S. Jagannath Vs Union of India

S. JAGANNATH, S/O SHRI. V.K.S. RAJAN, AGED ABOUT 66 YEARS, R/O 409, ORACLE RIDGE APARTMENT, A BLOCK, HOSUR MAIN ROAD, ELECTRONICS CITY, BANGALORE- 560 100.

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…PETITIONER

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(BY SRI. B. TARSEM CHAND GUPTA, ADVOCATE)

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AND:

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Digitally signed by K G RENUKAMBA Location: High Court of Karnataka

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

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PR. DIRECTOR OF INCOME TAX (CPC), HOSUR ROAD, BANGALORE-560 500.

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PR. CHIEF COMMISSIONER OF INCOME-TAX, (B&J), C.R. BUILDING, PATNA-800 001.

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…RESPONDENTS

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(BY SRI. B. PRAMOD, CGC FOR R1-R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING THAT, IN VIEW OF THE FACTS AND GROUNDS ENUMERATED ABOVE, IT IS MOST RESPECTFULLY PRAYED THAT THE TRIBUNAL ORDER DATED 31.05.2024 IN OA No. 197/2022 AND ORDER DATED 20.09.2024 IN R.A. No. 10/2024, ANN. A AND B MAY KINDLY BE QUASHED AND SET ASIDE. THE WP MAY KINDLY BE ALLOWED, DIRECTING THE RESPONDENTS TO GRANT PAY OF ITO FROM 22.5.2014 TO 17.6.2018 ALONG WITH INTEREST OF MARKET RATE FOR THE PERIOD OF DELAY AND ETC.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO AND

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HON'BLE MR JUSTICE S RACHAIAH

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ORAL ORDER

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(PER: HON'BLE MR JUSTICE V KAMESWAR RAO)

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The challenge in this petition is to the orders passed by the Central Administrative Tribunal, Bengaluru Bench, in OA No.170/00197/2022 dated 31.05.2024 and also to an order dated 20.09.2024 in OA 170/00010/2024 in RA No.170/00197/2022, whereby the Tribunal has dismissed the OA as well as the review application filed by the petitioner herein.

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The prayer of the petitioner before the Tribunal was primarily for grant of pay of Income Tax Officer (ITO) from 22.05.2014 to 17.06.2018 along with interest at the market

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rate for the period of delay. He had also challenged the order dated 22.03.2022 and sought a direction for grant of grade pay of Rs.5,400/- w.e.f 22.05.2018 with consequential benefits.

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The facts to be noted are, the petitioner joined the service on 22.04.1983 as LDC in Income-tax Department in Patna Region. Under the CPC Staffing Scheme 2011, the petitioner was posted at the CPC, Bengaluru, as Inspector on 30.08.2012. As per the Principal CCIT, Patna Promotion Order dated 22.05.2014, was issued promoting the petitioner as ITO. The petitioner joined as ITO at the CPC, Bengaluru on 22.05.2014 which was impermissible. The promotion order dated 22.05.2014 was cancelled vide order of Principal CCIT, Patna, dated 06.12.2016 on the ground that, he was not sent back from the CPC, Bengaluru to Patna, in view of the Staffing Scheme. It appears that the Principal CCIT, Patna in letter dated 05.03.2018 requested the Principal DGIT (System), New Delhi, for clarification for revision of the cancellation of promotion of the petitioner. Thereafter, the CPC Staffing Scheme was amended vide CBDT Order dated 30.01.2018, wherein it was provided, if in pursuance of the order of the inter charge transfer/promotion, the officer furnishes joining

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report at the CPC, it shall be deemed to be the joining report in the new parent cadre/department w.e.f the date of furnishing the joining report at the CPC. In this case, by order dated 13.06.2018, the officer was deemed to have been relieved from the parent cadre w.e.f. the date of joining at the CPC, Bengaluru. Accordingly, the DIT (CPC), Bengaluru issued a pay fixation order dated 18.06.2018 from the original date of promotion ie., 22.05.2014. Thereafter, the Principal CCIT, Patna, in the order dated 26.10.2018 again promoted the petitioner notionally from 22.05.2014, i.e., the original date of promotion. Thus the petitioner was promoted as ITO w.e.f from 22.05.2014. It appears that the petitioner has made a claim for grant of Grade pay of Rs.5,400/- on completion of four years of service in the grade of ITO as on 22.05.2018. The said representation was rejected on 22.03.2022 on the ground that, on the date of retirement on 31.10.2018, the petitioner had not completed the requisite four years of regular service.

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The case of the petitioner was that, as he was

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promoted as ITO w.e.f 22.05.2014 and joined CPC on the same date, he is entitled to all the consequential benefits from

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22.05.2014. His case was also based on the CDBT Orders dated 30.01.2018 and 13.06.2018, amending CPC Staffing Scheme to the effect that joining report dated 22.05.2014 filed by the petitioner in compliance with the promotion order dated 22.05.2014 being in order the Principal CCIT, Patna was not required to issue a fresh promotion order on 26.06.2018 notionally from 22.05.2014. Further he was required to withdraw the cancellation order dated 06.12.2016.

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On the other hand, the case of the respondents was that, the petitioner was provided an opportunity of assuming charge on promotion as ITO vide order dated 22.05.2014, but he failed to assume charge for personal reasons. The default is on the part of the petitioner in not assuming charge on 22.05.2014 in his home region as per the directions and choosing to work as Inspector of Income Tax till the date of his notional promotion on 26.12.2018. As he has not performed duties in the promotion cadre i.e., ITO till 26.10.2018, he is not entitled to the relief in the OA.

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The Tribunal in the impugned order dated 31.05.2024 has in Paragraphs- 11 & 12 stated as under:

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“11. We have gone through the records and found that, on his promotion to the post of ITO, vide order, dated 22.05.2014, the applicant had the opportunity of assuming charge in his home region, on promotion, as ITO. But the applicant failed to assume charge. The omission is on the part of the applicant in not assuming charge on the basis of the order, dated 22.05.2014, in his home region, as per the extant order. He continued to work as Income Tax Inspector till the date of notional promotion on 26.10.2018. The present situation is attributable solely to the applicant. Sine he has not performed the function in the promoted cadre, that is ITO till 26.10.2018, the Rule of “No Work No Pay” squarely applied to him, as per he decisions of the Apex Court cited supra.

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12. For the aforesaid reasons, we are convinced that the applicant could not make out a case in his favour and has miserably failed in doing so. In the result the OA is dismissed. No order as to costs.”

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Even the Review Petition filed by the petitioner was

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rejected by the Tribunal by holding that there is no error apparent on the face of the record of the order dated 31.05.2024.

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Mr. Gupta, learned counsel for the petitioner would make similar submission in as much as the petitioner was not relieved from his posting as Inspector in Bengaluru, because of which he could not join his posting as ITO in Patna. In other words, the non-joining of the petitioner at Patna cannot be

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attributed to the petitioner. He also states that, if the reason for not relieving the petitioner is on the respondents, then the petitioner cannot suffer because of their fault. He states that the benefit of the promotion for four years has been denied to the petitioner and in fact, the respondents have also denied the benefit of higher grade pay of Rs.5,400/-. He states that, this is a gravest case which requires equitable consideration by this Court and the relief as sought for by the petitioner need to be granted.

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On the other hand, Mr. Pramod, the CGC appearing for the respondents would contest the submission made by Mr. Gupta by drawing our attention to Page No.93 of the Paper Book, which is a representation made by the petitioner to contend that, it is for his own personal reasons that the petitioner had not joined the place of promotion at Patna. In fact, he expressed himself to forego the promotion from the post of Inspector to the Post of ITO for certain personal reasons, which includes his personal family problems on account of his wife undergoing medical treatment in CMC, Vellore since 2009 and also his only son was working in a Software Company in Bengaluru and he is available at any

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given point of time to support his mother. In fact the submission of Mr. Pramod is, the petitioner has not challenged the order of cancellation of promotion as ITO, Patna, vide order dated 06.12.2016. That apart, he submits that the fresh promotion order was issued on 26.10.2018 because of amendment to the Central Staffing Scheme dated 13.06.2018, which reads as under:

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“DIRECTORATE OF INCOME TAX HUMAN RESOURCE DEVELOPMENT CENTRAL BOARD OF DIRECT TAXES Jawaharlal Nehru Stadium, Second Floor, Lodhi Road, New Delhi-110003. Ph. 26125213, Fax 26130594.

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F.No.DGIT(S)/CPC-TDS/CPS-55/2017-18/1614 Dated: 13.06.2018

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OFFICE MEMORANDUM

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The Competent Authority has approved the clarification in respect of existing CPC-Staffing Scheme, 2011. The following clause was added vide F.No. DGIT(S)/Admn./T&P/CPC- SS/B-48(B)/2017-18/5780 Dated 30.01.2018 after clause (b) to the existing CPC-Staffing Scheme.

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"In case inter charge transfer is approved for a Group B/Group C officer/official by the Competent Authority or the concerned officer/official is promoted, such officer/official shall, barring exceptional circumstances, continue to be posted at CPC until his/her normal tenure as per clause (a) above has expired. Further, in pursuance to the order of inter charge transfer/promotion, the officer/official shall furnish joining report at CPC which shall be deemed to be the joining report in the new parent cadre subsequent to inter charge transfer/promotion, and the officer/official shall be deemed to be relived from the

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parent cadre/ promoted w.e.f. the date of furnishing the joining report at CPC."

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2. The above modification will have effect from date of approval of the existing CPC Staffing Scheme.

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3. In the para (a) of the existing CPC-Staffing, Scheme it is provided that the tenure of stay in CPC is 3 years which can be extended by another 2 years after the approval of the Board only in the case of willing officers. In the instances where tenure of officers/officials has been extended beyond 5 years after the approval of the Board, it should naturally be treated as the regularized extension because the extension is approved by the same authority, which issued the scheme, i.e., CBDT.

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4. This issues with the approval of the Competent Authority.

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Yours faithfully.

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(Manoj Tiwari) Deputy Director of Income Tax (CMD-1)(HRD), New Delhi.

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Copy to:

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1. All the Pr. CCSIT (CCAS) concerned.

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2. PS to Member (Adms.), CBDT.

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3. Pr. Director General of Income Tax (Systems).

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4. Pr. Chief Controller of Accounts, New Delhi.

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5. Zonal Account Officer, CBDT, O/o CCIT (CCA) concerned.

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6. Hindi Section for Hindi Version.”

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10. According to him, the promotion of the petitioner as

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ITO shall be deemed to be from the date of furnishing the joining report as ITO, Bengaluru, which is 26.10.2018. According to him, though he is given promotion as ITO from 22.05.2014, but the same is notionally as between 22.05.2014 till 26.10.2018, he has not worked as ITO and shall not be entitled to any monetary benefits. In any case, it is his

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submission that the petitioner has also not challenged the stipulation in the Central Staffing Scheme dated 13.06.2018. In that regard he also submits that the petitioner has filed a petition only in the year 2022, which is four years after his date of retirement, that too only when he was denied the benefit of higher grade pay of Rs.5,400/-. He seeks the dismissal of the writ petition.

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Having heard the learned counsel for the parties, we agree with the conclusion drawn by the Tribunal in as much as the petitioner has not joined his post on promotion at Patna because of certain family circumstances. In fact, vide his representation dated 26.09.2017 (Page-93), he made a request to the respondents to forego his promotion to the post of ITO. The family reasons are those which have been highlighted by Mr.Pramod. It is only after the amendment of the Central Staffing Scheme, that the respondents have issued the promotion order dated 26.10.2018 that too from 22.05.2014 in favour of the petitioner, but notionally, without giving any benefits for the period between 2014 to 2018, which according to us is justified. He joined higher post of ITO only in Bengaluru, that too in the year 2018, when such a joining was

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permissible in view of the amendment to the CPC Staffing Scheme. In fact, the respondents have considered his promotion from 22.05.2014, which shows bona fide of their action. In other words, they could have given promotion to the petitioner w.e.f. 26.10.2018, also, which they have not done. In such circumstances, we are of the view that the Tribunal is justified in dismissing the OA as well as the Review Application in terms of the impugned orders.

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12. The writ petition is dismissed . No costs.

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Sd/(V KAMESWAR RAO) JUDGE

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Sd/-

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(S RACHAIAH) JUDGE

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KGR*

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List No.1: Sl No. 44