Central Administrative Tribunal - Ernakulam
Rasheed.K.I vs Union Of India on 4 August, 2015
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.180/01103/2014,
Original Applicaton No.180/01104/2014
&
Original Applicaton No.180/01111/2014
Tuesday this the 4th day of August 2015
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER
O.A.No.180/01103/2014
1. Rasheed.K.I.,
S/o.K.M.Ibrahimkutty,
Tax Assistant, O/o.Commissioner of Income Tax (TDS), Kochi.
Residing at Myalil House, Thalayolaparambu,
Kottayam Distt. - 686 605.
2. Madhu Kumar M,
S/o.Madhavan Pillai P,
Tax Assistant, O/o.Additional Director of Income Tax,
(Investigation), Aayakarbhavan, Kollam.
Residing at Gayathri, Kidangayam Naduvil,
Sooranadu South, Pathram P.O.,
Kollam - 690 567.
3. Rejeesh A,
S/o.A.Ramakrishnan,
Tax Assistant, O/o.the Joint Commissioner of Income Tax,
Range - I, Aayakar Bhavan, Kozhikode.
Residing at Sudi, PKC Road,
Near Govt. House, Kozhikode - 673 005.
4. Suleesh Sukumar,
S/o.Sukumaran P.N.,
Tax Assistant, O/o.the Commissioner of Income Tax,
C.R.Building, Mananchira, Kozhikode.
Residing at Suli Nivas, Patheyakunnu P.O.,
Pathain, Thalassery, Kannur - 670 691.
5. Suresh Babu P.K.,
S/o.Krishnana Nair.K.,
Tax Assistant, O/o.the ACIT, Tariff Basar, Tirur.
Residing at Panaeli Thazhakuriyil, Nut Street P.O.,
Badagara - 673 104.
6. Anilkumar K.K.,
S/o.Shri.V.P.Kochukunju,
Tax Assistant, O/o.the Director General of Income Tax,
(Investigation), Kochi.
Residing at Anilrajnilayam,
Karakkad P.O., Alappuzha - 689 504.
7. Faza R.I.,
W/o.Manoj Abdual Rehman.K.,
Tax Assistant,
O/o.the Additional Commissioner of Income Tax,
Range - 2, Kochi.
Residing at Income Tax Quarters, B.31,
Panampilly Nagar - 682 036.
8. Biju Augustine,
S/o.M.S.Augustine,
Tax Assistant,
O/o.the Additional Commissioner of Income Tax,
Range - I, Kochi.
Residing at Mamkuzhichalil House,
Ramapuram P.O., Kottayam Distt.,
Kerala - 686 576.
9. Anju P.,
W/o.Manu R Nair,
Tax Assistant, O/o.the Additional CIT,
Range - I, Kochi.
Residing at Anjali, Kattanam,
Pallickal P.O., Alappuzha - 690 503.
10. Sanusha S.,
W/o.Santhosh Kumar.S.R.,
Tax Assistant,
O/o.Joint Commissioner of Income Tax,
Range - I, Non Corporate, 3rd Floor, C.R.Building.
Residing at Q.No.B-19, Income Tax Quarters,
Panampilly Nagar, Kochi - 682 036.
11. Lokesh R Shenoy,
S/o.A Ratnakara Shenoy,
Tax Assistant,
O/o.the Additional Commissioner of Income Tax, Aluva.
Residing at Eluparambil House,
K.G.Vadhyar Road, Ernakulam - 682 035.
12. Amal Dev.M.V.,
S/o.Kelappan P.K. (late),
Tax Assistant, O/o.the Commissioner of Income Tax - II, Kochi.
Residing at Blora-41, Blossom Road,
Elamakkara, Kochi - 682 026.
13. Remya A.,
W/o.Amal Dev M.V.,
Tax Assistant, O/o.the Commissioner of Income Tax,
(Non Corporate), Kerala.
Residing at Blora-41, Blossom Road,
Elamakkara, Kochi - 682 026.
14. Meena V Pillai,
W/o.Vijayan Pillai,
Tax Assistant, O/o.the Commissioner of Income Tax - I,
C.R.Building, Kochi.
Residing at B-23, Income Tax Residential Complex,
Panampally Nagar, Kochi - 682 036.
15. Deepa V.C., W/o.Nile Kumar,
Tax Assistant, O/o.the Commissioner of Income Tax,
(Computer Operations), C.R.Building, Kochi.
Residing at Velichermparrambil House,
Janakeeya Road, Elamakkara, Kochi - 682 026. . . . . . .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.
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 Resource Development),
ICADR Building, Plot No.6,
Vasant Kunj Institutional Area Phase II,
New Delhi - 110 070.
5. Mohammed Kasim,
S/o.Abdul Kareem,
Tax Assistant, O/o.Additional Commissioner of Income Tax,
Alappuzha Range, Alappuzha - 688 001.
Residing at Dar Ul Afiya, Alissery, Alappuzha - 688 001.
6. Babu.T.T.,
S/o.T.V.Thampi,
Tax Assistant, O/o.Additional Commissioner of Income Tax,
Aluva Range, Aluva - 683 101.
Residing at Thottappadan House,
Allapra (P.O.), Ernakulam District - 683 556.
7. Prasoon P., S/o.Prabhakaran,
Tax Assistant, O/o.Deputy Commissioner of Income Tax,
Central Circle, Kozhikode - 673 001.
Residing at Pilakandiyil, Pazhankavu,
Vadakara, Kozhikode - 673 104.
8. Leena S Nair, W/o.Sreenarayanan Nair,
Tax Assistant, O/o.Commissioner of Income Tax Central,
K.K.Towers, M.G.Road, Kochi.
Residing at C70, Income Tax Quarters,
Panampilly Nagar, Kochi - 36. . . . . Respondents
(By Advocates Mr.T.C.Krishna, Sr.PCGC [R1-4] & Mr.M.R.Hariraj [R5-8])
O.A.No.180/01104/2014
1. Shri.Shyju Joseph,
S/o.Shri.N.T.Joseph,
Tax Assistant, O/o.the Income Tax Officer,
Ward - I, Kasargod.
Residing at Valummel Kunnel House,
Chunda P.O., Cheruypuzha via, Kannur - 670 511.
2. Smt.Hemalatha Radhakrishnan M.,
W/o.Radhakrishnan (late),
Tax Assistant, O/o.the Income Tax Office,
Aayakar Bhavan, Kannur.
Residing at Muthiyalam, Kortom P.O.,
Payyannur - 670 307.
3. Smt.Deepika,
W/o.Shri.Chithran T.K.,
Tax Assistant, O/o.the Additional Commissioner of Income Tax,
Range - I, Kozhikode.
Residing at Aradhana House,
Madaappally College P.O., Vatakara - 673 102.
4. Shri.Mani Neorth,
S/o.Balan Nair (late),
Tax Assistant, O/o.the Additional Commissioner of Income Tax,
Range - II, Aayakar Bhavan, Kozhikode.
Residing at Punthil House, Peruwayal Post,
Kozhikode - 673 008.
5. Shri.Sajan Baby.T.,
S/o.T.I.Baby,
Tax Assistant, O/o.the Commissioner of Income Tax, Thrissur.
Residing at Thengungal House,
Gree Gardens, Kalathode - 680 655.
6. Shri.Sujesh K.,
S/o.Shri.Krishnan Nair,
Tax Assistant, O/o.the CIT, Kozhikode.
Residing at Karamangalath House,
Peruvayal P.O., Kozhikode - 673 008.
7. Smt.Resna P.,
W/o.Sudishkemar O.V.,
Tax Assistant, O/o.the Income Tax Officer (Exemption),
Aayakar Bhavan, Kozhikode.
Residing at Pranavam, Kolakkadath Pottamnal,
Velliparambu P.O., Calicut - 673 008.
8. Shri.Sunilkumar, S/o.Shri.V.Sasi,
Tax Assistant, O/o.the Additional Commissioner of Income Tax,
(Exe.), Aayakar Bhavan, Trivandrum.
Residing at Panakkaran Parambil, Ezha South,
Chettikulangaran P.O., Mavellikkaran - 695 013.
9. Smt.Chitra C.S.,
W/o.Sivakumar D,
Tax Assistant, O/o.the Joint Commissioner of Income Tax,
Range - I, Trivandrum.
Residing at Sivasree, Pallimukku,
Kodungoor P.O., Trivandrum - 695 013.
10. Smt.Sindhu M.V.,
W/o.Shri.Ajith Kumar,
Tax Assistant, O/o.the Additional Commissioner of Income Tax,
(TDS), Aayakar Bhavan, Trivandrum.
Residing at Karthika, Convent Lane,
Nalanchira P.O., Trivandrum - 695 015.
11. Shri.Danush R,
S/o.P.B.Radhakrishnan,
Tax Assistant,
O/o.the Additional Director of Income Tax,
(Investigation), Aayakar Bhavan, Trivandrum.
Residing at Pournami, TC 19/311 VPS-352,
Vattavil, Thirumala P.O., Trivandrum - 695 006.
12. Smt.Preetha J.R.,
W/o.Shri.M.Disnesh Kumar,
Tax Assistant,
O/o.the Joint Commissioner of Income Tax,
Palakkad Range, Palakkad.
Residing at Dinesh Nivas, Nochur,
Koduvayur, Palakkad - 678 501.
13. Smt.Girija Madu Pillai,
W/o.Shri.Madhu S Pillai,
Tax Assistant,
O/o.the Joint Commissioner of Income Tax,
Palakkad Range, Palakkad.
Residing at Ambalathu Kizhethil,
Kandiyoor, Mavelikara - 3.
14. Aswathy K.,
W/o.Shri.Subeesh Kumar,
Tax Assistant,
O/o.the Principal Chief Commissioner of Income Tax, Kochi.
Residing at Subeesh Nivas, Kalappurackal,
Panangad P.O., Ernakulam - 682 506.
15. Shri.Shaji D.,
S/o.P.S.D.Pillai,
Tax Assistant,
O/o.the Principal Commissioner of Income Tax, Kottayam.
Residing at Kadamanadu South,
Pathinamthitta - 691 553. . . . . 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.
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 Resource Development),
ICADR Building, Plot No.6,
Vasant Kunj Institutional Area Phase II,
New Delhi - 110 070.
5. Mohammed Kasim,
S/o.Abdul Kareem,
Tax Assistant, O/o.Additional Commissioner of Income Tax,
Alappuzha Range, Alappuzha b� 688 001.
Residing at Dar Ul Afiya, Alissery,
Alappuzha - 688 001.
6. Babu.T.T.,
S/o.T.V.Thampi,
Tax Assistant, O/o.Additional Commissioner of Income Tax,
Aluva Range, Aluva - 683 101.
Residing at Thottappadan House,
Allapra (P.O.), Ernakulam District - 683 556.
7. Prasoon P.,
S/o.Prabhakaran,
Tax Assistant,
O/o.Deputy Commissioner of Income Tax,
Central Circle, Kozhikode - 673 001.
Residing at Pilakandiyil, Pazhankavu,
Vadakara, Kozhikode - 673 104.
8. Leena S Nair,
W/o.Sreenarayanan Nair,
Tax Assistant,
O/o.Commissioner of Income Tax Central,
K.K.Towers, M.G.Road, Kochi.
Residing at C70, Income Tax Quarters,
Panampilly Nagar, Kochi - 36. . . . . Respondents
(By Advocates Mr.T.C.Krishna, Sr.PCGC [R1-4] & Mr.M.R.Hariraj [R5-8])
O.A.No.180/01111/2014
M.K.Ali Kunju,
S/o.M.K.Kochu Muhammed,
Tax Assistant, O/o.the Director General Income Tax,
(Investigation), 4th Floor, Arya Bhangi Pincale,
S.A.Road, Elamkulam, Kadavanthra, Kochi - 682 020.
Residing at Mundackal House, N.A.D. P.O.,
Aluva - 683 568, Ernakulam District. . . . Applicant
(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.
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 Resource Development),
ICADR Building, Plot No.6,
Vasant Kunj Institutional Area Phase II,
New Delhi - 110 070.
5. Mohammed Kasim,
S/o.Abdul Kareem,
Tax Assistant,
O/o.Additional Commissioner of Income Tax,
Alappuzha Range, Alappuzha - 688 001.
Residing at Dar Ul Afiya, Alissery,
Alappuzha - 688 001.
6. Babu.T.T.,
S/o.T.V.Thampi,
Tax Assistant,
O/o.Additional Commissioner of Income Tax,
Aluva Range, Aluva - 683 101.
Residing at Thottappadan House,
Allapra (P.O.), Ernakulam District - 683 556.
7. Prasoon P.,
S/o.Prabhakaran,
Tax Assistant,
O/o.Deputy Commissioner of Income Tax,
Central Circle, Kozhikode - 673 001.
Residing at Pilakandiyil, Pazhankavu,
Vadakara, Kozhikode - 673 104.
8. Leena S Nair,
W/o.Sreenarayanan Nair,
Tax Assistant,
O/o.Commissioner of Income Tax Central,
K.K.Towers, M.G.Road, Kochi.
Residing at C70, Income Tax Quarters,
Panampilly Nagar, Kochi - 36. . . . . Respondents
(By Advocates Mr.T.C.Krishna, Sr.PCGC [R1-4] & Mr.M.R.Hariraj [R5-8])
These applications having been heard on 20 th July 2015 this Tribunal
on 4th August 2015 delivered the following :
ORDER
HON'BLE Mrs.P.GOPINATH, ADMINISTRATIVE MEMBER The applicants are persons who are presently working as Tax Assistants under the 3 rd respondent. They came on inter-circle transfer to Kerala from other charge/circles of the Income Tax Department on request on loss of seniority. They are persons who have qualified in the departmental examinations for promotion to the post of Senior Tax Assistants. In these applications, they are aggrieved by an order issued by the 4th respondent holding that for the purpose of promotion as Senior Tax Assistant, the service rendered by them in the previous charge would not be reckoned. Counting the service rendered by them in their previous charge/circle, they have much more than 3 years of service, which is the requisite eligibility service in the grade to be considered for promotion as Senior Tax Assistant. If the service rendered by them in their previous charge were not to be considered for reckoning the requisite service as per para 5 of Annexure A-1, all of them would not be eligible to be considered for promotion, if the cut off eligibility service is reckoned as of 1 st of January 2014. Recently, the various posts in the cadre of Senior Tax Assistant/Office Superintendent/Stenographer Grade - I etc. were merged together to constitute a new cadre called 'Executive Assistant'. However, no Recruitment Rules were framed for filling up these posts in the newly formed cadre of 'Executive Assistant'. In Annexure A-1 order it is stated that the current Recruitment Rules for the grades of OS, Sr.TA and 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 the DPCs for the purpose of promotion. It has been directed vide Annexure A-1 that DPCs for promotion of Sr.TA to OS, TA to Sr.TA and Steno Gr.II (erstwhile Steno Gr.III) to Steno Gr.I are to be conducted. For the purpose of quantifying the vacancies for conducting DPCs, the number of posts notified for the EA grade might be further trifurcated in each CCA region among OS/Sr.TA/Steno Gr.I in the same ratio as the pre-restructuring number of sanctioned posts in these grades. The applicants also add that the question of counting the service rendered by them 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 Tribunals in Renu Mallick v. Union of India (1994) 1 SCC 373, Scientific Advisor to Raksha Mantra & Ors. v. V.M.Joseph 1998 (5) SCC 305, Union of India & Ors. v. V.N.Bhatt 2003 SCC 714 and Rajesh Kumar & Anr. v. Union of India & Ors. O.A.N.No.314/2012. Reliefs sought for by applicants are :
1. Call for the records leading to the issue of Annexure A-1 and quash paragraph 5 of the same.
2. Direct the respondents to consider and promote the applicants as Sr. Tax Assistants with all the consequential benefits, including arrears of pay and allowances with effect from the date from which all those who are being considered for promotion as Sr. Tax Assistants in terms of Annexure A-1.
3. Direct the respondents further to grant the benefit of promotion as Senior Tax Assistant with effect from 21.12.2014 or at least with effect from 30.12.2014 with all the consequential benefits including the arrears of pay and allowances arising therefrom.
4. Award costs and incidental thereto.
5. Pass such other orders or directions as deemed just and fit by this Hon'ble Tribunal.
2. Respondents in their reply submit that the inter-charge transfers of the employees in the respondent department have been regulated and entertained on the basis of and strictly adhering to the terms and conditions stipulated in CBDT's letter F.No.A.22020/76/89-Ad-VII dated 14.5.1990. The differentiation between original employees of a CCA and those who come on inter region transfer is based on a rational differentia, viz protection of seniority and career aspirations of original allottees of the region who had joined their regions on merit and not on account of certain 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 last date fixed by the Board to convene the DPC was 21.12.2014. In Kerala Region, it was proposed to convene the DPC on 18.12.2014. In the meanwhile, the applicants came before this Tribunal and an interim order dated 16.12.2014 directing to convene the DPC by considering the applicants after excluding para 5 of the Boards order dated 2.12.2014 in F.No.HRD/CM/102/2/2014-15/7062. The order dated 16.12.2014 of this Tribunal was received in the office of the 3 rd respondent only on 18.12.2014. Implementing the interim direction of the Tribunal required calling for fresh vigilance clearances/APARs of the applicants who had the benefit of the interim directions. This was time consuming and the only feasible option was to postpone the DPC for Senior Tax Assistants. The DPC to the cadres other than Senior Tax Assistants has been conducted. It was also decided to convene the DPC to the cadres of Senior Tax Assistant after obtaining an advisory from the Board as the direction of the Tribunal was to exclude para 5 of Board's instruction. It was provided in Annexure R-1 letter of the CBDT that the service rendered by the transferred employees in the old charge will not be counted in the new charge for the purpose of seniority and he/she will be placed at the bottom of the list of the employees of the concerned cadre in the new charge and for considering the cases of eligible Tax Assistants to Senior Tax Assistants there is a zone of consideration and keeping in view lower position of the applicants who were transferees, they did not come within the said zone. The department has conducted the DPC all over India excluding Kerala, following the guidelines issued by the 2 nd respondent.
3. We have heard the learned counsel appearing for both parties and also gone through the documents/annexures produced by the parties.
4. The applicants are Tax Assistants who were to be considered for promotion as Executive Assistant on the basis of existing Recruitment Rules of Senior Tax Assistant for the vacancy year 2014-15 by the DPC. The Recruitment Rules produced at Annexure A-3 in Column 12 lays down the promotion procedure as 100% by promotion from amongst Tax Assistant who have rendered a minimum regular service of three years in the grade and have qualified the prescribed departmental exam. The term important to be noted are 'minimum regular service of three years in the grade' and not minimum three years in the transferred office. The executive instruction in Annexure A-1 para 5 dated 2.12.2014 directs the Principal Chief Commissioner that 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, cannot replace the Annexure A-3 statutory recruitment rules which states that a minimum regular service of three years in the grade is required for promotion of T.As to Sr. T.A.
5. The Jodhpur Bench and Lucknow Bench of this Tribunal have also addressed the similar matter in a different set of employees of the respondent. The Lucknow Bench has considered the matter in the case of promotion of Stenographer Grade III to Stenographer Grade II who had sought inter circle transfer to Lucknow, wherein the Bench had clearly cited that eligibility for promotion based on years of service cannot be confused with depressed seniority on account of inter circle transfer as the promotion was guided by the statutory recruitment rules wherein such condition of ignoring service rendered in pre and post inter circle transfer has not been prescribed. The Jodhpur Bench has considered a similar case of transferee Tax Assistant's promotion to Senior Tax Assistant on the ground of lacking three years service in the transferred office. Hence eligibility for promotion cannot be confused with depressed seniority as the former is prescribed by number of years of service without any pre or post transfer qualification. As per Recruitment Rules the applicants should have put in three years regular service from the date of initial appointment to date of DPC.
6. The matter under consideration has been discussed at length by the Hon'ble Supreme Court in Renu Mullick v. Union of India and another 1994 SCC (L&S) 570 and held that service rendered prior to unilateral transfer at own request also counts for determining the eligibility condition though such transfer downgrades seniority. Hence the transferee is treated as a new entrant in the office of transfer for the purpose of seniority and their seniority in the previous office was taken away for the purpose of counting seniority in the transferred office. However, if the eligibility criteria is determined on the basis of number of years of service rendered, then the service rendered in the office from where transferred cannot be excluded or ignored, provided that the rule does not lay down that the qualifying service should be rendered in one office only.
7. The respondents are directed to consider the case of the applicants for promotion as Executive Assistant on the basis of Recruitment Rules for promotion of Tax Assistant to Senior Tax Assistant counting their regular service in the grade and not in any station of current posting on transfer, that is, the period of service rendered in the previous region in the same grade shall also be counted for promotion.
8. The O.A is disposed of accordingly. No order as to costs.
(Dated this the 4th day of August 2015)
P.GOPINATH JUSTICE N.K.BALAKRISHNAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp