Union of India v Muraleedharan P.V.

**OP (CAT).No.251 OF 2017(Z) 1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** **OP (CAT).No.251 OF 2017(Z)** **AGAINST THE ORDER IN OA 180/00102/2015 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 25.8.2016** ## **PETITIONERS/RESPONDENTS:** **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA,MINISTRY OF FINANCE,NEW DELHI-110001. 2 THE CENTRAL BOARD OF DIRECT TAXES REPRESENTED BY ITS CHAIRMAN,CBDT,NORTH BLOCK,NEW DELHI-110011. 3 THE CHIEF COMMISSIONER OF INCOME TAX I.S.PRESS ROAD,KOCHI-682018. BY ADV. SRI.T.V.VINU, CGC** ## **RESPONDENTS:** **MURALEEDHARAN P.V. S/O.P.V.MADHAVA WARRIER,RETIRED AS JOINT COMMISSIONER(ADHOC),INCOME TAX,CALICUT,RESIDING AT FLAT NO.7E,PALM ROYALE APARTMENT MLA ROAD,KOTTULI,CALICUT-673016. R1 BY ADV. SMT.G.BINDU R1 BY ADV. SRI.M.V.BALAGOPAL R1 BY ADV. SRI.M.R.HARIRAJ R1 BY ADV. SRI.P.A.KUMARAN R1 BY ADV. SRI.K.RAJAGOPAL** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 17-02-2020, THE COURT ON 17-02-2020 DELIVERED THE FOLLOWING:** ## **K.VINOD CHANDRAN & P.V.KUNHIKRISHNAN, JJ** --------------------------------------------------------------------- O.P(CAT) No.251 of 2017 -------------------------------------------------------------------Dated this the 17[th] day of February, 2020 ## **JUDGMENT** ## **P.V.Kunhikrishnan, J** Respondents in O.A. 180/00102/2015 are the petitioners in the above Original Petition. The respondent herein filed the Original Application before the Central Administrative Tribunal (herein after mentioned as 'Tribunal') with the following prayers: I) Quash Annexure A20; II)to direct the respondents to consider the applicant for promotion as Assistant Commissioner (Senior Scale)/ Deputy Commissioner with effect from 1.1.2005 with all consequential benefits including arrears of pay, allowances, pension and pensionary benefits; III) to direct the respondents to consider the applicant for grant of regular promotion as Joint Commissioner with effect from |September, 2010, with all consequential benefits, including arrears of pay, allowances, pension and pensionary benefits; IV) To direct the respondents to consider the applicant for grant of promotion to the cadre of Additional Commissioner (Non Functional Selection Grade) with effect from 1.1.2013 with all consequential benefits including arrears of pay, allowances, pension and pensionary benefits; V)Grant such other reliefs as may be prayed for and the court may deem fit to grant, and **OP (CAT).No.251 OF 2017(Z) 3** ## VI) To grant the costs of this Original Application. 2.The respondent herein, who is the applicant before the Tribunal was an Inspector of Income Tax. He was promoted as Assistant Commissioner w.e.f 7.11.2001 against a vacancy of the year 2000. He was promoted as Assistant Commissioner(Senior Scale)/Deputy Commissioner on 1.1.2006. The case of the respondent/applicant is that one S.K.Shukla, junior to him filed O.A.No.502 of 2004 before the Jaipur Bench seeking to antedate his promotion as Assistant Commissioner. The said O.A was allowed on 29.3.2005. Though the petitioners herein challenged that order they failed and the same was complied . 3.The petitioner retired in 2013 and filed O.A.No.102 of 2015 contending that he is similarly situated and sought similar relief. Tribunal allowed the O.A finding the seniority list is a settled one and Shukla is placed below the applicant, and the applicant has a rightful claim. When the petitioners did not implement the directions of the Tribunal, the applicant filed an application to implement the order, and as per Ext P10 order a direction was issued to the Member(Personal) /Central Board of Direct Taxes to appear before the Tribunal. In such situation the above Original Petition was filed challenging the final order in the Original Application which is produced as Ext P5 and the common orders in M.A.No.180/00776/2017 and M.A.No.180/00777/2017 dated 10.8.2017. ## **OP (CAT).No.251 OF 2017(Z) 4** 4. We heard the Assistant Solicitor General of India (ASGI) in detail. After hearing the ASGI in detail, we are of the opinion that there is no ground to interfere with the order passed by the Tribunal. 5. The respondent had a right to be considered for promotion in the light of the earlier orders passed in the case of Shukla, who was an admitted junior of the applicant. In Annexure-A20 reply to the applicant by the petitioner, it is stated that Shukla was given promotion in exceptional circumstances only in compliance of the order dated 29.3.2005 of the Central Administrative Tribunal, Jaipur Bench and the order in C.P No. 59 of 2009. The order by which Shukla was promoted reached upto the Apex Court and the orders of the Tribunal and the High Court were confirmed. It is a settled position that if a junior was promoted overlooking the right of a senior, senior should also be considered for promotion, of course as per applicable provisions of recruitment rules. The Tribunal considered all these aspects in detail and ordered that the respondent is eligible for promotion with effect from the date of his junior Sri.S.K.Shukla, who was also promoted. The subsequent promotion as Joint Commissioner/Additional Commissioner(NFSG) was also directed to be be granted as per the provisions of recruitment rules. 6. The Tribunal also ordered to pay arrears of pay and allowance for only 3 years prior to the date of filing of O.A as laid down by the Hon'ble Apex Court in **Union of India v.Tarsem Singh (2008)2 SCC (L&S) 765.** **OP (CAT).No.251 OF 2017(Z) 5** The relevant portion of the order of Tribunal is extracted here under: “ The Apex Court while discussing Shukla's case had observed that the consideration, however, shall be made in accordance with the rules i.e, the provisions of Recruitment Rules should be followed. The Recruitment Rules of IRS provide that the post of Deputy Commissioner is to be filled on the basis of seniority-cum-fitness and the minimum qualifying service for promotion is not less than 4 years regular service in the junior scale. The Recruitment Rules also provides the condition that seniors shall be considered for promotion if a junior like Shri.Shukla has been promoted to a higher post notwithstanding that they may not have rendered the requisite years of qualifying service. The Recruitment Rules therefore support the case of applicant. The Apex Court while dealing with the SLP filed against order of High Court in Shri.S.K.Shukla case had also held that the consideration shall be made in accordance with the Rules. This is a settled legal position which the respondents have to follow, particularly as the respondent has also recognized the same and provided for it in the Recruitment Rules. Hence if the seniority list is a settled one and Shri.Shukla is placed below the applicant, the applicant's right emanates from the provision that he should be considered for promotion, if any person junior to him has been promoted and with effect from the date the junior Shukla was promoted. The applicant is, therefore, eligible for promotion with effect from the date his junior Shri.S.K.Shukla was promoted. The subsequent promotion as Joint Commissioner and Additional Commissioner (NFSG) be granted as per provisions of the Recruitment Rules. Arrears of pay and allowances, if any, will be restricted to three years prior to the date of filing of this O.A as laid down by the Hon'ble Apex Court in **Union of India & Ors v. Tarsem** ” **Singh (2008)2 SCC (L&S) 765** . 7. The counsel for the respondent also pointed out that as per Exts **OP (CAT).No.251 OF 2017(Z) 6** A4 & A9 orders, juniors of the respondent were promoted. In such circumstances, the order passed by the Tribunal granting the benefit of the above orders to respondents herein is perfectly legal and hence there is nothing to interfere in the order passed by the Tribunal. 8. At this stage, the ASGI requested some time to comply with the directions of the Tribunal. Considering the facts and circumstance of the case, three months time is granted from today to comply with the order dated 25.8.2016 in O,.A.No.180/00102/15 of the CAT, Ernakulam. With these observations, the above OP(CAT) is dismissed. Parties shall bear their respective costs. ## **K.VINOD CHANDRAN, JUDGE** ## **P.V.KUNHIKRISHNAN, JUDGE** cms xxx **OP (CAT).No.251 OF 2017(Z) 7** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE OA NO.180/00102/2015 DATED 03.02.29015 FILED BY THE RESPONDENT BEFORE THE CAT,ERNAKULAM BENCH.** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 09.09.2015 FILED BY THE PETITIONERS** - **EXHIBIT P3 TRUE COPY OF THE REJOINDER DATED 04.12.2015 FILED BY THE RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE REPLY TO THE REJOINDER DATED 22.02.2016 FILED BY THE PETITIONERS** - **EXHIBIT P5 TRUE COPY OF THE ORDER IN OA.NO.180/00102/2015 DATED 25.08.2016,OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH.** - **EXHIBIT P6 TRUE COPY OF THE MA NO.180/00492/2017 DATED 25.05.2017 FILED BY THE RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE ORDER IN M.A.NO.180/00492/2017 DATED 05.07.2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL** - **EXHIBIT P8 TRUE COPY OF THE MA NO.180/00776/2017 DATED 07.08.2017** - **EXHIBIT P9 TRUE COPY OF THE MA NO.180/00777/2017 DATED 07.08.2017** - **EXHIBIT P10 TRUE COPY OF THE COMMON ORDER IN MA.NO.180/00776/2017 AND MA NO.180/00777/2017 DATED 10.08.2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH.** - **ANNEXURE A20 TRUE COPY OF ORDER NO.A.35015/48/2014-AD.IV DATED 08/01/2015 COMMUNICATED BY LETTER NO.40/4/CC-CHN/LEGAL/2014 DATED 14/01/2015.** - **ANNEXURE A1 TRUE COPY OF THE FINAL ORDER DATED 29/03/2005 IN OA NO.502/2004.** - **ANNEXURE A2 TRUE COPY OF THE ORDER F.NO.A.35015/46/2006 AD.IV DATED 23/01/2007.** - **ANNEXURE A3 TRUE COPY OF THE FINAL JUDGMENT DATED** ## **OP (CAT).No.251 OF 2017(Z) 8** **26/02/2007 IN SLP(C) 3087/2007 ON THE FILES OF THE HON'BLE SUPREME COURT OF INDIA. ANNEXURE A4 TRUE COPY OF THE FINAL ORDER DATED 30/06/2009 IN OA NO.2107/2008 AND CONNECTED CASES.** **ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED 30/07/2009.** - **ANNEXURE A6 TRUE COPY OF THE NOTIFICATION NO.5 DATED 11/05/2010.** - **ANNEXURE A7 TRUE COPY OF REPRESENTATION DATED 25/05/2010 MADE BEFORE THE 2ND RESPONDENT.** - **ANNEXURE A8 TRUE COPY OF THE NOTIFICATION NO.9 DATED 06/08/2010.** - **ANNEXURE A9 TRUE COPY OF THE FINAL ORDER DATED 18/03/2010 IN OA 231/2009 ON THE FILE OF THE CAT BENCH.** - **ANNEXURE A10 TRUE COPY OF THE JUDGMENT DATED 12/10/2010 IN WPC 23401/2010(S) ON THE FILES OF THE HON'BLE HIGH COURT OF KERALA.** - **ANNEXURE A11 TRUE COPY OF REPRESENTATION DATED 05/11/2012.** - **ANNEXURE A12 TRUE COPY OF REPRESENTATION DATED 04/03/2013.** - **ANNEXURE A13 TRUE COPY OF REPRESENTATION DATED 15/05/2013.** - **ANNEXURE A14 TRUE COPY OF NOTIFICATION NO.9 DATED 13/12/2013.** - **ANNEXURE A15 TRUE COPY OF THE FINAL ORDER DATED 02/11/2010 IN OA 1052/2010 ON THE FILE OF THE HON'BLE PRINCIPAL BENCH OF THE TRIBUNAL.** - **ANNEXURE A16 TRUE COPY OF JUDGMENT DATED 06/07/2012 IN WPC NO.8018/2010 OF THE HONOURABLE HIGH COURT OF DELHI.** - **ANNEXURE A17 TRUE COPY OF THE ORDER NO.211/2013 DATED 12/11/2013.** - **ANNEXURE A18 TRUE COPY OF NOTIFICATION NO.3/2014 DATED 28/02/2014.** **OP (CAT).No.251 OF 2017(Z) 9** **ANNEXURE A19** **TRUE COPY OF FINAL ORDER DATED 18/06/2014 ON OA 180/160/2014 ON THE FILES OF THIS HONOURABLE TRIBUNAL.** **ANNEXURE A21** **TRUE COPY OF THE OM NO.22/1/2000 CRD DATED 06/06/2000 ISSUED BY THE 1ST RESPONDENT.** **ANNEXURE MA1 TRUE COPY OF THE FINAL ORDER DATED 25/08/2016 IN OA NO.102/2015.** **ANNEXURE MA2 TRUE COPY OF THE ANNEXURE MA1 WAS COMMUNICATED TO THE RESPONDENT WITH THE REPRESENTATION DATED 06/10/2016.** **ANNEXURE MA3 TRUE COPY OF THE APPLICANT FOLLOWED UP WITH REMINDER REPRESENTATION DATED 05/04/2017.** RESPONDENTS EXTS NIL cms /True copy/ P.S.to Judge