2016 (5) TMI 1447 - Tri - Income Tax

Eligibility conditions for promotion to the grade of Commissioner of Income Tax and the APARs - Held that - It is an admitted position of the respondents that at the time of holding DPC the DGIT (Vigilance) had accorded vigilance clearance and there was no disciplinary case pending against the applicant. In para 4 (viii) and (ix) of the counter reply it has been categorically stated that the case of the applicant did not fall under any one of the three categories mentioned in DOP&T OM dated 14.09.1992. After a query raised by the ACC, the official respondents got in touch with the MHA who informed them that the first stage advice of CVC had been obtained for initiating major penalty proceedings against the officer. It is not clear as to how in respect of an officer of Indian Revenue Service working under respondents no.1 & 2, the CVC advice was obtained by MHA. Leaving it at that, the fact of the situation is that the respondents have not moved beyond that stage and issued any charge sheet, or are taking any action that would come within the ambit of the three categories mentioned in DOP&T OM dated 14.09.1992. Therefore, there is no ground on which the promotion of the applicant could have been kept in abeyance. The respondents have admitted that the applicant was considered fit for promotion, and that some complaints on which CVC advice was obtained by MHA, came to their notice only after a query from the ACC. In our view, pending complaint or an intention to initiate major penalty proceeding against an officer is not sufficient ground to deny him promotion. In the face of these facts and the judgment of Hon ble Supreme Court in K.V.Jankiraman (1991 (8) TMI 292 - SUPREME COURT), the OA is allowed. The respondents are directed to promote the applicant from the date on which his immediate his junior was promoted. The applicant will be entitled to all consequential benefits.

Summary

Issues:
Promotion denial based on pending complaint, Violation of DOP&T instructions, Withholding promotion without legal grounds

Analysis:
The case involved an officer of the Indian Revenue Service seeking promotion to the grade of Commissioner of Income Tax. The applicant alleged that despite meeting eligibility criteria and having a clean record, the promotion order issued by the respondents excluded his name while promoting his junior. The applicant argued that the respondents unlawfully withheld his promotion based on a pending complaint, which did not fall under the specified categories warranting such action as per DOP&T instructions.

The applicant's counsel contended that the DOP&T guidelines only allow withholding promotion in specific cases like suspension, pending disciplinary proceedings, or criminal charges. Since the applicant did not fall under any of these categories and had received vigilance clearance, the respondents' decision to withhold promotion was deemed illegal. The respondents, in response, acknowledged that the applicant was clear of any disciplinary issues or suspension during the promotion consideration.

The Tribunal noted that the respondents, upon an inquiry from the ACC, discovered a pending complaint against the applicant for which CVC advice was sought. However, as no formal charges were pressed or actions taken falling under the DOP&T guidelines, the Tribunal ruled that the mere existence of a pending complaint was insufficient to justify withholding the promotion. Citing the Supreme Court judgment in Union of India vs. K.V. Jankiraman, the Tribunal held in favor of the applicant, directing the respondents to promote him from the date his junior was promoted, granting him all consequential benefits within six weeks of the order.

In conclusion, the Tribunal found that the respondents had unjustly denied the applicant's promotion based on a pending complaint that did not warrant such action under the established guidelines. The judgment emphasized that mere intentions to initiate major penalty proceedings were not grounds to withhold promotion, thereby ruling in favor of the applicant and ordering his promotion with all consequential benefits.