1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5176 OF 2008 WRIT PETITION NO.5176 OF 2008 WRIT PETITION NO.5176 OF 2008 Union of India & Ors. .. Petitioners vs. Smt.Rita Kumari Dokania .. Respondent Ms.Hina P. Shah for the petitioners Mr.R.R.Shetty for the respondent CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & CORAM: J.N. PATEL, & Smt.MRIDULA BHATKAR, JJ. Smt.MRIDULA BHATKAR, JJ. Smt.MRIDULA BHATKAR, JJ. DATE: APRIL 16, 2009 DATE: APRIL 16, 2009 DATE: APRIL 16, 2009 P.C. 1. Heard. 2. The Union of India has impugned the decision of Central Administrative Tribunal which directed the respondent who was the applicant before C.A.T. to consider the case of the applicant in a review DPC for the purpose of promotion to the post of Joint Commissioner of Income Tax for inclusion of her name in the select list of 20.10.2003 by ignoring the 2 probationary reports and considering her case on the basis of available ACRs strictly as per the provisions of DOPT O.M. dated 10.04.1989 (para 6.2.1.(C) within two months after receiving this order. 3. It is contended by the learned counsel for the Union of India that the petitioner does not qualify for being considered for promotion to the post of Joint Commissioner of Income Tax. It is the contention of the learned counsel for the petitioner that SCHEDULE II of Rule 7(2) and (3) provides for Method of Recruitment, Field of Promotion and Minimum Qualifying Service in the Next Lower Grade for Appointment of Officers on Promotion to Duty Posts included in the various Grades of the Indian Revenue Service. It is not disputed that the petitioner is a direct recruit to the post of Assistant Commissioner of Income Tax. Therefore, she was promoted to the post of Deputy Commissioner of Income Tax and is now due for consideration by promotion on the basis of selection where field of selection and the minimum qualifying service for promotions specified as Officers in the Senior Scale is not less five years regular service in that grade. 3 4. Therefore, it is contended that as the respondent having completed five years service on or about 13.09.2002 but for the period of her absence from 1996 to 2001, which was treated as extraordinary leave without pay, she did not qualify and is not entitled to be considered for promotion to the Officers in the Senior Scale with not less five years regular service in that grade. 5. It is not disputed that the respondent’s absence from 1996 to 2001 was condoned. According to the learned counsel for the respondent, leave was available as per the rules and for considering the case of the respondent this will have to be counted in the years of service she has put in on the cut off date. We find that the stand taken by the Union of India that the period of leave cannot be considered for the purpose of minimum qualifying service of promotion and as the petitioner has not completed 5 years regular service in the court, she was rightly disqualified is not correct. 6. This contention of the petitioner has been 4 turned down by C.A.T. and rightly so, we do not find that the impugned decision suffers from any error or illegality. C.A.T. has merely directed respondents to consider the case of the petitioner in accordance with the rules and on the basis of available ACR’s on the grade and as the impugned order specifically mentions that on such consideration and on having been found fit for promotion to the post in question, the applicant shall be entitled to all the consequential benefits. Therefore, this does not call for any interference in the Writ Jurisdiction. Petition is dismissed. (J.N. Patel, J.) (J.N. Patel, J.) (J.N. Patel, J.) (Smt. Mridula Bhatkar, J.) (Smt. Mridula Bhatkar, J.) (Smt. Mridula Bhatkar, J.)