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Judgment
O R D E R
SUDHI RANJAN MISHRA, MEMBER (J):
The applicant has filed this OA challenging the inaction on part of the Respondents in not counting the past service Period from 24.02.2009 to 12.01.2014 rendered in Mumbai Region before inter charge transfer to Odisha Region as qualifying service for promotion to the post of Stenographer Grade-II and Inspector of Income Tax.
The facts of the case as inter alia averred by the applicant in the OA is that he was initially appointed as Stenographer Grade-III, joined on 24.02.2009 under ACIT (HQ) Personnel, Mumbai in scale of Rs.5200-20200/-Central Administrative Tribunal + GP of Rs.2400/- with other allowances. It is submitted that, while he was working as Stenographer Grade-III, under ACIT (HQ) Personnel, Mumbai promoted to the post of Steno Grade-II vide order dtd.02.01.2014 (A/2) in PB-2 and GP of Rs.4200/-. It is submitted that Govt. of India, Ministry of Finance (Department of Revenue), Central Boards of Direct Taxes(CBDT) has issued the guideline dtd. 14.05.1990(A/3) for transfer of non gazette staff from one charge to another charge under CBDT. As per Para-2 (f) of the guideline ‘the service rendered in the old charge will not be counted in the new charge for the purpose of seniority. He/she will be placed at the bottom of the list of the employees of the concern cadre in the new charge. Seniority in the cadre in the Charge to which person is transferred will start from the day that person reports for duty in that charge.’ It is further submitted that Govt. of India, Department of Revenue, Central Board of Excise and Custom issued clarification dated 27.10.2021 (A/4) regarding lifting of ban on inter commissionerate transfer in respect of willing officer's in Group-B, C & D posts under CBEC. Para-2 (ii) of the above clarification dated 27.10.2021 (A/4) is quoted below;
"(ii)The transferee will be placed below all officers appointed regularly to that post/ grade on the date of his/her appointment on transfer basis in terms of Para 3.5 of DOP &T's O.M. dated 03.07.1986. In other words, such a Central Administrative Tribunaltransferee will be junior to those regularly appointed officers prior to his/her transfer. However, such transferred officer will retain his/her eligibility of the parent Commissionerate for his/her promotion to the next higher grade, etc."
It is submitted by the applicant that, while he was continuing as Stenographer Grade-II under Pr. CCIT Mumbai Region has applied for inter-charge transfer to Pr. CCIT, Bhubaneswar Region. Finally, the request of the applicant taken into consideration by the competent authority and he was transferred from the control of CCIT (CCA), Mumbai vide relieving order dtd. 10.01.2014 (A/5) to CCIT (CCA) Odisha Region and reported in the office of Respondent No.3 on 13.01.2014(A/6). It is submitted that, the applicant while working as such appear in the departmental examination for Income Tax Inspector in the year 2015 and came out success. In view of success in the departmental examination his candidature has considered by the DPC and recommended for promotion to the post of Income Tax Inspector for the recruitment year 2017-18 and accordingly order of promotion dated 01.04.2017 (A/7) issued by the Commissioner of Income Tax (Admin & TPS), Bhubaneswar in which the name of the applicant placed at Sl. No.11.
It is further submitted by the applicant that, the issue whether past service in case of inter-charge transfer will be counted for the purpose of promotion or not was subject matter before this BenchCentral Administrative Tribunal in a series of Original Applications bearing O.A.Nos.547/2013, 871/ 2015 & Others. This Bench after taking into consideration all the orders/judgments of different coordinate Benches of the Tribunal, Hon’ble High Courts and Hon'ble Apex Courts has delivered the order dtd.02.12.2019 passed in the above OAs. The relevant portion of the above order dated 02.12.2019 of this Bench is quoted below:-
“29.In view of the discussions above, we are unable to accept the contentions of the respondents that in view of the undertaking at Annexure-R/1 furnished by the applicant, his regular service as Tax Assistant in the Charge prior to his transfer (Andhra Pradesh) to new Charge (Odisha) on his own request on bottom seniority principle, will not be counted for the purpose of the minimum service required for eligibility for promotion to the post of STA in the DPC. Hence, the impugned orders dated 10.12.2012 (Annexure-A/5), dated 18.6.2013 (Annexure-A/6) and dated 16.9.2017 (Annexure-A/7) by which, the case of the Applicant was rejected, are set aside and the matter is remitted to the respondent no. 3 for reconsideration of the Applicant's case for promotion to the post of Senior Tax Assistant by holding the review DPC for the year 2013-14 and for subsequent years after taking into account the regular service rendered by the applicant prior to transfer to Odisha Charge for the purpose deciding eligibility for promotion. It is noted that by such consideration of the applicant, all his seniors in Odisha Charge will also be considered for promotion as per the Recruitment Rules at Annexure-A/3 of the OA, even though some of them might not have completed the minimum years of service in accordance with the Rules applicable for such promotion. If the applicant is found eligible for promotion to the post of Senior Tax Assistant after such consideration, then he will be allowed such benefit on notional basis till the date when he discharged duty against the post of Senior Tax Assistant after his posting. 30. The facts and circumstances of other OAs in the batch, being similar to OA No. 547 of 2013, the impugned orders rejecting the representations of the applicants in other OAs Central Administrative Tribunal of this batch are set aside and these OAs are also allowed in terms of paragraph 29 above. Under the circumstances, there will be no order as to costs.”
It is further submitted by the applicant that, the Respondents being not satisfied with the above order dtd.02.12.2019 of this Bench had approached the Hon'ble High Court by filing several Writ Petitions. The order passed in O.A.No.871/ 2015 was subject matter before the Hon'ble High Court in W.P.(C) No.18927/2020. The Hon'ble High Court vide order dtd. 17.02.2021 (A/9) has dismissed the Writ Petition along with other Writ Petitions. The relevant portion of the above order of the Hon’ble High Court is quoted below: "4. Mr. N.R.Routray, learned counsel for the opposite parties submitted that the question whether in case of a compassionate transfer which is inter region, the service rendered in the previous posting is liable to be counted in the new posting areas for purposes of eligibility for consideration of such promotion was before the Apex Court for adjudication in Civil Appeal No.3792 of 2019 arising out of S.L.P.(C). No.31728 of 2018, which was allowed by order dated 10th April, 2019. Challenging the said order Review Petition filed by the Central Government vide Diary No 41302-2019 was also dismissed on 11th December, 2019. Since the said principle is applicable in all these Writ Petitions, the impugned order of the Tribunal is to be confirmed. 5. In view of the above, since the issue involved in all these Writ Petitions has already been adjudicated by the Apex Court in Civil Appeal No. 3792 of 2019 arising out of S.L.P. (C). No.31728 of 2018, we are not inclined to interfere with the impugned order in exercise of the jurisdiction under Article 227 of the Constitution of India. All these Writ Petitions are accordingly dismissed.”
6. Central Administrative TribunalIt is contended by the applicant that, on 09.09.2022(A/10) he submitted representation to Respondent No.4 with a prayer to count his past service rendered prior to inter-charge transfer for the purpose of promotion to the Post of Inspector/Stenographer Gr.I in Odisha Region and also specifically referred the decision of Hon'ble Apex Court rendered in case of Prativa Rani & Others Vrs. UOI & Others as well as the order dated 02.12.2019 of this Bench passed in OA Nos.547/2013, 871/2015 and others. It is submitted that Respondent No.5 vide order dated 14.10.2022(A/11) Rejected the same. Hence, applicant has filed this O.A. Under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers:-
“8.(a) To quash Para-11.1.2 of order dtd. 14.10.2022 under Ann;A/11;
(b)And to direct the Respondents to count the past service period i.e., from 24.02.2009 to 12.01.2014 render in Mumbai Region before Inter Charge Transfer to Odisha Region as qualifying service for promotion to the post of Steno Gr.II/Income Tax Inspector;
(c)And to direct the Respondents to antedate the promotion of the applicant to the post of Steno Gr.II/Income Tax Inspector according to turn by conducting review DPC with all consequential and financial benefits;”
The respondents have filed counter inter alia averring that the applicant joined as Stenographer Gr.III on 24.02.2009 in Mumbai Central Administrative Tribunal Region in scale of Rs.5,200- 20200/- + GP Rs.2400. Subsequently, he applied for Inter Charge Transfer to Odisha Region on compassionate ground as per CBDT's Instruction No. A-22020/76/89-Ad.VII dated 14.05.1990. In Para-2(f) of the Instruction, it is stated that the service rendered in the old charge of an employee will not be counted in the new Charge for the purpose of seniority. Further, it is also stated that he/she will be placed at the bottom of the list of employees of the concerned cadre in the new charge. It is submitted that these conditions are provided in the Circular so as to safeguard the interest of the existing employees in the Region. The existing employees of the Region to which an employee is transferred on compassionate ground should not be placed at a disadvantageous position. The differentiation between original employees of a CCA and those who come on inter Region transfer is based on a rational differentia, viz. protecting the seniority and career aspirations of original allottees of the Region who had joined their Regions on merit, and not on account of certain compassionate reasons. In case the service rendered in the earlier Region is counted then the very purpose of introduction of the above condition in the Instruction of CBDT would be defeated.
It is contended by the respondents that, the applicant in his application for Inter-charge transfer agreed that on inter-charge Central Administrative Tribunal transfer his seniority will undergo a change and he will be placed at the bottom of the seniority list of his cadre in the new Region to which he is going on transfer and the past service rendered by him in the old Region shall not be counted for the purpose of seniority. Since, an undertaking is given by him while applying for an inter charge transfer on compassionate ground, the claim of seniority on the basis of service rendered in the previous Region prior to their transfer is a breach of commitment made by him at the time of transfer. The applicant joined in Odisha Region on 13.01.2014.
It is submitted by the respondents that, the judgment of the Hon'ble Supreme Court in Pratibha Rani Vs. UOI was not available at the time of applicant's joining in Odisha Region and hence the same is to be implemented prospectively. Thus, the claim of the applicant to give effect to the judgment of Pratibha Rani is not applicable in his case.
It is further submitted by the respondents that, the applicant could not be promoted to the grade of Stenographer Grade I/Inspector before the date of his actual promotion in Odisha Region as he has not completed the requisite years of service in this Region to become eligible for promotion to the higher grade as per requirement of Recruitment Rules.
The applicant has filed rejoinder more or less reiterating the stand taken by him in the OA.
Heard both sides and perused the records.
The circular dated 14.05.1990 of the CBDT stated the following as one of the conditions for allowing his/her transfer on own request to a different Charge as under:-
“(f)The service rendered in the old charge will not be counted in the new charge for the purpose of seniority. He/She will be placed at the bottom of the list of the employees of the concerned cadre in the new charge. Seniority in the cadre in the charge to which person is transferred will start from the day that person reports for duty in that charge. However, he 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.” It is clear from the above stipulations in the said circular that the inter-charge transfer on compassionate ground affected only the seniority of the employee and there is nothing in the said circular to specify that the past service rendered in the old charge prior to transfer will not be counted for the eligibility for promotion also. No circular or rules have been cited or furnished by the respondents to demonstrate that the past services of an employee prior to compassionate transfer will not be counted for the purpose of the eligibility for promotion to higher grade. The only requirement is that the past service will not be counted for the purpose of seniority.
It is further seen from letter dated 27.10.2011 (A/4) of the Deputy Secretary, Ministry of Finance, Department of Revenue, CBE&C regarding “Lifting of ban on Inter Commissionerate Transfer in respect of officers in Group 'B', 'C' & 'D' posts under the CВЕС.” The relevant portion of the letter is quoted below”
“2.On consideration of all aspects in the matter of ICT, it has been decided by the Board now to lift the ban on ICT with immediate effect. Accordingly, any willing Group 'B', 'C' employee and the erstwhile Group 'D' employee may apply for transfer from the jurisdiction of one Cadre Controlling Authority (CCA) to another CCA subject to availability of vacancy and on the following terms & conditions:
(i)The concerned two Cadre Controlling Authorities should agree to the transfer.
(ii)The transferee will be placed below all officers appointed regularly to that post/grade on the date of his/her appointment on transfer basis in terms of Para 3.5 of DOP&T's O.M dated 03.07.1986. In other words, such a transferee will be junior to those regularly appointed officers prior to his/her transfer. However, such transferred officer will retain his/her eligibility of the parent Commissionerate for his/her promotion to the next higher grade, etc.
(iii)On transfer he/she will not be considered for promotion in the old Commissionerate.
(iv)He/she will not be entitled to any joining time and transfer traveling allowance;
(v)Under no circumstances, request for ICT should be entertained till the officer appointed in a particular Commissionerate/post completes the prescribed probation period.
(vi)The seniority of the officers who were allowed ICT earlier by the various Cadre Controlling Authorities on the basis of Board's letters F.No.A.22015/19/2006-Ad.III.A dated 27.03.2009, F.No. A. 22015/11/2008 Ad IILA dated 29.07.2009 and F.No. A.22015/15/2010-Ad.III.A dated 09.02.2011 shall be fixed as per the present instructions.
(vii)Officers who are presently working on deputation basis from their parent Commissionerate to any other Commissionerate/Directorate and are willing to avail of the ICT in future will have to revert back to their parent Commissionerates first and apply afresh for ICT. The officers who have been continuously on deputation and have been absorbed on ICT during the interim period from 19.02.2004 (ie, the date from which the ban became effective) till date, their seniority will be fixed from the date of their joining on deputation in the transferred Zone/Commissionerate.
(viii)A written undertaking (in the enclosed format) to abide by the requisite terms and conditions will be obtained from the officers before the transfers are actually effected.
(ix)All pending Court cases where seniority protection/ICT has been challenged may be handled appropriately in terms of these instructions and necessary compliance furnished to the Board in due course.”
Regarding the undertaking and the stipulation of the condition in his posting order that the past service in the station prior to his compassionate transfer to Odisha will not be counted for the purpose of minimum service requirement for promotion to the post of Stenographer Gr.-I in Odisha Charge, will be a violation of the Recruitment Rules. The circular of the CBDT does not specify any such condition for compassionate transfer. Hence, such a stipulation made in the order and undertaking will not have any force on the face of the provisions in the Recruitment Rules and the circular of the CBDT and it will be of no help for the respondents’ case as it is specifically stated that “However, such transferred officer will retainCentral Administrative Tribunal his/her eligibility of the parent Commissionerate for his/her promotion to the next higher grade, etc..”
On a similar issue in the case of Pratibha Rani vs. Union of India in Civil Appeal No. 3792/2019, SLP (C) No. 31728/2018, it has been held by Hon’ble Apex Court vide the judgment dated 10.04.2019 as under:-
“1.The only question which is required to be examined in these cases is whether in case of a compassionate transfer which is inter- region, the service rendered in the previous posting is liable to be counted in the new posting areas for purposes of eligibility for consideration of such promotion.
2.The appellants are working as Tax Assistants and on account of plea of compassionate grounds, they were transferred inter-region. The stand taken by the respondent-Department is that as per the administrative instructions, the period spent in case of inter-region transfer in the previous region, could not be counted while posting such a person in a new region for eligibility for promotion.
3.The aforesaid issue is no more res integra in view of the judgment of this Court in the case of Union of India & Ors. vs. C.N. Ponnappan (1996) 1 SCC 524 where this very issue was examined in the factual context of the same department as under :
"The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transfered. Both the periods are taken into account for the purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. in our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred.
4.We may also note that in the context of a different service, on the same principle and noticing C.N. Ponnappan's case (supra), in M.M. Thomas & Ors. vs. Union of India & Ors. (2017) 13 SCC 722, it was observed as under :
"Having heard the learned counsel appearing for the parties and upon perusal of the record, we are of the view that the words of the aforesaid Rule require five years' regular service "in the respective regions". Thus, these words must be understood to mean that the candidates should have served in the respective regions, that is, the regions where they were posted earlier and the region where they seek promotion all together for five years. Thus if a candidate has served in one region and then transferred to another, and seeks promotion in that region, the rule does not require that the candidate must have acquired experience of five years in the region where he seeks promotion, for being considered eligible. What is necessary is a total experience of five years. this must necessarily be so because the service to which the rival parties belong, is an All-India Service, in which the country is demarcated into several regions. In all-India Service, the officers are posted from one region to the other in a routine manner. The purpose of the rule is that such officers are not deprived of their experience in the feeder cadre merely because they have been transferred from one place to another."
5.Thus, it is quite clear that insofar as issue of eligibility of promotion is concerned, the service rendered in the previous region, prior to transfer on compassionate ground, will be counted towards service for eligibility for consideration of such promotion. That it is a non- transferable job, makes no difference on this aspect as service is rendered in the same cadre.
6.We may note that on the same issue, the petitions filed by the Union of India are dismissed today.
7.The appeals are, accordingly, allowed. The parties to bear their own costs.”
In view of the discussions above, we are unable to accept the contentions of the respondents that in view of the undertaking furnished by the applicant, his regular service as Stenographer Grade-II in the Charge prior to his transfer (CCIT, Mumbai) to new Charge (Odisha) on his own request on bottom seniority principle, will not be counted for the purpose of the minimum service required for eligibility for promotion. Hence, the order dated 14.10.2022 is quashed and the matter is remitted to the Respondents for reconsideration of the Applicant’s case for promotion to the post of Stenographer Grade-II/Income Tax Inspector by holding the review DPC after taking into account the regular service rendered by the applicant prior to transfer to Odisha Charge for the purpose of deciding eligibility for promotion. It is noted that by such consideration of the applicant, all his seniors in Odisha Charge will also be considered for promotion as per the Recruitment Rules, even though some of them might not have completed the minimum years of service in accordance with the Rules applicable for such promotion. If the applicant is found eligible for promotion to the post of Stenographer Grade-II/Income Tax Inspector after such consideration, then he will be allowed such benefit on notionalCentral Administrative Tribunal basis till the date when he discharged duty against the promotional post of Stenographer Grade-II/ Income Tax Inspector after his posting.
In the result, the OA stands allowed to the extent stated above.
Pending MAs stand disposed of. No costs.