Allowed

Manjunath I Pujar S/O Shri Ishwarappa Pujar v. Union of India

Karnataka HC8 Nov 2024WP/23768/2024

Case brief

AI extract

What is this about?

A retired Income Tax Officer challenged CAT's dismissal of his claim for promotion via sealed cover. The court held that since he was unclouded when juniors were promoted in the original DPC, sealed cover at the review stage was impermissible per binding OMs. Tribunal order quashed; notional promotion directed without back wages.

What did the court decide?

Tribunal order quashed; respondents to open sealed cover and consider notional promotion from date juniors were promoted, with all consequential benefits but no back wages; compliance within eight wee

Manjunath I Pujar S/O Shri Ishwarappa… — Pension and Retirement Benefits | Karnataka HC (2024)

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WP No.23768/2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF NOVEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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WRIT PETITION NO. 23768 OF 2024 (S-CAT)

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BETWEEN:

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MANJUNATH I PUJAR S/O SHRI ISHWARAPPA PUJAR, AGED ABOUT 59 YEARS, R/O EA-901, GREENAGE, BOMMANAHALLI, BANGALORE – 560 068.

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…PETITIONER

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(BY SRI. TARSEM CHAND GUPTA, ADVOCATE)

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AND:

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UNION OF INDIA, THROUGH THE FINANCE SECRETARY, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI – 110 001.

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CHAIRMAN,

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CENTRAL BOARD OF DIRECT TAXES, NORTH BLOCK, NEW DELHI – 110 001.

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PR. CHIEF COMMISSIONER OF INCOME TAX, KARNATAKA & GOA REGION, C.R. BUILDING, BANGALORE – 560 001.

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…RESPONDENTS

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(BY SRI. B PRAMOD., CGC)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO THE TRIBUNAL ORDER DATED 22.4.2024 IN OA NO.251/2019 AND ORDER DATED 30.7.2024 IN RA NO.4/2024, ANN. A AND B MAY KINDLY BE QUASHED AND SET ASIDE. THE WP MAY KINDLY BE ALLOWED, DIRECTING THE RESPONDENTS TO PROMOTE THE PETITIONER AS DCIT FROM 1.4.2018 WITH ALL CONSEQUENTIAL BENEFITS ALONGWITH DUE INTEREST FOR THE PERIOD OF UNEXPLAINED-INORDINATE DELAY AND ETC.,

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THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDER, COMING ON FOR PRONOUNCEMENT THIS DAY, KRISHNA S. DIXIT.J., PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT and

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HON'BLE MR JUSTICE C M JOSHI

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CAV ORDER

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(PER: THE HON'BLE MR. JUSTICE KRISHNA S DIXIT)

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A retired civil servant of the Central Government, is

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invoking the writ jurisdiction of this court grieving against Central Administrative Tribunal’s order dated 22.04.2024 whereby, his case in OA NO.170/00251/2019 having been

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dismissed, his prayer for a direction to grant him promotion by tearing the sealed cover has been negatived. He has also laid a challenge to the order dated 30.07.2024

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whereby, his R.A.No.4/2024 has also been rejected.

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Learned counsel for the petitioner vehemently submitted that it has been a settled position of law that when a junior has been accorded promotion on a particular date, the same cannot be denied to a senior official by resorting to sealed cover procedure in a Review DPC, especially when as on the date of first DPC, the said senior officer was not clouded. This aspect having not been

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properly considered by the Tribunal, despite pointing out certain Office Circulars/Memoranda, the impugned order is liable to be voided and a direction needs to be issued for retrospective promotion of the petitioner, who has since retired. Learned Senior Panel Counsel appearing for the respondent-officials vehemently resisted the petition, making submission in justification of the impugned order and the reasons on which it has been constructed. He hastened to add that the whole case of the petitioner has been structured on the premise that the subsequent DPC was a Review DPC merely by virtue of its being so mentioned in the official records, when in substance, it is not. So contending, he sought for dismissal of the petition.

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Having heard the learned counsel for the parties and having perused the Petition Papers, we are inclined to grant indulgence in the matter for the following reasons:

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3.1. The DPC was held on 23.07.2018 and a large chunk of officials junior to the petitioner were recommended for promotion and accordingly, they have been granted too, is not in dispute. The said DPC deferred consideration of the

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case of petitioner and 29 other officials on the sole ground

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that the APARs were not available. Para 8 of DPC proceeding reads:

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“ Due to non-availability of complete dossiers of APARs, assessment has been deferred in 30 cases as per the list enclosed at Annexure I ”

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Admittedly, as on the date of this DPC, there was absolutely nothing that clouded the candidature of petitioner. If complete dossiers of APARs were not available, it is not the fault of petitioner. Before fixing the date for DPC proceedings, the Committee ought to have secured all records of all the candidates concerned. In the alternative, it should have deferred the case of juniors too, till after such records had reached the portals of DPC. An argument to the contrary would be unjust, arbitrary and unreasonable, to say the least. That would also generate a lot of heartburn amongst the officials who have suffered deferment of consideration of their case.

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3.2. Admittedly, the Review DPC was held on 31.12.2018

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in respect of ‘ LEFT OVER IRS OFFICERS OF 2012 AND 2013 BATCHES’. When the Review proceedings were held,

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the Committee had received a copy of the Charge Memo dated 30.10.2018 and therefore, the sealed cover procedure was resorted to in respect of the petition. Learned counsel for the petitioner is right in submitting that what happened during the interregnum between DPC and Review DPC pales into insignificance when juniors of the petitioner have been recommended for promotion. He is right in drawing our attention to the OM dated 23.01.2014 wherein paragraphs 2 & 3 which read as under unmistakably support the case of petitioner:

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“2. This Department has been receiving references seeking clarification on grant of promotion in case of review DPC with regard to the official who is clear from vigilance angle on the date of promotion of the junior in the original DPC but subsequently attracts the provisions contained in para 2 of DoPT OM dated 14.09.92.

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3. The matter has been examined in consultation with the Department of Legal Affairs and it is further clarified that, in the case of a review DPC, where a junior has been promoted on the recommendations of the original DPC, the official would be considered for promotion if he/she is clear from vigilance angle on the date of promotion of the junior, even if the provisions of para 2 of DoPT OM dated 14.9.92 get attracted on the date the actual promotion is considered, as provided in

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DoPT O.M. No.22011/2/99-Estt (A) dated 21.11.2002.”

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In view of the above, petitioner is justified in taking a stand that the DPC committed a grave error in resorting to sealed cover procedure inasmuch as the said procedure could not have been adopted when admittedly, no disciplinary proceedings were pending in the eye of law as observed by the Apex Court in BHADRINATH vs. GOVERNMENT OF TAMILNADU¹ .

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3.3. The related contention of the learned Panel Counsel appearing for the respondents that the aforesaid clarificatory circular dated 23.01.2014 is essentially in respect of issuance of vigilance clearance and therefore, as such, it does not govern the DPC proceedings, is again difficult to agree with. The said OM specifically mentions paragraph 9 of the principal OM dated 2.11.2012 which has promulgated the guidelines concerning the DPC proceedings as such and also Review DPC. The same reads as under:

1 (2000) 8 SCC 395

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“ For the purpose of vigilance clearance for Review DPC, instructions exist in O.M.No.22011/2/99-Estt(A) dated 21.11.2002 that review DPC will take into consideration the circumstances obtaining at the time of original DPC and any subsequent situation arising thereafter will not stand in the way of vigilance clearance for review DPC. However, before the officer is actually promoted it needs to be ensured that he/she is clear from vigilance angle and the provision of para 7 of O.M.No.22011/4/91-Estt(A) dated 14.09.1992 are not attracted ”.

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Learned counsel for the petitioner very effectively submitted that the Tribunal is not justified in ignoring the subject Office Memoranda. We agree with this. Circulars and OMs supplement the extant rules governing the matter of promotion. When they are issued by the competent authorities and have been acted upon repeatedly, the authorities like the DPC have to abide by them, in the absence of demonstrable variance between the rules and these lesser instruments vide UNION OF INDIA vs. SOMASUNDARAM VISHWANATH² .

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3.4. The vehement submission of learned Panel Counsel

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appearing for the official respondents that the DPC dated

2 (1989) 1 SCC 175

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23.07.2018 had deferred consideration of 30 candidates including the petitioner herein and therefore, the DPC subsequently held on 31.12.2018 is not a Review DPC at all, is bit difficult to countenance. Admittedly, the DPC itself nomenclatured the subsequent proceedings as “Meeting of Review Departmental Promotion Committee”. The Committee comprised of high functionaries of the department who had accumulated expertise in matters of the kind. Such a contention was not taken up before the Tribunal by the department. Obviously, it could not have been, especially when the case of as many as 306 officials was considered and they were recommended for promotion. Had this been not happened, arguably, there was scope for maintaining said contention. Added, the DPC of 23.07.2018 at para 11 of its proceedings has specifically stated as under:

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“ The Committee further noted that the inter-seseniority of officers under consideration of this Committee would be subject to revision of seniority of Inspectors/Income Tax Officers, if any, consequent to the implementation of the Hon’ble Supreme Court judgment dated 27.11.2012 in N.R. Parmar case and other similar cases pending, if any, in various courts. ”

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The next contention of learned Panel Counsel appearing for the official respondents that even otherwise, the credentials of the petitioner are not glorious, he having already been punished in a subsequent disciplinary proceedings and therefore, denial of promotion to him cannot be faltered, is bit difficult to sustain for the simple reason that the DPC would not have adopted Sealed Cover Procedure had he lacked the credentials for consideration of his case for promotion. The only reason for adopting the sealed cover is that some disciplinary proceeding was initiated vide Charge Memo dated 30.10.2018. The very fact that the Sealed Cover Procedure is adopted presupposes the candidate being worthy of consideration for promotion, subject to all just exceptions. Therefore, a case is made out for grant of relief to the petitioner who has retired from service on 30.09.2019.

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In the above circumstances, this petition succeeds; a Writ of Certiorari issues quashing the impugned order of the Tribunal. Petitioner’s subject OA having been favoured, a direction issues to the respondents to open the Sealed

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Cover and consider his case for notional promotion with effect from the date on which his immediate juniors have been promoted. However, petitioner shall not be entitled to any back wages, if he is eventually promoted. Time for

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compliance is eight weeks.

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Costs made easy.

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Sd/(KRISHNA S DIXIT) JUDGE

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Sd/(C M JOSHI) JUDGE

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Snb/cbc

Manjunath I Pujar S/O Shri Ishwarappa Pujar v. Union of India

Case brief

What is this about?

What did the court decide?

Manjunath I Pujar S/O Shri Ishwarappa Pujar v. Union of India

Case brief

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