Chairman Central Board of Direct Taxes and Another vs Mohanlal D. Parmar

D.H. Waghela, J.—The petition is filed by the Chairman, Central Board of Direct Taxes (CBDT) and the Secretary, Department of Revenue, Ministry of Finance, with a prayer to set aside order dated 23.02.2010 of the Central Administrative Tribunal (CAT), Ahmedabad in O.A. No. 65 of 2010. The important and operative part of the impugned order reads as under:

(1). In view of the observations and directions of this Tribunal already quoted above, the order of Government of India already quoted above annexed as A/1 is nothing but thoroughly misconceived. The said misconception is writ large and it needs no further reasoning.

(2). In view of the above matter, to secure the ends of justice and to prevent the abuse of the process of Court, we order that the order in question vide Annexure- A/01 is quashed. We direct the Respondents to pass a fresh order and strictly going by the directions and observations quoted above in our order dated 29.10.2009 passed in O.A. 09/09. We further direct the Respondents to pass a fresh order in terms of the above observations and directions within three months from the date of receipt of this order. Copy of this order be sent to the Respondents. Accordingly, this O.A. stands finally disposed of.

(Underlines added)

The petition is preferred after six months of the above order and also prays for staying its operation, pending admission hearing and final disposal of the petition.

The material part of the order dated 18.12.2009 which was lastly under challenge before CAT reads as under:

Now therefore, in view of the above and in pursuance of the directions of the Hon''ble Tribunal, the competent authority has come to the conclusion that its earlier decision not to grant Non-Functional Selection Grade (NFSG) (Additional Commissioner) in the Junior Administrative Grade of the Indian Revenue Service (IRS) to Shri M.D. Parmar with effect from 01.01.2004 was correct and that the relief sought by him before the Hon''ble Tribunal was frivolous and baseless.

Above order was made pursuant to the direction dated 29.10.2009 of CAT in O.A. No. 09 of 2009. That O.A. No. 09 of 2009 was filed by the Respondent for quashing of the order dated 22.9.2008 of the Petitioners herein and for the direction to grant him NFSG w.e.f. 01.01.2004 and to pay him arrears of pay and retirement benefits with 12% interest. That order dated 22.9.2008 of CBDT, inter alia and in substance, stated that the representations dated 20.10.2004 and 03.09.2005 of the Respondent herein were reconsidered at length and he could not be placed in the grade of NFSG as there was no direct recruit who was junior to him in his batch. Further, Shri Parmar had not entered in the 14th year of service as on 01.01.2004 and hence he was not eligible for the grant of NFSG w.e.f. 01.01.2004. As per instructions on the subject, 147 officers, as per their seniority-cum-fitness, were granted NFSG for the year 2004, but the applicant alongwith eight other officers, who were senior to him, could not be granted NFSG due to non-eligibility of the officers.

That order dated 22.9.2008 was expressly issued in compliance of the order dated 28.7.2008 of this Court in SCA No. 8249 of 2008 which was made when the present Petitioners had challenged the order dated 21.12.2006 of CAT in O.A. No. 226 of 2006 which directed the Petitioners herein to consider the case of the Respondent (and the remaining officers of 1991 batch) for grant of NFSG w.e.f. 01.01.2004, by convening the meeting of the review D.P.C. within three months and to grant him consequential benefits, including arrears of pay and recalculation of terminal benefits and leave encashment, if he were found successful for promotion. In case arrears were not paid to the Respondent within six months, he was held to be entitled to interest at 9% p.a. That direction of the Tribunal was upheld and not disturbed by this Court as far as the Respondent was concerned. The original order in O.A. No. 226 of 2006 was, however, not implemented and the order dated 22.09.2008 rejecting the claim of the Respondent was made only after 20 months and filing of a contempt petition by the Respondent.

Above summary of the course of events in retrospect would show that the Respondent, a retired Joint Commissioner of Income Tax, with unblemished record of service, started his struggle with representations and after four rounds of litigation ended up with an order to consider his case, which order is also challenged after six months by the Department in the present petition; and all that he has claimed and asserted is that he was entitled to NFSG w.e.f. 01.01.2004; the consequences would have necessarily followed in terms of the aforesaid order dated 21.12.2006 in O.A. No. 226 of 2006, which stands and is in operation even today.

The summary of basic relevant facts of the case are that the Respondent was promoted as Assistant Commissioner of Income Tax on 18.11.1991 in the time-scale of 8000-275-13500. He was placed in the senior scale of 10000-325-15200 w.e.f. 01.12.1995 alongwith the entire batch of 1991. That entire batch of 1991 was promoted as Joint Commissioner of Income Tax (JCIT) on 31.01.2003 in the time-scale of 12000-375-16500. As the Respondent was entitled to promotion as Additional Commissioner of Income Tax w.e.f. 01.01.2004 on completion of 13 years of service in Group-A Service as per the Indian Revenue Service Rules, 1988 and his name was not included in the list dated 14.10.2004 of the promotees, he made representation dated 20.10.2004. When such other JCI Ts of 1991 batch, who were left out and JCI Ts of 1992 batch were promoted on 30.08.2005, the Respondent had already retired upon reaching the age of superannuation on 31.12.2004. Since the Respondent was not receiving even a reply to his representations and reminders, he demanded information about the promotions under the Right to Information Act, but the Department refused to furnish relevant information on the ground of "Secrecy". The Respondent continued to make representations till he received reply dated 03.03.2006, as under:

I am directed to refer to your letters dated 09.09.2005 and 15.02.2006 on the above-mentioned subject and to say that while considering the officers of 1991 batch, you could not be considered for grant of NFSG for want of vacancies in that grade. The left-over officers of 1991 batch and 1992 batch were considered for grant of NFSG w.e.f. 01.01.2005. However, you could not be granted NFSG w.e.f. that date due to your retirement from service on 31.12.2004. Your contention that you retired from service on 01.01.2005 is not correct.

(Underlines added)

Thereafter, inconclusive rounds of litigation as aforesaid commenced, culminating into the present petition.

The last order dated 18.12.2009 of the Petitioners, which is set aside by the impugned order of CAT, is more than an exercise in evasion and obfuscation and clearly reveals the approach and attitude in following terms:

... And whereas the applicant, Shri M.D. Parmar, failed to prove before the Hon''ble Tribunal that he was eligible for Non Functional Selection Grqade as per the IRS Rules read with Department of Personnel & Training guidelines/ instructions relating to grant of Non Functional Selection Grade or that any of his junior had been granted Non Functional Selection Grade (Additional Commissioner) with from 01.01.2004, and as such could not establish before the Hon''ble Tribunal infringement of his Fundamental Rights under Articles 14 and 16 of the Constitution of India....

Even after reasoning as above, the Petitioners stated, as the main ground in the present petition for denial of NFSG w.e.f. 01.01.2004, that:

...the Respondent, though eligible for grant of NFSG w.e.f. 01.01.2004, but he could not be placed in the said grade for want of availability of vacancies for the year 2004 as only 15% of the junior duty posts are available. The officers of 1991 batch who were senior to the Respondent were only granted NFSG w.e.f. 01.01.2004. Thus, in short, in the petition as well as in the oral arguments, the Petitioners have relied on non availability of posts for denial of NFSG, but nowhere placed on record the number of available posts and the number of eligible officers who were granted NFSG w.e.f. 01.01.2004. Upon a specific query in that regard when the matter was being heard practically for final disposal, learned Counsel for the Petitioners sought time for taking instruction from office of the Petitioner at Delhi. And, thereafter it was revealed, on instructions, that in fact there were 205 vacancies and only 147 officers were granted NFSG at the relevant time. Therefore, the whole litigation appeared to have been carried on without sound factual basis at the cost of public Exchequer and public time of the Court, and completely disregarding the harassment and huge expenses necessarily caused to the Respondent, who is a retired senior citizen and against whom neither mala fide nor any misdemeanour is even alleged. It also clearly appears to be an abuse of the process of court by no less an authority than the CBDT and the Department of Revenue of the Government of India itself. These observations have to be clearly put in place with a view to preventing such abuse of the process of Court and, if thought fit, screening of such litigation at the higher levels for fixing personal responsibility of the officials concerned.

At last, the Petitioners have, in the written submissions, sought to dig out and re-agitate the issue of the Respondent not having completed 13 years of service as on 01.01.2004, to submit that he was not falling within the vacancies which were available in the year 2004. However, Rule 7 of the Indian Revenue Service Rules, 1988 clearly provides in Sub-rule (3) that appointments in the Service to the posts of Assistant Commissioners of Income Tax (Senior Scale) and above shall be made by promotion from amongst the officers (in) the next lower grade with the minimum qualifying service as specified in column (4) of Schedule II. And column (4), in respect of Junior Administrative Grade, to be filled up by promotion on the basis of seniority-cum-fitness, clearly prescribed minimum qualifying service for further promotion to be officers in Junior Administrative Grade who enter 14th year of service in Gr.A posts in Indian Revenue Service on the first July of ... or the year in which he was promoted to Gr.A, as the case may be. The date of ''first July'' in the above clause is admittedly amended to ''first January''. Therefore, promotion to Gr.A posts at any time during the year has to be treated as promotion on first January of the relevant year. Thus, the objection based on the Respondent having not completed 13 years of service could not survive. And, in view availability of vacant posts in the higher grade as aforesaid, the Petitioners'' stand clearly appeared to be vindictive and discriminatory, particularly when other officers of the same batch were admittedly given the benefit of NFSG.

Since the impugned order only directs the Petitioners to pass fresh order strictly going by the directions and observations made in the order dated 29.10.2009 in O.A. No. 9 of 2009 (which is not challenged) and the Petitioners are given chance to make suitable amends; and since the Respondent has not challenged the order impugned herein, there is no occasion to interfere with or set aside the impugned order, in exercise of the extraordinary jurisdiction of this Court. Therefore, the petition is required to be summarily dismissed, albeit with the clarification, in terms of the order dated 21.12.2006 in O.A. No. 226 of 2006, that the Respondent''s case shall be considered for grant of NFSG w.e.f. 01.01.2004, in accordance with law and, if he is found to be entitled thereto, he shall be granted all the consequential benefits, including arrears of pay and recalculation of terminal benefits and leave encashment. Out of such amounts, if any, as may be found to be due after reconsideration as aforesaid, the arrears of pay and amounts of difference in terminal benefits and leave encashment shall be paid to the Respondent with interest @ 9% per annum w.e.f. 01.07.2007. Subject to the above observations and directions, the petition is rejected with cost quantified at Rs. 15,000/- which shall be paid by the Petitioners to the Respondent within a period of one month from today.