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2017 DIGILAW 1289 (GAU)

Union of India v. Lamneimang Vaiphei

2017-09-14

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Manojit Bhuyan, J. 1. Two sets of employees had approached the Central Administrative Tribunal, Guwahati seeking counting of their past service spent outside N.E. Region as well as for considering their promotion to the next higher cadre with all consequential benefits by means of O.A. No. 389 of 2013. The said O.A. was answered by allowing the prayer. Aggrieved, the present writ petition has been filed by the Union of India and others. One set of employees, who are arrayed as respondent Nos. 1, 16 and 17 herein, are Inspectors of Income Tax who are seeking promotion to the grade of Income Tax Officers. The relevant rules governing their promotion is the set of Rules called the Ministry of Finance, Department of Revenue, Income Tax Officer, Group B Posts, Recruitment (Amendment) Rules, 2005 (in short, 2005 Rules'). The other set of employees, who are the remaining respondents herein, are Tax Assistants seeking promotion to the post of Senior Tax Assistants. The relevant Rules governing promotion to the said post of Senior Tax Assistants is the set of Rules called the Income Tax Department (Group 'C') Recruitment Rules, 2003 (in short 2003 Rules'). Both set of Rules are enacted in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. Before setting out the particular provisions of the Rules, which has direct nexus to the determination of the present case, the basic facts may be noticed. 2. All the respondents hail from the North East Region. Their appointment as Inspectors/Tax Assistants in the Income Tax Department was through All India Competitive Examination called the Combined Graduate Level Examination conducted by the Staff Selection Commission (SSC). On their selection and appointment, they were posted at different places outside the N.E. Region. In course of time, they requested for their transfer-and posting in N.E. Region against available vacancies in their respective cadre. Their requests were processed and acceded to consequent upon their giving-an Undertaking/Declaration that their services already rendered outside N.E. Region will not be counted in the new Charge/Region for the purpose of seniority and that their eligibility for confirmation and next promotion to the higher grade/post/scale in the new Charge/Region will only be considered on fulfillment of all eligibility conditions as prescribed in the relevant Recruitment Rules. For ready reference, a copy of the Undertaking/Declaration, as available in the records, is reproduced hereunder: "Undertaking/declaration I do hereby undertake that I shall abide by all the term and conditions (as under), as laid down in the CBDT's letter F. No. A-22020/76/89-Ad. VII dated 14.05.1990, and any other orders/circulars in the matter of inter-charge transfer: 1. That, my inter se seniority in the new Cadre Controlling Region/Charge of the CCIT Guwahati will start from the date of my joining there in the said new Region/Charge, and that, my seniority there shall be placed below all Tax Assistants [whether permanent or temporary] as on the date of my joining there. And, I being a Direct recruitee on my inter-charge transfer to Guwahati Charge/Region. I shall be shown against direct recruitment/promote quota there, as per Para 2(e) of the CBDT's aforesaid circular dated 14.05.1990. And that, I will not rank senior to any official who belongs to a Batch selected on merit whose inter se seniority is not regulated by date of joining. 2. That, the services already rendered by me in the old charge/Region [i.e. Cadre Controlling CCIT's Region, Nagpur will not be counted in the new Charge/Region for the purpose of 'Seniority' and that, my eligibility for confirmation and next promotion to higher grade/post/scale in the new Charge/Region will be considered only on fulfillment of all eligibility conditions such as - completion of the required & prescribed period of services etc. in the present grade/post as prescribed in the relevant Recruitment Rules and that too, in accordance with the 'seniority' allotted to me there in the new charge/region (on inter-charge transfer). 3. That, after my inter-charge transfer to the new Charge/Region, I shall not be eligible for promotion/confirmation etc. in the old Region/Charge. 4. That, I shall not be entitled to any transfer T.A./D.A., Joining Time, Joining Time Pay and Advance of Pay etc. on my inter-charge/inter region transfer, and shall not claim any such facilities, as the transfer is made on my own request. 5. That, I am willing for posting anywhere in the recipient (i.e. new) Charge/Region. 6. That, my lien in the post/cadre of Tax Assistant in the old region/charge shall remain suspended under F.R. 14. Dated: 16.01.2012 Signature:_________ Name:___________ Designation:______ Office:_________" 3. 5. That, I am willing for posting anywhere in the recipient (i.e. new) Charge/Region. 6. That, my lien in the post/cadre of Tax Assistant in the old region/charge shall remain suspended under F.R. 14. Dated: 16.01.2012 Signature:_________ Name:___________ Designation:______ Office:_________" 3. With the grievance that junior persons were promoted to the higher grade and their cases for promotion were not considered despite having passed the Departmental Examination, the respondents had moved the Tribunal for direction to the authorities for holding DPC/review DPC. Contention raised in this regard is that all the respondents have completed three years regular service in the grade from the date of their initial appointment, besides having qualified in the Departmental Examination. According to them their period of service outside N.E. Region cannot be ignored and that their service outside the N.E. Region should be counted for the purpose of reckoning their qualifying service in the grade. In this respect, the respondents placed reliance in two Original Applications which were decided by the Principal Bench and the Jodhpur Bench of the Central Administrative Tribunal. 4. Apparently, the respondents did not complete three years regular service from their date of posting in N.E. Region. Notwithstanding the same, the Tribunal was of the opinion that the judgments rendered by the Principal Bench and the Jodhpur Bench of the Central Administrative Tribunal were founded on the cases of Scientific Advisor to Raksha Montri Vs. V.M. Josheph, reported in 1998 (5) SCC 305 , reiterated in the case of Union of India & Anr. Vs. V.N. Bhat, reported in (2003) 8 SCC 714 , wherein it was held that eligibility for promotion cannot be confused with seniority as both are different and distinct factors. It was also held that even on transfer at own request, the period of service rendered at the earlier place in substantive capacity cannot be excluded from consideration for determining eligibility for promotion, though the incumbent may have been placed at the bottom of the seniority list at the transferred placed. Relying heavily on the judgments rendered by the Principal Bench and Jodhpur Bench of the Tribunal, the Guwahati Bench reached a conclusion that the case of the respondents was squarely covered. Relying heavily on the judgments rendered by the Principal Bench and Jodhpur Bench of the Tribunal, the Guwahati Bench reached a conclusion that the case of the respondents was squarely covered. Accordingly, it was held that the past regular service rendered by the respondents outside the N.E. Region has to be reckoned for the purpose of determining the eligibility for promotion to the cadre of Income Tax Officer/Senior Tax Assistant, as the case may be. In this regard, a direction was made to the authorities for holding review DPC as well as DPC for considering the case of the respondents from the date when such promotion was due along with all consequential benefits subject to their passing of Departmental Examination and vacancy position. The exercise was directed to be completed within an outer limit period of three months from the date of receipt of the order. 5. Whether the Tribunal was right in taking the aforesaid view and allowing the Original Application, the same has to be judged having regard to the relevant Rules. On the subject matter at hand, either parties have referred to judgments delivered by the High Court of Delhi in WP(C) 6368/2015 (Union of India & Ors. Vs. Chet Ram Meena and Ors.) wherein it was held that service rendered in the earlier zone is to be treated as service rendered for the purpose of promotion; by the High Court of Judicature at Patna in Civil Writ Jurisdiction Case No. 12515 of 2015 (Union of India & Ors. Vs. Ranjeet Kumar and Ors.), wherein it was held that past services in the earlier regional cadre cannot be taken into account on the transfer of an incumbent to another Region at his own request and by the High Court of Judicature for Rajasthan at Jodhpur in Civil Writ Petition No. 5148/2013 (Union of India & Ors. Vs. Ramesh Kumar Panwar), wherein it was held that in the matter of promotion to the post of Senior Tax Assistants, the regular service has to be counted from the date of initial appointment as the Recruit ment Rules do not place any embargo. Notwithstanding the dichotomy of views expressed by different High Courts, as above, we intend to consider and decide this case strictly on the basis of the provisions of the extant statutory Rules governing the case of the respondents. 6. Turning to the case of the respondent Nos. Notwithstanding the dichotomy of views expressed by different High Courts, as above, we intend to consider and decide this case strictly on the basis of the provisions of the extant statutory Rules governing the case of the respondents. 6. Turning to the case of the respondent Nos. 1, 16 and 17, who are Inspectors of Income Tax and seeking promotion to the next higher grade of Income Tax Officer, the relevant portion of the provisions in column 12 of the Schedule to 2005 Rules' reads as under: "Promotion: Inspectors of Income Tax in the pay scale of Rs. 6500-10500 with three years regular service in the Grade and who have qualified the departmental examination for Income Tax Officers. Note-1 (1) Promotion to the grade of Income Tax Officer will be made region wise. (2) For the purpose of reckoning three 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." 7. From the contours of the aforesaid provisions under the 2005 Rules', there are three conditions to be satisfied by Inspectors of Income Tax to be eligible for promotion to the grade of Income Tax Officer on region-wise basis. Firstly, one has to be in the pay scale of Rs. 6500-10500. Second, the Inspector must have three years' regular service in the grade and, third, must have qualified the Departmental Examination for Income Tax Officer. The expression "three years' regular service in the Grade" is qualified in Note (2) by prescribing that the service rendered by an inter-region transferee in the earlier region will not be counted in the new region where he has joined on transfer if such transfer had made on the request of the officer concerned. The law being absolutely clear on the aspect of promotion with regard to Inspectors of Income Tax, it is not permissible to ignore the rigour of the Rules and to read the expression "three years' regular service in the Grade" to mean and include the service rendered in an earlier zone for the purpose of promotion. A contrary view would only go to render the provisions under column 12 of the Schedule to 2005 Rules' as otiose. A contrary view would only go to render the provisions under column 12 of the Schedule to 2005 Rules' as otiose. In this view of the matter, having regard to the prescription of the Rules as well as the Undertaking/Declaration given by the respondent Nos. 1, 16 and 17, the Tribunal erred in directing the authorities concerned for considering the case of the respondent Nos. 1, 16 and 17 for promotion to the grade of Income Tax Officer without they having fulfilled the mandatory three years' regular service in the grade and in the new region where they joined on transfer at own request. The case in Union of India & Ors. Vs. Deo Narain & Ors., reported in (2008) 10 SCC 84 supports this view. However, having regard to the clear prescription under the 2005 Rules', further discussion on Deo Narain (supra) is not gone into. 8. Mr. S. Dutta, learned counsel representing respondent Nos. 1 to 17 vociferously argues that column 12 of Schedule to 2005 Rules' does not contain Note (1) and (2) and, therefore, the said 2005 Rules' must be understood as not placing any embargo or in the taking away of service rendered in an earlier region. Mr. Dutta submits that the precursor to the 2005 Rules' was a set of Rules called the Ministry of Finance, Department of Revenue, Income Tax Officer, Group B Posts, Recruitment Rules, 2004 and in column 12 of the Schedule thereof, the criteria for promotion was only confined to Inspectors being in the pay scale of Rs. 6500-10500 with three years' regular service in the Grade, with both Note (1) and (2), as afore-stated, being in place. According to Mr. Dutta, by the amendment to column 12 in the 2005 Rules' it had only added the expression "and who have qualified the departmental examination for Income Tax Officers" and Note (1) and (2), as had existed in the 2004 Rules', was deleted. In support of the said submission, Mr. Dutta have invited our attention to the Explanatory Memorandum appended to the 2005 Rules' to say that column 12 on amendment only reads as "Inspectors of Income Tax in the pay scale of Rs. In support of the said submission, Mr. Dutta have invited our attention to the Explanatory Memorandum appended to the 2005 Rules' to say that column 12 on amendment only reads as "Inspectors of Income Tax in the pay scale of Rs. 6500-10500 with three Years' regular service in the grade and who have qualified the departmental examination for Income Tax Officer." It is submitted that the said Explanatory Memorandum does not make mention of the existence of Note (1) and (2) and, as such, the 2005 Rules' does not prevent counting of service rendered in an earlier region. In our view, the contention advanced by Mr. Dutta is ex-facie fallacious. Note (1) and (2) have remained undisturbed and exists in the 2005 Rules', inasmuch as, the explanatory memorandum only clarifies the amendment brought in column 12 to the extent of only adding the expression "and who have qualified the departmental examination for Income Tax Officers", without disturbing or deleting Note (1) and (2). In this view of this matter, counting of service rendered in the old region in respect of respondent Nos. 1, 16 and 17, in the facts and circumstances of the case, is barred by law. 9. The case of the remaining respondents, who are Tax Assistants and vying for promotion to the post of Senior Tax Assistant, stand in a different tooting. As alluded to above, for the purpose of promotion, the Tax Assistants are governed under the Income Tax Department (Group-'C') Recruitment Rules, 2003. Column 12 of the Schedule to the said 2003 Rules' does not make any mention of forfeiting service rendered by an inter-region transferee in the old region, on his transfer to the new region at own request. This is the distinction between column 12 of the 2005 Rules', applicable to Inspectors of Income Tax, and that of the 2003 Rules', which is applicable to Tax Assistants. Such distinction has been statutorily mandated. For ready reference, Column 12 of the Schedule to the 2003 Rules' reads as under:- “12. Grade from which recruitment by promotion/deputation/absorption/short-term contract re-employment is to be made. 100% by promotion from amongst Tax Assistants who have rendered a minimum regular service of three years in the grade and have qualified the prescribed departmental examination for Ministerial staff. For ready reference, Column 12 of the Schedule to the 2003 Rules' reads as under:- “12. Grade from which recruitment by promotion/deputation/absorption/short-term contract re-employment is to be made. 100% by promotion from amongst Tax Assistants who have rendered a minimum regular service of three years in the grade and have qualified the prescribed departmental examination for Ministerial staff. Note 1: Promotee Tax Assistants will not be eligible for promotion as Senior Tax Assistant till they qualify the departmental examination for data entry skills of 5000 key depressions per hour. It is provided that:- If a junior person is considered for promotion on the basis of his completing the prescribed qualifying period of service in that grade, all persons senior to him in the grade shall also be considered for promotion, notwithstanding that they may not have rendered the prescribed qualifying period of service in that grade but have completed successfully the prescribed period of probation.” 10. The language of both the statutes being clear and unambiguous, it would now be essential to consider whether the Undertaking/Declaration given by the Tax Assistants i.e. respondent Nos. 2 to 15 at the time of seeking transfer to N.E. Region at own request would come into play to deny them the benefit of service rendered in the old region for the purpose promotion. First and foremost, the Undertaking/Declaration is not a statutory requirement. Second, Clause-2 of the Undertaking/Declaration, besides indicating that service rendered in the old charge/region will not be counted in the new charge/region, the same is only for the purpose of seniority. Clause-2 categorically indicates that eligibility for next promotion to higher grade/post/scale in the new charge/region will be considered in terms of the relevant Recruitment Rules. A reading of the said Clause-2 shows that for the purpose of the seniority, the service rendered in the earlier region will not be counted but the purpose of promotion in the new region, the same will be governed by the relevant Recruitment Rules. As alluded to above, column 12 of the Schedule to 2003 Rules' does not take away past service rendered in the old region for the purpose of promotion. As alluded to above, column 12 of the Schedule to 2003 Rules' does not take away past service rendered in the old region for the purpose of promotion. In any view of the matter, the Undertaking/Declaration, even if it appears to act detrimental to the promotional prospects of a Tax Assistant in the first blush, the same cannot encroach upon or allowed to be read into column 12 of the Schedule to 2003 Rules' what is not statutorily prescribed. 11. Mr. S.C. Keyal made a desperate effort by referring to a Circular dated 14.5.1990 of the Ministry of Finance (Department of Revenue) to say that even if 2003 Rules' is silent on the forfeiture of past service in the old region on transfer to a new region at own request, the provisions of the said Circular will come into play. We find that the contention so advanced is without any merit. It is too well settled that an Executive Order cannot supplant statutory rules. Besides, although the Circular dated 14.05.1990 shows that a person on his transfer will not be entitled to maintain his seniority from the old charge and that he would be placed at the bottom of the list in the new charge/region, however, the said Circular does not contain any stipulation that on transfer, the transferee would lose his length of service as well. Submissions made on the basis of the Circular dated 14.05.1990 appears to be wholly fallacious. For all the aforesaid reasons, the present writ petition stands partly allowed to the extent of interfering with the directions made by the Tribunal in so far as respondent Nos. 1, 16 and 17 are concerned. It is made clear that while computing three years' regular service of the respondent Nos. 1, 16 and 17 in the grade of Inspector of Income Tax, the same has to be reckoned by counting their service in the N.E. Region where they joined on transfer at own request and not by including or counting their service rendered in the old region. In so far as the remaining respondent Nos. 2 to 15 are concerned, we find no good ground to interfere with the directions of the Tribunal. Ordered accordingly. No cost.