OP (CAT) No. 50 of 2017 (Kerala High Court) Mahesh M S/o P.K. Madhu v. The Secretary, Ministry of Finance, Department of Revenue; The Chairman CBDT; The Chief Commissioner of Income Tax, Kochi

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 13TH DAY OF FEBRUARY 2017 / 24TH MAGHA, 1938** **OP (CAT).No. 50 of 2017** **AGAINST THE ORDER IN OA 1124/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 23-03-2016** ## **PETITIONERS/RESPONDENTS IN OA** **1 THE SECRETARY, MINISTRY OF FINANCE DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE CHAIRMAN CBDT, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI.** **3 THE CHIEF COMMISSIONER INCOME TAX, CENTRAL REVENUE BUILDING, I.S. PRESS ROAD, KOCHI.** **BY ADV.SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** ## **RESPONDENT/APPLICANT IN OA:** **MAHESH.M S/O.P.K.MADHU, RESIDING AT REVATHI, KANNAMOOLA P.O., THIRUVANANTHAPURAM, NOW WORKING AS TAX ASSISTANT, O/O THE ADDL. CIT, RANGE - II, THIRUVANANTHAPURAM - 695 003.** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 13-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No. 50 of 2017 (Z)** ## **PETITIONER'S EXHIBITS** **P1 TRUE COPY OF THE OA NO. 1124/2013 DATED 18.11.2013 FILED BY THE RESPONDENT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. P2 TRUE COPY OF REPLY STATEMENT DATED 24.6.2014 FILED BY THE PETITIONERS IN OA NO. 1124/2013 BEFORE THE CAT, ERNAKULAM BENCH. P3 TRUE COPY OF THE ORDER IN OA NO. 1124/2003 DATED 23.3.2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** ## **/TRUE COPY/** **PS TO JUDGE** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **O.P.(CAT)No.50 OF 2017** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of February, 2017 ## **JUDGMENT** ## Ravikumar, J. This original petition is directed against the order dated 23.3.2016 passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.1124/2013. The respondents therein are the petitioners and the applicant therein is the respondent, herein. The respondent/the applicant moved the Tribunal by filing the aforementioned original application seeking the following reliefs : “ A) Issue an order directing the respondents to step up the pay of the applicant in par with juniors of the applicant as per the Seniority list maintained by the respondents. B) To hold that applicant is eligible for parity of pay with that of the Juniors whose details are mentioned in Annexure A1. C) To direct the 2[nd] respondent to consider and orders on Annexure 6 pass appropriate representations by taking into the facts mentioned O.P.(CAT)No.50/2017 2 therein, within a time frame to be fixed by this Honourable Tribunal and thereby remove the anomaly in the pay scale of the applicant. D) Such other orders and directions as are deemed fit in the facts and circumstances of the case.” 2. The facts of the case, in succinct, are as follows :- The respondent-applicant joined Income Tax Department as Tax Assistant at Mangalore on 14.01.2008 on being appointed by the Additional Commissioner of Income Tax (TDS), Panaji as per order dated 31.12.2007. He has specifically stated in the original application that he received the said order only on 10.01.2008. At the time of joining the said post, his pay was fixed at par with those who were appointed along with him. However, pursuant to the implementation of the 6[th] Pay Commission Report, his salary became less than his juniors i.e. the persons who were ranked below him in the order of appointment. It occurred owing to the fact that in their case, they were given an annual increment on 1.7.2008. However, he was not granted the first increment on that date as has been done in their case. It is in O.P.(CAT)No.50/2017 3 the said circumstances that the respondent herein had approached the Tribunal seeking to step up his pay to make it at par with the pay of the aforesaid juniors. 3. The Tribunal, after careful consideration of the rival contentions and the relevant provisions of law, allowed the original application. The petitioners herein were directed to step up the pay of the respondent/applicant at par with his juniors in the seniority list. In other words, the Tribunal had ordered to rectify the anomaly in the matter of pay. It is aggrieved by the said order that the official respondents filed the captioned original petition. 4. We have heard the learned Assistant Solicitor General of India. A perusal of the impugned order would reveal absence of explanation from the part of the petitioners herein as to why the respondent herein/the applicant was not entitled to get stepping up of pay to make it at par with his juniors. In paragraph 6 of the impugned order passed by the Tribunal it is stated thus :- “The respondents have in their reply not offered any comments on the prayer of the O.P.(CAT)No.50/2017 4 applicants to step up applicant's pay at par with his junior in the seniority list in his previous charge at Mangalore where the anomaly arose.” 5. The learned Assistant Solicitor General of India submitted that after the initial process of recruitment in question posting orders were issued to the selectees in the manner explicitly explained in Ground (I) of the original petition. Ground (I) reads thus :- “ (I) The petitioner did not allege mala fides or any deliberate attempt, what so ever, on the part of the petitioners. After the initial process of recruitment, the applicant's posting was to TDS Ward, Mangalore as per order No.65 of the Chief Commissioner of Income Tax - I (CCA), Karnataka and Goa Region, Bangalore contained in F.NO.201(10)/2007-08/CCIT-I dated 10.12.2007. As per the procedure, the dossiers of the candidates received from the CBDT, New Delhi by the CCIT-I (CCA), Karnataka & Goa Region, Bangalore was forwarded to the various/different appointing authorities under their charge spread throughout the States of Karnataka and Goa. Accordingly, the dossier of the applicant/official was forwarded as per Memorandum of the CCIT-I (CCA), Bangalore dated 13/12/2007 in F.No.205(2)/2007-08/CCIT-I to the Addl.Commissioner of Income Tax (TDS), Panaji who was the appointing authority in the case of the applicant/official. After the receipt of dossier from Bangalore on 23/12/2006, the appointing authority at Panaji has issued the appointment order to the O.P.(CAT)No.50/2017 5 applicant/official on 31/12/2006 who was residing at Kerala State. Since the dossier was sent by post from the office of the CCIT-I(CCA) at Bangalore to the appointing authority at Panaji, who after receipt of the dossier, in turn, has issued appointment order by post to the candidate who was residing at Kerala, it is submitted that the appointment order was issued after following the due procedure and there is no willful delay on the part of the appointing authority in issue of appointment order to the candidate. Since the appointment orders were received by candidates located in different parts of India on different dates based on the appointment order issued by various appointing authorities in the states of Keranataka & Goa based on the dossiers issued by the CCIT -I(CCA) at Bangalore, the question of issuing the appointment letter to the petitioner later than his juniors or earlier than his seniors, is not relevant.” 6. It is submitted that the respondent herein obtained the order of appointment belatedly in the circumstances explained in Ground (1) and thus it is obvious this situation arose owing to the adherence to such procedures prescribed and there was absolutely no latches or lapses from the part of the official respondents viz., petitioners herein. in the case of rank below the Admittedly, persons holding respondent/applicant going by the order of appointment, they received the orders of appointment earlier than the respondent/applicant. As can O.P.(CAT)No.50/2017 6 be seen from Ground (1) in the original petition after the initial process of recruitment, the respondent-applicant was posted to TDS Ward, Mangalore as per Order No.65 of the Chief Commissioner of Income Tax (CCA), Karnataka & Goa Region, Bangalore contained in F.No.201(10)/2007-08/CCIT - dated 10.12.2007. Going by the recital in Ground (I) the dossiers of the candidates received from Central Board of Direct Taxes ( CBDT), New Delhi by the Chief Commissioner of Income Tax - I (CCA), Karnataka & Goa Region, Bangalore were forwarded to the various/different appointing authorities spread throughout the States of Karnataka and Goa. The dates viz., 26/12/2006 and 31/12/2006 given in Ground (I) can only be 23.12.2007 and 31/12/2007 respectively as the very first proceedings pursuant to process of recruitment was issued by CBDT only on 10.12.2007 even going by the recital in Ground (I). That apart, the very case of the respondent-applicant that the order of the Additional Commissioner of Income Tax (TDS), Panaji dated 31.12.2007 was served on him on 10.1.2008 and pursuant to the same, he joined as Tax Assistant in the Tax Department in the office of the Income Tax O.P.(CAT)No.50/2017 7 Officer (TDS), Mangalore on 14.1.2008 in the scale of pay of Rs.4000100-6000 (pre-revised) has not been disputed by the petitioners viz., the respondents before the Tribunal. The reason for not granting the increment, as can be seen from paragraph 4 of the reply affidavit filed by the petitioners herein before the Tribunal, is that he had not completed 6 months as on 1.7.2008 and as such he was not eligible for increment on 1.7.2008. According to them, his first increment date was 1.7.2009. Evidently, his juniors, in the sense, the persons who are juniors who got orders of posting earlier, naturally joined duty earlier than the respondent-applicant and in fact, they joined the service on 1.1.2008. It is submitted that as per Rule 10 of the Central Civil Services ( Revised pay) Rules 2008, a uniform date of annual increment was to be adopted and it is adopted as first July of every year. Ground (B) raised in this original petition by the petitioners would reveal that employees completing six months and above in the revised pay structure as on I[st ] July of that year will be eligible to be granted the increment. In the case of his juniors since they joined the post pursuant to the order dated 1.1.2008, they completed the required O.P.(CAT)No.50/2017 8 period of six months as on 1.7.2008. In the case of the respondent/applicant, since he joined the post only on 14.1.2008, he could not complete six months service as on 1.7.2008 and therefore he was not granted the increment. According the petitioners, the disparity in pay occurred in the aforesaid circumstances cannot attribute any wilful latches or malafide on the petitioners/official respondents. In Ground (H) the petitioners herein/the respondents therein raised a contention as hereunder :- “ The applicant had produced no material to substantiate his claim that officials who were juniors to the applicant as per establishment list maintained by the Chief Commissioner of Income Tax (CCA) Bangalore, were issued their appointment orders earlier to the applicant.” 7. In the context of the contentions and in view of the nature of the said contentions one aspect becomes notable. Though the petitioners raise a contention that the respondent herein viz., the applicant had not produced any material to substantiate his contention that officials who are juniors to him as per establishment list O.P.(CAT)No.50/2017 9 maintained by the Chief Commissioner of Income Tax (CCA) Bangalore, were issued with appointment orders earlier to him, the petitioners herein had not specifically or otherwise denied the essence of the contention of the respondent herein/applicant that there are juniors to him, selected under the same recruitment process as per the establishment list maintained and they were given first increment on 1.7.2008. In such circumstances, when the respondent herein/applicant attributes arbitrariness and negation of justice and invidious discrimination the petitioners who did not specifically dispute the essence of the attribution owe a sustainable explanation as to how his juniors happened to join on 1.1.2008 why he was denied the first increment on 1.7.2007 when such juniors were given their first increment on 1.7.2007. The petitioners cannot be heard to say that in such circumstances the applicant was to establish the reasons therefor. 8. A careful scrutiny of the pleadings in the reply affidavit as also in the original petition of the petitioners herein would reveal that they did not attribute any latches or lapses on the respondent-applicant for joining the post belatedly. In fact, he could not join along with O.P.(CAT)No.50/2017 10 other appointees owing to the delayed receipt of the order of appointment. Even if, all the candidates including the respondent were given appropriate posting pursuant to the receipt of their dossiers from CBOT, New Delhi and forwarding of such dossiers by the CCIT -I (CCA) at Bangalore, by different appointing authorities, the delayed issuance of and delayed receipt of subsequent orders by the candidates, cannot affect the rights of the appointees. The recital in Ground (I) in this original petition itself would reveal that the appointment orders ( whether orders of postings ?) were received by candidates located in different parts of India on different dates based on the dossiers issued by the CCIT - I (CCA) at Bangalore. In such circumstances, in case an appointee did not seek for extension of joining time and joined within the permissible period the date of joining cannot have any adverse impact on such an appointee lest under normal circumstances, the proximity of the place of residence of appointees and could decide their further prospects in their official carrier as one who gets appointment nearer to his place of occurrence on receipt of order of appointment could join earlier than the others whose place of posting is not so O.P.(CAT)No.50/2017 11 nearer and received the orders later than the former. Such a situation cannot be comprehended in service jurisprudence. At any rate, such delay cannot be permitted to recoil on the respondent-applicant. Admittedly, the respondent-applicant was drawing salary at par with his juniors at the time of his entry in service and it is pursuant to the 6[th] pay commission report and the consequential granting of the first increment that created the anomaly of the respondent-claimant getting lesser pay than his juniors. As noticed hereinbefore, the petitioners did not have a case that the respondent-applicant did not join the post within the permitted time for joining the post. Taking into account all such aspects we are of the view that the Tribunal had done justice to the respondent-applicant by giving direction to the petitioners/official respondents to step up the applicant's pay at par with his juniors in the aforementioned establishment list maintained by the CCIT (CCA), Bangalore. 9. After careful analysis of the order under challenge and the circumstances and the contentions we do not find any reason to hold that the Tribunal has done a palpable illegality whereas we are of the O.P.(CAT)No.50/2017 12 view that the Tribunal had done justice, taking into account the circumstances obtained in this case. At this juncture, it is relevant to note the decision of the Hon'ble Apex Court in **Roshan Deen v. Preetilal ( 2002(1) SCC 100)** . Going by the decision if justice became the byproduct of an erroneous order ( even if it is taken that some error is there) that cannot be a reason for this court to step in, to correct the error which would be having the effecting of erasing justice. In such circumstances, we are of the view that the Tribunal as per the said order has done only justice to the respondent and the order would in no way affect any other senior or junior to the respondent. We do not find any reason to interfere with the order of the Tribunal in O.A.No.1124/2013. In the said circumstances, this original petition is liable to fail and accordingly it is dismissed. ## **Sd/-** **C.T.RAVIKUMAR, JUDGE** **Sd/K.P.JYOTHINDRANATH, JUDGE** sv. 14/02/2017