V.J. John, Joint Commissioner Of Income Tax (Retd.), Vazhaparambil House, Chalukunnu, Kottayam - 686001 vs Union Of India & Ors

Sunil Thomas, Member J

The applicant was promoted as Deputy Commissioner of Income Tax with effect from 1.1.2006. He exercised option for fixation of pay on promotion with effect from 1.5.2006. By Annexure A3 OM dated 19.3.2012 the next increment of the applicant was due on 1.7.2006 (Annexure A1). His pay was refixed with an additional increment and was passed by the competent authority as Annexure A2. He was promoted as Joint Commissioner of Income Tax with effect from 31.3.2011 on ad hoc basis. However, his regular increment due on 1.7.2011 was not authorized but he was granted increment in the post of JCIT only on 1.7.2012. In the order issued in 2013 regularizing ad hoc promotion as Joint Commissioner of Income Tax, applicant’s name was not included, since he had retired from service on 31.11.2012.

In the meanwhile, the 5th respondent raised an objection to Annexure A2 fixation by which the benefits of pay enhancement was granted to him including an additional increment as per Annexure A1 OM was held to be irregular on the ground that the OM dated 19.3.2012 would come to the help of the applicant only if an option was exercised by the applicant to continue in the existing scale of pay till 1.7.2006 and that it was beneficial to him. Accordingly, the applicant exercised an option on 18.10.2016 to continue in the existing pay till the date of his next increment on 1.7.2006. Annexure A3 is the option. However, the applicant was informed by Annexure A4 that the belated option exercised by him under FR 22 (1)(a)(1) on 18.10.2016 was to be got approved from the DoP&T vide OM dated 25.2.2003. Thereafter, he made several representations requesting to issue directions to release increment due on 1.7.2011. Ultimately by Annexure A12 order dated 7.1.2019 his representation was disposed of rejecting the applicant’s claim. A grievance petition was submitted thereafter before the 4th respondent which was rejected by Annexure A14.

Aggrieved by the above the applicant has approached this Tribunal challenging Annexures A12 and A14 and seek the following reliefs:

“a) call for the records leading to Annexure A12 & A14 orders passed by the 4th respondent and to quash the same as arbitrary, perverse and against the orders Annexure(s) A1 & CCS (Revised Pay Rules) 2008 in the circumstances of the case; and

b) declare that the applicant is entitled for fixation of pay on promotion as DCIT w.e.f. 1.1.2006 aft er granting the normal increment due on 1.5.2006 in the lower post in the pre-revised scale as done in Annexure A2, in accordance with Annexure A1; and

c) declare that the applicant is entitled for the next increment in the revised scale w.e.f. 1.7.2006.

d) direct the 4th respondent to refix the pay of the applicant by granting one increment in the lower post of ACIT in the pre-revised scale on 1.1.2006 (due on 1.5.2006), then by fixing his pay in the revised scale of ACIT w.e.f. 1.1.2006 and fixing his pay in the revised scale of DCIT on 1.1.2006 consequent on the implementation of the recommendations of the 6th CPC.

e) declare that the applicant is entitled for the annual increment on promotion as JCIT w.e.f. 1.7.2011 and to fix his pay accordingly.

f) direct the 4th respondent to fix the pay of the applicant as per Annexure A1 OM and CCS (Revised Pay) Rules, 2008 taking the beneficial interpretation of the rules as envisaged by them.

g) declare that the applicant is eligible for all pecuniary benefits consequent to the fixation of pay as claimed in this Original Application and also direct the respondents to draw and disburse the same including the arrears to the applicant.”

The respondents have filed a detailed reply statement sustaining the decisions taken, on the premise that the applicant was not entitled for the benefit since his promotion was on an adhoc basis and it was not confirmed since he had retired in the meanwhile.

Heard both sides and examined the records.

The learned counsel for the applicant invited our attention to Annexure A15 order of this Tribunal on an identical issue in OA No. 999 of 2014. In that also the claim of the applicant therein was resisted by the respondents contending that the applicant retired on attaining the age of superannuation and as on the date of issuance of the order of regularization of his ad hoc promotion the applicant was not in service and he could not be granted promotion.

In the above OA, the claim of the applicant was rejected on the ground that the applicant retired on attaining the age of superannuation on 28.2.2011 and on the date of issuance of the promotion, applicant was not in service and she could not be granted promotion as JCIT on ad hoc basis. The representation submitted by her was rejected. The Tribunal referred to an order passed by the Principal Bench of the Central Administrative Tribunal in Vikas Keraba Suryawanshi & Ors. v. Union of India & Ors. (OA No. 1052 of 2010) wherein it was held that officials who figured in the list approved for promotion by DPC and retired by the final order are eligible for notional promotion even after their retirement. There were indeed directions by the judicial forum to accord promotion with all consequences to those officials who retired during the interregnum. It was held by the Bench of this Tribunal relying on the above that the applicant therein was entitled for promotion as Joint Commissioner with effect from the concerned date with all consequential relief and monetary benefits. The principle involved regarding the consequential benefits is equally applicable in the case at hand.

An identical matter had come up before this Tribunal on an earlier occasion in which the facts are exactly identical. That was in OA No. 285 of 2020. The principle involved in that OA was similar and the relief was granted to the applicants therein holding that the applicant therein was entitled for increments, fixed accordingly, taking the effective date of promotion. In another exactly identical case in OA No. 985 of 2016 also the relief sought was granted by this Tribunal.

Having considered the above decisions and that applicant was holding post on adhoc basis till retirement specifically the decision in OA No. 985 of 2016, the applicant is liable to succeed. Accordingly, the OA is allowed granting the reliefs as sought in the OA at reliefs Nos. (a) to (d). Appropriate orders shall be passed accordingly as expeditiously as possible at any rate within a period of three months from the date of receipt of a copy of this order. No costs.