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Judgment
Order
By Kumar Rajesh Chandra, AM.
This Original Application has been filed by the applicant seeking directions to the respondents to grant him promotion as Assistant Commissioner of Income Tax w.e.f. March 1991 i.e. date from which juniors to the applicant have been promoted instead of 27.12.1991 and re-fix his pay accordingly.
Briefly, the facts of the case of the applicant are that the applicant retired as Income Tax officer on 31-12-1992. He was given promotion as Assistant Commissioner of Income Tax w.e.f. 27-12-1991 by order dated 13-10-2010 (Annexure A-2) as a result of order of Hon'ble Supreme Court of India on 31-3-2009 in Civil Appeal No. 2132 of 2009 (Annexure A-3). While working as Income Tax Officer, he was considered for promotion to the grade of Assistant Commissioner of Income Tax (ACIT) Junior Scale for the first time by the DPC, which met in March 1991 for the vacancies on 1990-91. The DPC assessed him 'Good' and did not recommend his name for inclusion in the panel on the ground that candidates with better grading were available in the consideration zone. He was again considered by the DPC, which met in October, 1991 for additional vacancies of 1990-91 and was graded as 'Good' resulting in non-inclusion of his name in panel. Applicant was further considered by the DPC, which met in December, 1991 for the vacancies of 1991-92. However, this time, he was graded as 'Unfit' and was not recommended for promotion by the D.P.C.. Thereafter applicant filed original application No. 2977/1992 before the Central Administrative Tribunal, Principal Bench, New Delhi praying for directing the Department to review and correct his grading in the ACRs for the years 1986-87 to 1990-91, to review his case for promotion to the grade of ACIT (Junior Scale) and to promote him with effect from March, 1991 with all consequential benefits. The Original application OA 2977/1992 was disposed of by CAT Principal Bench, New Delhi by partly allowing the O.A. vide order dated 22-4-1998 with direction to convene a Review D.P.C. within a period of three months. The Review D.P.C. was held on 2-6-1999 which assessed applicant as "Good" for the year 1990-91. The D.P.C. which met in March 1991 and October 1991 found that name of applicant could not be included for want of sufficient number of vacancies. Thereafter applicant filed contempt Petition No. 163/1999 which was dismissed by CAT Principal Bench by order dated 27-1-2000. The applicant filed Writ Petition No. 2367/2000 before Hon'ble High Court of Delhi at New Delhi. Hon'ble High Court dismissed the Writ Petition. The Division Bench of Hon'ble High Court, however, granted leave to the petitioner to seek any further clarification or modification of the order made by Tribunal dated 27.01.2000. Accordingly, applicant filed a Misc. Application before Tribunal. The said application was dismissed by Tribunal on 3rd May 2002. The applicant challenged the order of Tribunal by filing Writ Petition No. 6944/2003 before Hon'ble High Court of Delhi at New Delhi which was dismissed by Hon'ble High Court by its order dated 23-8-2005 (Copy filed as Annexure A-4) with following observation:
Therefore, in our considered opinion, the aforesaid contention, which is sought to be raised by the petitioner, is barred by the principles of res judicata and the same cannot be entertained. Re-assessment of the petitioner by the review DPC reached its finality after the order dated 10th May, 2000 was passed by this court dismissing CWP No. 2367/2000 and the same cannot be re opened again without any justification of reason. Considering the entire facts and circumstances of this case, we find no merit in this petition and the same is dismissed.
Being aggrieved, applicant filed S.L.P. No. 15011 of 2006 before Hon'ble Supreme Court of India which was converted into Civil Appeal No. 2132 of 2009. Hon'ble Supreme Court of India vide its order dated 31-3-2009 set aside the impugned orders and allowed the Appeal with observations made in the body of the order. Relevant portion of Hon'ble Supreme Court's orders are in Para 7 & 8 of the order which are reproduced below:-
"7.Having heard Mr. Manish Pitale, learned counsel for the appellant and Mr. P.V. Shetty, learned Senior Counsel for the respondents and after considering the materials on record including the impugned orders passed by High Court, we dispose of this appeal in the following manner:-The only question on which the High Court dismissed the appeal was the question of Resjudicata. Considering the materials on record and applying the principles of Resjudicata in the facts and circumstances of the present case, we are of the view that the principles relating to Resjudicata cannot arise at all. It is an admitted position that the Review DPC had passed an order without going into the question whether sufficient vacant seats were available at the relevant point of time i.e. in the year 1991-92 when the appellant was found suitable for being considered for promotion. We are informed and in fact, we find from the aforesaid order itself that five members/candidates have already been promoted superseding the claim of the appellant. If vacant seats were made available in the year 1991-92 and the appellant was suitable for promotion, then the question of declining his claim for promotion ought not to have arisen".
"8.We are therefore of the view that the impugned orders cannot be sustained. Let the matter be sent back to the concerned Review DPC to ascertain whether the appellant herein was suitable for promotion in the year 1991-92 and if it is found so, the appellant should be promoted notionally. Since the appellant has already retired in the meantime, the appellant should be paid the amount payable to him on the basis of said notional promotion".
Thereafter by order F. No. A-32013/04/2009-Ad-vi dated 13-10-2010 (Annexure A/2) the Under Secretary to the Govt. of India, Central Board of Direct Taxes, New Delhi had conveyed that applicant has been promoted to the post of Assistant Commissioner of Income Tax against Panel year 1991-92 w.e.f. 27-12-1991 on notional basis. That applicant further submits that five persons namely S/Shri K. Raman, B. Ganguly, V. Krishna, Manoj Dutta and Bhimsen Deomal who were junior to applicant were placed ahead of him and were promoted in March 1991. He should have been given promotion from the date his juniors were promoted i.e. from March 1991 with all consequential benefits such as seniority. Copy of disposition list of Gazetted officers of Income Tax Department, Bhopal and Jabalpur charges as on Sept. 1987 is filed as Annexure A-5. The applicant submitted representation to the Chairman, C.B.D.T., New Delhi for grant of Senior Time Scale of Pay as also to the anomaly in the pay (Pension) with that of officers who were junior to applicant as per disposition list. The representation of applicant was rejected by the Under Secretary to Govt. of India, C.B.D.T. New Delhi on 2-7-2012 (Annexure A-1). The letter of CBDT dated 2-7-2012 is against spirit of orders of Hon'ble Supreme Court of India so for it relates to the date of promotion of applicant. Hence, this Original application. Furthermore, application seeking condonation of delay has been filed separately.
In their reply, the respondents have stated that as per the directions of Hon’ble Supreme Court, the applicant was promoted to the grade of ACIT on notional basis w.e.f. 27.12.1991, i.e. date of promotion of the last officer in the 1991 batch viz. Smt Indu Bhusan Choudhury. The applicant was recommended for promotion as ACIT in compliance of the directions of Hon'ble Supreme Court even though the case of the appellant was not covered under the instructions of DoP&T and that there were no specific directions of the Court with regard to his placement position in the panel. Office Memo dated 26.09.2010 carrying the instructions from DoP&T is annexed as Annexure R-1. As provided under para 6.3.1 (i) of DoP&T O.M. dated 10.04.1989, the officer graded as 'Outstanding' would rank en block senior to those who are graded as 'Very Good' and officers graded as 'Very Good' would rank en block senior to those who are graded as 'Good' and placed in the select panel accordingly up to the number of vacancies, officer with same grading maintaining their inter-se seniority in the feeder grade. Though Shri N.A. Khan was graded 'Good' he could not find place in the panel on account of non- availability of vacancies. The representation of applicant regarding anomaly in the pay (Pension) with that of the officers who were junior to the applicant was disposed of rejecting his claim as the officers, junior to the applicant with better grading in ACR, were promoted in Group 'A' post and became senior. Thus as per the then existing instructions there is no anomaly in the pay (pension) of the applicant.
This Tribunal has considered the matter and perused the written arguments supplied and documents annexed herewith the Original Application. The judgments relied upon by the counsel for the parties are also taken into consideration.
It is clear that the case of the applicant was considered for promotion to grade of ACIT by the DPCs held in March, 1991 and October 1991 for the vacancies year 1990-1991 and additional vacancies for the year 1990-91 respectively. The DPCs assessed him ‘Good’ and did not recommend his name for the panel as the officers with better gradings were available for consideration zone. He was further considered for promotion by the DPC held in December, 1991 for the vacancy year 1991-92. However, he was graded ‘Unfit’ by the DPC and was not recommended for promotion. Aggrieved by the said decisions, he filed an OA No. 2977/92 before the CAT (PB), New Delhi and the decision of the Hon’ble Tribunal was not in his favour. Later on, when he filed WP before the Hon’ble High Court and the same was dismissed, the applicant filed SLP before the Hon’ble Apex Court against the Hon’ble High Court’s order. The Hon’ble Apex Court directed that the matter was sent back to the concerned Review DPC to ascertain whether the appellant herein was suitable for promotion in the year 1991-92 and if found so, the applicant be promoted notionally.
The Hon’ble Apex in the case of the applicant while deciding the appeal of the applicant, made the following observations:
It is an admitted position that the Review DPC had passed an order without going into the question whether sufficient vacant seats were available at the relevant point of time i.e. in the year 1991-92 when the appellant was found suitable for being considered for promotion. We are informed and in fact, we find from the aforesaid order itself that five members/candidates have already been promoted superseding the claim of the appellant. If vacant seats were made available in the year 1991-92 and the appellant was suitable for promotion, then the question of declining his claim for promotion ought not to have arisen".
"8.We are therefore of the view that the impugned orders cannot be sustained. Let the matter be sent back to the concerned Review DPC to ascertain whether the appellant herein was suitable for promotion in the year 1991-92 and if it is found so, the appellant should be promoted notionally. Since the appellant has already retired in the meantime, the appellant should be paid the amount payable to him on the basis of said notional promotion".
As per the directions of the Hon’ble Apex Court, a Review DPC was held by UPSC on 24.04.2010 and his name was recommended for promotion as ACIT on notional basis for the vacancy year 1991-92. As DPC did not assign any panel position for the year 1991-92 and the date of promotion as ACIT, the referring department approached UPSC for their clarification. The UPSC, in turn, clarified that Shri Khan was recommended for promotion as ACIT in compliance to the Order of the Apex Court even though the case of the appellant is not covered under the instructions of DOPT and that there was no specific directions of the Court with regard to his placement position in the panel.
Furthermore, the department proceeded as per para 6.3.1 (i) of DPC guidelines, the officer graded as ‘Outstanding’ would rank en-block senior to those who are graded ‘Very Good’ and officers graded as ‘Very Good’ would rank en block senior to those who are graded as ‘Good’ and placed in the select panel accordingly up to the number of vacancies, officers with same grading maintaining their inter-se seniority in the feeder grade. Since the applicant was graded ‘Good’, he could not find place in panel on account of non-availability of vacancies, as officers with better gradings were available for promotion against the available vacancies.
Since the DPC had not indicated panel position of the applicant, therefore the respondents promoted the applicant on notional basis w.e.f. 27.12.1991 i.e. the date of promotion of the last officer in the 1991 batch viz Smt Indu Bhushan Choudhary.
The respondents proceeded as per the directions of the Hon’ble Apex Court and proceeded as per rules; and also provided justification for their action. On consideration on the case in its entirety, we do not find any irregularity on behalf of the respondents in promoting the applicant.
In view of the aforesaid, this Original Application is dismissed being devoid of any merit. No order as to costs.