applicants were not included in both the lists because they were not considered eligible as a clarification regarding their eligibility was sought from the DIT (HRD), CBDT, New Delhi. The DPC for Recruitment Year 2013-14 (Re-structuring) for promotion to the cadre of Income Tax Inspector was held on 16.05.2014. This DPC was held subject to the clarification sought from the DIT (HRD), CBDT, New Delhi and the decision of O.A.No. 060/00432/2014 in the case of Sh. Akhilesh Kumar Parmatma Ji Vs. Union of India. In this DPC, only those candidates were considered eligible for promotion to the cadre of Income Tax Inspector who had completed a minimum service of Three Years in the cadre of Sr. Tax Assistant as on 01.01.2013. Another contention of the applicant i.e Sh. Akhilesh Kumar Parmatma Ji & Others before this Tribunal in O.A.No. 060/00432/2014 in the case of Sh. Akhilesh Kumar Parmatma Ji Vs. Union of India was that their names should be considered for promotion to the cadre of Inspector for the Recruitment Year 2013-14 (Re-structuring) as the clause of thee years qualifying service in the feeder grade related to cumulative length of service in the grade of tax Assistant & Senior Tax Assistant combined and not with reference to the individual cadre of Senior Tax Assistant. Thus, instructions / clarifications were solicited in this regard from the Director General of Income Tax (HRD), New Delhi vide letter No. CC/CHD/CB-I/2013-14/110 dated 16.05.2014 (copy enclosed as Annexure R-1). This Tribunal was also informed that a decision on this issue would be taken after the receipt of instructions from the Director General of income Tax (HRD), New Delhi. A clarification in this regard was received from the DIT (HRD), New Delhi vide letter F.No. HRD/CM123/4/2012-13/4058 dated 12.09.2014. The relevant extract of the same is reproduced as under :-
CBDT vide letter F.No. 41015/19/2002-Ad.VII (PT. II) dated 07.03.2005 instructed that DPC for promotion to the post of Income Tax Inspector, Office Superintendent and Stenographer Grade I for the years 2002-03 onwards may be held accordingly to CBDT instructions No. 48/1/2001-AP/DoMS/141 dated 4th June, 2001 for the year 2001-02 till further orders. No such order as to amend DOMS instruction referred has been made. The DoMS instructions refer supra specifically stated that the requisite years of service in the respective grade as three and should have qualified the Departmental Examination for Income Tax Inspectors.
7. The additional Posts were created in all the cadres of the Income Tax Department as a result of Cadre Re-structuring Plan and 104 new posts of Income Tax Officers & 233 new posts of Income Tax Inspectors were allocated to this region. Out of 233 new posts of Income Tax Inspectors created as a consequence of the Cadre Re-structuring Plan, 78 posts (i.e. 1/3rd of 233) were kept for Direct Recruit Candidates and the remaining 155 posts (i.e. 233-78) were considered and filled through promotion quota in the DPC meeting for panel year 2013-14 (Re-structuring). In so far as the plea of the applicants qua consequential chain vacancies, is concerned, it may be clarified that at the time of holding DPC meeting for promotion to the cadre of Income Tax Inspectors for Recruitment Year 2013-14 (Re-structuring), the total number of vacancies were calculated as 155 on the basis of DoPTs O.M. No. 22011/9/98 Estt. (D) dated 06.10.1999 (Annexure R-2). A tabular description of the same is as under:
Newly created Posts of Inspectors as a result of Cadre Restructuring 233 Vacancies to be filled under Direct Recruitment Quota (i.e. 1/3rd of above) 78 Vacancies available for promotion (i.e. 233-78) 155 However, a representation was received from some officials working in North West Region who were of the opinion that 105 Consequential Chain Vacancies created on account of promotion of 105 Income Tax Inspectors to the cadre of Income Tax Officers in the DPC held on 09/05/2014 for Recruitment Year 2013-14 (Re-structuring) should also be taken into consideration while arising at the number of available vacancies in the cadre of Income Tax Inspectors for DPC meeting of Recruitment Year 2013-14 (Re-structuring). Accordingly, a clarification on this issue was sought from the o/o The Member (P&V), CBDT, New Delhi vide letter No. 132-133 dated 29.09.2014 (Annexure R-3). Subsequently, the DPC meeting for Recruitment Year 2013-14 (Re-structuring) was held subject to the clarification of the Board & the promotion orders of 155 Income Tax Inspectors for Recruitment year 2013-14 (Re-structuring) were released on the basis of vacancies calculated as above. The consequential chain vacancies that got created due to promotion of Income Tax Inspectors to the Cadre of Income Tax Officer were created on 09.05.2014 (i.e. Financial Year 2014-15) and accordingly, were not considered & filled in the DPC meeting held for Recruitment Year 2013-14 (Re-structuring) but were considered & duly filled in the DPC meeting held for Recruitment Year 2014-15.
8. All the applicants got promoted as Income Tax Inspectors as per the DPC meeting held for Recruitment Year 2014-15. Keeping in view the DIT (HRD), New Delhis clarification letter F.No. HRD/CM123/4/2012-13/4058 dated 12.09.2014 and the directions of this Tribunal dated 31.10.2014 in O.A.No.060/00432/2014 - Sh. Akhilesh Kumar Parmatma Ji Vs. Union of India etc., the applicants were considered eligible for promotion to the cadre of Income Tax Inspector and the Review DPC meeting for Recruitment Year 2013-14 (Re-structuring) was convened on 25.11.2014 for reviewing the minutes of DPC for Recruitment year 2013-14 (Re-structuring). As a consequence of the Review DPC meeting dated 25.11.2014, 24 officials were promoted to the cadre of Income Tax Inspector. At that time all the applicants were considered eligible for promotion. However, they could not get promotion as sufficient number of vacancies was not available in the Select Panel for Recruitment Year 2013-14 (Re-structuring). At the time of this Review DPC Meeting, there was a difference of opinion among the members of the DPC on the issue of Consequential Chain Vacancies. The majority of the DPC members were of the opinion that the Consequential Chain Vacancies should be taken into consideration for arriving at the vacancy position for preparing the Select Panel of R.Y. 2013-14 (Re-structuring) and accordingly, the DPC recommended the names of 92 persons (i.e. 24 + 68 vacancies on account of Consequential Chain vacancies. However, when the recommendations of the DPC were put up before the Principal CCIT, NWR, Chandigarh, he was of the view that as per the DoPTs O.M. No.22011/9/98 Estt. (D) dated 06.10.1999, the Consequential Chain vacancies) cannot be taken in account for preparing the Select Panel of Recruitment Year 2013-14 (Re-structuring) and the said Consequential Chain Vacancies should instead be considered at the time of preparing the Select Panel Recruitment Year 2014-15. It was further decided that since a clarification on this issue has been sought from the office of The Member (P&V), CBDT, New Delhi vide letter No.132-133 dated 29.09.2014, the Consequential Chain Vacancies should not be considered in Recruitment Year 2013-14 (Re-structuring) till clarification is received from the Board in this regard.
9. With regard to the contention of the applicants that some officials have stolen a march over them in the subsequent panel year 2014-15 by clearing the Income Tax Inspector Qualifying Examination, it is stated that as per the Recruitment Rules, one of the pre-requisite conditions for promotion to the cadre of Income Tax Inspector is that the official must have qualified the Departmental Examination for Income Tax Inspector. Some officials who were otherwise senior to the applicants were not considered eligible for promotion in the Recruitment Year 2013-14 (Re-structuring), as they had not qualified the Departmental Income Tax Inspector Examination as on 01.01.2013, the cut-off date for determining eligibility for Recruitment Year 2013-14. However, as on 01/01/2014, the cut-off date for determining the Eligibility for Recruitment Year 2014-15, the officials (who the applicants are alleging to have stolen a march over them) had duly qualified the Income Tax Inspector Departmental Examination and accordingly were considered eligible for promotion. Since, they were otherwise senior to the applicants, they were placed senior to the applicants in the Select Panel for Recruitment Year 2014-15. Thus, it is apparent that no irregularity whatsoever was committed by the Department.
10. In the rejoinder filed on behalf of the applicant, it has been stated that at the time of holding of DPC meeting for promotion to the cadre of Income Tax Inspector for the year 2013-14 on 16.05.2014, the DPC meeting for promotion to the cadre of ITOs had already met and promotion orders had been released to all the promoted officials and they had joined. Hence, these chain vacancies should have been calculated at the time of DPC for promotion of the applicants to the cadre of Inspectors for the year 2013-14.
11. MA No. 060/01496/2016 was filed on behalf of the respondents seeking to place on record letter dated 11.12.2015 (Annexure R-1/4). It has been stated in MA that the CBDT, New Delhi had forwarded a letter dated 11.12.2015 to the effect that Where DPCs in the higher grades are being held, not as per model calendar, especially after the end of the vacancy year, the chain vacancies do not rise in the concerned grade during the year. This has been made clear in the DOPT OM dated 08.09.1998. The DoPT also has made it clear in OM dated 6.10.1999 that the chain vacancies on account of retirement etc., in the higher grades in a vacancy (panel) year shall include: the vacancies which can be clearly anticipated as likely to become available in the concerned grade by promotion of officers of the service to higher grades during that vacancy (panel) year). Thus, the chain vacancies arising on account of promotion to the higher grade referred to in the DoPT O.M. No. 22011/9/98 Estt (D) dated 06.10.99, are to be considered for the purpose of holding a DPC in a particular cadre. Out of the officers whose names appear in the Panel approved by the DPC, only those officers will be promoted as there are actual vacancies in a particular vacancy year. If for some reason, promotions in the higher cadre do not actually take place in a vacancy year and consequent vacancies do not arise during that year, corresponding promotions for the lower cadres cannot be made, there being no existing vacancies at that time. Vacancies which can be clearly anticipated as likely to become available in the concerned grade referred to in the O.M dated 06.10.1999 will be relevant only when the DPC is being held prior to or during the vacancy year. In case it is held after the vacancy year, exact vacancies for that year are exactly known and question of anticipated vacancies does not arise.
12. Arguments advanced by the learned counsel for the parties were heard when learned counsel for the applicant pressed that on the date when the review DPCs were held for the vacancy year 2013-2014 for filling the posts of ITIs, some Income Tax Inspectors had already been promoted as ITOs and hence, the chain vacancies should have been taken into account and recommendation of the DPC regarding filling the clear vacancies plus chain vacancies should have been accepted. It is because the chain vacancies were not filled in the vacancy year 2013-2014 that the applicants were denied promotion. In the year 2014-2015, because additional persons entered eligibility list on account of having cleared the Inspectors Grade Examination, the applicants got lower seniority.
13. Learned counsel for the respondents reiterated the content of the written statement as well as the clarification issued by CBDT vide letter dated 11.12.2015 (Annexure R-1/4 with the MA No. 060/01496/2016).
14. We have given our careful consideration to the matter. From the material on record it is clear that the Inspectors of Income Tax were promoted as ITOs as per recommendations of the DPC that met on 09.05.2014 and their promotion orders were issued subsequently. Hence the consequential vacancies of ITIs arose in 2014-15. Promotions to these posts of ITIs had to take place only after these vacancies arose and hence cannot be relegated to 2013-14 even through these are chain vacancies and the promotion as ITOs related to panel year 2013-14. There are not chain vacancies of 2013-14 but are of 2014-15. The applicants have been considered for inclusion in the panels of 2013-14 as well as 2014-15. They could not make the grade in 2013-14, in view of insufficient members of vacancies of ITIs. They did get their promotions as ITI in panel year 2014-15. Their placement in this panel took into account the eligibility and seniority of the persons recommended for promotion as ITIs.
15. Hence, we conclude that there is no merit in this OA and the same is rejected.
(RAJWANT SANDHU) MEMBER(A) (SANJEEV KAUSHIK) MEMBER(J) Dated:
ND* 1 O.A. 060/00268/2015