Bombay High Court
Mr. O.M. Bhashkaran, Secretary vs Union Of India Through The Secretary on 8 December, 2023
Author: Nitin Jamdar
Bench: Nitin Jamdar
2023:BHC-AS:38959-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9649 OF 2012
1. Union Of India, Through
Secretary, Dept Of Revenue,
Ministry Of Finance North Block
New Delhi.
2 The Chairman,
Central Board of Direct Taxes
North Block, New Delhi
3 The Secretary,
Department of Expenditure
Ministry of Finance,
North Block New Delhi 110001. ... Petitioners.
V/S.
1 Income Tax Gazetted Officer's
Association,
Room No.19, Aaykar Bhavan
Mumbai-20, through Rajesh
Menon, General Secretary of the
Association Representing all officers
Who are members of the recognized
Association of all Promotee officers
Of the Income Tax Department under
JYOTI
RAJESH the Ministry of Revenue Government
MANE of India.
Digitally signed
by JYOTI
RAJESH MANE
Date: 2023.12.22
11:59:53 +0530 2 Central Administrative Tribunal
Bombay Bench
Gulistan Buldg No-6, 3rd & 4rd Floor
Prescott Road, Fort, Mumbai-400001.... Respondents.
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.......
Mr. Suresh Kumar a/w. Ms. Mohinee Chougule for the Petitioner.
Mr.Vishal Shirke for the Respondent No.1.
.......
CORAM: NITIN JAMDAR, AND
MANJUSHA DESHPANDE, JJ.
DATE: 8 December 2023.
ORAL JUDGMENT : (Per Nitin Jamdar, J.)
Rule. Rule made returnable forthwith. Respondents waive
service.
2. The Petitioner-Union of India has challenged the order
passed by the Central Administrative Tribunal dated 17 January
2012 in Original Application No. 86/2008 filed by the
Respondent. The Respondent-Original Applicant is an
Association of promotee gazetted officers and Inspectors in the
Income Tax Department. By the impugned order, the Tribunal
has allowed the Original-Application and declared that the
decision of the Petitioners-Union of India to give prospective
effect to the revised pay scale of Income Tax Officers and
Inspectors in the Pay scale of Rs.7450-12000 is illegal and the
Respondent-Original Applicants are entitled to have their pay
scale fixed with effect from 1 January 1996.
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3. On 21 April 2004, the Government of India-Ministry of
Finance, Department of Expenditure issued an Office
Memorandum for the upgradation of the pay review of the posts,
in the Central Board of Direct Taxes under the Department of
Revenue. The Memorandum enumerated the post is existing pay
scale and revised pay scale. For Income Tax Officers, the existing
pay scale of Rs.6500-10500 was revised to Rs.7500-12000.
Instructions were accordingly issued to all the Commissioners.
The effect was given from the date of the Office Memorandum
i.e. 21 April 2004 .
4. On 16 March 2006, the Respondent-Association made a
representation for giving effect to the upgradation of the pay scale
from 1 January 1996. The Association contended that while
granting the date of revised pay scale there has been a pay scale
anomaly between the Income Tax Officers and Inspectors and the
other Government servants in the Union of India, who are
similarly situated. Since the representation, did not yield any
result, the Respondent-Association filed the Original Application
in Central Administrative Tribunal.
5. In the Original Application, the Respondent-Association
prayed that the Office Memorandum dated 21 April 2004 be
modified so that it would take effect from 1 January 1996
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notionally for fixation purpose and the actual payment be
effected from the date of order i.e. 21 April 2004 for arrears of
payment of the salary. The Respondent Association contended
that the existing anomaly before the Office Memorandum dated
21 April 2004 in the pay scales was removed, however, the effect
was given from the date of the Office Memorandum i.e. 21 April
2004 instead of 1 January 1996 as done in the case of other
similarly situated Government servants. The Petitioner filed the
reply affidavit before the Tribunal and contested the claim of the
Respondent- Association.
6. Before the Tribunal, the main argument of the
Respondent-Association was on parity. The Respondent-
Association placed on record that as regards other departments
such as Railway Account Staff, Organized Accounts Cadre,
Divisional Accountants, and Geological Survey of India the effect
was given to the upgradation of pay scale differently from 1
January 1996 and contended that there was no reason why the
members of the Respondent- Association be discriminated. The
Petitioner contended that the Tribunal ought not to have entered
into the question of parity relying on various decisions of the
Hon'ble Supreme Court and stating that the parity would require
evaluation of various factors, which lie within the domain of the
Government and not the Tribunal.
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7. The Tribunal, after analyzing these decisions did not accept
that the Tribunal was precluded from entering into the dispute
raised by the Respondent-Association. The Tribunal held that the
parity in pay scales between the post of the income tax officers
comparable posts in the Organized Accounts Cadre and Accounts
Department in the Railways as well as Geological Survey of India
was already accepted by the Ministry of Finance and, therefore,
there was no reason to fix a separate date for giving effect.
Accordingly, by the impugned order 17 January 2012, the
Tribunal allowed the Original Application fixing date for
upgradation as 1 January 1996 instead of the date of the
Memorandum.
8. The Writ Petition was filed in the year 2012 challenging the
impugned order dated 17 January 2012. The Petition remained
pending as the Court had expressed that the Petition would be
taken up for final disposal. The Petition came up before us on 20
September 2023 when the learned counsel for Respondent No.1-
Association had taken time to place on record subsequent events
which had occurred after the filing of the Petition. Accordingly,
an additional affidavit is filed.
9. We have heard Mr. Suresh Kumar learned counsel for the
Petitioner, Mr. Vishal Shirke, learned counsel for the Respondent
Association.
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10. The Tribunal has directed that effect be given to the
Office Memorandum dated 21 April 2004 from 1 January 1996
on a notional basis. The Tribunal has observed that this direction
is warranted given the stand of the Ministry of Finance itself. The
additional affidavit filed by the Respondent- Association has
placed on record subsequent events as under :-
"4. I further say that the present Writ Petition was
filed in this Hon'ble Court on 10.09.2012. During
pendency of the present Writ Petition, the order dated
10.12.2012 passed by the Kolkata Bench of the
Ld.Tribunal came to be challenged by the Union of
India before the Hon'ble Calcutta High Court by filing
Writ Petition CT No.21 of 2015. The Hon'ble Calcutta
High Court by its judgment and order dated
03.05.2023 disposed off the said Writ Petition by
directing the Union of India to constitute a Special
Anomaly Committee within 2 months from the date of
communication of its order and further directed the
committee to decide representations of the Respondents
therein within a period of 1 month from the date of
constitution of committee and also directed that the
committee should communicate its decision within one
week therefrom to the respective Respondents. A copy
of judgment and order dated 03.05.2023 is annexed
hereto and marked as Exhibit-B
5. In pursuance of the directions of the Calcutta
High Court in its judgment and order dated
03.05.2023, the Government of India constituted a
Special Anomaly Committee. The Special Anomaly
Committee made recommendations as under:-
"The committee while taking into
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considerations all the points raised by these 13
applicants in their applications and the analysis
made at preceding paras of the report is of
considered view that there is an anomaly in the
date of effectiveness for grant of enhanced pay
scale of Rs. 6500-10500 in case of Inspector of
Income Tax and Rs. 7500-12000 in case of
Income Tax Officer. In some of the cases the
enhanced pay scale of granted w.e.f. 01.01.1996
while in case of Income Tax Officer and
Inspector of Income Tax it was granted w.e.f.
21.04.2004. This anomaly needs to be redressed
in case of these 13 respondents, subject to the
approval of the Competent authority."
6. I further say that the recommendations of the
committee received approval from the Competent
Authority and were accepted by the Government of
India and it has been decided to give effect to the
recommendations the of Special Anomaly Committee
in case of all the 13 Respondents in Writ Petition (CT)
21 of 2015 before the Calcutta High Court.
7 I further say that towards implementation of the
recommendations of the Special Anomaly Committee,
the Petitioner No.2 i.e. the Central Board of Direct
Taxes by its letter dated 22.09.2023 directed the
Principal Chief Commissioner of Income Tax (CCA),
Kolkata to give effect to the decision of the aforestated
decision of the Government with regard to fixation of
pay and payment of arrears in terms of the
recommendations of the Special Anomaly Committee. A
copy of letter dated 22.09.2023 is annexed hereto and
marked as Exhibit-C.
8. I further say that the Special Anomaly Committee
has in its recommendations admitted that there is an
anomaly in the date of effectiveness for grant of
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enhanced pay scales of Rs. 6500-10500 in case of
Inspector of Income Tax and Rs. 7500-12000 in the
case of Income Tax Officers. The committee has also
specifically appreciated that in some of the cases, the
enhanced pay scale was granted w.e.f. 01.01.1996, while
in the case of Income Tax Officers and Inspectors of
Income Tax, it was granted w.e.f. 21.04.2004. In the
light of the aforestated recommendations made by the
Special Anomaly Committee which are applicable to the
entire cadre of Inspector of Income Tax and Income Tax
Officer, nothing remains in the present Writ Petition.
Once the Government of India has accepted the
recommendations of the Special Anomaly Committee in
the cases of the 13 similarly placed individuals in
Kolkata Charge, the same relief should be extended in
the case of the present Respondent as well ."
11. After the additional affidavit filed was as above, time was
granted to the Petitioner. The learned counsel for the Petitioner-
Union of India to take instructions and after taking the
instructions Petitioner has filed an Additional Affidavit through
the Deputy Commissioner of Income Tax wherein it is stated as
under:
2.3 It is also pertinent to mention with regard to the
averment made in the Additional Affidavit that 13 ITOs
of Kolkata region have also filed an O.A. 397/2009
before Hon'ble CAT, Kolkata Bench, seeking the same
relief with regard to effectiveness of date of revision of
pay. The O.A. was allowed based on the order of Hon'ble
CAT, Mumbai Bench in O.A. 86/2008. Aggrieved by the
order the UOI filed WP 21/2015 before Hon'ble High
Court of Calcutta and the Hon'ble High Court of
Calcutta vide its order dated 03.05.2023 has directed as
under:
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" We, therefore, direct that the UOI shall constitute
a Special Anomaly Committee within two months
from date of communication of this order who shall
decide the representation made by respondents
annexed to the Writ Petition from page 70 onwards
within a month from date of constitution of the
committee and shall communicate the decision
within a week therefrom to the respective
respondents."
2.4 Following the direction of the Hon'ble High
Court of Calcutta, the committee has been constituted
and the decision of the committee has been
communicated to the respondents with approval of the
Finance Minister."
12. Therefore, the subsequent events are that Original
Application No.397/2009 which was filed before the Central
Administrative Tribunal, Calcutta Bench for similar relief in
respect of the granting date on 21 April 2004. The Tribunal at
Calcutta allowed the Original Application based on the
impugned order passed on this Original Application. The order
passed by the Calcutta Bench of the Tribunal was challenged by
the Union of India before the Calcutta High Court and the
Calcutta High Court had directed that a Special Anomaly
Committee be formed. It is not placed on record that the order
passed by the Calcutta High Court was challenged either by the
Union of India or any of the employees or the Association.
13. That being the position we have to take note of the order
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passed by the Calcutta High Court in proceedings in which the
order was passed by the Tribunal based on the very impugned
order before us and therefore, we would take the same view as
taken by the Calcutta High Court that is referring a matter to
Special Anomaly Committee. Now reference to the Special
Anomaly Committee would not be necessary because pursuant to
the order passed by the Calcutta High Court, the Special
Anomaly Committee was constituted and has submitted its report
and made recommendations. After the recommendations were
received from the Special Anomaly Committee through the
Competent Authority, they have been accepted by the
Government of India and these recommendations have been
extended to the Respondents before the Calcutta High Court.
14. The Respondent Association has also placed on record that
thereafter Central Board of Direct Taxes, by order dated 22
September 2023, has directed the Principal Chief Commissioner
of the Income Tax Department, Calcutta to give effect to the
decision of the Government in terms of recommendation of
Special Anomaly Committee. This above position is not disputed
before us.
15. Therefore, what emerges is that while this Writ Petition was
pending considering the challenge to the order passed by the
Central Administrative Tribunal in Original Application
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No.86/2008, this impugned order was relied upon by the Central
Administrative Tribunal Calcutta, in which the Calcutta High
Court directed the Special Anomaly Committee to be appointed
whose report has been accepted by the Government and benefit
has been given to the Original Applicants who had approached
the Tribunal at Calcutta. Nothing is shown to us even in the
reply as to why a similar course of action should not be adopted
in the case of the Respondents herein. Even in oral arguments on
behalf of the Petitioners distinguishing features have not been
pointed out.
16. In the light of the abovementioned facts, the appropriate
course of action is to dispose of this Writ Petition directing the
Petitioner to adopt the same course of action as has been done in
respect of the Original Applicants who had approached Calcutta
Bench of the Tribunal that is acceptance of the report of the
Special Anomaly Committee and subsequent orders giving effect
thereto.
17. Accordingly the impugned order passed by the Central
Administrative Tribunal dated 17 January 2012 in Original
Application No.86/2008 stands substituted/modified Petitioner
will give the benefits as has been given to the Applicants before
the Tribunal in Calcutta in Original Application No.397/2009 in
Writ Petition No. (CT)21/2015.
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18. Considering that this Writ Petition remained pending and
the Applicants before the Calcutta Bench of Tribunal who had
relied upon impugned order in this Petition have been granted
relief earlier than the present Petitioners, the necessary action be
taken by the Petitioners as early as possible, preferably within
three months from today subject to procedural requirements.
19. Rule is disposed of in the above terms.
(MANJUSHA DESHPANDE, J.) (NITIN JAMDAR, J.)
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