Central Administrative Tribunal - Chandigarh
J.D. Sandhu S/O Shri Munshi Ram Sandhu vs Union Of India Through The Secretary on 25 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH Order reserved on: 03.10. 2013 ORIGINAL APPLICATION NO. 729- PB of 2013 Chandigarh, this the 25th day of October , 2013 CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER(J) HONBLE MS. RAJWANT SANDHU, MEMBER (A) J.D. Sandhu s/o Shri Munshi Ram Sandhu, F.M.- 241, Model House, Jalandhar. APPLICANT BY ADVOCATE: APPLICANT IN PERSON. VERSUS 1.Union of India through the Secretary, Govt. of India, Ministry of Finance, Department of Revenue, New Delhi. 2.The Chief Commissioner of Income Tax, North Western Region, Sector 17-E, Chandigarh. RESPONDENTS BY ADVOCATE: SH. K.K. THAKUR ORDER
HONBLE MS. RAJWANT SANDHU, MEMBER(A):-
This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
That the applicant be allowed promotion as Inspector of Income Tax w.e.f. 5.6.1984 as per Annexure A-11, Income Tax Officer as per Chart B of Annexure A-14 and further promotion as Assistant Commissioner of Income Tax and Deputy Commissioner of Income Tax from the appropriate dates with all consequential benefits in view of the law laid down by the Apex Court in the case of Lalji Dubay Vs. Union of India & Ors., 1983 (1) SCC 542 and Arun Kumar Chatterji vs. South Eastern Railways 1985 (4) SLR-500 and the decision of this Tribunal rendered in the case of B.S. Dehiya Vs. UOI & Ors. vide order dated 1.4.1987.
2. Brief facts of the case are that the applicant initially joined the respondent department as LDC on 14.6.1965 and earned various promotions as UDC on 30.12.1969, Tax Assistant on 10.8.1978, Head Clerk on 21.7.1983, Supervisor on 19.5.1988, Inspector of Income Tax on 19.8.1988 and Income Tax Officer on 13.5.1996 and retired as such on 31.5.2005. Initially applicant filed a representation dated 10.12.1990 seeking promotion as Income Tax Inspector from 5.6.1984. His representation was rejected by the Chief Commissioner of Income Tax vide letter dated 26.3.1991. Thereafter O.A. NO. 662 of 1991 was filed by the applicant on 31.5.1991 which was decided by this Tribunal vide order dated 11.10.1999 (Annexure A-16) and directions were given to respondent no.2 as follows:-
In the circumstances of the instant case, we think it proper to direct the respondent no.4 the Commissioner of Income Tax, Patiala to consider the representation of the applicant and dispose of the same within a period of two months from the date of receipt of this order by speaking order and after hearing the applicant. In case the applicant still feels aggrieved, he will be at liberty to approach this Tribunal. Thereafter the CIT Jalandhar vide letter dated 7.4.2000 (Annexure A-4) informed the applicant as under:-
It is conveyed that the contention with regard to early promotion as advanced by you have been carefully considered and noticed that the Recruitment Rules of the Inspector of Income Tax and number of judgments etc. quoted by you are found to be without pointing out it any way specifically as to in what manner any of your rights has been adversely effected by the action of the Department. You have also not given any instance for effecting your promotion due to Departments action. The Department has been following prescribed procedure in implementing the Recruitment Rules and the Reservation Policy in letter and spirit.
It is also conveyed that since you have not been able to make out any cogent case. Your representation appears to be misconceived and in the circumstances, having no option, your representation has been rejected by the Chief Commissioner of Income, Chandigarh.
I am further directed to inform you that your case can however be considered in case you make out a clear-cut case bringing out the injustice done to you on the matter.
3. The applicant has claimed that these orders were passed without giving him a personal hearing which was in violation of the order of this Tribunal dated 11.10.1999 and through order dated 7.4.2000 he was directed to make out a clear-cut case bringing out the injustice done in the matter. He could not make out the clear-cut case till the information asked for by him was supplied. The applicant has sought to explain the delay in filing the present O.A. relating to his claim for deemed date of promotion from 5.6.1984 to 1.1.2010 (date of filing of representation) i.e. 25 years 6 months and 25 days with detailed explanation regarding time taken in disposal of the O.A. No. 662 of 1991 and time taken for obtaining the information ( 14.6.2000 to 1.1.2010). While challenging the date of his promotion as Income Tax Inspector the applicant has stated that as per column NO. 11 of the Income Tax (Inspector) Recruitment Rules, 1969, Upper Division Clerks and Higher Ministerial Grade, Stenographers (Ordinary grade) and Stenographers (Selection Grade) with three years service in the respective grade, who have qualified the Departmental Examination for Inspector are eligible for promotion. The names of all the qualified persons will be arranged in two separate lists. In the first list, the names of all the qualified persons will be arranged in order of their seniority in the department. In the second list the names of all the qualified persons will be arranged according to the date/year of passing the Departmental Examination, provided that the persons who pass the examination on the same date will be arranged according to their seniority in the Department. After the approval of the persons in the said lists by the DPC the names of all selected candidates will be embodied in two separate select lists. The vacancies in the promotion quota will be filled alternately from the two lists. In this regard the applicant has questioned whether the quota fixed for promotion for the post of Inspector of Income Tax on the basis of seniority is valid and has placed reliance on the Judgment of Honble Apex Court in the case of Dr. Jai Narayan Mishra Vs. State of Bihar, AIR 1971 SC 1318 wherein in para 3 it has been held that while considering promotion in a selection post the question of seniority is not relevant. The applicant has also placed reliance on the Judgments rendered by the Honble Apex Court in Md. Hussain Vs. Andhra Pradesh State Road Transport Corporation (19.08.1998) and The Central Council for Research in Ayurveda & Siddha Vs. Dr. K. Santha Kumari (2000) RD-SC 275. It is claimed in the O.A. that the entire column no. 11 of the Recruitment Rules for the post of Inspector were declared void as offending Articles 14 and 16 of the Constitution by the Principal Bench of this Tribunal in O.A. no. 846 of 1986 ( K.C. Sharma Vs. CCA, New Delhi decided on 27.11.1992. Applicant has asserted that in view of these Judgments, the Rules laid down for promotion to the post of Income Tax Inspector which is a selection post on the basis of seniority are not valid in the eyes of law and the promotions should have been held on the principle of merit-cum-seniority.
4. The next issue raised by the applicant relates to whether roster points are seniority points since respondent no.2 has stated in response to the representation of the applicant that roster points are not seniority points but are only an aid to determine the entitlement of different categories with regard to the quota reserved for them and that the roster is not to determine seniority or to give any right of seniority to the persons, it is only indicative of the posts filled by persons of various categories. The applicant has placed reliance on the Judgment rendered by Honble Apex Court in the case of R.K. Sabharwal Vs. State of Punjab, AIR 1995 SC 1371 wherein it has been held in para 4 that percentage of reservation is fixed in respect of a particular cadre and roster indicates the roster points, it has to be taken that posts shown at reserved points are to be filled from amongst the members of the reserved categories and the candidates belonging to the general category are not entitled to be considered for the reserved points. On the other hand the reserved category candidates can compete for non-reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. It was further held that when all the roster points in a cadre are filled the required percentage of reservation is achieved. When the total cadre has full reservation of the SCs/STs and OBCs in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to which the respective vacancy belongs. The applicant has questioned whether the policy of reservation made by the Govt. under the Constitution is being implemented by the respondents. On this basis the applicant has claimed that he should have been promoted as Inspector of Income Tax w.e.f. 5.6.1984.
5. Regarding his claim for promotion as Income Tax Officer from much earlier date then when he was actually promoted on 13.5.1996 he has claimed that since the post of Income Tax Officer is a selection post as in the case of Inspector, therefore, the promotions on the basis of seniority are not valid and the promotion should be made on the principle of merit-cum-seniority and the principle that roster points are seniority points.
6. The second DPC held on 30.12.1987 in the same year, 1987, for the post of ITOs, {Group-B taking into account 20 new created vacancies of ITOs (CBDTs letter dated 3.12.1987 Annexure A-9) along with 25 anticipated vacancies (10 vacancies due to retirement of ITOs, Group-B (plus) 15 vacancies of promotion of ITOs, Group-B to ITOs, Group-A } was not in accordance with guidelines regarding holding of DPC. It is claimed that while holding the 2nd DPC the vacancies which arise due to death, voluntary retirement, new creation etc. which cannot be foreseen/anticipated at the time of first DPC can only be taken into account. As per claim of the applicant, the DPC has taken into account 20 newly sanctioned vacancies along with 25 anticipated vacancies (10 vacancies on account of retirement of ITOs Group B plus 15 vacancies on account of promotion of ITOs, Group-B to ITOs Group A). The second DPC held on 30.12.1987 should have taken into account 20 vacancies only (new sanctioned vacancies i.e. unforeseen vaccines at the time of holding the first DPC) and not additional 25 anticipated vacancies as these vacancies can be foreseen at the time of holding the first DPC in the same year 1987. Therefore, 25 anticipated vacancies should have been taken into account in the next DPC i.e. in the recruitment year 1988. It has been averred that the Income Tax Inspectors Sh. R.L. Barna, S.P. Khutan, N.S. Mahay, Sarwan Singh, Gurdial Sahota, J.S. Matoo and Nirmal Singh, all of them belonging to SC, who were promoted as Income Tax Officers in the recruitment year 1987, should have been promoted on or before the recruitment year 1986. It is stated that if the second DPC had taken into account 20 vacancies only (new sanctioned vacancies as per CBDTs letter dated 3.12.1987 and a fresh DPC had been held in the recruitment year 1988 for 25 anticipated vacancies the principle of merit-cum-seniority and the principle of roster points are seniority points followed in view of the judgments cited above then the promotions would have been as per chart B and not Chart A (Annexure A-14). It is averred that as per the judgment of Honble Apex Court in the case of R.K. Sabharwal (supra) the points shown as reserved points are to be filled from amongst the member of the reserved categories and the candidates belonging to the general category are not entitled to be considered for the reserved points. Therefore, the applicant should have been promoted as Income Tax Officer at roster point no. 36 of circle no. 5 in place of Shri Mewa Ram and would have got further promotions from the appropriate dates.
7. In the counter reply filed on behalf of the respondents it has been stated that the applicant had earlier filed an O.A. NO. 898-PB-2010, claiming promotion as Inspector from the earlier date before this Tribunal, which was dismissed on 6.9.2011. The applicant challenged the decision of this Tribunal by filing CWP No. 21822/2012, which came to be disposed of on 11.3.2013 by granting liberty to the applicant to approach this Tribunal again. It is stated that Honble High Court while disposing of the case observed that there can be no doubt that if the seniority or promotion of the Income Tax Inspectors is likely to be affected by the outcome of the Original Application filed by the applicant, it would be imperative upon him to implead those Inspectors as party respondents. However, non-impeladment of necessary or proper parties is not fatal to the institution of fresh O.A. on the same cause of action nor the applicant is debarred to re-agitate his claim. Suffice it to observe that the applicant if so advised, may institute fresh application by impleading those Inspectors as party respondents who are likely to be affected if his claim is accepted by the learned Tribunal. It was also observed that suffice it to observe that if the petitioners representation pursuant to the earlier directions had already been rejected on 7.4.2000, the submission of subsequent representation or an administrative order passed in response thereto, would not revive the limitation period and the Tribunal shall be well within its right to reject the claim of the petitioner being time barred. It has further been stated that in compliance of directions of this Tribunal in O.A. no. 662-PB-1991 dated 11.10.1999 the representation filed by the applicant was disposed of on 7.4.2000. Another representation filed by the applicant (after a gap of more than nine years) was disposed of on 28.7.2010. Therefore, the attempt to justify the delay is against the observations of this Tribunal.
8. Respondents have further stated that the applicant had filed O.A. claiming promotion as Inspector of Income Tax w.e.f. 5.6.1984 and ITO and further promotion as ACIT, DCIT etc. subsequently along with pay and allowances, but the applicant had not impleaded the persons likely to be affected by a decision in his favour and had not given explanation as to why they are not necessary parties. The O.A. should thus be dismissed on the ground of limitation and non-impleadment of necessary parties. It has also been stated that the Judgment of the Honble Apex Court in the case of R.K. Sabharwal (supra) was delivered on 10.2.1995 and it operates prospectively while the applicant is claiming for the operation of the judgment retrospectively. Besides, the foundation of this O.A. the assumption that if the carried over vacancies of S.T. of the Recruitment year 1975, 1976 and 1977 are taken into consideration, for operation of principle that roster point are seniority points, and the principle of date of passing the test is taken as determining factor for grant of seniority, the applicant would got promotion from 1984. In other words, he has approached this Tribunal after a period of 26 years for seeking promotion as Inspector w.e.f. 5.6.1984. He is seeking exchange of carried forward vacancies of STs for the Recruitment year 1974, 1975, 1976 and 1977 after a gap of 33 years. Thus the cause of action if any arose to the applicant in 1984 and he claims benefit by filing the O.A. in 2010 which is barred under Section 21 of the Administrative Tribunals Act, 1985 as well as delay and laches and as such is liable to be dismissed on this ground alone. It has been further stated that in case the claim of the applicant is allowed, obviously, he would steal a march over a number of other persons and none of them has been impleaded as a party and as such O.A. is liable to be dismissed on the ground of limitation as well as non-impleadment of necessary parties.
9. It has further been averred that the promotion to the post of Inspector have been made by following the relevant recruitment rules frames by the CBDT i.e. the Income Tax Department ( Inspector) Recruitment Rules, 1969 (as amended in 1986) which provide that all the qualified candidates are to be arranged cadre wise ( i.e. Ministerial cadre and Stenographer Grade) in two separate lists for each cadre. In the first list the names of all qualified candidates falling in the cadre are to be arranged in order of seniority in the Department. In the second list the names of all the qualified persons falling in the cadre are to be arranged according to the date/year of passing the Departmental Examination provided that the persons who pass the examination on the same date shall be arranged according to seniority in the Department. In terms of the recruitment rules the persons selected on the basis of their seniority in the feeder cadre cannot claim parity with the candidates selected on the basis of year of qualifying the Departmental Examination. It is stated that the candidate who has passed the departmental examination on an earlier date/year will figure higher in this list than his senior who has passed the examination at a later date/year. Thus a candidate who has been promoted on the basis of his passing cannot compare his case with a candidate who has been promoted on the basis of his seniority.
10. Further, the seniority of the SC/STs Candidates is being correctly determined. It is reiterated that roster points are not seniority points. The roster points do not determine seniority and do not give any right of seniority on any person.
11. It is further stated that as per the recruitment rules for promotion to the post of Income Tax Officer notified on 21.12.2004 vide G.S.R. No. 2 and amended on 24.3.2005 vide G.S.R. 189, promotion is to be made from Inspectors of Income Tax in the pay scale of Rs. 6500-10500 with 3 years regular service in the Grade and who have qualified the Departmental Examination for Income Tax Officer. As such, a senior person shall be considered for promotion as Income Tax Officer before his junior even when the junior has qualified the departmental examination for Income Tax Officer much before his senior. The contention of the applicant is based on assumptions that if the second DPC held on 30.12.1987 had taken into account only new sanctioned vacancies, a fresh DPC had been held in the Recruitment Year 1988 to consider 25 anticipated vacancies, principle of roster points are seniority points and the principle of date of passing had been applied then he would have been promoted to the post of Income Tax Officer in the year 1988. However, the DPCs were held as per guidelines and the applicant has rightly been promoted and given seniority, as per rules and law and no reserved vacancy is filled from unreserved candidates.
12. From the above it appears that the following issues arise for adjudication:
i) Is the application barred by limitation;
ii) Is the application bad for non-impleadment of necessary parties.
iii) On merit, is the applicant entitled to promotion as Inspector w.e.f. 5.6.1984;
iv) On merits, is the applicant entitled to promotion as I.T.O. earlier date than 2005 when he was actually promoted.
13. The applicant has submitted his written arguments on 1.10.2013 in which the same points have been made as in the O.A. and hence the same are not repeated here.
14. Learned counsel for the respondents mainly stressed on the aspect of limitation as the O.A. relates to claim of promotion with retrospective effect in the year 1984 and the present O.A. has been filed in 2013. Learned counsel also stated that there were 163 persons who had been promoted as Inspector Income Tax/ITO earlier than the applicant and if his claim was allowed, the applicant would go above them in seniority and since the applicant had not impleaded any of these persons in the O.A. the same was liable to be dismissed on this account also. On merits, the learned counsel stated that the claim of the applicant was de hors the extant rules for promotion of Income Tax Inspector and the promotions effected in 1984 were in accordance with the Rules and could not be challenged without the Rules also being impugned while this had not been done by the applicant at the time when he claimed promotion as Income Tax Inspector. Moreover, the case law cited by the applicant related to dates much later than the claim for notional promotion to the post of Income Tax Inspector was made and these judgments especially R.K. Sabharwal (Supra), do not have retrospective effect. In view of this position there is no merit in the O.A.
15. We have given our thoughtful consideration to the matter and our views on the issues raised for consideration in para 12 above are as follows:-
i) It is seen that this O.A. has been filed on 10.4.2013 seeking relief that the applicant be entitled to promotion as Inspector w.e.f. 5.6.1984. The applicant was promoted as Income Tax Inspector in 1988 in accordance with the extent rules regarding two lists being prepared, one on the basis of seniority and the other on the basis of the date of having passed the Departmental Examination that was required to be cleared before a person could be considered for promotion. When the promotions have been effected so many years ago the applicant cannot challenge these after lapse of more than 25 years. Moreover, in para 3 of the O.A. relating to limitation the applicant has provided table indicating how the time from 5.6.1984 to 20.9.2012 was utilized to press his claim that the application is not barred by limitation. However, the law is well settled that the period spend in filing representations and disposal of the same as well as in collecting information required for filing of a case cannot be deducted while calculating whether application is within limitation. No application for condonation of delay has been filed by the applicant. Honble Supreme Court in the case of Union of India and Ors. Vs. M.K. Sarkar reported as (2010) 2 SCC 59 held as under:-
The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a courts direction. Neither a courts direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. Moreover, a court or tribunal, before directing consideration of a claim or representation should examine whether the claim or representation is with reference to a live issue or whether it is with reference to a dead or stale issue. If it is with reference to a dead or stale issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct consideration without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect. Honble Supreme Court in the case of Ramesh Chandra Sharma Vs. Udham Singh Kamal reported in 2000(2) SLJ SC 89 has held as under:-
21. Limitation- (1) A tribunal shall not admit an application:
(a) In a case where a final order such as is mentioned in Clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date of which such final order has been made;
(b) In a case wherein appeal or representation such as is mentioned in clause (b) of sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) xxxx xxxx xxxx (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in Clause (a) or Clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal, that he had sufficient cause for non making the application within such period. Relying upon the aforesaid provisions, it was contended on behalf of the appellants that the O.A. filed by the first respondent Udham Singh Kamal was barred by limitation. No application for condonation of delay was filed. In the absence of any application under sub-Section (3) of Section 21 praying for condonation of delay, the Tribunal had no jurisdiction to admit and dispose of O.A. on merits. It was, therefore, contended that the Tribunal has totally overlooked the statutory provision contained in Section 21 of the Act, and, therefore, impugned order be set aside. In view of this position, the present O.A. is held to be barred by limitation.
ii) The applicant has not impleaded the persons who were promoted earlier to the applicant as Income Tax Inspector and over whom he would gain seniority if the instant O.A. succeeds. Moreover, the applicant has not also impleaded Sh. Mewa Ram who he claims was not due for promotion as ITO at the time when he actually got the promotion. Hence this O.A. is also bad for non-impleadment of necessary and proper parties.
iii) The promotion of Income Tax Inspector was effected under the Income Tax (Inspector) Recruitment Rules, 1969 ( as amended in 1986). The applicant has challenged the promotion on the basis of seniority claiming that the post of Income Tax Inspector is to be filled by selection and not by seniority and therefore claimed earlier date of promotion of 5.6.1984. However, since the promotions have been effected as per the Rules these promotions cannot be challenged by the applicant without having challenged the Rules and this is too belated stage for such challenge to be mounted.
iv) The claim of the applicant to earlier promotion as ITO is based on two premises. The first relates to his claim for earlier date of promotion as Income Tax Inspector and since his promotion as Inspector took place in accordance with the extant Rules, the claim of the applicant, challenging his promotion made on the basis of the seniority list of Inspectors is without merit. The second premise is relating to date of holding of the DPC. Again, there is no irregularity in considering the vacancies relating to additional posts of ITO that were sanctioned during the year along with other posts. It is clear that claim of the applicant that the persons mentioned in para 6 above are eligible for promotion on earlier dates is also without merit as these persons have never made any such claim and the applicant cannot made such claim on their behalf. He has also not impleaded Sh. Mewa Ram who he claims was not due for promotion as ITO at the time when he actually got the promotion and his own claim for earlier promotion as ITO is not grounded in law and facts.
16. In view of above position there is no merit in this O.A. and the same is dismissed. No costs.
(RAJWANT SANDHU)
MEMBER(A)
(SANJEEV KAUSHIK)
MEMBER(J)
Dated: 25.10.2013
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