B. Sasidharan Nair and Varghese John v. Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 24TH DAY OF MAY 2016/3RD JYAISHTA, 1938 OP (CAT).No. 133 of 2016 (Z) ----------------------------AGAINST THE ORDER IN OA 181/00297/2016 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 06-04-2016 ## PETITIONERS : ------------ 1. B. SASIDHARAN NAIR, AGED:48 YEARS, S/O BALAKRISHNAN NAIR V, MULTI-TASKING STAFF, O/O JOINT COMMISSIONER OF INCOME TAX RANGE-1, TRIVANDRUM 695 003, RESIDING AT:TC NO. 41/2492,"SIVANILAYAM" THOTTAM, MANCAUD PO, TRIVANDRUM-695009. 2. VARGHESE JOHN, AGED:47 YEARS, S/O JOHN, MULTI-TASKING STAFF, O/O ADDITIONAL COMMISSIONER OF INCOME TAX, THIRUVALLA RANGE, THIRUVALLA, RESIDING AT THACHEL PEEDIKA, PRAYIKARA, MAVELIKKARA ALAPPUZHA DISTRICT. BY ADVS.SRI.T.C.GOVINDASWAMY SMT.T.N.SREEKALA ## RESPONDENTS : -------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNEMNT OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI-110001. 2. THE CHAIRMAN, CENTRAL BOARD OF DIRECT TAXES, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI-110001. 3. THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX (CCA) KERALA CENTRAL REVENUE BUILDING IS PRESS ROAD, COCHIN-682018. R1-R3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 24-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 133 of 2016 (Z) ----------------------------- ## APPENDIX ## PETITIONERS' EXHIBITS - ----------------------P1 TRUE COPY OF THE INTERIM ORDER OF HON'BEL CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DT. 6/4/16 IN OA.181/00297/2016. - P2 TRUE COPY OF OA 180/00../ OF 2016, DT. 2/4/16, ALONG WITH ITS ANNEXURES FILED BY THE PETITIONERS BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNKULAM BENCH. - P3 TRUE COPY OF THE RECRUITMENT RULE DT. 18/12/15 FOR THE POST OF TAX ASSISTANT. - P4 A TRUE COPY OF ORDER NO. 121/16 DT. 1/4/16 ISSUED BY THE COMMISSIONER OF INCOME TAX (ADMN AND TPS), CHENNAI. ## RESPONDENTS' EXHIBITS :- NIL. --------------------- True copy P.A to Judge **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------O.P.(CAT)No.133 of 2016 -----------------------------------------------------------------Dated this the 24[th] day of May, 2016** ## **JUDGMENT** ## Ramachandra Menon, J. Challenge is against an interim order passed by the Tribunal; whereby the prayer to direct the concerned respondents before the Tribunal to convene a DPC and consider the candidature of the applicants on a provisional basis for promotion to the post of 'Tax Assistant', subject to the outcome of the O.A., was declined. 2. The sum and substance of the case projected before this Court is that, the petitioners, who are working as 'MultiTasking Staff' under the 3[rd] respondent, were originally working under the State of Karnataka and subsequently came to be transferred to the State of Kerala with loss of seniority; getting a placement at the bottom level of others in the cadre, who were working here. Next post for promotion is that of 'Tax Assistant' and the relevant Rules are Ext.P3. As per the said Rules, the minimum qualifying service is '5 years', but there is a rider in the O.P.(CAT)No.133/2016 2 form of a 'Note' to the effect that, if any Junior is considered for promotion, the Seniors who are not having the minimum stipulated service, subject to the extent specified therein, would also be considered for the purpose of promotion. This was being followed in all other regions including Gujarat, Chennai and in Karnataka. A copy of the relevant proceedings in this regard in respect of Chennai is produced as Ext.P4. 3. It is pointed out that the petitioners got qualified on passing computer skill test, which is a pre-requisite for getting promotion; much prior to other juniors working in Kerala and by virtue of satisfaction of the requirements in terms of the norms, they are also to be considered along with the others. Interference declined with regard to the interim relief sought for by them, made them feel aggrieved. 4. Heard the learned counsel for the petitioners at length. 5. The prayers raised in the O.A. are in the following terms:- (i) Declare that the failure on the part of the respondents to prepare the eligibility list in terms of A3 and to consider the applicants for promotion as Tax Assistants in terms of A8 is O.P.(CAT)No.133/2016 3 clearly illegal, arbitrary, discriminatory and unconstitutional; (ii) Direct the respondents to consider and promote the applicants as Tax Assistants in preference to and along with (a) Shri.B.M.Shyamkumar, (b) Smt.Bindu Balachandran and (c) Shri.A.Anishkumar referred to in paragraph 5(B) above and direct further to grant all the consequential benefits arising there from; (iii) Award costs and incidental thereto; (iv) Pass such other orders or directions as deemed just and fit by this Hon'ble Tribunal. ## 6. The interim relief sought for is extracted below for convenience of reference:- “Direct the respondents to consider the applicants also provisionally, in the DPC to be convened soon for promotion to the post of Tax Assistant, subject to the final outcome of the original application.” ## 7. After considering the course and events, the following ## order was passed by the Tribunal:- “Heard the learned counsel for the parties. The applicants seek an interim direction to be given to the respondents to consider the applicants provisionally in the DPC to be convened soon for O.P.(CAT)No.133/2016 4 promotion to the post of Tax Assistant subject to the final outcome of the O.A. This application is strongly resisted by the learned counsel for the respondents. The applicants do not dispute the fact that they have not acquired the required service for promotion to the post of Tax Assistants but they contend that they had passed the prescribed departmental examination/computer skill test and so as directed in Annexure A3 dated 13.4.2005 a common eligibility test in chronological order with reference to passing of the computer skill examination should have been prepared by the respondents, in which event the applicants would be entitled for consideration of the DPC. Therefore, the argument advanced by the learned counsel for the applicant is based on Annexure A3 and other departmental orders issued earlier. The learned counsel for the respondents has pointed out that those Government orders cannot be pressed into service since the DPC for promotion to the post of Tax Assistant is to be convened as per the Recruitment Rules dated 18.12.2015. The eligibility condition prescribed therein is as follows: “Promotion: Group C, viz, Multi-tasking staff, Lower Division Clerk, Notice Server, Record Keeper, Sr.Gestetner Operator in Pay Band-I with five years' regular service in the Grade including in the erstwhile Group O.P.(CAT)No.133/2016 5 D having passed i) matriculation examination or equivalent and ii) having qualified the prescribed departmental examination for data-entry skill for 5000 key depressions per hour. Note: 1. Promotion to the grade of Tax Assistant will be made region wise. 2. For the promotion of reckoning five years' regular service in the grade, the service rendered by an inter-region transferee in the old region shall not be counted in the new region which he has joined on such transfer, if the transfer is on the request of the officer concerned. 3. .......” It is not a case where the juniors who had completed their qualifying or eligibility service are being considered for promotion. Since the applicants themselves do not dispute the fact that they had not completed the required five years regular service the request for inclusion of their names for consideration of the DPC cannot be sustained. The decision in **R.Prabha Devi and others v. Government of India & others - AIR 1988 SC 902** has also been relied upon in this connection. Accordingly, we are not inclined to grant the interim direction as sought for. Ordered accordingly. Let reply statement be filed in the matter within four weeks. List the matter on 24.5.2016.” O.P.(CAT)No.133/2016 6 8. The relevant Rule, as evident from Ext.P3 which governs the field of promotion to the post in question, is in the following terms:- |lowing terms:-|| |---|---| |**Method of recruitment:**<br>**whether by direct**<br>**recruitment or by**<br>**promotion or by**<br>**deputation/absorption**<br>**and percentage of the**<br>**posts to be filled by**<br>**various methods**|**_In case of recruitment by_**<br>**_promotion/deputation/_**<br>**_absorption, grades from which_**<br>**_promotion/deputation/_**<br>**_absorption to be made_**| |10|11| |25% by promotion and<br>75% by Direct Recruitment|**Promotion:**<br>Group 'C', viz., Multi-tasking Staff, Lower Division<br>Clerk, Notice Server, Record Keeper, Sr.Gestetner<br>Operator in Pay Band-I with five years' regular<br>service in the Grade including in the erstwhile<br>Group 'D' having passed i) matriculation<br>examination or equivalent and ii) having qualified<br>the prescribed departmental examination for<br>data-entry skill for 5000 key depressions per<br>hour.<br>Note:<br>1. Promotion to the grade of Tax Assistant will be<br>made region wise.<br>2. For the purpose of reckoning five years' regular<br>service in the grade, the service rendered by an<br>inter-region transferee in the old region shall not<br>be counted in the new region which he has joined<br>on such transfer, if the transfer is on the request<br>of the officer concerned.<br>3. Where juniors who have completed their<br>qualifying or eligibility service are being<br>considered for promotion, their seniors would also<br>be considered, provided they are not short of the<br>requisite qualifying or eligibility service by more<br>than half of such qualifying or eligibility service or<br>two years whichever is less and have successfully<br>completed their probation period for promotion to<br>the next higher grade along with their juniors who<br>have already completed such qualifying or<br>eligibility service.| ||| O.P.(CAT)No.133/2016 7 9. Considering the nature of grievance, this Court finds that, since the issue is still pending consideration before the Tribunal, it would only be inappropriate for us to express anything with regard to the merits of the case. The interim order passed by the Tribunal is only with regard to the claim to be considered by the DPC along with others. The denial of the said relief can never place any hurdle on the way of the petitioners in the long run, if the claim of the petitioners is found otherwise legal and sustainable and ultimately they come to be succeeded in the O.A. It is always open for the Tribunal to pass appropriate orders, so as to safe-guard the interest of the petitioners to the requisite extent, in accordance with the relevant provisions of law. The discretion vested with the Tribunal has already been exercised and an order has been passed to the effect that, for the time being, the applicants need not be permitted to be considered by the DPC. As a natural consequence, the matter has to be heard and finalized declaring the rights and liberties of the parties concerned in the due course. We do not find any reason to interfere with the said interim order; but for making clear that, O.P.(CAT)No.133/2016 8 all further proceedings will be subject to the final verdict to be passed by the Tribunal in the concerned O.A. The matter is closed accordingly. Sd/- **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge