G.Srinivasa Murthy, V. Union of India Rep.by its Secretary Ministry of Finance

WP/25343/2007

AI Insights

The case involves two writ petitions filed against the order of the Central Administrative Tribunal, Hyderabad, which directed the Income Tax Department to consider the cases of certain Income Tax Inspectors for promotion to Income Tax Officers. The Inspectors had passed their departmental examinations after the Departmental Promotion Committee (D.P.C.) had convened, leading to their exclusion from the promotion consideration. The court's decision to modify the Tribunal's order was based on the need for a fair review process to include all eligible candidates, regardless of the timing of their examination results relative to the D.P.C. date.

• Counselvise Citation: [2008] 140 COUNSELVISE.COM (IT) 743395 (HC-HYDERABAD)
• Appeal Type: Others
• Pronouncement Date: 28-04-2008
• Assessment Year: misc
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: VIKAS SINHA
• Assessee Lawyers: VIKAS MISHRA
• Keywords: Departmental Examination; Departmental Promotion Committee; Income Tax Inspectors; Promotion; Review D.P.C.

Judgement Text

"THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE S. ASHOK KUMAR WRIT PETITION Nos :25343 & 27670 of 2007 COMMON ORDER: (Per Hon’ble Smt. Justice T. Meena Kumari) Since the issue involved in these two writ petitions being the same, these writ petitions are clubbed and disposed of by this common order. These two writ petitions are filed against the order of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad made in O.A. No. 500 of 2007, dated 13.11.2007. The facts in brief are that the unofficial respondents-applicants herein who were appointed as Income Tax Inspectors in Andhra Pradesh Region, filed O.A. No. 500 of 2007 before the Tribunal seeking a direction to the department to consider their case for promotion to the category of Income Tax Officers by convening a review Departmental Promotion Committee as they were not within the zone of consideration at the time when the Departmental Promotion Committee considered the candidature of the eligible Income Tax Inspectors on 28.3.2007. It is stated that as per the recruitment rules, the eligible Income Tax Inspectors who have completed three years of service as Income Tax Inspectors and who were qualified in the departmental examination were eligible for promotion as Income Tax Officer. It is further stated that the unofficial respondents failed to qualify in the departmental examinations conducted prior to 2004; that apart, it is stated that the department also did not conduct the departmental examination for promotion to the post of Income Tax Officer during the years 2004 and 2005. Subsequently, the department conducted the departmental examination in the month of October,2006 and the respondents also appeared in the said examination. It is stated that even before the results of the examination were announced, the department seemed to have convened D.P.C. on 28.3.2007 and the names of the unofficial respondents-applicants were not forwarded on the ground that they did not qualify in the departmental examination. However, on 10.4.2007, it appears the department has announced the results of the departmental examination held in the month of 2006 and the unofficial respondents-applicants were declared to have passed the said examination with effect from 31.10.2006. Then, some of the unofficial respondents made a representation to the department requesting that their names be also included in the D.P.C. When the department did not respond, the unofficial respondents filed O.A. No. 329 of 2007 before the Tribunal and the Tribunal disposed of the said O.A. through order dated 4.5.2007 directing the applicants to make a representation to the department and on such representation being made, the department was directed to consider and dispose of the same within two months in accordance with law. In pursuance of the same, the unofficial respondents seems to have made a representation to the department. However, the department through order dated 3.7.2007, rejected the case of the respondents. Aggrieved, the respondents preferred O.A. No. 500 of 2007 before the Tribunal seeking a direction to the department to conduct review Departmental Promotion Committee by setting aside the promotions of the petitioner and other similarly situated persons who were selected and promoted as Income Tax Officers as per the minutes of the D.P.C. dated 28.3.2007. The Tribunal, through the order impugned in these writ petitions, directed the department to consider issuance of necessary clarification in the case of the unofficial respondents 4 to 15 also. Aggrieved, Writ Petition No. 25343 is filed by a person who was promoted as Income Tax Officer on the ground that the impugned order is prejudicial to his right and it would affect his promotional avenues. The other writ petition, namely, Writ Petition No. 27670 of 2007 is filed by some of the Income Tax Inspectors on the ground that the impugned order is illegal, arbitrary and contrary to law. Learned counsel for the petitioners would contend that the respondents 4 to 15 are not eligible to be considered for promotion as Income Tax Officers as the results of the departmental examinations were not announced when the D.P.C. was convened and the Tribunal was not justified in issuing directions to the department to issue clarificatory orders. The main contention urged on behalf of the unofficial respondents- applicants is that they have already passed the departmental examination and since their names were not included in the D.P.C. conducted earlier, they sought for a direction to conduct review D.P.C. and in case of a similarly situated persons, the Tribunal on an earlier occasion has issued directions to consider their case and while following the said judgment, the Tribunal issued directions to the department to consider their case. In the circumstances, the impugned order of the Tribunal does not require any interference. Sri B. Narasimha Sarma, learned Standing Counsel, submits that the Departmental Promotional Committee on 8.3.2007 having considered the candidature of the eligible candidates who fulfilled the eligibility criteria as on 1.1.2007, has recommended their case for promotion to the post of Income Tax Offices. Since the unofficial respondents did not fulfill the eligibility criteria, they were not included in the zone of consideration. He, therefore, submits that the D.P.C. conducted on 28.3.2007 is legal, valid and in conformity with the rules. We have heard the learned counsel for the parties and perused the order impugned in these writ petitions. On 19th December, 2007 in WPMP Nos. 36189 and 33049 of 2007, this Court passed the following interim order. “Hence, prima facie, we feel it desirable to suspend the impugned order dated 13.11.2007 passed by the Central Administrative Tribunal, Hyderabad Bench at Hyderabad until further orders. It is made clear that this order shall not preclude respondent 1 to 3 Income Tax Department to consider the case of the respondents 4 to 14 who are the applicants in the O.A., before the Tribunal for promotion to the cadre of Income Tax Officers’ in the ensuing Departmental Promotion Committee.” However, the said order was modified on 28.1.2008, which reads thus: “It is made clear that this order shall not preclude respondents 1 to 3- Income Tax Department to consider the cases of respondents 4 to 14, who are the appellants in the O.A. before the Tribunal along with other eligible candidates for promotion to the cadre of Income Tax Officers in any Departmental Promotion Committee that is convened hereafter.” There is no dispute about the fact that the unofficial respondents did not pass the departmental examination as on 1.1.2007, which was the date of eligibility for promotion. There is also no dispute about the fact that since the unofficial respondents did not pass the departmental examination, their names were not included in the D.P.C. that was conducted on 28.3.2007. There is also no dispute about the fact that even though the unofficial respondents passed the departmental examination on 10.4.2007, however, their results were declared with retrospective effect from 31.10.2006. The unofficial respondents then filed O.A. No. 329 of 2007 before the Tribunal seeking a direction to the department to conduct review D.P.C. The Tribunal, through order dated 4.5.2007 directed the unofficial respondents to make a representation to the department to consider their case and on such representation being filed, the department was directed to consider their case. Pursuant to the aforesaid order of the Tribunal, the department having considered the representation of the unofficial respondents, through order dt. 3.7.2007 rejected their case. Aggrieved, the applicants then carried the matter before the Tribunal and the Tribunal by the order impugned in this writ petition allowed the said O.A. When similar issue came up for consideration before a division Bench of this Court in Writ Petition No. 15705 of 2001, the division bench dismissed the writ petition on the ground that “merely because the petitioners’ results were declared on 15.2.1995 with retrospective effect from 13.6.1994, the same would not mean that the Departmental Promotion Committee, which was held in August, 1994 ought to have considered his case”. In the instant case, since the results of the unofficial respondents were declared on 10.4.2007 with retrospective effect from 31.10.2006, they are not entitled to be considered as on28.3.2007. That apart, the learned Standing Counsel for the Income Tax failed to produce the record before this Court as to the D.P.C. conducted on 28.3.2007. However, the record pertaining to the D.P.C. which was conducted on 10.3.2008 is produced before this Court. Since the record pertaining to the D.P.C. conducted on 28.3.2007 is not produced before us, we are not in a position to know whether the names of the petitioners in Writ Petition No. 27670 of 2007 were figured in the said D.P.C. In the circumstances, we are inclined to modify the order of the Tribunal. Accordingly, the department is directed: 1) to conduct review D.P.C. in respect of the persons whose names have not been placed before the D.P.C. which was convened on 28.3.2007 in spite of their fulfilling the eligibility criteria as on the date of convening of the D.P.C. on 28.3.2007; 2) that a supplemental D.P.C. should be conducted for the persons who have passed the examinations after 28.3.2007 in the order of seniority of passing examinations. 3) pending further orders by the Department, the candidates who were promoted as Income Tax Officers should not be disturbed. With the above modification, the writ petitions are accordingly disposed of. No costs. ___________________ T. MEENA KUMARI, J Date: 28th April, 2008 ___________________ S. ASHOK KUMAR, J Pnb "