Central Administrative Tribunal - Delhi

Shri Prabhu Lal vs Union Of India Through on 3 June, 2011

CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI

O.A. No.2416/2005

New Delhi, this the 3rd day of June, 2011.

HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBLE MR. SHILENDRA PANDEY, MEMBER (A)

Shri Prabhu Lal
S/o Late Shri Puran Ram
R/o 4./171, Lalita Park, Laxmi Nagar,
Delhi-110092. .. Applicant

(By Advocate: Shri Sarvesh Bisaria)

Versus

1. Union of India through
Secretary (Revenue),
Ministry of Finance,
North Block,
New Delhi.

2. The Chief Commissioner of Income Tax,
C.R. Building,
ITO,
New Delhi. ..Respondents

(By Advocate : Shri V.P. Uppal)

ORDER

Mrs. Meera Chhibber, Member (J)

The matter has been remitted back by the Honble High Court of Delhi second time vide judgment dated 3.3.2009. Initially applicant had filed OA No. 2988/2004 which was disposed of on 22.12.2004 with a direction to the respondents to decide the representation of the applicant whereupon respondents passed order dated 24.2.2005 (page 8) informing the applicant that he was not within the zone of consideration, hence his claim for promotion could not be considered at that stage. The applicant thereafter filed OA No. 2416/2005 which was dismissed by the Tribunal vide its judgment 21.4.2007. The matter was carried to the Honble High Court of Delhi by filing Writ Petition No. 8762/2008. Vide judgment dated 12.12.2008 Honble High Court of Delhi set aside the order passed by the Tribunal and remitted the case back to the Tribunal for fresh consideration on merits by giving liberty to the Tribunal to look into consideration all the relevant facts and if there is any reason why the applicant cannot raise certain grounds before the tribunal and reasons must be given for rejecting the same.

2. In the second round of litigation the OA was allowed by the Tribunal vide judgment dated 3.3.2009 with a direction to the respondents to reexamine the position of filling up the SC/ST vacancies and maintain roster right from the year 1998 and to ascertain whether there are any backlog vacancies, which could have been utilized while the applicant was considered for promotion in 2004. Once again this judgment was challenged by the respondents this time before the Honble High Court of Delhi by filing Writ Petition No.626/2010. Honble High Court of Delhi once again set aside the order dated 3.3.2009 passed by the Tribunal and restored the OA with a direction to the Tribunal to return a positive finding whether there existed vacancies to the post of Assistant Commissioner (Income Tax) allocable to the SC/ST category in the year 2004. While doing so, the Tribunal would also consider whether there were any backlog vacancies for which a definite finding would be returned. This is how the matter has now been placed before us.

3. Applicant has challenged order dated 24.2.2005 and 20.4.2005 (pages 8 and 10 respectively) and has sought a further direction to the respondents to consider him for promotion to the post of Assistant Commissioner of Income Tax (hereinafter referred to as ACIT) being the SC candidate against reserved quota vacancy with all consequential benefits.

4. It is submitted by the applicant that he was appointed as LDC on 17.1.1970 and was promoted as UDC in 1975. He was further promoted as Income Tax Inspector (hereinafter referred to as ITO) in 1990 whereafter he passed the departmental examination for promotion to the post of ITO in June, 2000 and since then he has been working as ITO with the respondents to their entire satisfaction.

5. As per the Indian Revenue Service Rules, 1988 an ITO with not less than 3 years regular service in the grade would be eligible for promotion to the senior scale on the basis of seniority-cum-fitness. Even though applicant had become eligible in the year 1994, he has not been considered for the post of senior scale.

6. It is submitted by the counsel for the applicant that respondents were having 264 vacancies of ACIT lying vacant for them but were not holding the DPC for the reasons best known to them. Applicant being the office holder of Income Tax SC/ST Association gave a representation but the same was not decided, therefore, he had filed OA No.2988/2004. Facts of all the cases have been explained in the first paragraph, therefore, it need not be repeated.

7. Grievance of the applicant is that while respondents promoted 121 persons as ACIT by order dated 15.2.2005 but applicant was not promoted with ulterior motives.

8. Counsel for the applicant strenuously argued that respondents are not maintaining the roster registers as prescribed under the relevant rules and instructions, therefore, a direction be given to the respondents to produce those registers so that actual vacancies of SC/ST may be known.

9. Respondents have opposed this OA. They have stated that cadre of ITO in the Central Board of Direct Taxes consists of 19 feeder cadres. Their seniority in the grade of ITO is being maintained by the concerned cadre controlling authority and respondents only amalgamate their seniority on all India basis based on instructions in force. The applicant belongs to Delhi Region and was promoted as ITO with effect from 18.6.2001. None of his juniors in the general or SC category has been promoted as ACIT so far, therefore, he cannot have any grievance. He does not even fall within the zone of consideration. Eligibility condition does not entitle a person for promotion as all depend on availability of vacancy against promotion quota in the respective year of selection. It is thus not possible to promote all the officers who are eligible for promotion.

10. They have further stated that applicant has not even been promoted to the post of ACIT (Junior Scale) so far thus he cannot claim grant of senior scale for which officers should have rendered minimum 4 years of service in the grade of ACIT (junior scale) before being considered for senior scale, i.e., Dy CIT.

11. They have further stated the sanctioned strength of IRS cadre is 3904, out of which 734 posts are meant for ACIT and out of this also only 367 posts of ACIT are meant for promotees to be filled by way of promotion of ITOs, therefore, it takes time for ITO to get promotion to the post of ACIT as their strength is 4204. They have further explained that the DPC for the year 2003-04 was held in UPSC on 31.1.2005, 1.2.2005 and 2.2.2005 for considering promotion of ITO to the post of ACIT and vide order dated 15.2.2005, 122 ITOs were promoted to the grade of ACIT. Since applicant is much junior, his name was not even included within the zone of consideration. They have stated by way of ad hoc promotion, ITO of November, 1994 batch could only be promoted whereas applicant is an ITO of only June, 2001, hence he is too junior to be even considered for promotion. They have further stated the applicant has neither indicated the name of any junior officer of general or SC/ST category, who has been promoted ignoring him nor he has indicated the manner in which applicant has been denied promotion by way of reservation and promotion.

12. They have specifically stated that the respondents are following the various instructions issued by the DOP&T for the purpose of holding the DPCs and implementing the reservation policies. He has nowhere explained as to how the OM dated 31.1.2005 has come in his way for denying him promotion to the grade of ACIT. They have specifically stated that respondents are maintaining the register roster and it only after receiving the certificate from the Liaison Officer of the department for the SC/ST, based on post based roster, the DPC for the year 2003-04 was conducted. Even ad hoc DPC for the year 2004-05 and 2005-06 was conducted after obtaining the requisite certificate from the Liaison Officer. They have thus prayed that the OA may be dismissed.

13. We have heard both the counsel and perused the pleadings as well as record produced by the counsel for respondents.

14. Perusal of page 28 shows applicant was promoted as ITO vide order dated 18.6.2001. His name figures at Sl.No.48 (page 28 at 29), therefore, he had become eligible for promotion to the post of ACIT (junior scale) in 2004. It is settled law that merely because a person becomes eligible for promotion he cannot claim promotion from the same date, as promotion is dependent on the availability of vacancy and subject to one being declared fit by the DPC provided he falls within the zone of consideration. In the instant case respondents have explained that in 2005, 122 officers were promoted as ACIT but they belonged to 1994 batch whereas applicant became ITO only in the year 2001 and became eligible to be considered for promotion to the post of ACIT in the year 2004. He was thus 2004 batch as such much much junior to the persons who were considered for promotion in the year 2005. Respondents have specifically stated that none of the persons, who was junior either in general or SC category has been promoted so far as ACIT, which has not been disputed by the applicant anywhere. We are thus satisfied that applicant cannot have any valid grievance as none of the persons junior to him have been considered or promoted so far, for the next promotion.

15. Counsel for the applicant strenuously argued that respondents were not maintaining any roster register, therefore, backlog vacancies cannot be counted. It would be relevant to refer to the judgment of Honble High Court of Delhi dated 30.8.2010 in Writ Petition No. 626/2010 filed by the respondents at this stage whereby Tribunal was directed to return a positive finding whether there existed vacancies to the post of ACIT allocable to the SC/ST category in the year 2004 and while doing so, the Tribunal would also consider whether there were any backlog vacancies.

16. This direction was obviously given because applicant was claiming to be eligible for promotion to the post of ACIT in 2004, therefore, we have only to see whether there were any vacancies of SC/ST in the year 2004 and whether there were any backlog vacancies or not. In the counter affidavit, respondents have specifically stated that they are maintaining roster register and hold the DPC only after receiving a certificate to that effect from the Liaison Officer. To substantiate the same they have annexed the certificates with their reply. The certificate which was issued on 8.12.2004 reads as under:-

It has been verified w.r.t. post based roster & certified that out of 139 vacancies of Assistant Commissioners of Income Tax reported for the year 2003-04, 20 posts are reserved for SC officers and 14 posts are for ST officers which includes backlog of 3 ST officers.

Similarly another certificate was issued on 7.9.2005 for the vacancies of the year 2004-05 which reads as under:-

It has been verified w.r.t. post based roster & certified that out of 122 vacancies of Assistant Commissioners of Income Tax being reported to the UPSC for the year 2004-05, 20 pots are reserved for SC officers and 6 posts are for ST officers.

This clearly shows that roster register was being maintained by the respondents and they were taking into consideration the reserved vacancies including backlog for SC/ST also. Respondents have also produced for our perusal the Post Based Reservation Roster (Promotion Quota) of ACITs from 1997 onwards. Perusal of same shows it clearly showed how many reserved vacancies were in excess or in short including the backlog vacancies. The details, as follows were given in this roster:-

(i) No. of sanctioned posts as on a particular date.

(ii) No. of posts in promotion quota.

(iii) Persons in position.

(iv) Reservation required.

(v) Actual No. of SCs and STs in position.

(vi) Short or excess reservation etc. etc.
Similarly Minutes of DPC from 1997 onwards were also produced for our perusal which shows that respondents were maintaining roster register and were giving the break-up of general and SC/ST vacancies each time a DPC was convened. We are thus satisfied that the roster register was being maintained by the respondents and they were also considering the SC/ST candidates for promotion to the post of ACIT. Simply because applicant happens to be a SC candidates and has not been promoted, it does not mean that respondents are not maintaining the roster register. Respondents have explained that in 2005 the persons who were promoted as ACIT belonged to 1994 batch of ITO whereas applicant was promoted as ITO only in the year 2001 and had completed 3 years in 2004 so naturally he could not have been promoted in the year 2005 when other persons were promoted. Respondents have specifically stated that none of the juniors to the applicant either in general or SC/ST category has been promoted so far, therefore, we are satisfied that applicant cannot have any valid grievance.

17. Counsel for the applicant did not have any answer to these questions when put to him but he contended that respondents have not produced any roster register before 1997, therefore, backlog vacancies would not be known. We think applicant is trying to stretch the case too far. We cannot have a roving enquiry for the applicant. The applicant cannot use the court to find out the vacancies prior to 1997 because he was promoted as ITO only in the year 2001 and was not even borne in the cadre of ITOs before 1997, therefore, no purpose would be served by going prior to 1997. In fact, the law is well settled that when a person approaches the court, it is his duty to lay down the foundation and demonstrate how his legal right has been violated. In the instant case it is reiterated that applicant has not been able to demonstrate how he either had a legal right to be promoted in 2004 or 2005. Since the applicant has not been able to demonstrate violation of any of his legal rights, we find no merit in the OA. The same is accordingly dismissed. No order as to costs.

(SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)

Rakesh