Union of India v. Samuel Thomas

**C.R.** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 23RD DAY OF OCTOBER 2017/1ST KARTHIKA, 1939 OP (CAT).No. 294 of 2016 (Z) ----------------------------- AGAINST THE ORDER IN OA 180/00999/2014 dtd.9.3.2016 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED PETITIONERS/RESPONDENTS: ------------------------ 1. THE SECRETARY TO GOVT.OF INDIA, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI 110 001. 2. CENTRAL BOARD OF DIRECT TAXES REPRESENTED BY ITS CHAIRMAN, CENTRAL BOARD OF DIRECT TAXES, NORTH BLOCK, NEW DELHI 110 001. 3. THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX (CCA) KERALA, C.R.BUILDING, I.S.PRESS ROAD, KOCHI 682 018. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENE RESPONDENT/APPLICANT IN OA: -------------------------- SAMUEL THOMAS S/O.LATE A.T.SAMUEL, DY. COMMISSIONER OF INCOME TAX (RETD.) 52, NOEL PALM DALE, RAJAGIRI VALLEY P.O., KOCHI 682 039. R1 BY ADV. SRI.SANTHOSH MATHEW R1 BY ADV. SRI.ARUN THOMAS R1 BY ADV. SRI.JENNIS STEPHEN R1 BY ADV. SRI.ALPHIN ANTONY R1 BY ADV. SRI.VIJAY V. PAUL R1 BY ADV. SMT.MARIA ROY R1 BY ADV. SMT.VEENA RAVEENDRAN THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 8/2/2017, THE COURT ON 23-10-2017 DELIVERED THE FOLLOWING: OP (CAT).No. 294 of 2016 (Z) ----------------------------- ## APPENDIX PETITIONER'S EXHIBITS --------------------- EXT.P1 TRUE COPY OF THE OA NO.180/999/2014 FILED BY THE RESPONDENT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH EXT.P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN OA NO.999/2014 EXT.P3 TRUE COPY OF THE REJOINDER IN OA 999/2014 DATED 5/10/2015 FILED BY THE RESPONDENT EXT.P4 TRUE COPY OF THE ORDER OA NO.180/00999/2014 DATED 9/3/2015 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH RESPONDENT'S EXHIBITS NIL --------------------- TRUE COPY P.S.TO JUDGE css/ **C.R. ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. -------------------------------------------** ## **O.P.(CAT) No.294 of 2016** **------------------------------------------** ## **Dated this the 23rd day of October 2017. JUDGMENT** ## Dama Seshadri Naidu,J. The Union of India, represented by its officials, is the appellant; Samuel Thomas, a retired employee in the Income Tax Department, is the sole respondent. The Government of India in this Original Petition assails the order, dated 9.3.2016, in O.A.No.999 of 2014, passed by the Central Administrative Tribunal, Ernakulam Bench. To be precise, the Government of India assails the direction that Samuel Thomas be given promotion _—_ retrospectively after his superannuation. **Facts in Brief:** 2. Samuel Thomas, a promotee officer, belonged to Group-S _-_ Service (conferred Indian Revenue Service IRS). In 2010, while he O.P.(CAT) No.294 of 2016 2 was working as a Deputy Commissioner of Income Tax, at Kochi; the Departmental Promotion Committee (DPC) decided to promote certain Deputy Commissioners who include Samuel Thomas, as well, to the post of Joint Commissioner of income tax. It decided to promote those officials based on their seniority as reflected in the “Civil List”. 3. A group of directly recruited Deputy Commissioners (Direct IRS), belonging to the batches 2002 and 2003, challenged the DPC’s decision before a Division Bench of the Central Administrative Tribunal, New Delhi (“the Tribunal”). On reference, the matter eventually reached the Tribunal’s Principal (Full) Bench. First, the Tribunal’s Division Bench passed an interim order that “the promotions if made during pendency of the OA would be subject to the decision thereof.” Later, through its order, dt.20.09.2010, the Tribunal’s Full Bench, as an interim measure, ordered that the DPC might effect the promotions, but the result must be put in sealed cover. Guided by the interim direction, the Department of Revenue, on 30[th] March 2011, promoted 295 Deputy Commissioners on an _ad hoc_ basis. But it omitted those who retired in O.P.(CAT) No.294 of 2016 3 the meanwhile—that is, between 20[th] September 2010 and 30[th] March 2011. 4. Eventually, the Tribunal allowed the batch of original applications through its Annexure A1 order, dt.02.11.2010 ( _Vikas Keraba Suryawanshi v. Union of India_ ): The Civil List does not exclusively deal with the seniority; rather, it is a directory of officers of different grades. So the Tribunal directed the Government to draw a seniority list and, then, effect promotions, based on the final seniority list. 5. Aggrieved, the Union of India challenged the Tribunal’s order before the High Court of Delhi. The promotee officers who were on the verge of retirement, too, challenged the order. The Delhi High Court has _—_ consolidated all the writ petitions WPC No.8017 of 2010, 8019 of 2010 and 7990 of 2010—and rendered its Annexure A2 judgment: It set aside the impugned order and declared that the Civil List, in fact, reflects the seniority of the officials. Therefore, it has directed the Tribunal’s Full Bench to decide the reference expeditiously. It has also held that the O.P.(CAT) No.294 of 2016 4 Government is entitled to implement the DPC recommendations subject to the outcome of the reference before the Tribunal. 6. As seen from the records, the Tribunal eventually answered reference in the promotee officials’ favour. But Samuel Thomas had retired even before the Government could act on the Tribunal’s interim direction. 7. Because the list approved by DPC on 23.9.2010 contained Samuel Thomas’s name as a prospective promotee, on 22.8.2012 Samuel Thomas, then retired, represented to the authorities that he ought to have been promoted despite his superannuation on 28.2.2011. He pointed out that the _ad hoc_ promotions were effected soon thereafter, just a month later: on 30[th] March 2011. 8. As seen from the record, the Government promoted another batch of 133 serving Deputy Commissioners as Joint Commissioners on a regular basis, besides those 293 promoted earlier. Complaining that the Government had not acted on his representation, Samuel Thomas filed O.A.No.645 of 2013 and invited the Annexure A6 order, dated O.P.(CAT) No.294 of 2016 5 23.10.2013; the Tribunal directed the Department to pass appropriate orders on Samuel Thomas’s representation. In the wake of the Tribunal’s direction to the Government, Samuel Thomas submitted another representation on 13[th] November 2013, followed by yet another one on 21[st] January 2014. Later, he invoked the Right to Information Act and, on 27[th] February 2014 sought information about the action taken by the officials on his representation. All his efforts having yielded no result, Samuel Thomas submitted his last representation on 26.8.2014 and, then, filed O.A.No.999 of 2014. 9. By the Ext.P4 order, dt.09.03.2016, the Tribunal’s Ernakulam Bench allowed the O.A.: that Samuel Thomas be promoted as Joint Commissioner with effect from 23.10.2010 and paid all consequential benefits. Impugning that order, the Union of India filed this O.P. **Submissions:** ## **Petitioners’:** 10. Sri N. Nagaresh, the learned Assistant Solicitor General of India, has contended that the order impugned is cryptic and is devoid of O.P.(CAT) No.294 of 2016 6 any reasons. To elaborate, Sri Nagaresh asserts that the Tribunal misconstrued the Delhi High Court’s judgment and directed that Samuel Thomas be promoted retrospectively with all consequential benefits. According to him, there are no administrative lapses, and no person could take advantage of an interim direction unless he is entitled to the benefit on the day the direction is implemented. If, by efflux of time, an official retires on superannuation, and if the departmental action has not deprived a retiring employee any benefit before his actual retirement, no one could be blamed, submits Sri Nagaresh. He also contends that the official action has not been suffered from any lapses or latches. 11. According to the learned Assistant Solicitor General, as soon as the Tribunal issued an interim direction, the Government wasted no time in implementing it; but by then, Samuel Thomas was superannuated. It is fortuitous and the department could do nothing about it. Sri Nagaresh has strenuously contended that only the Tribunal observed that the officials retired meanwhile should be promoted, but in the impugned O.P.(CAT) No.294 of 2016 7 judgment the Tribunal at Ernakulam understood it as if the direction had emanated from the Delhi High Court. 12. Summing up Sri Nagaresh has submitted that mere delay with nothing more or mere pendency of judicial proceedings could not be an ameliorating factor to consider a retired employee's claim for promotion —and retrospectively, at that. To support his contention, he has relied on _Union of India v. Rajendra Roy_[1] and _Rotary Club, Delhi v. Union of India_[2] , judgments of Delhi High Court. ## **Respondent’s:** 13. Sri Santhosh Mathew, the learned counsel for Sri Samuel Thomas, has drawn our attention to the judgment of the Delhi High Court to hammer home his contention that it allowed the promotee employees’ claim in its entirety. He has further drawn our attention to the Delhi High Court’s observations that the employees who could not secure promotion because of the pending litigation must be protected 12007 ILR (1) Del 378 2(2015) 152 DRJ 178 (DB) O.P.(CAT) No.294 of 2016 8 and their promotions should be retrospective with all consequential benefits. 14. Trying to repel the appellants’ contentions, the learned counsel has contended that even by the date the Tribunal issued interim direction, Samuel Thomas was in service. It was only because of the departmental delay in implementing the interim directions, Samuel Thomas lost out. Had the department acted promptly, Samuel Thomas would have been promoted. 15. To sum up, Sri Mathew has submitted that the delay on the employer’s part in promoting the eligible employees cannot recoil on the otherwise diligent, eligible employees. He has also submitted that the retired employee can have a legitimate grievance if any of his juniors had been promoted from a date before his superannuation. 16. Heard Sri Nagaresh, the learned Asst. Solicitor General of India, appearing for the petitioners and Sri Santhosh Mathew, the learned counsel appearing for the respondent, besides perusing the record. O.P.(CAT) No.294 of 2016 9 ## **Discussion:** 17. The issue concerns the promotion of ‘promotee’ deputy Commissioners of Income Tax to the post of the Joint Commissioner of Income Tax. The DPC’s decision was challenged by the ‘directly recruited’ Deputy Commissioners before the Central Administrative Tribunal, New Delhi. A Division Bench referred the matter to a full bench—the Principal Bench. In OA No. 1052 of 2010, the Principal Bench allowed the OA: First, it held that the Civil List could not be taken to reckon the officials’ seniority. Second, it directed the Department to prepare a seniority list by following the due process. 18. In para 36 of Annexure A1 order, the Principal Bench observed that it is “not oblivious of the rights of the promotees, who after dint of their hard work when approaching their superannuation, would be jeopardised by the above process [preparing the senior to list] and deprived of their actual promotion under the guise of DOPT rules, which do not allow the actual promotion to the retirees.” O.P.(CAT) No.294 of 2016 10 19. The Principal Bench has further observed that despite the earlier interim directions, the Department promoted no employee. In that context, it observed that “there would be no harm if promotions are not made within the time as mentioned hereinafter, particularly, when the rights of the promotees, even if they are to retire during the interregnum, have been taken care of.” 20. Nevertheless, in the second to last para of the order, the Principal Bench has observed thus: “Meanwhile, the promotion effected by the DPC held by the official respondents shall not be acted upon and as per the settled final seniority list, claim of the promotees specifically shall be considered for promotion and those who have retired during this interregnum shall, if found fit on empanelment, be accorded the promotions with all consequences.” ## : **The Delhi High Court** 21. Through its Annexure A2 judgment, dt.06.07.2012, the Delhi High Court allowed the writ petitions filed by the Union of India and a few promotee officers who had been denied the promotion. The learned O.P.(CAT) No.294 of 2016 11 Division Bench set aside the order, dt.02.11.2010, of the Principal Bench in OA No. 1052 of 2010. It has further observed as follows: 71. In the circumstances it will be appropriate for the Tribunal to decide the reference made to its larger bench and not for this Court to decided the question of reference in the first instance in exercise of its jurisdiction under Article 226 of the Constitution of India. In the circumstances the decision of the Tribunal directing the petitioners to prepare the seniority list without deciding the question referred to its larger bench is liable to be set aside as the Tribunal is liable to first decide the reference made to it. . . . 92. Therefore, the decision of the Tribunal that the Civil List is not the seniority list is erroneous and it is set aside. The Civil List is directed to be taken as seniority list as has been taken since 1981. The discrepancies or errors, if any, in the civil list are liable to be corrected at the instance of appropriate officers in accordance with the rules and regulations and the law laid down by the Courts. 94. The Tribunal by impugned order dated 2nd November, 2010 has also granted stay against the promotions recommended by the DPC, the results of which were placed in the sealed cover before the Tribunal during the hearing. Even though it was held that the rights of the Promotees who have been empanelled and recommended for promotion in the said DPC would be protected and that if they would be found to be within the zone of consideration and are eligible for promotion after the drafting of the fresh seniority list, then irrespective of their retirement, they would receive all the consequences of such a promotion. O.P.(CAT) No.294 of 2016 12 22. Here, we may observe that the Principal Bench’s Annexure A1 decision, strictly speaking, no longer exists. It has merged with the Delhi High Court’s Annexure A2 judgment. But the Delhi High Court has been cautious enough to deal in para 70 of the judgment with the extent of judicial review it could undertake: What is the jurisdiction of the Tribunal, and to what extent can the Order of the Tribunal be assailed before the High Court in exercise of its powers under Article 226 of the Constitution of India? So, we may conclude that the Delhi High Court has disturbed no other finding than the validity of Civil List to reckon the employees’ seniority. 23. In fact, the Delhi High Court urged the Department to implement the DPC recommendations pending the proceedings before the Tribunal. In other words, it need not wait until the proceedings are culminated just because the Tribunal protected the employees’ interest even if they should retire. It pays to quote the Delhi High Court’s observation in this regard: O.P.(CAT) No.294 of 2016 13 98. [T]hough the Tribunal by the impugned order had held that the claim of such promotee officers shall be considered after finalization of the seniority list and those who would retire during this interregnum shell, if found fit on empanelment, would be accorded promotions with all consequences. However in the entirety of the facts and circumstances and for the foregoing reasons, there is no justification not to implement the recommendations of the DPC held on 23rd September, 2010. 24. Eventually, the Delhi High Court directed the Tribunal to decide the reference made to it expeditiously. In the meanwhile, the Department was also asked to implement the recommendations of the DPC held on 20 September 2010 to 23 September 2010 subject to outcome of the reference to be decided by the Tribunal. ## **Further Developments:** 25. Indisputably, pending the writ proceedings before the High Court of Delhi, a few officials were promoted, and a few were not promoted, for those unlucky ones retired before the Department could make _ad hoc_ promotions. Annexure A5 is the order, dt.27.10.2011, through which _ad hoc_ promotions were effected. Besides asserting that the promotions are purely temporary, the order records that they are O.P.(CAT) No.294 of 2016 14 subject to the outcome of the judgment in the writ petitions pending before the Delhi High Court and also the Original Application before the Tribunal. 26. At any rate, his hope revived by the Delhi High Court’s judgement, Samuel Thomas submitted representations, post retirement, to be considered for promotion. Later, he filed OA No. 645 2013, which the Tribunal disposed of on 23 October 2013, through Annexure A6 order. The Tribunal directed the Department to consider Thomas’s representations and pass appropriate orders. With this order in his hand, Thomas submitted a few more representations; then, he invoked the Right to Information Act. 27. Pertinently, in the midst of unceasing representations by Samuel Thomas, the Department, through Annexure A16 order, dt.12.11.2013 promoted ‘in-service’ Deputy Commissioners on a regular basis. Later on 26 December 2013, the Department issued Annexure A9 order: O.P.(CAT) No.294 of 2016 15 Whereas Shri Samuel Thomas, DCIT (retired) (00538) who was recommended ‘FIT’ by the DPC held on 20-23 September 2010 for promotion to the grade of joint Commissioner of income tax, retired on attaining the age of superannuation on 28 February 2011. Thus, as on date of issuance of orders of ad hoc promotion, that is on 30 March 2011, she Samuel Thomas was no more in service have retired on 28 February, 2011. As such he could not be on an ad hoc basis. granted promotion as J CIT 28. Again, after a few more representations, Samuel Thomas filed OA No. 999 of 2014 before the Central Administrative Tribunal, Ernakulam Branch. Through its order, dt.09.03.2016, the Tribunal referred to the observations of the Principal Bench in Annexure A1 order. Then, it observed that “in the light of the categoric findings rendered, it is futile on the part of the respondents to contend that since the applicant retired on superannuation on 28 February 2011 and as the actual date of issuance of order of promotion was only 30.3.2011 the applicant is not entitled to get the benefit. That plea is found to be bereft of any merit.” It has also pointed out that the Department promoted another batch of similarly placed officers (but not retired) with effect from 23[rd] October 2010. So, it declared that Samuel Thomas is entitled to promotion as O.P.(CAT) No.294 of 2016 16 Joint Commissioner with effect from 23 October, 2010, with consequential benefits. It also directed the Department to implement the order within two months. 29. True, the Department took a plea that the issue of promotions has not attained finality because SLP No.21339 of 2012 had been pending. As seen from the Supreme Court portals, that SLP was dismissed on 01.03.2017. ## **The Precedents:** 30 **.** Now we may examine the precedents the learned Asst. Solicitor General has relied on. In _Rajendra Roy_ , the Administrative Tribunal directed the Union of India to consider the respondent for promotion to the post of Junior Administrative Grade (JAG) from the date on which vacancy occurs on his turn. To be considered, the respondent, however must have fulfilled two criteria: His name must have figured in the select list recommended by the DPC; and the vacancy must have also arisen, before the respondent’s superannuation. On appeal, a learned Division Bench of the High Court of Delhi has held that the respondent's claim O.P.(CAT) No.294 of 2016 17 that four of his colleagues who retired like him in Grade of Group A have been given notional promotion to JAG from retrospective date was found false. The Court has, in fact, found that all those who had been promoted were seniors to the respondent in the revised seniority list. 31. In _Rotary Club, Delhi,_ respondents, medical officers, were appointed by the petitioner-NGOs. Their appointment was against certain projects. Their employment ended because the projects no longer received financial support. Yet, they continued in service under an interim direction. A learned Single Judge held that the respondents were entitled to all the benefits as prescribed by the Govt. of NCT of Delhi, including the increased salary, in terms of the 6th Central Pay Commission till their employment ended: March 31, 2014. The NGOs appealed. 32. In appeal, a learned Division Bench of the High Court of Delhi has held that the NGOs had no funds of their own to pay the respondents who continued under interim directions of the Court but not by an act of the appellants. So, they were not entitled to receive, it is held, any fund; O.P.(CAT) No.294 of 2016 18 and they could not pay the emoluments with effect from April 01, 2014 till January 08, 2015. 33. Regrettably, neither case even remotely accords with the facts of this case. So they cannot not bolster the Department’s case. **Do the Lis Pendence Developments or the Employer’s Delays Affect an Employee’s Career Prospects?** 34. One of the principles of service law, observed the Supreme Court in _Nirmal Chandra Bhattacharjee_ v. UOI[3] , is that no rule should prejudice an employee who is in service when, say, a vacancy arises. On facts, the Court observed that admittedly the vacancies against which appellants were promoted had occurred prior to restructuring of those posts. Indisputably, various other posts to which class 'IV employees could be promoted were filled before 1[st] August 1983. The selection process in respect of Ticket Collectors had also started before 1[st] August 1983. Had the department proceeded with the selection well within time and had completed it before 1[st] August 1983, then the appellants would 3 1991 Supp (2) SCC 363 O.P.(CAT) No.294 of 2016 19 have become Ticket Collectors with no difficulty. The mistake or delay by the department, therefore, should not be permitted to recoil on the appellants. 35. An employee could certainly have a grievance if any of his juniors had been given promotion from a date prior to his superannuation; so observed the Supreme _Court in Baij Nath Sharma v. Hon'ble Rajasthan High Court At Jodhpur_ .[4] 36. Chronologically examined, the Division Bench of the Tribunal first permitted the Department to promote the promotee officers but subject to the pending decision. We could not gather when this interim order was issued. But it must have been, at least, in the middle of 2010. Later, once the case was referred to the Principal Bench, it issued another interim direction on 20[th] September 2010 that the Department could proceed with the promotions subject to sealed cover procedure. The High Court of Delhi, in fact, urged the Department to waste no more > 4(1998) 7 SCC 44 O.P.(CAT) No.294 of 2016 20 time and to proceed with promotions subject to the outcome of the reference before the Principal Bench. 37. First, as is evident, the second interim order was on 20[th] September 2010; Samuel Thomas retired on 28[th] February 2011; and the Department acted on the interim direction on 30[th] March 2011. Had it acted promptly, the ad hoc promotions could have been effected before 28[th] February 2011, before Samuel Thomas’s retirement. Nothing prevented it. Let the delay not recoil on an unsuspecting employee. 38. Second, the High Court of Delhi, as we have shown above, has not diluted the Principal Bench’s directions in Annexure A1 save the finding that Civil List could not be relied on. The principle of merger does not affect the Tribunal’s observations protecting the rights of the retired employees. 39. Third, we were told that those that had been promoted, some being juniors to Thomas, were given retrospective promotion. We cannot, though, be certain on it. O.P.(CAT) No.294 of 2016 21 40. At any rate, viewed from any perspective, denial of promotion to Samuel Thomas fails to pass judicial muster. On this count, we cannot find fault with the findings and directions of the Central Administrative Tribunal, Ernakulam Branch, in its Ext.P4 order. Even guided by the principles of judicial review in the matters of certiorari, we reckon that the impugned order does not call for any interference. As a result, we dismiss the Original Petition. No order on costs. **sd/- Antony Dominic, Judge** **sd/- Dama Seshadri Naidu, Judge** css/ true copy p.s.to judge