CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1850 of 2010 Misc. Application No.1498/2010 This the 28th day of January, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Swaran Singh Sampla, Deputy Commissioner of Income Tax, R/o 204, Manjit Nagar, Patiala. Applicant ( By Shri S. C. Saxena, Advocate ) Versus 1. Union of India through Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi. 2. Chairman, Central Board of Direct Taxes, Department of Revenue, North Block, New Delhi. Respondents ( By Shri R. V. Sinha, Advocate ) O R D E R
Justice V. K. Bali, Chairman:
The applicant was appointed as Assistant Commissioner of Income Tax with effect from 5.12.2003 vide orders of even date. Through present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, he seeks promotion to the post of Deputy Commissioner of Income Tax with effect from 1.1.2007 and not from 1.1.2008 from which date he has been so promoted. Recruitment rules provide quota for recruitment to the post of Assistant Commissioner of Income Tax; whereas, 50% posts are earmarked for promotees, the other 50% are meant for direct recruits. The applicant was assigned seniority of 2002 and was placed senior to the direct recruits of the year 2003 in view of rota, which is also provided in the rules. The applicant claims promotion on the post of Deputy Commissioner of Income Tax with effect from 1.1.2007, irrespective of his not having the eligibility service of four years for promotion, as persons junior to him were being promoted. It is the case of the applicant that as per rules, a senior has to be considered for promotion along with his juniors irrespective of his not having the eligibility service for promotion. The controversy as regards promotion along with juniors irrespective of not having the eligibility service, it is the case of the applicant, is covered by a decision of the Jaipur Bench of this Tribunal in OA No.502/2004 in the matter of S. K. Shukla v Union of India & others, decided on 29.3.2005, which has been confirmed by a Division Bench of the High Court of Rajasthan in DBCWP No.5885/2005 on 1.11.2006, against which even an SLP also came to be filed, but was dismissed by the Honble Supreme Court on 26.2.2007, with the following orders:
We see no reasons to interfere. The Special Leave Petition is dismissed. The consideration, however, shall be made in accordance with the Rules. It has not been disputed that the judgment aforesaid has since been implemented. Based on the decision of the Tribunal at Jaipur, another OA bearing number 2107/2008 came to be filed in the Principal Bench, wherein number of Assistant Commissioners of Income Tax had claimed relief akin to the one asked for and granted by the Jaipur Bench, which was allowed and the applicants therein were given promotion with effect from 1.1.2005 instead of 1.1.2006. This judgment too has admittedly been implemented.
2. Despite the facts as mentioned above, Shri R. V. Sinha, learned counsel representing the respondents, would urge this Tribunal to dismiss the OA as no law has been laid down in the judgments relied upon by counsel for the applicant, as also for the reason that the present OA has been filed beyond the prescribed period of limitation.
3. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Counsel for the respondents does not appear to be right that no law has been laid down in the judgment recorded by the Jaipur Bench. It would be seen from the judgment of the Bench at Jaipur that the case of the applicant therein was contested by the respondents by contending that the applicant must possess four years regular service as qualifying service for being eligible to be considered for promotion. The plea raised by the respondents as mentioned above, was rejected. The Bench made specific reference to rule 7(3) of the Indian Revenue Service Rules, 1988, which even though, provides minimum qualifying service, which is four years, but it also provides that if an officer appointed in any post in the service is considered for the purpose of promotion to a higher post, then all the persons senior to him in the grade shall also be considered, notwithstanding that they may not have rendered requisite number of years of service. The Bench also made reference to cases of employees who were accorded the benefit of the rule as mentioned above by the department itself.
4. As regards limitation, the applicant has filed an application seeking condonation of delay, wherein it has inter alia been pleaded that when the respondents gave him promotion on the post of Deputy Commissioner of Income Tax w.e.f. 1.1.2008 instead of 1.1.2007 vide order dated 10.10.2008, he made a representation to the respondents on 23.10.2010, for which he received no reply. The period of one year from passing of the order aforesaid expired on 9.10.2009. The representation was filed seven months thereafter and there would indeed by delay of seven months in doing so, but the delay occurred due to the bona fide belief of the applicant that after the decision of the Tribunal dated 30.6.2009 in OA No.2107/2008 the respondents would grant relief to every officer similarly placed. The respondents, however, restricted the relief only to the applicants who had approached the Tribunal for the desired relief. Reply to the application seeking condonation of delay has been filed, but there would be no need to refer to the contents thereof, as surely, a citizen is always hopeful that if relief to similarly situated persons has been granted, the same would be accorded to him as well. If in this hope, which was a legitimate one, some time has gone by and the OA has been filed beyond the prescribed period of limitation, the delay needs to be condoned. We are of the considered view that it is the bounden duty of the State to accord benefit to an employee if such benefit has been accorded to another employee similarly situated who may have won the case up to the highest level. For the reasons mentioned above, delay in filing the OA is condoned.
5. In view of the discussion made above, this Original Application is allowed. The applicant shall be promoted on the post of Deputy Commissioner of Income Tax with effect from 1.1.2007 and shall be given all consequential benefits that may accrue to him under rules consequent upon his promotion from the said date. There shall, however, be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali ) Member (A) Chairman /as/