Gujarat High Court

Union Of India vs D. R. Sindhal S/O Sukanlalji Sindhal on 11 September, 2024

Author: A.Y. Kogje

Bench: A.Y. Kogje, Samir J. Dave

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                            C/SCA/10348/2019                                JUDGMENT DATED: 11/09/2024

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                   R/SPECIAL CIVIL APPLICATION NO. 10348 of 2019
                                                        With
                                     CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                                  In R/SPECIAL CIVIL APPLICATION NO. 10348 of 2019
                                                        With
                           CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2024
                                  In R/SPECIAL CIVIL APPLICATION NO. 10348 of 2019

                       FOR APPROVAL AND SIGNATURE:

                       HONOURABLE MR. JUSTICE A.Y. KOGJE

                       and
                       HONOURABLE MR. JUSTICE SAMIR J. DAVE
                       ===============================================================
                       1     Whether Reporters of Local Papers may be allowed                     No
                             to see the judgment ?

                       2     To be referred to the Reporter or not ?                              No

                       3     Whether their Lordships wish to see the fair copy                    No
                             of the judgment ?

                       4     Whether this case involves a substantial question                    No
                             of law as to the interpretation of the Constitution
                             of India or any order made thereunder ?

                       ================================================================
                                                        UNION OF INDIA & ORS.
                                                               Versus
                                               D. R. SINDHAL S/O SUKANLALJI SINDHAL
                       ================================================================
                       Appearance:
                       ADVOCATE NOTICE UNSERVED for the Petitioner(s) No. 1,3
                       MS MAITHILI D MEHTA(3206) for the Petitioner(s) No. 2,4
                       ADVOCATE NAME DELETED for the Respondent(s) No. 1
                       ===============================================================
                           CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
                                 and
                                 HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                              Date : 11/09/2024
                                            ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

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1. This petition under Article 227 of the Constitution of

India is filed by the Union of India-original respondent before

the Central Administrative Tribunal, Ahmedabad Bench

(hereinafter referred to as "CAT" for short) challenging the

order dated 20.08.2018 filed by the the respondent-employee

of the Income Tax Department being Original Application

No.575 of 2016.

2. The issue pertains to promotion of respondent to the

post of Principal Commissioner of Income Tax. The

candidature of the respondent was declared by the highest

authority, but before the respondent would be actually

promoted, he retired on attaining the age of superannuation.

The respondent successfully challenged the non-granting of

promotion before the CAT which passed the impugned order.

3. The O.A. was filed by the respondent, inter alia, praying

for passing order to give notional promotion to the respondent

to the grade of Principal Commissioner of Income Tax in HAG

Scale with consequential benefits which was allowed by the

CAT.

4. Learned counsel for the Union of India has submitted

that the exercise for promotion was undertaken as per the

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DOPT's OM of 1989, 1998 and 2014 and as the respondent

had retired before the actual promotion, the Tribunal has

committed an error.

4.1 It is argued by relying upon OM dated 10.04.1989, para-

6.4.4 that promotion will be made in the order of consolidated

select list and promotion will be only prospective. It is argued

that the Tribunal has not taken into consideration O.M. dated

12.10.1998 and also O.M. dated 14.11.2014 which provide

that when the promotion order is issued, the person is not

available to take charge. Then, even if the name of the retired

employee may be in the panel, but will not be actually

promoted and therefore, not entitled to such benefits.

5. The party in person has argued that the impugned order

being a reasoned order, need not be interfered with.

5.1 It is submitted that the respondent had already retired

on superannuation before the date on which order of

promotion was issued and hence, he was not available to

assume charge. However, the Tribunal after considering facts,

circumstances and various land mark judgments of Apex

Court on the issue held that the respondent had not asked for

the actual promotion but only for Proforma/Notional

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Promotion along with consequential monetary benefits. It is

submitted that the respondent was eligible for actual

promotion and appointment as Principal Commissioner of

Income Tax against the panel year 2013-14 and his name was

approved and recommended for promotion by the DPC on 01-

05-2014 to the higher authorities for their acknowledgment

and the highest authority under the Government had

approved his name which is not in dispute and the respondent

could not get his actual promotion and posting in the order

dated 30-01-2015 for the only reason that there was an undue

and unjustified delay in process of the promotion on the part

of the petitioners and he was already retired on

superannuation on 31-05-2014 before the order was passed

and therefore, was not available to take charge.

5.2 It is submitted that the DOPT's mandatory and binding

Office Memorandums of 1989, 1998 and 2010 had not been

duly and strictly adhered to in their right perspectives before

passing the order of promotion and also for the reason that

the Model Calendar for holding DPC, pre-DPC follow up

actions for forwarding DPC Proposal to the DPC and post DPC

follow up actions for approval of the AAC within the time

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frame as stipulated / prescribed in pursuance of the D.O.P.T.

OMs. No. 22011/9/98 Estt (D) dated 08-09-1998 read with OM

No. 22011/9/98 Estt (D) dated 14-12-2000 were not been

strictly adhered to in order to ensure that DPC convened well

in advance and approved select panels were kept ready well

before commencement of the relevant vacancy year 2013-14.

In addition to the above referred all the 3 DOPT OMs, all the

ministries/ Departments of Central Govt. were also again

requested vide DO letter of even number dated March 29,

2000 of Secretary (Personnel) Government of India for strict

compliance of the instructions so as to achieve the desired

objectives of timely convening of DPCs/preparation of

approved select panels within the prescribed time frame and

well before the vacancy arises. Despite repeated

communication to this effect, many Ministries/Departments

had not implemented those instructions.

6. Heard learned advocates for the parties and perused the

documents placed on record. The respondent is a direct

recruit IRS officer of 1984 batch (Civil List Code No. 84058)

and retired from the service on superannuation as

Commissioner of Income Tax on 31-05-2014. The last

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promotion allowed to the respondent was that of

Commissioner of Income Tax in the pay scale of Rs.37,400-

67,000 + Grade Pay of Rs.10,000/w.e.f. 15-02-2005. The next

grade of promotion was that of Principal Commissioner of

Income Tax in the pay scale of Rs.67,000-79,000. The

promotion rules for the Post of the P.C.LT. provide that a CIT

with 3 years regular service is eligible for promotion to the

Grade of Principal Commissioner of Income Tax. The

respondent also had got "outstanding" and "very good" self

appraised reports (A.C.R.s) for the F.Y. 2007-2008 to 2011-12

which were required criteria to be considered and examined

for the promotion by the DPC. on 0 1-01-2013 for the vacancy

year 2013, 116 posts of Chief Commissioners of Income Tax

fell vacant.

6.1 Pursuant to the Cadre restructuring of the Income Tax

Department, additional 184 posts of Chief Commissioners of

Income Tax (redesignated as Principal Commissioner of

Income Tax) after cadre restructuring were newly created on

27-05-2013 vide Cabinet Secretariat U.O. No. 20/CM/2013

(Case No. 165/20/2013 dated 27-05-2013. The petitioner no.2

ultimately vide his letter F.No. A 320011/04/2012 AD-VI dated

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24.03.2014 (I.e. after a long undue, delay of 27 months after

the vacancies of the year 2013 -14 arose on 01-012012 and

even after about 10 months from the date of sanction of the

newly created 184 posts after the cadre restructuring of

Income Tax Department, requested the Union Public Service

Commission (UPSC) to convene a DPC for the promotion of

the above 300 posts. Pursuant to the above letter dated 24-03-

2014 a departmental promotion committee, was convened on

30-04-2014 and 10 5-2014 to draw panel for the above 300

vacancies of the Principal Commissioner Of Income Tax for

the vacancy year 2013-14. In the panel drawn for the

promotion, the respondent was placed at Serial No.147.

7. The Tribunal had relied upon O.M. of DOPT dated

14.11.2014 where it is clearly provided that it would not be in

order if eligible employees, who were within the zone of

consideration for the relevant year(s) but are not actually in

service when the DPC is being held, are not considered while

preparing year wise zone of consideration/panel and,

consequently, their juniors are considered (in their places),

who would not have been in the zone of consideration if the

DPC(s) had been held in time. This is considered imperative to

identify the correct zone of consideration for relevant year(s).

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Names of retired official may also be included in the panel (s).

Such retired officials would, however, have no right for actual

promotion.

8. The Tribunal went on to hold on facts as under:-

"8. Therefore, what is this day to be? This is be read in connection with the DOP&T Memorandum of even No. dated 12.10.1998. It is seen that apparently the Appointment committee of Cabinet (ACC), the highest decision making body of the governance had approved the creation of new cadre. On 23.05.2013 and 31.05.2013 orders were issued. But since the ACC had already approved the empanelment of the applicant it cannot be said that the ACC was not aware that the applicant had actually retired. If the ACC decision is not to serve any purpose they should not have issued such an order. This is particularly so, as it is specifically mentioned that this decision is relating to the panel year of 2013-2014.

9. But unfortunately the CBDT seems to have sat on the issue whereby several deserving officers in the last leg of their career lost their normally due promotion which has more value than monetary benefit to all of them. Since the ACC decision is of 2015 and in the DoP&T Memorandum clearly indicated retired persons also be considered for promotion, it cannot be presumed that this will be a decision in vacuum. The purpose of the decision of the highest ranked decision making authority is clear that such people has to be given some benefit that is why they were empanelled, otherwise there was no need for ACC to take such decision and empanel the retired government servants. Therefore only the intention presumed on the part of the ACC is that since actual promotion has not taken place the notional benefits are to be given particularly in view of the fact that this matter had been in the Government for consideration for quire a long time."

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9. The guidelines on Departmental Promotion Committee

Part II Clause 3.1 provides for the frequency at which DPC

should meet, which reads as under:-

3.1 The DPCs should be convened at regular annual intervals to draw panels which could be utilised for making promotions against the vacancies occurring during the course of a year. For this purpose it is essential for the concerned appointing authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevant documents like CRs, the integrity certificates, seniority list etc. for placing before the DPC. 'DPCs could be convened every year if necessary on a fixed date I.g. 1st April or May. The Ministries / Departments should lay down a time schedule for holding DPCs under their control and after laying down such a schedule the same should be monitored by making one of their officers responsible for keeping a watch over the various cadre authorities to ensure that they are held regularly. Holding of DPC meetings need not be delayed or postponed on the ground that recruitment rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy, unless rules made subsequently have been expressly given retrospective effect. Since Amendments to recruitment rules normally have only prospective application, the existing vacancies should be filled as per the recruitment rules in force. "

10. The Court observes that for the empanelment for

promotion for 2013-14 ought to have started as provided in

Clause 3.1 stated hereinabove. The vacancy was also

admittedly available, but the DCP was not convened within

time, but was convened only on 30.04.2014 and 01.05.2014.

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Had the DPC taken place in time, the respondent would have

been actually promoted. The delay was obviously not the fault

of the respondent and therefore, he cannot be put to

detriment at fault of the department.

11. In addition, the Court may rely upon the relevant

portion of note sent by CPIO, CBDT, for vacancy of 2013-

2014. The perusal of this note placed with affidavit of the

respondent, which reads as under:-

"2. The proposal for the DPC to consider the officers for promotion to the Grade of Pr. CIT was sent for 300 vacancies for the vacancy year 2013-14 as given in the Cabinet Note dated 08.05.2013 and approval thereto notified w.e.f. 23.05.2013.

3. The officers, numbering 35, promoted for the vacancy year 2013-14 on the basis of recommendations of the DPC held on 17.09.2013 were designated as CCIT, placed in the pay scale of Rs.67000-79000, which has been ascribed to the post of Pr. CIT in the cadre restructuring. Therefore, in compliance of the directions of the ACC, a proposal for the Review DPC has been sent vide our letter dated 20.01.2015 to UPSC to consider these 35 officers for the post of Pr. CIT.

4. Accordingly, in compliance of directions of the ACC the revised proposal consisting of 265 (300-35) officers, who are in the panel provided by the DPC and 44 officers in the "Extended' was sent to DOP&T for getting the same approved by the ACC.

5. It is to mention that from the following table officers indicated at S.No.1 to 10 will not figure in the promotion order as they have retired before 31.03.2014 and and in place of them equal number of officers from the 'Extended Panel' approved by the ACC will be

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included. Besides, 1 (one) officer will be included from the 'Extended Panel' in lieu of Shri P.C.K. Solomon (80048) retired on 31.12.2013, who was promoted, among 35 officers, to the grade of CCIT vide order No. 237 of 2013 and as directed by the ACC, ''review DPC' proposal has been sent to consider them for the post of Pr .CIT. Thus, 11 officers will be included in the promotion order from the 'Extended Panel' against the vacancies arise against retirement, etc. Apart from this, 10 officers from.'Extended Panel' are also proposed to be included in the' promotion order against the officers on long term deputation and are not likely to come back immediately:-

                        S.      Name of the Office                   Retd/VRS/Expired
                        No      (S.SHRI(SMT.(MS.)
                        .
                        1.      RAJEEV KUMAR AGARWAL (83014)         VRS (31st Oct 2011)
                        2.      ANURADAH GOYAL (82009)               Retd (30th Sept 2013)
                        3.      OM PRAKASH PAHADIA (84067)           VRS (7th Nov 2013)
                        4.      NARHARI BISWAL (82018)               Retd (30th Nov 2013)
                        5.      RAJ KUMAR CHOUDHARY (82041)          Retd (30th Nov 2013)
                        6.      RAJIV SAHAI (82030)                  Retd (31st Dec 2013)
                        7.      S.C.AGARWAL (82055)                  Retd (31st Dec 2013)
                        8.      D.B.MANIVAL RAJU (83073)             Retd (31st Dec 2013)
                        9.      HARMOHAN BARMAN (82047)              Retd (28th Feb 2014)
                        10.     VISHWAS RATTAN (84066)               Expired (5th Feb 2014)
                        11.     PRAVIN KISHORE PRASAD (82033)        VRS (25th May 2014)
                        12.     DEVA RAMA SINDHAL (84058)            Retd (31st May 2014)
                        13.     TEJRAM MEENA (84075)                 Retd (31st May 2014)
                        14.     B.B.PANIGRAHI (79018)                Retd (31st July 2014)
                        15.     KRISHAN KUMAR TIWARI (82056)         Retd (31st July 2014)
                        16.     SURINDERJIT SINGH (83063)            Retd (31st July 2014)
                        17.     TAJINDER SINGH (82048)               Retd (31st Aug 2014)
                        18.     SADANANDA SANBARSA (85060)           Retd (31st Aug 2014)
                        19.     MOHAN SWAROOP KAUSHIK (79048)        Retd (31st Oct 2014)
                        20.     SATISH CHAND GOYAL (82050)           Retd (31st Dec 2014)
                        21.     RAMESH CHANDER GUPTA (83010)         Retd (31st Dec 2014)

12. The name of the respondent is at Sr.No.12 and as

provided in para-5 as above, the names of candidates at item

Nos.1 to 10 having retired before 31.03.2014 would not figure

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for promotion. The name of respondent is beyond those 1 to

10 and therefore, the respondent even by the department has

been considered as promotion though the date of retirement

is provided against the name of the respondent.

13. In the opinion of the Court, the order of CAT is a

reasoned order with proper justification and could not require

interference. Moreover, the scope of this Court under Article

227 of the Constitution of India is quite restricted. The Court

does not find any jurisdictional error in the impugned order.

14. With regard to submission of interest on the monetary

benefit, made orally by the respondent, the Court holds that

as the Union of India was in bonafide litigation and that as the

Court had passed the order dated 18.06.2019 and stayed the

implementation of the impugned order, the Court does not

find it fit to grant any interest more particularly, when the

party-in-person has also expressed during hearing that his