Central Administrative Tribunal - Ernakulam
Sujith P. Pai vs Union Of India Represented By on 29 July, 2016
Author: P. Gopinath
Bench: P. Gopinath
1 O.A No. 180/265/16 & 549/15
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. No.180/00265/2016
with
O.A. No. 180/00549/2015
Friday, this the 29th day of July, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
I O.A. No.180/00265/2016
1. Sujith P. Pai, S/s. G. Purushothama Pai,
Tax Assistant, O/o. Joint Commissioner
of Income Tax, Corporate Range, Kochi.
Residing at : Illickal Chira, CMC - 29
T.D. North, Cherthala, Alappuzha District - 688 524.
2. Sujith Kumar S, S/o. Sukumaran T.A,
Tax Assistant, O/o. Deputy Director of
Income Tax (Investigation), Aayakar Bhawan,
Sakthan Thamburan Nagar, Thrissur - 1,
Residing at : Thindiyath House,
Nedupuzha, Thrissur - 7.
3. Sam J. Joseph, S/o. Joseph,
Tax Assistant, O/o. Principal Commissioner of
Income Tax, Sasthri Road, Public Library Building,
Kottayam - 686 001. Residing at:
Nedumarutham Chalil, Vannapuram (P.O),
Thodupuzha, Idukki District.
4. V.S. Saji Kumar, S/o. Viswanathan (late),
Tax Assistant, Ward No. 12,
O/o. Joint Commissioner of Income Tax,
Range No.1, Kawdiyar, Thiruvananthapuram - 695 003.
Residing at : Thenguvila Veedu, Pidaram,
Perukavu (P.O), Thiruvananthapuram - 695 573.
5. Pradeep Gokul A.V, S/o. A. Gopalan,
Tax Assistant, O/o. The Commissioner of Income Tax,
C.R. Building, Mananchira, Kozhikode,
Residing at No. 13, Income Tax Staff Quarters,
Mananchira, Kozhikode - 5. - Applicants
(By Advocate Mr. T.C. Govindaswamy)
2 O.A No. 180/265/16 & 549/15
Versus
1. Union of India represented by
The Secretary to the Government of India,
Ministry of Finance, Department of Revenue,
New Delhi - 110 001.
2. The Chairman,
Central Board of Direct Taxes,
Ministry of Finance, Department of Revenue,
New Delhi - 110 001.
3. The Principal Chief Commissioner of Income Tax,
(CCA) Kerala, Central Revenue Building,
I.S Press Road, Cochin - 682 018.
4. The Deputy Director of Income Tax (HRD),
Central Board of Direct Taxes,
Directorate of Income Tax
(Human Resources Development)
ICADR Building, Plot No. 6,
Vasant Kunj Institutional Area Phase II,
New Delhi - 110 070. - Respondents
(By Advocate Mr. N. Anil Kumar, Senior PCGC)
II O.A No.180/00/549/2015
1. Rakesh G.S, S/o. C. Gopalakrishnan Nair,
Tax Assistant, O/o Principal Commissioner
of Income Tax, Aayakar Bhawan, Kowdiar,
Thiruvananthapuram - 3.
Residing at No. 205, Income Tax Staff Quarters,
Kowdiar, Thiruvananthapuram - 3.
2. Pradeep Gokul A.V, S/o. A. Gopalan,
Tax Assistant, O/o. The Commissioner of Income Tax,
C.R. Building, Mananchira, Kozhikode,
Residing at No. 13, Income Tax Staff Quarters,
Mananchira, Kozhikode - 5. - Applicants
(By Advocate Mr. T.C. Govindaswamy)
Versus
1. Union of India represented by
The Secretary to the Government of India,
Ministry of Finance, Department of Revenue,
New Delhi - 110 001.
3 O.A No. 180/265/16 & 549/15
2. The Chairman, Central Board of Direct Taxes,
Ministry of Finance, Department of Revenue,
New Delhi - 110 001.
3. The Principal Chief Commissioner of Income Tax,
(CCA) Kerala, Central Revenue Building,
I.S Press Road, Cochin - 682 018.
4. The Deputy Director of Income Tax (HRD),
Central Board of Direct Taxes,
Directorate of Income Tax
(Human Resources Development)
ICADR Building, Plot No. 6,
Vasant Kunj Institutional Area Phase II,
New Delhi - 110 070. - Respondents
(By Advocate Mr. N. Anil Kumar, Senior PCGC)
The application having been heard on 30.06.2016, the Tribunal
on 29.07.2016 delivered the following:
ORDER
Per: Mrs. P. Gopinath, Administrative Member The applicants herein are persons who are presently working as Tax Assistants under the 3rd respondent. The applicants came on inter- circle transfer from other charge/circles of the Income-tax Department. The 4th respondent under F. No. HRD/CM/102/10/2014-15/9293 dated 15.03.2016 says that the service rendered by the applicants in the previous charge would not be reckoned for the purpose of promotion. Applicants are person who have qualified in the departmental examinations for promotion to the post of Senior Tax Assistants and they have the requisite eligible service also. In this application, the applicants are aggrieved by the refusal on the part of the respondents to consider them for promotion to the post of Senior Tax Assistants since they have the requisite eligibility service.
4 O.A No. 180/265/16 & 549/15
2. The applicants 1 to 4 had initially joined the department in the Chennai Charge on 04.08.2012, 19.10.2012, 10.10.2012 and 06.09.2012 respectively. They joined the Cochin Commissionerate by transfer on loss of seniority on 08.08.2014, 06.08.2014, 08.08.2014 and 20.08.2014 respectively. The fifth applicant joined the Pune Charge on 15.06.2007. The said applicant while still in the Pune Charge was also promoted as Senior Tax Assistant. The said applicant was transferred to the Kerala Charge under the control of the 3rd respondent on 13.04.2015. The fifth applicant is a member of the Scheduled Tribe Community and therefore, entitled to reservation in promotion also. Counting the service rendered by the applicants in their previous charge/circle, the applicants have more than two years of service, which is the requisite eligibility service in the grade to be considered for promotion as Senior Tax Assistant. The eligibility service has been relaxed to 2 years instead of 3 years. Tax Assistants are in the scale of pay of PB-1 + GP Rs. 2,400/-, whereas, Senior Tax Assistants are in the scale of pay of PB-2 + GP Rs. 4,200/-. If the service rendered by the applicants in their previous charge were not to be considered for reckoning the requisite service, and (if the cut off eligibility service is reckoned as 01.04.2016) all the applicants would not be eligible to be considered for promotion. In this context, the applicants are aggrieved by the restrictions placed in paragraph 6 of A1 to the effect that the service rendered by the applicants in their previous charge/circle would not be considered for promotion as Senior Tax Assistants while 5 O.A No. 180/265/16 & 549/15 convening the DPC for promotion to the existing vacancies. There are as many as 100 vacancies under the 3 rd respondent for the vacancy year 2016-2017 but for want of eligible Tax Assistants only few would be filled up if the stand of the respondents were to be accepted. After convening the DPCs for the previous two years, there are still about 100 vacancies carried forward for the year 2016-2017 and the same principle in Annexure A-1 is to be followed. For the vacancies of the year 2014- 15 service rendered in the previous charge was also reckoned as per the directions of this Hon'ble Tribunal, which has now become final. It is submitted that there are a large number of vacancies and the applicants would very well fall within the zone of consideration in the order of their seniority for being promoted to the post of Senior Tax Assistant if para 6 of Annexure A-1 is struck down. The applicants argue that the question of counting the service rendered by the applicants in their previous charge/circle for the purpose of promotion has already been settled by a series of decisions of the Hon'ble Apex Court as also the Hon'ble Central Administrative Tribunals. Some of the decisions of the Hon'ble Apex Court are:-
(i) Renu Mallick v. UOI b� (1994) 1 SCC 373
(ii) Scientific Advisor to Raksha Mantra & Ors. v. V.M. Joseph b� 1998(5) SCC 305;
(iii) UOI & Ors. v. V.N. Bhatt b� 2003 (8) SCC 714.
3. It is submitted that in an identical case, this Tribunal was pleased to pass order in O.A Nos. 1103/2014 and connected cases which 6 O.A No. 180/265/16 & 549/15 were finally allowed by this Tribunal by order dated 04.08.2015, which is also understood to have been confirmed by the Hon'ble High Court.
4. Relief sought for by the applicants is to quash paragraph 6 of Annexure A-1 and to direct the respondents to consider and promote the applicants as Senior Tax Assistants for the vacancy year 2016-2017 with all the consequential benefits, at par with others who are being considered in the DPC for the vacancy year 2016-2017.
5. The respondents in their reply statement submit that the main grievance of the applicants is that the service rendered by them at Chennai/Poona charge was not counted for considering them for promotion at Cochin charge. It is submitted that the inter-charge transfers of the employees in the respondent department have been regulated and entertained on the basis of the terms and conditions stipulated in CBDT's letter F.No. A-22020/76/89-Ad-VII dated 14.05.1990, which has held the field till date, on an all India basis unchallenged across the country. It is submitted that paragraph Nos. 2(f) and 2(g) of Annexure R-1(a) would clearly bring out the fact that the applicants have no sustainable case before this Tribunal. It is submitted that the said condition, which according to the applicants is causing prejudice to them and therefore impugned before this Tribunal, was provided in the order so that the existing employees in the region to 7 O.A No. 180/265/16 & 549/15 which an employee is moving on transfer are not placed at a disadvantageous position vis-a-vis the new person coming on inter- charge transfer. The differentiation between original employees of a CA and those who come on inter region transfer is based on a rational differentia, viz., protecting of seniority and career aspirations of original employees of the region who had joined their regions on merit and not on account of compassionate reasons. In case the service rendered in the earlier region is counted then the very purpose of introduction of the above condition in the order would be defeated. The said condition was fixed on an all India basis, without discrimination to any particular employee. It is necessary to reproduce Annexure A-1 order whose para-6 is the impugned order.
'GOVERNMENT OF INDIA, MINISTRY OF FINANCE CENTRAL BOARD OF DIRECT TAXES DIRECTORATE OF INCOME TAX (HUMAN RESOURCE DEVELOPMENT) ICADR Building, Plot No.6, Vasant Kunj Institutional Area Phase-II New Delhi b� 110 070. Ph. 26130592, Fax 26130594.
________________________________________________________________ F.No.HRD/CM/102/2014-15/9293 Dated 15.03.2016.
To The Principal Chief Commissioner of Income Tax, Gujarat/Karnataka & Goa/Madhya Pradesh & Chattisgarh/ Rajasthan/UP (West) & Uttarakhand/Kerala/ West Bengal & Sikkim/UP(East)/Mumbai/Nagpur/Bihar & Jharkhand/Pune. Subject: Instruction for conducting of DPCs for group B&C grades for vacancy year 2016-17 b� reg.
Sir/Madam, Kindly refer to the subject mentioned above. DPCs are to be conducted for Group B & C grades by the Pr. CCsIT for the vacancy year 2016-17. The notification of revised Recruitment Rules for these grades, wherever required, is currently under process. Also, new Recruitment Rules are to be notified for the Executive Assistant Grade. All this is likely to take some more time. It would therefore be advisable to conduct DPCs for 2016-17 without awaiting notification of new/revised Recruitment Rules. 8 O.A No. 180/265/16 & 549/15
2.DoPT, vide their OM No. AB. 14017/79/2006-Estt.(RR) dt. 6..2007 has emphasized that as RRs are statutory in nature, they will not cease to operate unless they are repeated. The observations of the Supreme Court in UOI v/s. V. Ramakrishnan viz., 'Draft rules cannot form the basis of promotion when rules to the contrary are holding the field' have been reproduced in this O.M.
3. Accordingly, I am directed to request you to kindly conduct DPCs on basis of the existing Recruitment Rules for the respective grades for the vacancy year 2016-17.
4. For the 'Executive Assistant' (E.A) grade, which has been approved to be created by merger of the grades of OS, Sr. TA & Steno Gr. I, the new Recruitment Rules for Executive Assistant cadre are also not yet notified. Therefore, I am directed to clarify that current Recruitment Rules for the grades of OS, Sr. TA & Steno Gr. I (which would merge into the single cadre of Executive Assistant upon notification of the Recruitment Rules for the latter) may be utilized by DPCs. In other words, DPCs for promotion of Sr. TA to OS, TA to Sr. TA and Steno Gr. II (erstwhile Steno Grade III) to Steno Gr.I are to be conducted. The additional posts created under restructuring have already been distributed among OS, Sr. TA and Steno Grade-I, vide CBDT letter No. HRD/CM/102/10/2014-15/1510 dated 27.05.2014.
5. The Recruitment Rules of Tax Assistant, Notice Server and Staff Car Driver (OG) have been notified on 18-12-2015.
6. It is reiterated that as per the existing DoPT and CBDT instructions on inter-region transfer, for the purpose of reckoning prescribed years of regular service in the grade, the service rendered by an inter-region transferee in the old region shall not be counted in the new region which he has joined on such transfer, if the transfer is on the request of the officer concerned.
7. The above instruction will be applicable for vacancy year 2016-17. Separate instructions will be issued for vacancy year 2017-18.
Yours faithfully, Sd/-
Digvijai Kumar Chaudhary Deputy Director of Income-tax (HRD) New Delhi Copy to:
1. The webmanager www.irsoffieronline.gov.in with a request to place it on the website.
2. The webmanager www.incometaxindia.gov.in with a request to place it on the website.'
6. The situation is explained by the respondent by citing the example of a person 'X' who joins as Direct Recruitment Tax Assistant in Kerala against vacancy year 1996-97. He is granted an inter region transfer during the year 2001-02. As per the CBDT instructions in Annexure R-1, the period of earlier service is not be counted when the official gets an inter region transfer. Further the order provides that a 9 O.A No. 180/265/16 & 549/15 person coming on an inter region transfer is to be placed at the bottom of the seniority list in his grade and category. Thus, as per the extant orders, the Direct Recruit Tax Assistants recruited against 1996-97 vacancy year in Kerala Region would have completed 5 years of service in Kerala Region in the year 2002-03. If 'X' undergoes an inter region transfer in the year 2002-03 to Delhi Region he would have been recruited against vacancy year 2002-03. As per the extant CBDT orders, both Direct Recruit TAs of Delhi Region of 2002-03 and the inter region transfer official 'X' would complete their eligibility period of 3 years for promotion to rank of Sr. TA in the year 2006-07 and they would be eligible for promotion by DPC for vacancy year 2006-07 in order of seniority. Similarly the applicants who joined on 13.01.2014 and 13.04.2015 respectively were eligible for promotion to the cadre of Senior Tax Assistant only after the completion of 3 years. By virtue of excluding para 6 of Annexure A-1, the inter region transferee official 'X', by virtue of having passed the departmental examination as well as having completed eligibility period of 3 years would be considered for promotion in the DPC for the year 2003-04 itself and all the other Tax Assistants for the vacancy year 2002-03 senior to him would be ineligible because they would not have completed the eligibility period.
In the event of para 5 of Annexure A-1 is to be excluded, it would result in rendering the system unworkable in practice, causing loss and injury to the otherwise eligible candidates.
10 O.A No. 180/265/16 & 549/15
7. As on 01.04.2016 (crucial date of eligibility as per DOPT OM dated 28.05.2014) 1st to 4th applicants have completed less than two years in this region and 5th applicant has completed only 11 months and 17 days in this region. Since the minimum regular service required for promotion from TA to Senior TA as per the existing Recruitment Rules is 3 years' regular service in TA Grade, the applicants could not be included in the Select List panel for promotion. Respondent also submits that the question regarding the counting of the service rendered in the previous charge is now pending before the Hon'ble Supreme Court in SLP No. 3479/2016.
8. The Jodhpur Bench of the Central Administrative Tribunal in O.A No. 522/2011 with M.A No. 64/2012 has directed the respondents to consider the service of the applicant from the date of appointment from Gujarat Region from where he was transferred to Rajasthan. The Jodhpur Bench rendered the above judgment on the basis of decision of the Principal Bench in O.A No. 2406/2005 in Promod Kumar v. Union of India. The Principal Bench rendered the judgment based on the Supreme Court judgment in Renu Malik v. Union of India 1994 (1) SCC 373. The respondent department had challenged the above judgment before the Hon'ble High Court of Rajasthan in DBC W.P No. 5148/2013. The above DBC WP was dismissed by the Hon'ble High Court on 26.05.2015. The Department had filed SLP (Civil) No. 3479/2016 against the order of the Hon'ble High Court of Rajasthan. 11 O.A No. 180/265/16 & 549/15 The Hon'ble Supreme Court issued an interim stay in C.C No. 1691/2016 by which operation and implementation of order in O.A No. 522/2011 and DB Civil Writ Petition No. 5148/2013 is stayed. The respondent has also filed OP (CAT) before the Hon'ble High Court of Kerala against the order of this Tribunal in O.A No. 180/1103/2014 dated 04.08.2015. The question regarding counting of the service rendered in the previous charge for promotion is now pending before the Apex Court and Apex Court has stayed the operation and implementation of the judgment which has directed the department to count the previous service.
'29. .................Even otherwise, in our considered opinion, the two concepts, viz. (i)'eligibility' and (ii)'seniority' are quite distinct, different and independent of each other. A person may be eligible, fit or qualified to be considered for promotion. It does not, however, necessarily mean that he must be treated as having requisite' seniority' for entry in the zone of consideration. Even if he fulfils the first requirement, but does not come within the zone of consideration in the light of his position and placement in' seniority' and the second conditions is not fulfilled, he cannot claim consideration merely on the basis of his eligibility or qualification. It is only at the time when 'seniority' cases of other employees similarly placed are considered that his case must also be considered.'
34. In our opinion, Renu Mullick also supports the view which we are inclined to take, namely, that an employee who is transferred to other Collectorate does not lose his/her past service for the purpose of considering his/her eligibility. But, if such transfer is voluntary or unilateral on condition that he/she will be placed at the bottom of the seniority list in the transferee Department, the said condition would bind him/her and he/she cannot claim seniority over the employees in the transferee Department.
35. Finally, in Scientific Advisor to Raksha Mantri & Anr. v. V.M. Joseph (1998) 5 SCC 305, again, a similar view has been taken by this Court. It was held that if the eligibility condition requires certain length of service, service rendered in another organization before unilateral transfer at own request cannot be counted for the purpose of seniority. But it must be counted for determining eligibility for promotion.'
9. There are three issues which come into play in the case of inter commissionerate transfer - the total length of service in old and new 12 O.A No. 180/265/16 & 549/15 commissionerate which will contribute to and add upto the qualifying service, bottom seniority of applicant in the transferred commissionerate and the qualifying service on the basis of service in old and new commissionerate which if considered disturbs the seniority of those above the transferees who do not possess the qualifying service. The applicants qualify on the basis of taking cognisance of service in old and transferred commissionerates. But though applicants have the qualifying service as pronounced in Renu Malik case, the applicants would supercede their seniors who do not have the qualifying service. Here the decision of the Apex Court in UOI v. Deo Narain (2008) 10 SCC 84 and others is applicable wherein it was contended that eligibility and seniority are distinct, different and independent. The persons placed above the applicants satisfy the criteria of seniority but are not satisfying the eligibility of qualifying service and hence are not eligible for promotion. The petitioners would argue that they have only foregone their seniority but not their qualifying service and their seniors are to be assessed by the note in column 12 of the Recruitment Rules which states:
'If a junior person is considered for promotion on the basis of his completing the prescribed qualifying period of service in that grade, all persons senior to him in the grade shall also be considered for promotion notwithstanding that they may not have rendered the prescribed qualifying period of service in that grade------' But what follows thereafter as reproduced below is a stumbling block for the seniors .
'notwithstanding that they may not have rendered the prescribed qualifying period of service in that grade but have completed successfully the prescribed period of probation.'(emphasis supplied). 13 O.A No. 180/265/16 & 549/15
10. The counsel for the respondents argues that those above the applicant have not completed the prescribed period of probation and hence will be superseded if applicant is promoted on the ground of qualifying service. This would be a serious injustice. Giving the benefit of qualifying service would mean seniors would remain unpromoted and where they are, whereas applicants who on loss of seniority are below would get a jump and head start over them, virtually restoring their seniority which was not intended when conditions of inter- commissionerate transfer was drafted. Learned counsel for the respondents brings to our notice that there are 24 persons above the transferee applicants who have not completed the condition of two years probation as stated in Note 1 below Column 12 of the Recruitment Rules, whose seniority would be affected if the applicants are promoted. He argues that the respondent department has taken the matter to the Apex Court and one of the grounds raised is that transferee juniors can be promoted only if no seniors remain not promoted due to qualifying conditions in the Recruitment Rules. Hence they are praying for, not wiping out seniority by such similarly placed applicants.
11. The facts of this case are that 24 persons placed above the transferee applicants have not completed the mandated condition of 2 year probation and hence are ineligible for promotion. In Deo Narain case cited supra, the Apex Court had held that such juniors would have 14 O.A No. 180/265/16 & 549/15 to wait for their turn in order of seniority to get their promotion and taking any other view would be perpetuating injustice. If any of the seniors have not completed probation they cannot be superceded by applicants, who would have to await their turn, eligibility and seniority being distinct, different, and independent as held in Deo Narain and Ponnappan case by Apex Court. There could be situations where a person satisfying the conditions of seniority may not be eligible on the basis of some other conditions for which a relaxation of the recruitment rule is not provided. Such a situation of ineligibility should not be allowed to upset the seniority of the seniors or cause him injustice in the chain of promotion. If the persons above the applicant are ineligible for whatever reasons, the junior applicants cannot be considered for promotion by upsetting the applecart of seniority, or by overlooking seniority which they have earned in the commissionerate. The solution that emerges is that applicants can be considered for promotion if all seniors above them are promoted by applying all available conditions of relaxation and no senior remains not promoted. The ratio that past service of the applicant is not wiped off as decided by Apex Court in Renu Malik Case has been distinguished by the Apex Court in Deo Narain case. The applicants cannot steal a march over the seniors.
12. No consideration can be claimed by applicant merely on the ground of eligibility of length of service in the recruitment rules. The 15 O.A No. 180/265/16 & 549/15 eligibility in the case of inter-commissionerate transferees should be read with the seniority position, successfully qualifying the eligibility conditions by the seniors in the seniority list, and by not upsetting the seniority of those placed above applicants permanently. Juniors cannot be allowed to overtake or supercede seniors. Applicants are aware that they were allowed inter-commissionerate transfers on bottom seniority. Hence, their seniority position has been fixed when applicants moved on their own volition and this needs no further interference. Promotion of applicants can be considered and effected only if all the seniors above them are promoted and there remains no senior unpromoted due to qualifying conditions in the recruitment rules. There can be no promotion by wiping out seniority, as this would be causing an injustice to seniors in the transferred commissionerate which should not be encouraged or allowed as it will result in injustice.
13. The Original Application is dismissed. In view of the above order, M.A No. 1278/2015 (for direction), M.A No. 449/2016 (for direction) in O.A No. 549/15 and M.A No. 468/2016 (for stay) in O.A No. 265/16 are closed. No order as to costs.
(Dated, this the 29th day of July, 2016)
(Mrs. P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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