C.A. George vs The Union Of India & Ors.

Aggrieved by the rejection of his request for grant of additional remuneration as per FR 49(iii) for holding additional charges, exceeding three months, by the impugned order, dated 23.06.2017, the applicant has filed the OA to quash the said order and for a direction to the respondent to grant him the said remuneration for holding an additional charge of Private Secretary to CIT (Admn-II), Chennai from 12.11.2010 to 24.05.2013 and grant him all consequential benefits

The facts leading to the filing of the OA are as follows: The Applicant retired from service as Senior Private Secretary to the Principal Commissioner of Income Tax-IX, Chennai, on 30.11.2016. He was initially appointed as a Stenographer in the Income Tax Department on 02.08.1982 and, after several promotions, retired as Senior Private Secretary to the Principal Commissioner of Income Tax. He was promoted as Private Secretary and posted to the office of the DGIT (Investigation). On 08.12.2008, he assumed charge as Private Secretary to the Commissioner of Income Tax (CIB), Chennai. Subsequently, he was transferred and posted as Private Secretary to the Commissioner of Income Tax (Central)-II, Chennai, and assumed charge on 04.03.2009. Pursuant to the order of the DGIT (Investigation) in F.No.1101(1)/2010-II dated 12.11.2010, the Applicant was entrusted with the additional charge of Private Secretary to CIT (Appeals)-II, Chennai, which he held from 12.11.2010 to 24.05.2013. As he held the additional charge for a period exceeding three months, he claims entitlement to additional remuneration under F.R.49(iii). In support of his claim, the Applicant relies upon the decision of the Calcutta Bench of this Tribunal in Rajarshi Das Gupta & Others v. Union of India & Others, O.A.No.784/2010, decided on 23.12.2011, wherein additional remuneration was granted for holding ^{additional charge. Pursuant thereto, the CCIT (CCA), Kolkata issued an}Central Administrative Tribunal order dated 08.05.2013 granting such remuneration. The Applicant submitted representations dated 10.03.2014 and 29.08.2016 to the Principal Chief Commissioner of Income Tax, Tamil Nadu and Puducherry, seeking additional remuneration for holding the additional charge beyond three months. As no orders were passed, he filed O.A.No.554/2017 before this Tribunal which by order dated 03.04.2017 directed the Respondents to consider the Applicant’s representation and pass a reasoned and speaking order within eight weeks. Pursuant thereto, the impugned order came to be passed rejecting his request. Hence, the OA.

The learned counsel for the Applicant submitted that the Respondents have rejected the claim on the ground that the additional charge entrusted to the Applicant was of the same cadre, namely, Private Secretary, and not of a higher cadre. He drew our attention to F.R.49, which provides that:

Learned counsel submitted that the impugned order does not state that the Applicant was not officiating in another independent post. Though the offices of the CIT (Central)-II, Chennai and CIT (Appeals)-II, Chennai were under the jurisdiction of the DGIT (Investigation), Chennai, the posts held by the Applicant were independent posts in two different offices— one under the control of the CIT (Central)-II and the other under the CIT (Appeals)-II. Therefore, the Applicant was, in fact, holding an additional charge in another independent post.

He further submitted that under F.R.49(iii), where a Government servant is appointed to hold charge of another post in an office other than his own, he is entitled to additional remuneration. The condition that the additional post should not be in the same cadre or line of promotion applies only where the additional charge is held in the same office. According to the learned counsel, that restriction has no application where the Government servant holds charge of a post in another independent office.

In the present case, although the offices of CIT (Central)-II and CIT (Appeals)-II are situated in the same building, they are distinct offices performing entirely different functions. The Applicant, therefore, held ^{additional charge in another independent office, notwithstanding that the}Central Administrative Tribunal post was in the same cadre/line of promotion. Consequently, the interpretation placed by the Respondents on F.R.49(iii) is erroneous. Learned counsel further submitted that the Applicant held the additional charge from 12.11.2010 to 24.05.2013, i.e., for a period exceeding three months, and was accordingly entitled to additional remuneration under F.R.49(iii). The impugned order, being contrary to the correct interpretation of the said provision, is liable to be set aside and the Applicant is entitled to the reliefs sought in the Original Application.

Per contra, the learned counsel for the Respondents relied upon the reply statement and submitted that additional remuneration under F.R.49 is admissible only when a Government servant is appointed to officiate in a higher post in addition to discharging the ordinary duties of the post held by him. He submitted that additional remuneration is ordinarily permissible where the additional charge is held for a period exceeding 45 days but not exceeding three months. Where it is considered necessary for a Government servant to hold charge of another post or posts beyond three months, the concurrence of the Department of Personnel and Training is required for payment of additional remuneration beyond the said period.

^7.Central Administrative Tribunal ^{Learned counsel submitted that, although the offices of CIT} (Central)-II, Chennai and CIT (Appeals)-II, Chennai were under the jurisdiction of the DGIT (Investigation), Chennai, the Applicant cannot claim additional remuneration merely on the ground that the posts were situated in different offices. He pointed out that the appeal cases arising from the charges of CIT (Central)-II, Chennai were dealt with by CIT (Appeals)-II, Chennai. As per the allocation of jurisdiction among the Chennai Appeals Commissioners, CIT (Appeals)-II, Chennai dealt with appeals relating to assessments made by Central Circle-II, Chennai, which fell within the jurisdiction of the DGIT (Investigation), Chennai and not under any separate CCIT charge.

He further submitted that, even assuming that the Applicant held charge of two independent posts, the nature of the duties performed by him remained substantially the same. In both offices, the Applicant held the post of Private Secretary. Merely because the additional charge related to another office, it could not be treated as holding a different or higher post for the purpose of F.R.49(iii). The essential requirement for payment of additional remuneration was therefore not satisfied. Accordingly, the learned counsel submitted that the Applicant was not entitled to additional remuneration under F.R.49(iii) and prayed that the Original Application be ^dismissed.Central Administrative Tribunal

We have considered the rival contentions made by the learned counsel on either side, perused the pleadings and materials available on record.

Before going in to the merits of the issue we would like to extract FR 49 for better understanding:

Having considered the rival submissions and the material available on record, we find that the principal issue that arises for consideration is whether the Applicant is entitled to additional remuneration under F.R.49(iii) on the ground that he was holding additional charge of another post.

Even if the Applicant’s contention that he was holding charge of two independent posts is accepted, the nature of the duties performed by him in both offices remained substantially the same. In both cases, the Applicant held the post of Private Secretary. Therefore, merely because the additional charge was attached to another office, it cannot be construed as holding two different posts for the purpose of claiming additional remuneration under F.R.49(iii).

The Applicant’s further contention that he is entitled to additional remuneration merely because the two posts were in different offices also cannot be accepted. The posts in question were under the overall jurisdiction of the DGIT (Investigation), Chennai, and, more importantly, both posts belonged to the same cadre and neither constituted a higher post or higher cadre than the post substantively held by the Applicant. The essential requirement for claiming additional remuneration under F.R.49(iii) is, therefore, not satisfied. Accordingly, the Applicant is not entitled to additional remuneration under the said provision.

The decision relied upon by the Applicant, namely, the order dated 23.12.2011 passed by the Hon’ble CAT, Kolkata Bench in O.A.No.784/2010, Rajarshi Das Gupta v. Union of India & Others, is distinguishable on facts and is of no assistance to the Applicant. In that case, the concerned employee was discharging statutory functions and was entrusted with the additional charge of another statutory post, which ^{constituted a distinct and independent entity. It was in that factual context}Central Administrative Tribunal that the claim for additional remuneration under F.R.49(iii) was allowed. The facts of the present case are materially different, as the Applicant held the post of Private Secretary in both offices and the posts belonged to the same cadre.

We also find that this Tribunal had occasion to consider a similar issue in O.A.No.415/2015, decided on 07.09.2015. The relevant portion of the said order is extracted below:

In the above circumstance, we do not find any infirmity in the impugned order dated 23.06.2017 warranting our interference. In the result, the OA is dismissed as devoid of merits. There shall be no order as to costs.