Central Administrative Tribunal - Kolkata
Ashim Mukherjee vs Income Tax on 13 December, 2018
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o.a. no. 350.615.2018 with m.a. no. 350.320.2018 with ma. No. 791.2018
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CENTRAL ADMINISTRATIVE TRIBUNAL
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KOLKATA BENCH, KOLKATA
Date of order: fi'
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Present Hon'ble Ms. Btdisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
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No. O.A. 350/00615/2018
M.A. 350/00320/2018
M.A. 350/00791/2018
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1. Ashim Mukherjee,
Aged about 29 years,
Son of Shri Sitaram Mukherjee,
Residing at Dharampur, Mukherjee Lane,
Post Officecand.Police Station - Chinsurah
District ^Hoog hl^/fin^JI 2 101
workioastojhe p%tot Stenographer Grade-1
' m the^d^e|ofm^Princj|rahChief Commissioner
^Of jr(^n^™x/)Afe%BerT§ar& Sikkim,
O Aayak^rCBnaivan^Siy Ch<5wr?nghee Square,
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\ cu2. Sul^^^^er^,
\ Son^of^nVap^r/ChatterjeeJ
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.Residing^TTematharShibtala, Moran Road,
' (post'O^fice - Go^d^aV, /
Police Station-^ Chandernagore
Distri^-^obghi^Pinyf 12137
An'd*wofking-to"the^p^t of Stenographer Grade-I \
In the^ffiCetjftfie^Principal Chief Commissioner
\
Of Income Tax, West Bengal & Sikkim,
Aayakar Bhawan, P-7, Chowringhee Square,
Kolkata - 700069.
3. Amit Mukherjee,
Son of Shri Sitaram Mukherjee,
Residing at Dharampur, Mukherjee Lane,
Post Office and Police Station - Chinsurah,
District - Hooghly, Pin - 712101
And working to the post of Stenographer Grade-I
In the office of the Principal Chief Commissioner
Of Income Tax, West Bengal & Sikkim,
Aayakar Bhawan, P-7, Chowringhee Square,
Kolkata - 700069.
4. Ashim Sil,
Son of Shri Sakti Pada Sil,
Residing at 8/616, Old Kapasdanga,
Post Office and District - Hooghly,
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Pin-712103
And working to the post of Stenographer Grade-1
In the office of the Principal Chief Commissioner
Of Income Tax, West Bengal & Sikkim,
Aayakar Bhawan, P-7, Chowringhee Square,
Kolkata - 700069.
5. Falguni Saha,
Daughter of Shri Swapan Kumar Saha,
Residing at 385/1, Vivekananda Road, Vivekpally,
Post Office - Sheoraphuli,
Police Station - Serampore,
District - Hooghly, Pin - 712223
And working to the post of Stenographer Grade-1
In the office of the Principal Chief Commissioner
Of Income Tax, West Bengal & Sikkim,
Aayakar Bhawan, P-7, Chowringhee Square,
Kolkata - 700069.
... Applicants.
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Versus
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- se.^jS^ougtefhe-Secretary\ \
. . Depaffntemjof^Re^fenue Government of India
u- 128^4l§t4H Blqck'f "I
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iN^fte^rectpri xf™"
GovemmentoMndia,
M i n i?tfy-of-F-i na nceT
Central Board of Direct Taxes,
Directorate of Income Tax
(Human Resource Development),
ICADR Building, Plot No. 6,
Vasant Kunj Institutional Area, Phase-ll
New Delhi -110070;
3. The Principal Chief Commissioner of Income
Tax,
West Bengal & Sikkim,
Aayakar Bhawan, P-7, Chowringhee Square,
Kolkata - 700069.
... Respondents.
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No. O.A. 350/259/2013
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M.A. 350/164/2014
M.A. 350/211/2018
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/ M.A. 350/282/2013
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M.A. 350/325/2013
M.A. 350/384/2017
i M.A. 350/395/2013
CPC. 350/76/2013
1. Suniti Kr. Gayen, !
S/o. Tejendra Nath Gayen, i
Aged about 44 years, i
Working as OS under
Respondent No. 3,
Residing at Vill. - Vivekananda Pally,
P.O. + P.S. - Sonarpur,
Kolkata-700 150.
2. Arshad Reza, t
S/o. Md. Nassiruddin,
Aged about 39 years,
Working aSjPS under
Respondent Nojc3 f/ \\
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Agved-afBMa^earsI C \
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\ Residing4t»BlPNo: 1
\ (House^No. 24/1, 5
-,Kankinara; ^: o>
7
'24'Rarganas (N) - 743'126.
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4. Satyanarayan-Mait^,
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S/o. Indu Bhushan Maity,
Aged about 42 years,
Working as OS under
Respondent No. 3,
Residing at 10, Ghoshal Para Lane,
Nabagram, P.O. - Mallikpara,
Sehranpore - 712203.
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5. Biplab Kumar Mallik,
S/o. Kubir Chandra Mallik,
Aged about 41 years,
Working as OS under
Respondent No. 3,
Residing at Saparaipur,
P.O. - Santoshpur,
Maheshtaia,
Kolkata - 700 142. )
6. Bikash Mahara,
S/o. Neel Ratan Mahara, i
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Aged about 45 years,
Working as OS under
Respondent No. 3,
Residing at 1 No. Bangashree Palli,
Bhadreswar, P.O. - Angus,
Hooghly-712221.
7. Swapan Das,
S/o. Bhagaban Das,
Aged about 44 years,
Working as OS under
Respondent No. 3,
Residing at Kalitala, H.N. Nag Road,
P.O. - G/P Colony,
Jagachia,
Howrah-711 112.
8. Debasis Rudra,
S/o. Lai Mohan Rudra,
Aged about 39 years,
Working as OS under
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Respondent No.
Residihg^aHvabitTajpara,
Kat^va. Burdwan. ^
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njadhyamgram, x
Ko^fkata^-ZOO^^
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10. ^^Saftjib-Biswasf^
S/oT'Su d h ir-R aHja n,
Aged about 41 years,
Working as OS under
Respondent No. 3,
Residing at Biswas, 303,
Ashalata Apartment,
26, Ho-Chi-Minh Sarani,
Kolkata - 700 061.
l\ 11. Subir Khan,
S/o. Narottam Khan,
Aged about 41 years,
Working as OS under
Respondent No. 3,
Residing at 117, J.C. Khan Road,
Lake View,
Mankundu,
Hooghly-712139.
12. Santanu Ghosh,
S/o. Arabinda Ghosh
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Aged about 42 years,
Working as OS under
Respondent No. 3,
Residing at 341, Sishir Kunja Chinsurah,
Pin-712 107.
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13. Biplab Kumar Debnath,
S/o. Mahitosh Debnath,
Aged about 39 years,
Working as OS
Under Respondent No. 3,
Residing at Vill. - Taldharia,
P.O. - Kora Chindigarh,
Dist. - 24 PCS (N),
P.S. - Barasat,
Pin-700 130.
14. Dibakar Mridha,
S/o. Sachindranath Mridha,
Aged about 42 years,
Working as OS
Under Respondent No. 3,
ResiCing^a^ataraj^Building,
Floor.
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c ft □ .. Applicants
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V vl/Union^fIndia,S>UiS-
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\ SerVice>throughv'fhe SecVet^ry,
\Departrtfefi'Uof\lncbmelai,
f Minisfry-of-funance^X^
North^Bloek-j----
New Delhi-110 001.
2. Chairman,
Central Board of Direct Taxes,
r North Block,
New Delhi -1.
3. Chief Commissionerof Income Tax (CCA),
P7, Chouroungy Square, Aakar Bhavan,
Kol - 69.
4. Sukanya Guha Majumder,
Income Tax Inspector,
Posted under Commissioner of Income Tax
it Kolkata -1, P7, Chowringee Square,
Aayeakar Bhavan,
Kol - 69.
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5. Sujoy Saha,
Income Tax Inspector,
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Posted under Commissioner of Income Tax, I:
Kolkata - XXI, Kolkata. *
P7, Chowringee Square, i
Aayeakar Bhavan,
Kol - 69.
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* .. Respondents f
For the Applicants Mr. P.C. Das, Counsel
Ms. T. Maity, Counsel
For the Respondents Mr. R. Haider, Counsel
Ms. R. Basu, Counsel.
Mr. A. Chakraborty, Counsel
ORDER
Per Dr. Nandita Chatteriee, Administrative Member:
V' ^ \ Two O.A.s, bearing^Nr2GT3 anff'NoXeiS of 2018 have been taken up together for adjuQication'as^thevapplicants in the-former, ministerial staff f
- t = and applicants. in the 'latter, fnamefc-St^iogr^hers, 3rej both aspirants for < promotion to Inspectors^ Incdr^e^axjjn^^ave varioSsj5/ challenged certain policy notifications of the RespS^^nt authoritie^?^^ / v ' ^ \4 y y Heard both Ld. Counsel, Examined-"^leadings and .documents on
2. ifl record. Written notes of arguments have'been filed.
3. O.A. bearing No. 615 of 2018 has been filed by ad-hoc Stenographers (Gr. I) praying for the following relief:-
"(a) Leave be granted to move one single application jointly under Rule 4(5)(a) of the Central Administrative Tribunal (Procedure). Rules, 1987 as the applicants have got a common grievances against the same impugned proposal for draft of Recruitment Rules and all of them are similarly circumstanced person.
(b) To quash and/or set aside the impugned paragraph No. (vi) of the Order No. 19 being File No. PCC(T/WB&S/Pers./49/DPC/4E/01/20l7-18 dated 25.4.2018 issued by the Assistant Commissioner of Income Tax, Headquarters (Personnel & Establishment), Kolkata whereby they have taken a decision that despite all applicants found fit in the DPC for v- :
\ s 7 promotion to the post of Income Tax Inspectors and despite they have cleared the departmental examination at this moment, the promotion order / cannot be issued in terms of order dated 4.6.2014 passed by this Hon'ble / Tribunal in the case of Suniti Kr. Gayen & ors. \/s. Union of India & ors., in ' -v* / O.A. No. 259 of 2013 and M.A. No. 350/00164 of 2014, where there is no 7, nexus between the case of present applicants and the case of Suniti Kr.
Gayen's and there is no such interim order has been granted by this i Hon'ble Tribunal in the case of Suniti Kr. Gayen's, the respondent authority J cannot issue any promotion order in respect of that applicants of Suniti Kr. Gayen to the post of Income Tax Inspector, therefore, withholding the promotion order in respect of the present applicants by wrong reading of the order dated 4.6.2014 in the case of Suniti Kr. Gayen's is otherwise bad in law and illegal and under any circumstances, the present applicants who are found fit- in the DPC and who also qualified the departmental examinations for promotion to the post of Income Tax Inspector from Stenographers' Cadre, the promotion order on the basis, of such DPC as well as on the basis of qualified in the departmental examination cannot be withheld under any circumstances by the respondents and the respondent authority be directed to issue promotion order immediately in favour of the applicants to the post of Income Tax Inspectors against the vacancy year of 2017-18 with effect from the date when DPC is recommended the same . along with all consequential benefits;
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(c) To pass an appropriate "order pirectmg the^ respondent authority to issue promotion order injfavogr\ofj the^pfesent 'agplicants to the post of Income Tax Inspector who^ar^Oefcfn'ffed^p Stenographers' Cadre and . / have been declared successf]^n^ljezDe^rtme1l}al\Examination for the post of Income Jax ofJhd Recruitment Rules existing in the field; dated^^SepWm^e0l986, an order of promotion to the post of Income Tax lnspectors\lpe*issued withJeffect from the date when they are became eligible'forme sam^ along/with all consequential i benefits; ' / / \ s f
(d) To'quash and/or set the-proposaDof waft Recruitment Rules for the post of Executive Assistant dated 5.8.2016 issued by the Income Tax Officer of Directorate of Income Tax, Human Resource Development, Central Board of Direct Taxes being Annexure A-14 of this original application without filling up the vacancy to the post of Income Tax Inspectors from the Stenographers' Cadre by violation of the statutory Recruitment Rules existing in the field dated September, 1986. l
- 4. M.A. No. 320 of 2018 is a prayer for joint prosecution under Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987. Since the applicants have a common cause of action and common interest, the M.A. is l t allowed and is disposed of accordingly.
i * \ 8 1 1 M.A. No. 791 of 2018 was filed on 11.10.2018 praying for early r ' disposal. As the matter has been finally heard on 13.11.2018 and reserved for f r / i orders, this M.A. becomes infructuous and is disposed of accordingly.
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5. In O.A. No. 615 of 2018, the moot issue is that the applicants, Stenographer Gr. II, functioning as adhoc Stenographer Gr. I, had been declared successful in the departmental selection process for adhoc promotion to the post of Income Tax Inspectors and, that, upon filing an earlier Original Application No. 109 of 2018, disposed of on 9.2.2018, the respondent authorities were directed to consider the representations of the applicants for holding meetings of Departmental Promotion Committee (DPC) for the post of Income Tax Inspectors 'I on the basis of statutory recruitment rules of 1986 and to pass a reasoned order within a specific time frame.
That, thereafter^an fffice\oraeF>^lk issued- on 25.4.2018 by the concerned respondent atithori^^^^^p^^^^OTthe dSe^s of the Tribunal, in which the respondent ^partn^nt/fi^ that, ^thiugh the applicants were considered by the D^SfeteSaf ^^^^bm'Gomrnittee held for adhoc promotion -to the grade Income^^^"Insgecto^ against vacancies for the vacancy year 2017-2018, and^althdugh~"they^.were found fit for such adhoc i promotion for Inspector of Income Tax, it was decided not to grant such adhoc promotion to the applicants and other similarly placed Stenographers to the ' grade of Income Tax Inspectors as it was apprehended that such promotions may violate the observations of Central Administrative Tribunal, Kolkata Bench in i
- its interim order dated 4.6.2014 in O.A. No. 259 of 2013. Being seriously aggrieved, inter alia, with such observations made by the respondent authorities in the speaking order dated 25.4.2018 (Annexure A-21 to the O.A.), the applicants have approached the Tribunal, inter alia, for redressal of their grievance in the instant O.A. .7 \___ \ 9 ■/ !
6. As the contents of the speaking order is under challenge, the same is f i f j examined in detail. The order is reproduced as under:- 5 » ■i "GOVERNMENT OF INDIA / O/o. THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, r 4 WEST BENGAL & SIKKIM ! AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA - 700 069 i F. No.: PCCT/ WB & SI Pers./ 49/ DPC/ 4E/ 01/ 2017 -18/ Date:25.04.2018 i i ORDER NO.: 19 Whereas Shri Ashim Mukherjee, Shri Subhasis Chatterjee, Shri Amit Mukherjee, Shri Ashim Sil, and Smt. Falguni Saha, all presently working as ad-hoc Stenographers, Grade-I {erstwhile Stenographers, Grade-ll), in the West Bengal & Sikkim region, of the Income Tax department, had filed an O.A. bearing No. 350/109/2018, before the Hon'ble Central Administrative Tribunal (CAT), Calcutta Bench, Kolkata, praying for conduct of DPC within a specific period of time for considering their promotion to the post of Income Tax Inspector as they had already passe^he^departmental examination for Income Tax Inspector and rendered' tbemseiVe? 'eligi'ble^qf/such ^promotion as per the extant lx Recruitment Rules for the.$ajofrcadre. <9 Whereas the ^fibn'blei^TAfiaicupa/B3nch, KSikala, vide its order dated 09.02.2018, in the matter, ha^irectemMs^efja^rrlnt, thCFespondent of the said case, / "... to examine and verify the casFoS^appli^nS^^d if th^pp^licants are found suitable and genuine as per 4h'e Redutm^t^ffi^^j^nt, thei^as^e will be considered for placing the matter before the /el^ndeh^uthorities'ar^also directed to consider and dispose of the individual<fipresehtation^da&^P2018 within a period of two months from the date of receipt ofdh^^yJbHh^^ speaking order The cases of the^pplicantsf asraforesaici) forpromofion to the grade of Inspector of Income Tax, have been duly^examined-with-referenc^to the relevant office records, in pursuance of the aforesaid order 9ated*09:02:2D18( of the Hon'ble CAT, Calcutta Bench, Kolkata. On such examination, it is observed that, (0 All the applicants are presently working as Stenographer, Grade - II (erstwhile Stenographer, Grade - 111, with Grade Pay: Rs. 2,400/-). However, they have been allowed ad-hoc promotion to the grade of Stenographer, Grade - I {erstwhile Stenographer, Grade - II, with Grade Pay: Rs. 4,200/-), during the current Vacancy i Year: 2017-18.
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(ii) All the applicants were eligible for ad-hoc promotion as Inspector of Income Tax, as per the provisions of the relevant recruitment rules, against the vacancies of the Vacancy year; 2017 - 18.
(iii) The cases of the applicants were considered by the DPC held for ad-hoc promotion to the grade of Inspector of Income Tax, against the vacancies of the Vacancy year:
2017 - 18, and they were found 'FIT for such ad-hoc promotion as Inspector of Income Tax, on the basis of their ACRs/ APARs for the relevant period, by the said DPC.
(iv) However, the concerned DPC also recorded the following comments in the minutes regarding the Stenographers, Grade - III, with Grade Pay: Rs. 2,400/-), including the applicants:1
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s 10 ( "13. It was noted by the Committee that, some persons holding the post of Stenographers, Grade-ll (erstwhile Stenographers, Grade-Ill, with a Grade Pay of . i Rs. 2400/-), and who had subsequently been promoted to the grade of Stenographer, Grade-ll, with a Grade Pay of Rs. 4200/-, purely on an ad-hoc basis, v were included in the panel as their names came into the consideration zone against * the vacancies earmarked for them by counting their regular service in the grade of j Stenographers, Grade-ll (erstwhile stenographers, Grade-Ill, with a Grade Pay of Rs. 2400/-). However, the Committee desired to keep it on record that, such recommendations in respect of Stenographers, Grade-ll (erstwhile Stenographers, Grade-Ill, with a Grade Pay of Rs. 2400/-), were made by the Committee in the capacity of a recommending authority only. Final decision regarding releasing names of such persons from the panel for actual ad-hoc promotion would be taken by the appointing authority keeping in view the interim order of the Hon'ble CAT, Calcutta Bench, Kolkata, delivered on 04.06.2014, in the case ofSuniti K. Gayen <S Offers -vs.- Union of India & Others.11.
(V) In the aforesaid order dated 04.06.2014, the Hon'ble CAT, Calcutta Bench, Kolkata, had observed that, Stenographer, Grade-ll (erstwhile Stenographer, Grade-Ill), is not a feeder grade for promotion to the grade of Inspector of Income Tax. That order was passed by a two - member bench of the Hon'ble CAT, Calcutta Bench, Kolkata. The operating part'ipHhls^ra&<is asunder: "....However, from a clanfication dated 27,*o£fr^ohfre Dy. Director of Income Tax (HRD) we findThahftfe Steodt^nmGrdde II (erstftbile Stenographer III) are to be considered onlyZfor Ste^gra^henljand/i^ti grades-a^e to merge with executive f Assistants (Ej^grade)fAs^^meif!n€jhSkhe contention of the applicant is a mere apprehension ano^sT^mbi^usiy clarified bydhe respondents in para 4 of the said instruction dated-'^M^M^^^Ste^graphdd //J (ersfwb/7e Stenographer III) are to be^cOnsiderea^fg^tenogr^phMl and noHorfhe post of Inspector. As such no cause of actioSTa^fiieikot^^^^nL j Respondentsfarfrmwever, direcied'iq^fdnereio their instructions and file reply within a periocIvf four^weeks-in^dfSer^o Indicatew/hether they are proposing to fill up Inspector ITfposIs'-with Stenti G^deJIlf^y^ (Vi) In view of such commentsofjhe DPtT^alrgady mentioned above, the matter was \ considered by the administration, keeping in view the interim judgement of the Hon'ble CAT, Calcutta Bench, Kolkata, dated 04.06.2014, and it was decided not to rt grant such ad-hoc promotions immediately to the applicants, and other similarly placed stenographers, to the grade of Inspector of Income Tax, since it might violate the aforesaid observation of the Hon'ble CAT, Calcutta Bench, Kolkata, in its interim order dated. 04.06.2014. However, the matter was referred to the Principal Director General of Income Tax (HRD), CBDT, New Delhi, vide this office letter bearing No. PCCT/ WB & S/ Pers./ 49/ DPC/ 4E/01/ 207 - 18/ 26 dated 02/ 03.04.2018. Clarification from the Principal Director General of Income Tax (HRD), CBDT, New Delhi, is awaited. ll It is clear from the above observations that, the applicants have already been considered for ad-hoc promotion to the grade of Inspector of Income Tax, against the vacancies of the Vacancy year: 2017 - 18, by the concerned DPC, and they were also found 'FIT' for such ad-hoc promotion. However, no order effecting such ad-hoc promotion, in respect of the applicants, as per the recommendation of the r DPC, has been passed in view of the interim order of the Hon'ble CAT, Calcutta } Bench, Kolkata, dated 04.06.2014, In the case of Suniti K. Gayen & Others -vs.-
Union of India & Others.
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} • 11 . r With this order, all the representations of the applicants in the matter stand disposed of.
-Sd-
(Anupam Majumder) Assistant Commissioner of Income Tax Headquarters (Personnel & Establishment). Kolkata"
The following is inferred from the above mentioned speaking order:-
1) The applicants are substantively working as Steno Gr. II but were allowed ad hoc promotion to Steno Grade I during vacancy year 2017-18.
2) The applicants were eligible for ad hoc promotion as Inspector of Income Tax as per provisions of relevant recruitment rules against the vacancy year 2017-2018.
3) The case of the applicants were fconsidered by the DPC for ad hoc promotion to the gradeCpf lnsp^Gto,ikpflncdfTiie Tax against the vacancies for the vacancy yea^2017^^^Aild/t^^Wre fcfcm^l 'FIT' for such ad hoc ■> u \ promotion as Inspector Sf-lne^etWa^en-the bail's of their ACR/APARs £ for the relevantiperipd, byMe^afQpPCO?' ^!j
4) The concerned BPC rdcordib'd tfer^Me^tPbRC's pomments were in th< \ XX / capacity of a recommendatory^authofity./firtal/aedision would be taken by the appointing authority^keepihg-in-vievfthennterim order of CAT, Calcutta Bench delivered on 4.6.2014 in Suniti Kr. Gayen v. Union of India & ors.
5) While issuing the said order the Tribunal had observed as follows:-
"It is unambiguously clarified by the respondents in para 4 of the said instruction dated 27.4.2014 that Stenographers II (erstwhile Steno III) are to be considered for Steno I and not for post of Inspector.
Respondents are, however, directed to adhere to their instructions and file reply within a period of four weeks in order to indicate whether they are proposing to fill up Income Tax Inspector posts with Steno Gr. III."
6) Given the above observations of the Tribunal dated 4.6.2014 in O.A. No. 259 of 2013 (Suniti Kr. Gayen v. U.O.l. & ors.) the respondent authorities \ / S 12 ■- t have decided not to grant ad hoc promotions to applicants, even though "r7 :
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The respondents have further admitted as follows:-
As per Recruitment Rules read with DOMS instruction dated 4.6.2001 of F.No. 48/1 /2001 -AP/DOMS, Ministerial cadre posts viz. Tax Assistant, Sr. Tax Assistant, Office Superintendent and Stenographers' cadre posts viz.
Stenographer Gr. I, II & III, form feeder grades for promotion to the grade of Inspector subject to 3 years service in the grade and passing the Departmental Examination for Income Tax Inspectors.
• It is, therefore, necessary to understand as to how the clarification dated 27.5.2014 of the Deputy Director of^ncdme Tax (HRD), particularly para 4 * * ' thereof, was interpreted f^be arf^^bSgo^on gj;arit of promotion to the applicants. Clarification j^atedfey^gQjl^xis-^^produceas unden and the-
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follewing-are' mfeTrecHthefeffefB:? 23
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"F. No. HRD/CM/102/10/2014-15/>510v Dated:27/05/2014
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To,
The Principal Chief Commissioners of Jn.comeJax, 'H
Gujarat / Karnataka & GbaAMaH^Tp^deStTcc Chattisgarh/ Odisha/ NWR/ Tamil Nadu/Delhi/NER/ Andhra Pradesh/ . Rajasthan/ UP (West) & Uttarakhand/ Kerala/ West Bengal & Sikkim / UP (East)/ Mumbai/ Nagpur/ Bihar & Jharkhand/ Pune.
Sir/ Madam, Subject: Instructions for conducting of DPCs for vacancy year 2013-14-reg.
Kindly refer to the subject mentioned above. DPCs are to be conducted for Group B & C grades (and also for the posts of Pr. Administrative Officer, which is a Group 'A' post) by the Pr. CCsIT for the vacancy year 2013-14. The DPCs have to take into account the increase in number of posts in these grades as a consequence of Cabinet approval in this regard. The notification of revised Recruitment Rules for these grades 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 and it would not be advisable for conduct of DPCs after notification of new/revised Recruitment Rules.
2. DoPT, vide their OM no. AB. 140l7/79/2006-Estt.(RR) dt. 6.9.2007 has emphasised that as RRs are statutory in nature, they will not cease to operate unless they are repealed. The observations of the Supreme Court in Uol v. V. Ramakrishnan y I / 13 I viz., "Draft Rules cannot form the basis of promotion, when rules to the contrary are holding the field" have been reproduced in this OM.
3. Accordingly, I am directed to request you to kindly conduct DPCs on basis of the existing Recruitment Rules for the respective grades.
4. For the 'Executive Assistant' (EA) grade, which has been approved to be created by merger of the grades of OS, Sr. "TA" & Steno Gr.l, the new Recruitment Rules for / Executive Assistant cadre is also not yet notified. Therefore, I am directed to clarify that t 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 & Steno Gr.ll (erstwhile Steno Grade III) to Steno Gr. I are to be conducted. For the limited purpose of quantifying vacancies of r conducting DPCs, the number of posts notified for the EA grade may be further trifurcated in each CCA region among Os/Sr. TA/Steno Gr.l In the same ratio as the pre-restructuring number of sanctioned posts in these grades.
5. It is further clarified that as per the existing DoPT and CBDT instructions on inter-
) Region. transfer for the purpose of reckoning prescribed years' 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. •« r\ iS-t f ^ ' V*v
6.
x<^ -f4\ The Board has directed thatfurflfsnn'!date of C15<.06.2014 has been fixed for issue of promotion Orders in^aff Pr. odlSR^gitniJSsiT are therefore requested to conduct DPCs prior to this dateftnd to J^sue'afl'promoti^n^ders on,'G5io6.2014. < ' XS \
7. The above instructions^Cviip ^ppfeqdte^fpr vacancy Vear 2013-14. Separate instructions will bb issued foryacan# Qj \ ; r #^
-------(STCnJAY'GOSAIN) Deputy DifertSfofTncome Tax (HRD)"
The above instructions, upon analysis, deciphers the following:-
(i) The instructions are valid for conducting DPC only for the year 2013-14 and that separate instructions would be issued for vacancy year 2014-2015. No separate instructions for holding DPC for the year subsequent to the year 2013-2014 have been produced before us.
(ii) The Revised Recruitment Rules along with new Recruitment Rules for Executive Assistant Grade are yet to be notified and 4 the preparation is under process.
^4.' * / V / 14 / / (iii) The DPCs from Stenographer Gr. Ill to Stenographer Gr. I are to / be conducted pending new recruitment rules for Executive ;
Assistant cadre which was to create a merger of the grades of OS/Sr. TA/Steno Gr. I. From the above, two things are abundantly clear: Jl <
(a)That the clarification related only for holding DPC for the year 2013- 2014 and not thereafter and the present applicants, whose i .
promotions are being considered for the year 2017-2018, are not i covered by the same.
(b)The said clarification allowed DPCs to be held for Stenographer Gr.
J > II only for the purpose ^ofcpnomo'tion to Stenographer Gr. I. No clarification/vieWs*were<-pffened on Tfcfe promotion channel of the / T JfC\ Stenographed to tl^ep^g f me Tax.
Hereafter, we^refer to4h|^resporitientsyihstructjorfs dated 4.6.2001 on filling up posts in Gr. 'ByC' and^Ijiooi/sequ^p^o restructuring plan approved by the Union Cabinet and the^jnstructions for Tilling^up posts of Inspectors by \ \y / promotion are extracted assfolf6w/(erh'phiasis'Jsu'pplied')> y ' "Subject: Filling ^up of posts in Group 'B\ 'C' & 'D' consequent to restructuring plan approved by the Union Cabinet - instructions - reg.
X x x X X X X X X X
INSPECTOR
Annexure
RECRUITMENT YEAR 2000-2001 RECRUITMENT YEAR 2001-2002
Cadre Inspector Inspector
Pay Scale 5500-175-9000 5500-175-9000
Cadre 9490 9490
Strength
Feeder 100% by promotion with one year 2/T* of vacancies by
cadres & relaxation in the qualifying service promotion_________________
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j Eligibility Office Superintendent 1/3? by direct recruitment.
v conditions Assistant DR vacancies intimated to
Tax Assistant the Implementation Cell for
UDC necessary approval from the
-i Steno Grade t/tl/lll Dept of Expenditure For i
j
7 With three years service in the filling up.
respective grade and should have Eligible cadres qualified the Departmental Office Superintendent Examination for Income Tax Senior Tax Assistant (the inspectors. merged cadre incl. DEO The names of ail such qualified Grade C and DEO Grade B) candidates shall be arranged Tax Assistant cadre wise in two separate lists for UDC each cadre. In the first list the Steno Grade l/il/III names of all the qualified With three years service in candidates falling in the cadre the respective grade and shall be arranged in order of should have qualified the seniority in the department. In the Departmental Examination second list the names of all the for Income Tax Inspectors, qualified persons falling in the The names of all such cadre shall be arranged according qualified candidates shall be to the date or as the case may be, arranged cadre wise in two the year of^\'p£iss1hg ? Gthe. 'separate lists for cadre. In Departmental qS Exagmatidm^e^fjrst list the names of all provided that'' thej!0^on?%bo lhe^\qualified candidates pass the examination\>\ the/same* faflin<g?n the cadre shall be date shall^be aSahqkdsaicdfdi^gi L arranged in order of seniority to seniority in tife^SepartmePTUSn. \in ttye department. In the the approval of ftersdnsffifi&^id ' second j seniority list, the list relating to ead^caor^t^-^hm names of all the qualified Depariqiehtal iPromotion personsj falling in the cadre committee the^n^me^df^lTtiiei /shall be arranged according selected^ candiclates shall %e ^bjhe/date as the case may arranged Iq ^wp'sejecNists^iff^the^be /he year of passing ratio of 3:^shne^CbMainirig^itie?/Departmental Examination names of pertonsyrem-both'ffies'provided that persons who cadre on the basis^ofseniority^nd pass the examination on that the other containing the names of date shall be arranged the persons from both the cadres according to senior on the basis of the date or as the Department. On the approval case may be the year of passing of persons in the list relating the departmental examination. to each cadre by the Vacancies in the promotion quota Departmental Promotion shall be filled from the said two Committee the names of all I lists in such a manner that the the candidates shall be ratio of 3:1 is maintained between arranged in two select the the ministerial cadre and the ratio of 3:1, one containing Steno Cadre. For the purpose the persons from both the persons working in the higher cadre on the seniority and grade will rank senior to persons the other containing the working the lower grade. names persons from both the In other words there are only cadres on the base date or two changes made to the as the case may be the year existing recruitment rules i.e. of passing departmental relaxation of one year in examination. Vacancies of qualifying service and diversion promotion quota shall be of direct quota to promotion filled from the lists in such a / / K 16 » I quota. manner that he ratio of 3:1 is s/ maintained between the ministenaf cadre(including the DEOs) and the Steno Cadre. For the purpose persons working in the higher grade will rank senior to persons working in the lower grade.
In other words, existing recruitment rules for the cadre are to be followed.
Composition Inspectors remaining in the cadre Inspectors remaining in the if. and inter-se for want of promotion: cadre for want of promotion:
seniority in Others ■ as per their order of Others as per their order of f the cadre selection by the PRO selection by it. Method of 1. Sanctioned Strength. 1. Sanctioned Strength. determining 2. Working strength. 2. Working strength. vacancies 3. Number of vacancies (1-2J 3. Number of vacancies (1-2)______________ The instructions dated iT'6t20(8 Clarifies that:
6 k
(a) The existing^c^ruitm^nt rules^f ne cadf^are to be followed.
1' * ' {b)That, Steoo Gr.fl/Mlj: 'gsis for promotion to ^ ii' Inspectdrscof Income^Ta w> W/i ! & The Respon'dents^SqfiiJfefeWnT^Ti^arfhg.that/he instructions dated ' / \ 4.2.2001 continue to The respondents have fumisbed-a^ommunication dated 17.11.2015 in which the Deputy Commissioner of Income Tax, Hqrs. (Pers. & Estt), Kolkata on behalf of the Principal Chief Commissioner of Income Tax, West Bengal & Sikkim had stated as follows:-
"F. No.: Review DPC for promotion to ITI (Sub.)/ 2015 -16/12616 Date: 17,11.2015 To The Income Tax Officer, Hqrs. (OSD), O/o. the Principal Chief Commissioner of Income Tax, West Bengal & Sikkim, Aayakar Bhawan, Kolkata Sub: Speedy settlement of the case of Suniti Kr. Gayen & Ors. -vs- Union of India & Ors. in OA No. 259 of 2013 read with MA No. 350/00164/2014 - pursuance of
- request for.
/
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Ref.: Interim judgement of the Hon'ble CAT, Calcutta Bench, Kolkata, in OA No. I 259 of 2013 read with MA o. 350/00164/2014 dated 04.06.2014. f Please refer to the above.
V' The Hon'bie CAT, Calcutta Bench, Kolkata, had passed an interim judgement dated 04.06.2014, inter - alia, observing that Stenographers, Grade - II (erstwhile Stenographers, Grade - III) are to be considered only for promotion at Stenographer, \ Grade - I, and not for the post of Inspector of Income Tax. While passing such interim order, the Hon'bie -CAT, had referred to the Para 4 of the CBDT's letter dated 27.05.2014.
On careful reading of Para 4 of the letter dated 27.05.2014, it appears that the process of conducting OPCs for promotion to the Grades of Office Superintendent, Senior Tax Assistant, &Stenographer, Grade - I, has been elaborated therein, pending the notification of recruitment rules for the grade of Executive Assistant, approved to be created in the process of restructuring. Nowhere in the said paragraph, it has been mentioned that Stenographers, Grade - II {erstwhile Stenographers, Grade - III) will not be considered for promotion as Inspector of Income Tax. f However, in view of such observation of the Hon'bie CAT, Stenographers, Grade
- Ill (since re - designated as Stenographer, Grade - II, with Grade Pay of Rs. 2400/-), otherwise satisfying the eligibility^con^difibfrs'^pjer the^relevant recruitment rules, were kept out of consideration whilemolding the origirfa^DPGJor promotion to the grade of Inspector of Income Tax^aQmst the?vaTancy^year: £bl3V 14. Similar stand was also taken while holding origir?al DPGs^or promitiomto the .siid grade (Inspector of Income Tax) for the vacancy year's: 2014s^^^^A^rf'l&^ ^ \ -
ty In the proc'essjof impllTnl7T0f!Oi^fJ|Rljaa^ment& tlie Hon'bie Apex Court in i the N. R. Parmaricase) the p^^&'foJ^S&i'qjloq^o the gradj of Inspector of Income Tax, for the vacantyryears: 2013^^, /oiV\^5J5t 2015 -jl6,-f7ave also been reviewed by holding reviewfopfs. The^reyie%p^^, Vajle drawing up revised panels for the said vacancy years, haveUa keri^cOntfaryst'anS^a ndmbserj'ed tlyit Stenographers, Grade - III, cannot be kept o\it o^y^onsiSeration, if the^ati^blfher eligibility conditions, since the relevant recruitment rbles categ^lcallT^resCrite/SteriSgrapher, Grade - III, as one of the feeder grades. Ohst^'e*^asf/:Sf*su£i^ot3s^rv.afion, it has included names of Stenographers, Grade - III (sincere^designated as*Sfenographer, Grade - II, with Grade Pay of Rs. 2400/-), in the revised pane§'fin5lize5by it for the post of Inspector of Income Tax, with a comment that such inclusion is made by it only as a recommending authority, and the final decision regarding release of the names of such persons from the panels for actual p/omotion as Inspector of Income Tax, has to be taken by the appointing authority, keeping in view the interim judgement of the Hon'bie CAT, as aforesaid.
In the backdrop of the situation elaborated above, the matter has been examined by the Principal Chief Commissioner of Income Tax, West Bengal & Sikkim, with all relevant rules & records, and it has been decided to pursue the matter through the departmental counsel in the Hon'bie CAT, Calcutta Bench, Kolkata, for expeditious \ * settlement of the issue.
Under the circumstances, I am directed to request you to pursue the matter in i the Hon'bie CAT, Calcutta Bench, Kolkata, on top priority basis so as to ensure the expeditious final judgement from that end in the matter.
\ It may also be mentioned in this context, that this department has already filed its version in the case, as directed by the Hon'bie CAT, Calcutta Bench, Kolkata, in its interim judgement as mentioned herein above, stating inter - alia, that Stenographer, Grade - III, is a feeder Cadre for promotion as Inspector of Income Tax, as per the ! / / 18 H existing recruitment rules, and they cannot be kept out of consideration in normal course. It may also be mentioned that, recruitment rules are statutory in nature, and they cannot be altered or modified by issuing mere executive instructions. b"/ r This issues with the approval of the Principal Chief Commissioner of Income Tax, ft* * / t West Bengal & Sikkim.
i t (SANAT KUMAR RAHA) Deputy Commissioner of Income Tax, Hqrs. (Pers. & Estt.), Kolkata For the Principal Chief Commissioner of Income Tax. W.B. & Sikkim" I * I i This communication confirms the view that para 4 of letter dated \ 27.5.2014 of CBDT did not anywhere state that Steno II (erstwhile Steno III) will not be considered for promotion as Inspector of Income Tax. This view has been reiterated by the respondents in their reply in O.A. No. 259 of 2013, wherein the respondents had categorically affirmed thatfa^such interim order as prayed for by applicants in O.A. 259^? 2013fwoul(ldeny^romotion to other eligible . V \ 1 { /Sk >\ candidates.
O The CBDTrin^ieir c alio clarified that "as per existing RRs, the posts^of Steno^/ll (ersKyfele StenoT3r. Ill) continues to be the feeder grade for tfvte p^i^^^eno^GrJ^a^^^as^lhcorne( Tax Inspectors t subject to fulfillment of otheNcnterioh i^t<pa^hg^of departmental examination."
7. Accordingly, we are of the considered view that as because:-
(a) The applicants admittedly have been declared 'fit' by the respondent authorities in the DPC held for adhoc promotion to the post of Inspector of Income Tax against vacancies for the vacancy year 2017-2018 and found fit for such adhoc promotion as Inspector of Income Jax on the basis of ACR/APAR for the relevant period by the said DPC.
(b)The clarification dated 27.5.2014 of the Deputy Director, Income V Tax (HRD) that has been referred to in the Tribunal's order dated 4.6.2014 under no way applies to the vacancy year 2017-2018 to promotion to Inspectors of Income Tax and given the fact that <U' / 19 ' / /- instructions of 4.6.2001 continue to prevail, there appears to be no f: impediment in actual implementation and grant of promotion on a u' & adhoc basis to the applicants for the vacancy year 2017-2018.
F Hence, the respondents are at liberty to grant promotion to the applicants as per law towards ad hoc promotion as Inspector of Income Tax untrammelled by observations dated 4.6.2014 in O.A. No. 259 of 2013.
In O.A. No. 259/2013, the applicants, who were holding the posts of Office Superintendents in the office of CIT, Kolkata are aggrieved by notification dated 8.9.86 of Department of Revenue, Ministry of Finance which prescribed the quota of 3:1 from the Ministerial cadre and Stenographers' Cadre respectively for filling up vacancies in the grade ^ofj <lncoi^e''T'ax Inspectors earmarked for ■f promotion. According to th^ppli^pte^suc^^rodllc^.n of quota was going to act as a constraint in /advancing4ft^^|g^^^er post of Inspector of rnnnme Tax and that ^ GommoC^pS^^^^^^^d ha^e-been oublished before s. Income Tax and that fc eommd|^erMHll^T0^jp ha^-been published before 'Aiii o holding any DPC for sudjpromotiorf/f|i4^b|ifi^tion daieb p.9.96 which is being \ challenged in O.A. No. eiow:-
. GOVERNMENT OF.INDIA
MINISTRY OF FINANCE
(DEPARTMENT OF REVENUE)
New Delhi, the 8,h Sept., 86
NOTIFICATION
GSR 768 In exercise of the powers conferred by the Proviso to article 309 of the
. Constitution, the President hereby makes the following rules further to amend the Income Tax Department (Inspector) Recruitment Rules, 1969, namely:-
1. (1) These rules may be called the Income Tax Department (Inspector) Recruitment (Amendment) Rules, 1986.
(2) They shall be deemed to have come into force on the 1sl day of October, 1985.
In the Schedule to the Income-tax Department (Inspector) Recruitment Rules, 1969:-
(a) In column 3, for the word and figures "Class III", the word and letter "Group C"
shall be substituted;
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(b) In column 11, for the existing entries and the Note thereunder, the following / entries shall be substituted, namely:-
/ r "Supervisors Grade-I and Grade-ll, Head Clerks, Tax Assistants and Upper Division Clerks (hereafter referred to as the Ministerial Cadre), and Stenographers Grade-I, Grade-ll and Grade-Ill (hereafter referred to as Stenographers' Cadre), with 3 years' service in the respective grade, who have qualified in the Departmental Examination for Income-tax Inspectors. The names of all such qualified candidates shall be arranged Cadre-wise, in, two separate lists for each Cadre. In the first list, the names of all the qualified candidates falling in a Cadre shall be arranged in order of seniority in the Department. In the second list, the names of all the qualified persons falling in a Cadre shall be arranged according to the date or, as the case may be, the year of passing the Departmental Examination, provided that the persons who pass the examination on the same date shall arranged on the approval of persons in the said -lists, relating the approval of persons in the said lists, relating to each Cadre, by the Departmental Promotion Committee, the names of all the selected candidates shall be arranged in two select lists in the ratio of 3:1, one containing the names of the persons from both the Cadres on the basis of the date or, as the case may be, the year of passing the Departmental Examination. Vacancies in the promotion quota shall be filled from the said two select lists in such a manner that the ratio of 3:i is maintained between the Ministerial Cadre and the Stenographe;s^c^irefy Y* x % I xo JX\x x
-Ns \ / £ JP A s- -• Bharat!) r- SMS 01jjter^cretaryjtp the Government of India"
CD \
&
The followingfHs,decipt%reGrtneref)^1^ That, (i) \ A y \\ This notificatiop^*introduces.s the/ln<fome Tax Department Wj' ■-**■'/ / Inspector Recruitment>(Amfendment)-Rcriesf/i986 which will come into force from 1st day of October, 1985;
(ii) That, there will be two cadres, namely, Ministerial, comprising Supervisor Gr. I, Gr. II, Head Clerks, Tax Assistants and UDCs and the Stenographers' cadre, comprising Stenographer Gr. \l\\/\\\. Incumbents in both cadres with three years service in the respective grades who have qualified in the departmental examination for Income Tax Inspectors shall be arranged cadre-
wise. There shall be two lists in each cadre, the first will comprise all qualified candidates arranged in the order of seniority in the Department. In second, the names of all qualified incumbents in a cadre arranged according to the date or the year of passing the departmental examination.
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(iii) After consideration of the DPC, the names of all selected
candidates shall be arranged in two select lists in the ratio of 3:1, one containing ty.-.r"--
irvT?
•. • the names of persons from both the cadres on the basis of seniority and the other containing names of persons from both cadres on the basis of the date or the year of departmental examination.
t
(iv) Vacancies in the promotional quota shall be filled from the said two select list in such a manner that the ratio 3:1 shall be maintained between the Ministerial and the Stenographers' Cadre. The applicants in O.A. No. 259 of J 2013 have advanced the following grounds for claiming their relief:-
{a)That, fixing ratio 3:1 ratio by the notification so challenged is discriminatory and violates Article 14. and 16 of the Constitution of India as because an incumbent holding the posKbfia^Jn^gfaphersGr. Ill will be posted to the promotional Inspector^jusyafter'loom^pletion ovthree years but those v y*vs\\l//7\ C* \ appointed in the MinistenaIs<Bat 17 years to reach ' ^ the said promotional avepuer^ 0>
(b) Due to introducti^rf of the^ne^pdi^^^jun^or^'p^vate respondents in \ the O.A.) will becom^Sor^ to the applicantss.as because they would be promoted earlier ^xlrispectbT^of tlhfeorpe ■ T^x as compared to the applicants.
The respondents have contended that, following the directions of CBDT vide their letter dated 27.5.2014, a supplementary DPC meeting was . held on the basis of existing recruitment rules and in adherence to the directions of the CAT, Calcutta Bench dated 4.6.2014. The DPC further met on 10.6.2014 to review the panels for regular promotion against the vacancies of 2013-2014 and that a consolidated panel was finally drawn up and the zone of consideration was determined as per existing gradation lists of the feeder grades as restricted by the directions of the Tribunal dated 4.6.2014.
That, the ratio of 3:1 for Ministerial and Stenographers' cadre respectively was made operational with effect from 1.10.1985 much before.
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joining of the applicants in the department and that no new policy had been framed by Government of India so as to deprive the applicants from their y. promotion. The applicants were appointed in terms of recruitment rules which i existed much earlier to their entry into government service and that the government in its right and capacity of the employer had an inherent right to amend the recruitment rules of any cadre. According to the respondents, the officials of ministerial cadre have two separate avenue of promotion, one is to the grade of Inspector and other is to the grade of Administrative Officer and that despite submissions made by the applicants to the contrary, nowhere in the communication of CBDT dated 31.5.2013 it has been proposed that the post of Executive Assistant is a feeder post to Inspector of Income Tax. The communication dated 31.5.20-13^onl9 refers4 to "constitution of a new cadre which is only proposed a'rfd yeUpfSe^SiS^d, X\ * According to t^§ resppn aA in promotion of the applicants
- \ C is not attributable jogny infir:mit55jrwtne5®raitment rujesjbut is on account of the fact that numberQf candidatgs^^^^rom the Ministerial cadre is much ■ larger than that in trip Ste^^a^hers cadr^^^^the^said.recruitment rules \v ^ /.
does not discriminate on4nevbalis7Pf<cas*t§,''creed/Teligion1 place of birth etc. x ^" •"i the said cannot be said to be"'violative-^of the provisions contained in the i \ Constitution of India.
Upon a perusal of instructions for filling up of post of Inspector as notified on 4.6.2001, it is seen that all the feeder cadres will, after three years of service in their respective cadre, and after qualifying in the departmental examination, will become eligible for the post of Income Tax Inspectors subject to their recommendation by the DPC on satisfaction of other suitable criteria as prescribed. Hence, no discriminatory clause or provision is detected in the said instruction which emanates from the recruitment rules of 1969 as amended in 1986.
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The applicants have challenged the 1986 notification as a new policy.
i This argument is not tenable as because the applicants have only been i • appointed from 1996 onwards and, under no circumstances, a policy which r \ was prevalent for almost a decade prior to the appointment, can be i challenged as a new policy by the applicants who have actually been appointed on the basis of Rules which prevailed at the time of their entry and which was not under challenge at the entry stage. In the written notes of arguments, the respondents have furnished a list whereby it is seen that 8 of *• the 13 applicants in O.A. 259 of 2013, namely, Shri Suniti Kr. Gayen, Arshad i Reza, Sunil Kr. Mahato, Satyanarayan Maity, Biplab Kumar Mallick, Bikash i Mahara, Swapan Das, Debasis Rudra and Gopal Chandra Bose have already f been promoted as inspectors^fheeym^,4p%4/becember, 2014 respectively.
The respondents have.riSt*ave^^^j^^fetethatp^emainlng applicants in O.A. 259/2013 will/be^eprjvpdxiKtiLi^^^pf pi&mition once eligible for I i t 4 r \ the same. \ i It is trite, thaVbnce can^|t^^a^cipc ifTa/promotional process v the principle of estoppdl^applies As \ Ujiion of India v. M. j \ Chandrasekharan, (1998)^3^SCCS694 cafididates'who appeared in the DPC ! i after being made aware of the^proeedure'tor promotion cannot question the procedure even if unsuccessful in the same. The applicants are undoubtedly l the beneficiaries of the notification of September, 1986 which they now seek to challenge and, after having accepted promotion on the basis of such policy 3 they cannot turn around and question the principle of equity involved in the j same.
i The applicants in O.A. No. 259 of 2013 have challenged the i i f notification dated 8.9.1986. The applicants in O.A. No. 615 of 2018 have challenged notification dated 5.8.2016. It has been held by the Hon'ble Apex Court in the Sfafe of Orissa v. Bhikari Charan Khuntia, (2003) 10 SCO 144 recruitment is a matter of policy and the policy decision of government i ?
t -r-z-z'T:
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regarding recruitment/promotion is not amenable to judicial review unless the same is arbitrary. The Hon'ble Apex Court as in Union of India v. Puspa > f.-w'.f i r> Rani (2008) 9 SCC 242 has further held that the Courts should not lay down i i modes and procedures for recruitment and the only scope of judicial review ;
I arises if proved that the decisions were malafide or influenced by extraneous f \ reasons. In the instant matter, no arbitrariness is established as because both j i cadres have been given equal opportunity of promotion. In fact, for every j three incumbents in Ministerial cadre, only one incumbent in Stenographers' cadre are to be considered for promotion to Income Tax Inspector. It is not the case of the Stenographers that they have been discriminated against in the \ 1986 policy. Neither have the applicants established that any malafide or extraneous considerations hav.e;$u\^$%fef1.986s.notification and we do not find any scope of judiciafeeviewrthTr^Srtpts us'to ifttfervene in the same. The 1 v notification dated 5.8.2016 agsailed^y/£fppli^i}ts in %A\No. 615 of 2018 is in j i a draft stage and it if^the pperoga^vfeoSEhe^Rlspondents to finalize the sam after considering objections as reeeivedlther-eupon. i f ' i In N.T. Devin Kutti and others v. Karnataka Rubiic/Service Commission / > and others (1990) 3 SCC 157, the,Hon'ble Ap'e^Court, inter alia, held that v'.
where advertisement is issued Tnviting^applications for direct recruitment to a i r category of posts, and the advertisement expressly states that selection shall ! ;
be made in accordance with existing Rules or Govt, orders and, if, it further L . indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the ;
then existing Rules and government orders. The court further held that i selection must be regulated in accordance with the rules and orders which ;
r were in force on the date of advertisement. \ Following the Hon'ble Apex Court's decisions in B.L. Gupta and another v. MCD (1998) 9 SCC 223, Y.V. Rangaiah v. J. Sreenivas Rao ! (1983) 3 SCC 284, P. Ganeshwar Rao v. State ofAP (1989) SCC (L&S) 123 ! 1 J &V V-' »=r ' 25 ./ and P. Mahendra v. State of Karnataka (1990) 1 SCO 411 as well as Vimat w* Kumari v. Sfafe of Haryana (1998) 4 SCO 114, it emerges that the competent authority may take a decision to amend the Rules and fill up all vacancies in accordance with amended rules. If such a decision is taken by the competent authority, that would justify the delay in making the promotion against the existing vacancies.
8. O.A. No..615 of 2018 is, therefore, disposed of with a direction to the respondents to grant promotion to the applicants therein according to law and without being untrammeled by observations of the Tribunal dated 4.6.2014. This Tribunal does not deem it fit to intervene in the process of finalization of draft recruitment rules of Executive Assistants dated 5.6.2018.
bearing No. 320ybrto^ fep |binf>prasecution is allowed and M.A. disposed of accordingly. M$TNo. earlyxlisposal is infructuous as the Tribunal has heard the*matt^r1finaNy}^h^a^ispos^d the same.
^ C \
O.A. No. 20i8Hs'^tsp6slecl'^)KwithouT'any intervention in the
policy notification dated-September,/1986. ^AKt^e same time', the respondent No. /. / 3,' namely, the Chief Commissipne? of Incom^Tax.NAbyakar Bhawan, Kolkata is v ^ ^Z y directed to examine the reprelsen'tatidris:iofyappliGantsnn O.A. No. 259 of 2013 and to recommend to the competent-~autlT,ority the scope of introducing recruitment/promotional policies with particular reference to intake at the entry point of the cadre. The exercise should be completed within 8 weeks of the date of receipt of this order.
M.A. No. 325 of 2013, M.A. 282 of 2013 and M.A. No. 164 of 2014 praying for stay of DPC have become infructuous given the fact that 8 of 13 applicants in O.A. No. 259 of 2013 have been promoted after conducting regular DPC and there is no justifiable ground for their grievance in this regard. M.A. No. 384 of 2017 for early hearing is disposed of with the issue of the orders in O.A. No. 259 of 2013. CPC No. 76 of 2013 arising from O.A. No. 259 of 2013 is also disposed of as the respondents have categorically asserted that there has been V ■ 1 0 y • r~? ~~ "
1» . / ' ts . / 26 / /r no violation of the orders of the Tribunal dated 8.8.2013 and no promotion was . F y given to the Stenographers to the post of Inspector of Income Tax in abidance to 0 tv-.
■/ the Tribunal's orders with respect to the same. ! / With these directions, O.A. No. 615 of 2018 as well as O.A. No. 259 of 2013 are disposed of along with related M.A.s and CPC. No costs.
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(Dr. Nandita Chatterjee) (Bidisha Baherjee)
Administrative Member Judicial Member
SP
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a*