Krishan Dass vs Union of India

Arun Palli, J.—The petitioners approached the Central Administrative Tribunal, Chandigarh Bench (for the sake of brevity and convenience referred to as ''the Tribunal''), being aggrieved against the orders of their reversion from the post of Inspector of Income Tax to Tax Assistants. Accordingly, it was prayed that the said orders be quashed and they be permitted to continue on the post of Inspector with all benefits. The case set out by the petitioners, in brief, for consideration before the Tribunal was that petitioner No. 1 joined the respondent Department as Upper Division Clerk (UDC) in March 1984 and was promoted as Tax Assistants in the year 1991. He qualified the departmental examination for promotion to the post of Inspector in the year 1990 and he was to be considered for promotion against the quota meant for promotion out of 50% vacancies reserved for the candidates passing the departmental examination. The Departmental Promotion Committee (DPC) approved the name of petitioner No. 1 for promotion in the passing-wise list and he was accordingly promoted on regular basis, vide order dated 28.08.2001. Likewise, petitioner No. 2 joined as UDC in January 1983 and was promoted to the post of Tax Assistants in October 1990. As in the case of petitioner No. 1, petitioner No. 2 was also approved by DPC and was accordingly promoted as Inspector vide order dated 18.09.2001.

Since, while making promotions, a large number of Scheduled Castes (SC) employees were ignored by the DPC, they approached the Tribunal assailing the action of the department by filing OAs. However, in the meanwhile, the Department had taken a decision to hold the Review DPC, vide order dated 3/4.12.2001. All the Oas, thus, were dismissed being infructuous on 12.12.2001. The Department was accordingly directed to hold the review DPC within three months. It was pursuant to the exercise carried out by the Review DPC that the petitioners were reverted from the post of Inspector to that of the Tax Assistants, vide order dated 21.01.2002.

In short, the grievance expressed by the petitioners before the Tribunal was that they having already been promoted against SC quota on the basis of seniority, could not have been reverted. It was also their case that before their reversion was ordered, no show cause notice was afforded to them. Still further, it was stated that under the Income Tax Department (Inspector) Rules, 1969, two select-lists i.e. "seniority-wise" and "passing-wise" are required to be prepared for the purpose of promotion to the post of Inspector. It was their claim that both the petitioners were approved by the DPC for promotion in the "passing-wise" list and were accordingly promoted on regular basis.

In response, the Department explained and clarified that there were multiple reasons for holding the Review DPC. In fact, some SC candidates, although they were sufficiently senior to get promotions, were not considered and promoted because the representation of SC candidates in the higher cadre had reached the permissible reservation percentage of 15%. However, post decision of the Tribunal in a case titled as Gurbachan Singh and others v. Union of India and others - decided on 21.05.1999, it was settled that in case, certain SC candidates were entitled for promotion on the basis of their seniority, they could not be ignored from promotion simply for the reason that their promotion would result into increasing their percentage to more than 15%. The said decision by the Tribunal was sustained by the High Court as the C.W.P. No. 11234 of 1999 filed by Union of India was dismissed, vide order dated 17.10.2001. It was maintained that the Review DPC followed the due and required procedure. It was also clarified that certain SC candidates had to be excluded out of the select panel as there were 11 General Category candidates, in the Stenographers'' Cadre and Ministerial Cadre from "passing-wise" list, who were senior to the petitioners and were not considered by the original DPC, insofar as the grievance of the petitioners that no opportunity of hearing was afforded before passing their order of reversion, it was maintained that the Review DPC was conducted in compliance with the judgment of the High Court and in fact, the entire exercise carried out by the Review DPC was to rectify the errors, which had originally crept in the initial process.

The Tribunal, on a thorough consideration of the matter, found that in the Review DPC, certain General Category candidates, in whose case the order of passing of departmental examination for Inspector was not available earlier, were considered. Likewise, some candidates, in whose case, Annual Confidential Reports (ACRs) were not available earlier, had also to be considered. Six candidates in the General Category were found unfit by the original DPC, on the basis of their service record. Therefore, as per the applicable instructions, the said vacancies were also to be filled by considering the candidates belonging to the SC and General Category. Still further, in view of the ratio of the decision in the case of Gurbachan Singh (supra), the entire position had to be re-assessed. It was this exercise, which culminated into the exclusion of the petitioners from the panel and they were accordingly reverted. The Tribunal was of the view that the Review DPC only rectified the earlier mistakes and it could not be the case of the petitioners that the discrepancies committed by the earlier DPC held on 03.07.2001, should not be rectified. The OAs were accordingly dismissed.

We have heard counsel for the parties and perused the records.

Evidently, the original DPC had ignored a large number of SC employees for the purpose of promotion to the post of Inspector and resultantly, they approached the Tribunal. Since the Department took a decision to hold the Review DPC in all the OAs, the same were dismissed as infructuous. As is further discernible from the records, the Review DPC, while reviewing the entire process of promotions already made, followed the required procedure by taking 50% of the candidates from "passingwise" list and the rest 50% from the "seniority-wise" list and the ratio 3:1 between the Ministerial Cadre and Stenographers'' Cadre was completely adhered to. The select panel was drawn according to the rules taking one candidate alternatively from each list.

Besides the above, as is made out from the record, multiple factors, in the wake of which, the Review DPC had to re-visit the entire issue, were:

(i) Certain General Category candidates, in whose case the order of passing of departmental examination was not available for consideration before the original DPC, had to be and were considered by the Review DPC.

(ii) A few other candidates, in whose case, the ACRs were not available earlier, were also considered by the Review DPC.

(iii) Six candidates out of the General Category, who were considered by the original DPC on 03.07.2001, were found unfit on the basis of their service records.

(iv) As per the instructions dated 27.03.1997, the requisite benchmark, in respect of Group ''C'', ''B'' and ''A'' posts, up to the level of Rs. 3700-5000, was good and the vacancies were to be filled on the basis of selection-cum-seniority. In the wake of these instructions, a few more candidates belonging to the SC and General Category had also to be considered by the Review DPC.

(v) A principle laid down in the case of Gurbachan Singh (supra) had also to be factored in by the Review DPC. As explained earlier, in case a candidate belonging to the reserved category (SC/ST), is senior enough to be empanelled , such candidate cannot be counted against the percentage of reservation.

In view of the foregoing, in fact, the entire action, which was resorted to by the Review DPC, was nothing but an exercise of rectification of errors. The Department had very emphatically and in fact, in no uncertain terms, had maintained before the Tribunal that no candidate, either in "passing-wise" or "seniority-wise" list, junior to the petitioners, had been included in the revised panel drawn by the Review DPC held on 04.12.2001. This being so, their names had to be excluded from the panel due to limited number of vacancies. The Department, in its written statement filed before this Court, in paragraph 3 of the preliminary objections, clarified that in order to verify the facts set forth in the written statement filed by the Department before the Tribunal and also certain new facts, which emerged during the course of hearing, the Tribunal had requisitioned the proceedings/minutes of the Review DPC. The records, as stated, were produced and duly perused not only by the Tribunal, but also by both the parties through their counsels. No factual error was pointed out by the counsel for the petitioners (applicants before the Tribunal) after perusing the minutes of the Review DPC.

Ex-facie, this seems to be the only aspect and the issue which was urged before the Tribunal and in our opinion, the Tribunal rightly answered the same. Hence, we find no reason, least plausible, to interfere with the decision rendered by the Tribunal and the petition is accordingly dismissed, leaving the parties to bear their own costs. We may, however, point out that the Tribunal, in its order, had observed that in case, more vacancies are available, the case of the petitioners could be considered on merits at an appropriate time. We notice that the order was made by the Tribunal almost 11 year back. There is nothing on record to discern the current position and status of the petitioners. Even the counsel for the parties have expressed their inability to clarify the position in this regard. Though needless to assert, if the petitioners are not already promoted, their claims would be considered on merits, subject to availability of vacancies, in accordance with law.