Central Administrative Tribunal

Principal Bench
New Delhi

OA No.1360/2017

Order reserved on : 23.09.2024

Pronounced on : 03.10.2024

Hon’ble Mr. Justice Ranjit More, Chairman

Hon’ble Mr. Sanjeeva Kumar, Member (A)

Vijay Kumar (Age 59 Yrs)

Principal Commissioner of Income Tax
S/o Late Shri Kundan Lal,
C-130, 2nd Floor, Sarvodaya Enclave,
New Delhi-110017. ... Applicant

(By Mr. Ayush Kumar with Ms. Matasha Goel, Advocates)

Versus

1. Union of India through Secretary,

Ministry of Finance,
Department of Revenue,
Government of India,
North Block,
New Delhi-110001.

2. The Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi-110003.

3. The Chairman,
Central Board of Direct Taxes,
Ministry of Finance,
Department of Revenue,
Government of India,
North Block,
New Delhi-110001.
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4. The Secretary,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances &
Pensions, Government of India,
North Block,
New Delhi-110001. ... Respondents

(By Mr. Y. P. Singh, Advocate)

ORDER

Justice Ranjit More, Chairman :

The applicant belongs to 1983 batch of the Indian Revenue

Service (IRS). He joined the Income Tax Department as ITO, Group-

A (re-designated as Assistant Commissioner of Income Tax). He was

promoted as Deputy Commissioner of Income Tax (now re-

designated as Joint Commissioner of Income Tax) in the year 1992,

and subsequently as Additional Commissioner of Income Tax in the

year 2000, and as Commissioner of Income Tax (CIT) in the year 2003.

2. Departmental Promotion Committee (DPC) for

promotion from the grade of CIT to the grade of Principal

Commissioner of Income Tax (PCIT) was held in April, 2014.

However, vide order No.15/2015 dated 30.01.2015 the applicant came

to know that his name had not been included in the list of promotion

from CIT to PCIT due to wrong inclusion of one APAR for the year

2009-10, which had been declared as “No Report Year”. Being

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aggrieved, the applicant approached the Principal Bench of this

Tribunal by filing OA No.852/2016, which was decided in his favour

vide order dated 03.06.2016 directing the respondent Nos. 1 and 3 to

furnish the entire information to UPSC required for holding review

DPC of the DPC held in April, 2014, and UPSC was in turn directed

to convene review DPC within a period of 45 days and communicate

the outcome thereof to the Ministry of Finance. It was further

provided that in the event the applicant was found fit by the DPC,

the concerned Ministry would pass consequential order of promotion

within a period of 45 days from the date of receipt of

recommendations of the DPC. This order was implemented by the

respondents belatedly on 20.02.2017, only after the applicant filed CP

No.476/2016. Meanwhile, the respondents held DPC for promotion

from the post of PCIT to Chief Commissioner of Income Tax (CCIT),

and vide order No.164 0f 2016 dated 20.09.2016 promoted batchmates

and juniors of the applicant on ad hoc basis to the post of CCIT

(HAG+) for the panel year 2016-17, without including the name of

the applicant.

3. The grievance of the applicant is that though the

respondents promoted him retrospectively to the post of PCIT with

effect from 30.01.2015 vide order dated 20.02.2017, this promotion

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was made on notional basis from the date his juniors were promoted

and actually from the date of assuming the charge. The other

grievance of the applicant is that his batchmates and junior officers

were promoted to the post of CCIT vide order dated 20.09.2016,

whereas he was excluded from consideration for the said promotion.

It is his case that now that he stands promoted as PCIT w.e.f.

30.01.2015, he must also be promoted as CCIT on ad hoc basis with

effect from the date his immediate junior Shri T. P. Krishna Kumar

was promoted as CCIT, i.e., 20.09.2016.

4. In the light of the applicant’s case referred to above, he

has approached this Tribunal by way of the present OA for the

following reliefs:

“a) Hold and declare that the order no.26/2017 dated

20.02.2017 to the limited extent treating the
promotion of the applicant from CIT to [Link] w.e.f.
30.01.2015 on notional basis thereby, depriving the
applicant of salary for the period from 30.01.2015 to
19.09.2016 is illegal and liable to be set aside and
direct the respondents to pay and release the salary
alongwith interest @ 24% w.e.f. 30.01.2015 to
19.09.2016 in the post of [Link] at par with his juniors
and batchmates;

b) Direct the respondents to promote the applicant from

Pr. CIT to Chief CIT w.e.f. 20.09.2016 from the date
when his junior & other batchmates were promoted
from Pr. CIT to Chief CIT and also direct the
respondents to pay the salary of the post of Chief CIT
w.e.f. 20.09.2016 along with interest @ 24% per
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5

annum from the date on which his juniors &

batchmates were promoted as Chief CIT; and

c) Pass any other order/direction as this Hon’ble Court

may deem fit and appropriate in the facts and
circumstances of the present case.”

5. The learned counsel for the applicant submitted that in

the year 2015, the applicant’s name was not recommended for

promotion from the post of CIT to PCIT, since the DPC wrongly took

into consideration the APAR for the year 2009-10, which had been

declared as “No Report Year”. He thereafter approached this

Tribunal by filing OA No.852/2016 which was allowed vide order

dated 03.06.2016, and UPSC was directed to convene review DPC

within 45 days and communicate the outcome thereof to the Ministry

of Finance. It was further directed that in the event the applicant was

found fit, the concerned Ministry would pass consequential order of

promotion within a further period of 45 days. This order of the

Tribunal was complied with by the respondents belatedly on

20.02.2017, only after the applicant filed CP No.476/2016. The delay

on the part of the respondents in implementing the order of the

Tribunal is stated to be unjustified and arbitrary. The learned

counsel further stated that the promotion to the grade of PCIT

though given retrospectively w.e.f. 30.01.2015, the same was made

notional thereby depriving the applicant of the salary benefits of the

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higher post. He submitted that since the delayed promotion of the

applicant to the post of PCIT was entirely attributable to the

respondents, he is entitled for further promotion to the post of CCIT

on ad hoc basis w.e.f. 20.09.2016, i.e., the date from which his

batchmates and juniors were promoted as such. It is specifically

submitted that the applicant is senior to one Shri T. P. Krishna

Kumar, who is placed at serial number 27 in the order No.164 of 2016

dated 20.09.2016, who, alongwith other officers in the grade of PCIT

was promoted on ad hoc basis to the grade of CCIT for the panel year

2016-17. In support of his submission, the learned counsel relies

upon the decision of the Hon’ble Supreme Court in Food

Corporation of India versus S. N. Nagarkar [(2002) 2 SCC 475], and a

decision of the Patna High Court in Awadhesh Singh versus State of

Bihar & others [2004 SCC OnLine 930].

6. Learned counsel for the respondents contested the

Application. He relied upon Fundamental Rule (FR) 17 (1) to

contend that the applicant is not entitled for arrears of salary of the

post of PCIT, since he would begin to draw the pay and allowances

attached to the said post only with effect from the date when he had

actually assumed the duties of that post. The learned counsel further

submitted that the applicant is not entitled for the salary of higher
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7

post also on the general principle of no-work-no-pay. It is not

disputed that the officers of 1983 batch were promoted to the grade of

CCIT on ad hoc basis w.e.f. 20.09.2016. However, it is submitted that

as till that time the applicant was not promoted to the post of PCIT,

i.e., the feeder grade for promotion to the grade of CCIT, his case was

not considered for promotion to the grade of CCIT, though he was

promoted as PCIT retrospectively w.e.f. 30.01.2015 on notional basis

vide a subsequent order dated 20.02.2017.

7. Having gone through the pleadings and rival contentions

of the respective parties, we find merit in the Application. DPC for

promotion from the post of CIT to that of PCIT was held in April,

2014. Though the applicant was considered by the DPC, his case was

not recommended for promotion on account of wrong inclusion of

one APAR for the year 2009-10, which had been declared as “No

Report Year”. The applicant came to know that his name was not

included when his batchmates were promoted to the post of PCIT

vide order No.15/2015 dated 30.01.20115.

8. The applicant, being aggrieved approached this Tribunal

by filing OA No.852/2016 which was decided vide order dated

03.06.2016 and following directions were issued to the respondents:

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“(i) The respondents No. 1&3 will furnish the entire

information to UPSC required for holding the
review DPC of DPC dated 30.04.2014 within a
period of one week from the date of receipt of a
certified copy of this order.

(ii) The UPSC on receipt of the information from the

respondents No. 1&3 will convene review DPC in
terms of the directions of the ACC contained in the
letter dated 30.01.2015 within a period of 45 days
and communicate the outcome of the DPC to the
Ministry of Finance.

(iii) In the event, the applicant is found fit by the DPC,

the concerned Ministry shall pass a consequential
order of promotion within a period of 45 days of
receipt of the recommendations of the DPC.”

9. The respondent authorities, in the light of above

directions of the Tribunal, were bound to take necessary steps within

the period stipulated in the order, which they failed to do, and,

therefore, the applicant was constrained to file CP No.476/2016. The

respondents only after issuance of notice in the CP, passed the

impugned order dated 20.02.2017 granting promotion to the

applicant to the grade of PCIT retrospectively w.e.f. 30.01.2015.

However, the said promotion was made notional. The applicant

superannuated on 28.02.2017. Thus, when he was granted promotion

to the grade of PCIT, he was very much in service, and, therefore, this

promotion could not have been notional. That apart, the respondents

are themselves responsible for the delayed promotion and no fault

can be attributed to the applicant on this count. The applicant was

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not recommended by the DPC of 2014 only because UPSC wrongly

took into consideration APAR for the year 2009-10, which had been

declared as “No Report Year”. The applicant, time and again, filed

representations with the respondents, but his representations were

never responded by the respondents. The applicant, therefore, was

constrained to file OA No.852/2016 in this Tribunal and thereafter

CP No.476/2016. In these circumstances, we find that the applicant’s

promotion to the grade of PCIT was delayed by the respondents

arbitrarily, without there being any fault on the part of the applicant.

In this regard, learned counsel for the applicant rightly relied upon

the decision of the Apex Court in S. N. Nagarkar (supra). The

Hon’ble Supreme Court made the following observations:

“17. We have earlier extracted the relevant part of

the order passed by the learned Judge. The order clearly
directs the issuance of a writ of mandamus to give the
benefit of pay fixation to the respondent as Assistant
Grade II and Assistant Grade I and also for consideration
of his case for promotion to the post of Assistant Manager
(D) from the date the persons junior to him were
promoted. The order further directs that the arrears of
pay shall be paid within one month thereafter, and in case
it was not paid, the petitioner (respondent herein) was to
get interest @ 18% from the date of that order.

18. The learned Judge noticed the facts of the case,

that for no fault of the respondent, and solely on account
of the fact that his name was not included in the relevant
panel by mistake, he was deprived of his promotion to
Assistant Grade I and his further promotion to the cadre
of Assistant Manager (D).
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19. Having regard to the facts and circumstances of

the case, the Court was satisfied that the respondent was
not only to be considered for promotion to the
promotional posts, but was also entitled to arrears of pay
and allowances since he had been deprived of those
benefits not on account of any fault of his but on account
of the fault of the authorities concerned. It is well settled
that in exercise of writ jurisdiction, the court may mould
the relief having regard to the facts of the case and
interest of justice.”

Reading of the above observations of the Apex Court makes it

abundantly clear that an employee cannot be deprived of the benefit

of promotional post including arrears of pay, if he is not at fault, and

the fault was entirely on the part of the authorities concerned.

10. In Awadhesh Singh (supra), the question before the High

Court was as to whether on account of promotion of an employee

with retrospective effect, he will be entitled for arrears of salary from

the date of promotion or shall be entitled for the higher scale of pay

from the date such public servant assumes the office of the higher

grade. It was the case of the petitioner before the High Court that in

case, where an employee has not been allowed to assume the

responsibility of higher post on account of fault on the part of the

employer, he shall be entitled for the benefit thereof right from the

date of promotion, whereas the respondents therein contended that

in view of Rule 58 of the Bihar Service Code, Rule 74 of the Bihar

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Financial Rules, and the clarification made by the State Government

in its letter dated 04.04.1995, an employee shall be entitled for the

benefit of promotion from the date from which he starts performing

the responsibility of the higher grade. This petition was allowed by

the High Court by setting aside the impugned order, and it was held

that the petitioner shall be entitled for the benefit of the trained scale

from the date the same was granted to him, with all monetary

benefits flowing from that. The High Court, inter alia placing reliance

upon the decision of the Apex Court in S. N. Nagarkar (Supra),

answered the question referred to above by making observations in

para 12 of the judgment, which is reproduced below for ready

reference:

“12. Therefore, in normal circumstances the benefit

of promotion to the public servant is to be given with
effect from the date on which such public servant
assumes the duties of the post on which he is promoted.
This does not create any problem but the problem arises
in a case in which a Government servant is deprived of
assuming the duties of the higher grade or post for no
fault on his part because of order of promotion being
made effective from retrospective effect. Can the benefit
of promotion be denied on the ground that the public
servant had assumed the duties of the higher post later
on? To me the answer seems to be very simple. It is well
settled that a person cannot be allowed to suffer on
account of inaction or failure on the part of the other
persons. Here in the present case the petitioner has been
granted the grade with retrospective and he did not
assume the duties of the higher grade as the order of
promotion itself was issued on a date much after the date
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from which he was given the higher grade. In such

circumstance I am of the opinion that all the benefits
flowing from the grant of grade has to be given from the
date it is granted. Hence on first principle I hold that a
public servant promoted or granted scale with
retrospective cannot be denied the benefits thereof only
on the ground that such public servant has not assumed
the duty of higher scale.”

11. The decision of the Apex Court and that of the Patna

High Court referred to above are squarely applicable to the present

case, inasmuch as we find that promotion of the applicant to the

grade of PCIT was delayed by the respondents themselves despite

judicial orders, and the applicant was never at fault, and, therefore,

the respondents could not have made his promotion to the said grade

notional. So far as the submission of the learned counsel for the

respondents that the applicant is not entitled for arrears of difference

of salary based on the principle of no-work-no-pay and FR-17(1) is

concerned, we find no merit in the argument. In Awadhesh Singh

(supra), the High Court noted the argument of the respondents

therein based on Rule 58 of the Bihar Service Code, which is pari

materia to FR-17, which provided that a Government servant shall

begin to draw the pay and allowances attached to a post with effect

from the date on which he assumed the duties of that post, and

observed that in normal circumstances the benefits of promotion to

an employee are to be granted with effect from the date on which

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such employee assumes duties of the post on which he is promoted;

however, the problem arises in a case where an employee is deprived

of assuming the duties of the higher grade or post for no fault on his

part because of the order of promotion being made effective

retrospectively. The learned Single Judge accordingly observed that

a person cannot be allowed to suffer on account of inaction or failure

on the part of the authorities. In the case in hand, the applicant was

also granted promotion to the grade of PCIT with retrospective effect

and he could not assume the duties of the higher post earlier as the

order of promotion itself was issued on a date much after the date

from which he was given promotion to the higher grade. In these

circumstances, we are of the considered opinion that the benefits

flowing from the grant of promotion to the grade of PCIT have to be

granted to the applicant from the date of promotion itself, as he

cannot be denied such benefits only on the ground that he had not

assumed the duties of the higher grade earlier.

12. The applicant has also claimed promotion to the grade of

CCIT. This relief is claimed on the ground that the applicant’s

batchmates and juniors were promoted from PCIT to the grade of

CCIT w.e.f. 20.09.2016. This statement of the applicant is not

disputed by the respondents, though in the counter affidavit filed by

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them, in para 1 of the parawise reply, they have made the following

statement:

“...It is fact that the officers of 1983 batch were appointed

CCIT on ad-hoc basis for functional requirements w.e.f.
20.09.2016. However, till that time the applicant was not
promoted as PCIT i.e. feeder grade to CCIT. Hence, not
eligible for appointment.”

The respondents have also not denied that junior of the applicant,

namely T. P. Krishna Kumar, is placed at serial number 27 in the

promotion order dated 20.09.2016, who along with other officers in

the grade of PCIT was promoted on ad hoc basis to the grade of CCIT

for the panel year 2016-17. Since we are of the view that the

applicant’s promotion to the grade of PCIT w.e.f. 30.01.2015 could not

have been notional, we are also of the view that the applicant

deserves to be considered for further promotion to the grade of CCIT

from the date when his batchmates and juniors were promoted to the

said grade.

13. In the light of the discussion made hereinabove, we

dispose of the present OA with following directions:

(i) The impugned order dated 20.02.2017 to the extent the

applicant’s promotion to the grade of Principal

Commissioner of Income Tax is made notional, is

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quashed and set aside. The respondents shall release the

arrears of difference of salary between the posts of

Commissioner of Income Tax and Principal

Commissioner of Income Tax to the applicant, along with

interest at the rate of 6% w.e.f. 30.01.2015 to 19.09.2016.

(2) Respondent Nos.1 and 3 are directed to furnish the entire

information to respondent No.2, UPSC, required for

holding review DPC of the DPC held in September, 2016

for promotion of the applicant’s batchmates and juniors

from the grade of Principal Commissioner of Income Tax

to that of Chief Commissioner of Income Tax, within a

period of four weeks from the date of receipt of this

order. The respondent, UPSC, on receipt of the required

information from respondents 1 and 3, shall convene such

review DPC within a period of 45 days and communicate

the outcome thereof to the Ministry of Finance.

(3) In the event the applicant is found fit by the review DPC,

the concerned Ministry shall pass consequential order of

promotion of the applicant to the grade of Chief

Commissioner of Income Tax from the date his

batchmates and juniors were promoted to the said grade,

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within a period of 45 days from the date of receipt of

recommendations of the review DPC.

14. There shall be no order as to costs.

( Sanjeeva Kumar ) ( Justice Ranjit More )

Member (A) Chairman

/as/