Sanjeev Kumar Meena And Ors vs Secretary And Ors

V. Ajay Kumar, J

The applicants, four in number, were originally appointed as Income Tax Inspectors in the years 1994 and 1996, through direct recruitment method. Thereafter, in pursuance of the recommendations of a regular DPC held on 17.08.2007, all the applicants were promoted as Income Tax Officers. They filed the instant O.A. seeking quashing of the Annexure P-1, dated 01.09.2015, Final Seniority List of Income Tax Officers as on 01.01.2012, in so far as placing the persons, who were juniors to them in the feeder cadre of Income Tax Inspectors, above them in the said final seniority list of Income Tax Officers.

The appointments to the post of Income Tax Officer are governed by the Ministry of Finance, Department of Revenue, Income Tax Officer, Group 'B' Posts, Recruitment Rules, 1999. As per the said Rules issued under Article 309 of the Constitution of India, the post of Income Tax Officer shall be exclusively filled by the method of promotion and that too by way of selection-cum-seniority, as per the charge-wise sanctioned strength. The said Rules further provide that "Income Tax Inspectors in the scale of Rs. 5500-9000/- with three years' regular service in the grade in respective charge and has passed the departmental examination for Income Tax Officers", are eligible for consideration for promotion to the post of Income Tax Officers.

As per the said Recruitment Rules of 1999, a departmental examination was conducted in the year 2003. In the said examination, the respondent No.4 to 8 were qualified, whereas the applicants could not be qualified.

The respondents vide the Notification dated 21.12.2004, in supersession of the 1999 Rules, issued the Ministry of Finance, Department of Revenue, Income Tax Officer, Group 'B' Posts, Recruitment Rules, 2004, with effect from the date of its publication in the Official Gazette. In the said Rules, the pre-condition of eligibility of pass in the departmental examination for Income Tax Officers was deleted.

Again, vide the Notification dated 24.03.2005 in GSR 189(E) vide the Ministry of Finance, Department of Revenue, Income Tax Officer, Group 'B' Posts, Recruitment (Amendment) Rules, 2005, which came into force w.e.f. 21.12.2004, i.e. with effect from the issuance of the 2004 Rules, itself, the pre-condition of qualifying in the departmental examination for Income Tax Officers was re-introduced. No departmental examination was conducted during 2004 and 2005.

O.A. Nos. 811/2005, 1150/2005, 1039/2005, 1309/2005 and 1627/2005 filed challenging the validity of the 2005 Amendment Rules, including the aspect of giving retrospective effect to the said Rules with effect from 21.12.2004, were dismissed by an order dated 23.09.2005. In the meanwhile, the respondents promoted the respondents No. 4 to 8 on 31.03.2005 on ad-hoc basis, as they have already qualified in the departmental examination conducted during the year 2003.

One Shri Ashwani Kumar Singh, who belongs to Allahabad Region and who was identically placed like the applicants in the instant O.A. i.e. senior in the feeder cadre and who was not qualified in the departmental examination conducted in the year 2003, filed O.A. No. 936/2005, which was disposed of by the Allahabad Bench of this Tribunal on 13.09.2005 as under:

"8. The OA thus succeeds. Respondents are restrained from holding any DPC for the post of Income Tax Officers without conducting necessary departmental examination for promotion to the post of I.T.O. The DPC can be held only after the results of such exams are pronounced and all those who qualify in the exam are also considered for promotion. No cost."

In spite of the aforesaid direction in the said O.A. that the DPC can be held only after the results of the departmental examination, which was reintroduced vide the Amendment Rules 2005, are pronounced and all those who qualified in the said examination were also considered for the said promotion, the respondents conducted a regular DPC on 16.11.2005 and promoted the private respondents on regular basis as Income Tax Officers. The respondents thereafter conducted the departmental examination in the year 2006 and since the applicants qualified therein, they were also promoted as Income Tax Inspectors, through subsequent DPCs.

The O.A. No.2658/2005 filed by Shri Ravinder Kumar and Shri Virendra Singh, who belong to Delhi Region like the applicants, for setting aside the DPC proceedings held on 16.11.2005 and for a consequential direction to hold the DPC afresh, after conducting the departmental examination as per the 2005 Amendment Rules, was disposed of by this Tribunal on 11.09.2006, as under:

"9. We heard learned counsel for parties and perused the pleadings and materials placed on record minutely.

The rules for departmental examination for the post in question under Rule-1, which deals with authority and periodicity in clear terms provided that such examination shall be held "every year in the first quarter of the financial year". The respondents have placed on record their communication dated 20.07.2006 on the subject of calling applications for departmental examination to be held in September 2006, which is scheduled to be held from 11 to 25 September, 2006 and the eligibility criteria is prescribed in terms of existing Examination Rules, 1998. It is an admitted fact that no examination had been held in the financial years 2004-05 and 2005-06. We are unable to appreciate on what basis a DPC could be held by Respondents in November 2005 for considering officials for promotion to the post of ITO when no examination had been held. Merely stating that this was an ad hoc promotion, did not cut the ice as promotion made in such circumstances remain de hors the rules. "On a pointed query raised as to how respondents held a DPC in November, 2005, particularly when there had been a direction issued by the Allahabad Bench of this Tribunal in Ashwani Kumar Singh (supra) not to hold any DPC for post of I.T.O. "without conducting necessary departmental examination to the post of I.T.O.", the learned counsel for respondents stated that the respondents herein were not the parties in the aforesaid proceedings. On perusal of the judgment, which has been placed on record by applicants along with rejoinder as Annexure A-6, we observe that Union of India through Chairman, C.B.D.T., North Block, New Delhi had been arrayed therein as the first respondent, who is respondent no. 2 in the present case. A further explanation was furnished that since the post in question is being de-centralized, the said order would have no application in the facts and circumstances, in our considered view, cannot be accepted and agreed to." Strong reliance was also placed by Shri Uppal, learned counsel, on the order dated 04.08.2006 in OA No. 1226/2006 of Principal Bench in Anita Salman & Anr. Vs. The Chairman, CBDT & Ors. to contend that the claim laid therein, seeking a direction to respondents not to hold DPC for promotion to the post of I.T.O till the departmental examination is held and results are declared, has not been agreed to and, therefore, the present OA should be dismissed. This aspect was seriously objected to by Shri Behra, learned counsel for applicants. It was pointed out that no adjudication of issues has been made therein. Rather, the Allahabad Bench judgment had been noticed therein and it was observed that since there was no proposal for holding DPC, there was no necessity to issue such a direction. If any administrative exigency requires promotion of Income Tax Officers on ad hoc basis, respondents may do so by specifying in the promotion order that their promotion shall remain valid till the results of the departmental examination is announced. On perusal of the said order, we find substance & justification in the contention raised by applicants that said judgment did not decide the issue raised in the present OA. When passing of departmental examination is the condition precedent for promotion to the post of Income Tax Officer, how such a requirement could be ignored or diluted even by the DPC, remains unexplained by the department. In our considered view, respondents' action in convening DPC on the face of direction issued by the Allahabad Bench of this Tribunal is an attempt to over reach the direction of this Tribunal particularly when no appeal has been filed against said order. Such a course of action is impermissible in law. We may also note the fact that since respondents have already called for applications for holding the examination including for the post in question, a part of the relief sought for stands granted. However, the other part of the relief seeking quashment of the DPC proceedings remains to be adjudicated. As we have already held that statutory rules cannot be breached by DPC besides being to the judicial pronouncements on the subject. A copy of order dated 16.11.2005 promoting 28 officials to the grade of Income Tax Officers purely on adhoc basis was produced before us. "Since the said promotions have been made only on adhoc basis, they cannot be continued beyond the date when the results of the departmental examination, which is scheduled to be held in December, 2006, as noticed hereinabove, are announced." It is expected that the respondents would declare such results at the earliest and will not drag on unnecessarily on one pretext or the other.

Accordingly, OA is allowed. There shall be no order as to costs."

The Writ Petition No. 249/2007 filed against the said decision was disposed of by the Hon'ble High Court of Delhi on 26.07.2007 in the case of Secretary, M/o Finance, Dep. of Revenue vs. Ravinder Kumar & Anr., as under:

"We, therefore, hold that unless there is direction to the contrary by the Supreme Court, order of the Tribunal regarding holding of promotion on regular basis deserves to be implemented."

A draft seniority list of Income Tax Officers was issued on 10.10.2013 and after considering the representations of all the concerned, the impugned final seniority list dated 01.09.2015 was issued. Since the claims of the applicants for placing them above the persons, who were juniors to them in the feeder category of Income Tax Inspectors, was not acceded to in the impugned final seniority list, they filed the instant O.A.

In spite of service of notice on the private respondents through the official respondents vide Speed Post dated 03.11.2016, as per the affidavit filed by the official respondents, they have not chosen to contest the O.A. and not filed any counter on their behalf.

Heard Shri A.K. Behera with Shri S.M. Arif, the learned counsel for the applicants and Shri Ashok Kumar, the learned counsel appearing for the official respondents and perused the pleadings on record.

Shri A.K. Behera, the learned counsel appearing for the applicants submits that this Tribunal (Allahabad Bench) in OA No. 936/2005 in Ashwani Kumar Singh (supra) as well as in OA No.2658/2005 dated 11.09.2006 in Ravinder Kumar and Another (supra)(Principal Bench) categorically directed the respondents to hold the regular DPCs for promotion to the post of Income Tax Officers, only after conducting and declaring the results of the departmental examination in the year 2006, and in spite of the same, and in violation of the said orders, the respondents conducted a regular DPC and promoted the private respondents, earlier to the applicants, and hence the applicants are entitled for fixation of their seniority in the category of Income Tax Officers, basing on their seniority in the feeder category of Income Tax Inspectors.

Shri Ashok Kumar, the learned counsel appearing for the official respondents 1 to 3, while not disputing the narration of the above referred facts and judgments of this Tribunal and of the Hon'ble High Court, however, submits that the applicants having not qualified in the departmental examination conducted in the year 2003, cannot have any objection for promotion of the private respondents as Income Tax Officers, earlier to the applicants and fixing their seniority accordingly. However, when this Tribunal specifically directed them that a DPC for regular promotion to the post of Income Tax Officers cannot be conducted without conducting the necessary departmental examination in the year 2006 and without declaring the results therein and to consider all the persons qualified in the 2006 exam also for promotion along with persons qualified in the 2003 examination, how the respondent authorities conducted the DPC and promoted the private respondents, the learned counsel for the respondents, miserably failed to give any valid reason.

There is absolutely no justification in the action of the respondents in conducting the regular DPC and promoting the private respondents on regular basis, in utter disregard of the orders of this Tribunal, i.e., without conducting and declaring the results of 2006 Exam and without considering the cases of the applicants along with the private respondents and others who passed the Exam of 2003, as per the directions of this Tribunal. Though the conducting of regular DPC and promoting the private respondents as ITOs, on regular basis itself, is prima facie, contumacious, being violative of the orders of this Tribunal, as the applicants have not challenged the promotion orders of the private respondents and only sought for fixation of their seniority as ITOs, vis-à-vis the private respondents, basing on their inter-se seniority in the feeder category, we resist from considering the said aspect.

In the circumstances and for the aforesaid reasons, the OA is allowed and the respondents No.1 to 3 are directed to re-draw the Annexure P-1, dated 01.09.2015, Final All India Inter-se Seniority List of Income Tax Officers as on 01.01.2012, qua the applicants and the private respondents, basing on their inter-se seniority in the feeder category of Income Tax Inspectors. This exercise shall be completed within a period of 90 days from the date of receipt of a copy of this order. However, it is made clear that the seniority position of any other person in the seniority list shall not be affected. Pending MAs, if any, stand disposed of. No costs.