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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2021
PRESENT
THE HON’BLE MR. JUSTICE SATISH CHANDRA SHARMA
AND
THE HON’BLE MR. JUSTICE V. SRISHANANDA
WRIT PETITION NO. 49498 OF 2019 (S-CAT)
BETWEEN:
UNION OF INDIA
THROUGH THE FINANCE SECRETARY,
MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE,
GOVERNMENT OF INDIA,
NEW DELHI – 110 001.
PR. CHIEF COMMISSIONER OF INCOME TAX
KARNATAKA AND GOA REGION,
C.R. BUILDING,
BENGALURU – 560 001. …PETITIONERS (BY SHRI. B.PRAMOD, CGC)
AND :
GAUTAM KUMAR
S/O. SIYA SARAN SINGH
AGED ABOUT 37 YEARS,
R/O. C-80, BLOCK-06,
INCOME TAX COLONY,
JALAHALLI, BENGALURU – 560 013.
BINOD
S/O. SHIV PRADADBARNWAL
AGED ABOUT 36 YEARS,
R/O. AS-9, 2ND FLOOR, BLOCK A,
DURGAWADI HOUSING SOCIETY,
TALEIGOAN, TISWADI,
GOA – 403 001.
AJAY KUMAR
S/O. KRISHNA SINGH
AGED AGOUT 39 YARS,
R/O. B-5 INCOME TAX QUARTERS,
PUNDALIK NAGAR, PORVORIM,
GOA – 403 001.
BIRENDRA KUMAR
S/O. NAKULDEO PRASAD KUSHWAHA
AGED ABOUT 36 YEARS,
R/O. C-3, NEW INCOME TAX QUARTERS,
GOGOI HOUSING BOARD, MARGAO,
GOA – 403 001.
GAURAV BARJATYA
S/O. PADAM JAI
AGED ABOUT 34 YEARS,
R/O. C-67, BLOCK 05,
INCOME TAX COLONY,
JALAHALLI, BENGALURU – 560 013.
PANKAJ KUMAR
S/O. ASHRIT KUMAR
AGED ABOUT 37 YEARS,
R/O. C-67, BLOCK 5,
INCOME TAX COLONY,
JALAHALLI, BENGALURU – 560 013.
DEVENDRADUBEY
S/O. RADHESHYAMDUBEY
AGED ABOUT 36 YEARS,
R/O. C-102, BLOCK 7,
INCOME TAX COLONY,
JALAHALLI, BENGALURU – 560 013.
ASHOK KUMAR
S/O. SIYARAMMAHTO
AGED ABOUT 36 YEARS
R/O. C-49, BLOCK 4,
INCOME TAX COLONY,
JALAHALLI, BENGALURU – 560 013.
PRADEEP KUMAR
S/O. DEO NARAYAN RAJAK
AGED ABOUT 37 YEARS,
R/O. C-22, BLOCK 2,
INCOME TAX COLONY,
JALAHALLI, BENGALURU – 560 013.
PANKAJ KUMAR MALIK
S/O. BASUDEO SINGH
AGED ABOUT 36 YEARS,
R/O. Q-39, CPWD COLONY, ALTO, PORVORIM, BARDEZ, GOA – 403 001.
SHIWENDRA KUMAR
S/O. BASUDEP SINGH
AGED ABOUT 39 YEARS,
R/O. A-4, INCOME TAX QUARTERS,
PUNDALIK NAGAR, PORVORIM, GOA- 403 001.
RAMANUJ SHANKER PRASAD
INSPECTOR OF INCOME TAX
CIRCLE-7 (2) (1), BMTC BUILDING, KORAMANGALA, BENGALURU – 560 034. ... RESPONDENTS (BY SHRI. T.C.GUPTA, FOR RESPONDENT NOS.1 TO 11; R-12 SERVED) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 22.03.2019 (ANNEXURE-A) PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH, BENGALURU IN O.A.NO.170/ 000550/2017 AND DELCARE IT TO BE ILLEGAL, NON SPEAKING AND CONTRARY TO LAW.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, SATISH CHANDRA SHARMA. J., MADE THE FOLLOWING:
ORDER The present writ petition is filed against the order passed by Central Administrative Tribunal in O.A. No.170/00050/2017, dated 22.03.2019 (Gautam Kumar and others Vs. Union of India).
The facts of the case reveal that the respondents before this Court were appointed to the post of Tax Assistant on account of their selection by the Staff Selection Commission – 2006. They were appointed on different dates in the year 2008 in the pay scale of Rs.7,510/- + Grade Pay Rs.2,400/-. The undisputed facts also reveal that the pay of the respondents in the year 2009 was revised to Rs.8,120/- + Grade Pay of Rs.2,400/-. Respondent Nos.1 to 11 are seniors to respondent No.12.
In the year 2010, respondent Nos.1 to 11 appeared for the departmental examination of Inspector of Income Tax
(2010) as Tax Assistants and being successfully passed the examination, they have been granted two advance increments of Rs.640/- as Tax Assistance under the pay band
of Rs.8,120/- + Grade Pay of Rs.2,400/-. Consequently, their pay with effect from 01.11.2011 was fixed at Rs.8,760/- + Grade Pay of Rs.2,400/-. Whereas, respondent No.12 as he did not qualify the departmental examination of Inspector, his pay was fixed at Rs.8,120/- + Grade Pay of Rs.2,400/-. Respondent Nos.1 to 11, who were seniors to respondent No.12, were granted the benefit of higher pay.
That all the respondents, respondent No.1 to 11 and respondent No.12 were promoted to the post of Senior Tax Assistant on 13.09.2011 and the pay of Respondent No.1 to 11 was fixed as Rs.9,450/- + Grade Pay of Rs.4,200/- and that the pay of respondent No.12 was fixed as Rs.9,300/- + Grade Pay of Rs.4,200/-. Respondent No.12, as already stated earlier, was junior to respondent Nos.1 to 11. He was not holding the qualification of departmental examination to his credit and therefore, he was being paying less pay in the cadre of Senior Tax Assistant. Respondent No. 12 later, on 28.12.2011, passed the departmental examination in respect of Income tax (2011) as Senior Tax
Assistant and got two advance increments. He was granted Rs.800/- and he was placed in the pay of Rs.9,300/- + Grade Pay of Rs.4,200/-. Consequently, the pay was fixed to Rs.10,100/- and Grade Pay of Rs.4,200/-. However, the pay of respondent Nos.1 to 11, who were admittedly seniors to respondent No.12 and who had qualified in the examination at the relevant point of time, were fixed at Rs.9,540/- + Grade Pay of Rs.4,200/-. Respondent Nos.1 to 11, being the seniors, holding the same qualification and performing the similar duties, were standing on the better footing, as they qualified in the departmental examination of Inspector of Income tax in the year 2010. It was respondent No.12 who was able to qualify in the examination in the year 2011 only. Respondent Nos. 1 to 11 have preferred an original application before the Central Administrative Tribunal and the Central Administrative Tribunal has allowed the Original Application.
This Court has carefully gone through the documents on record as well as the judgment delivered by
the Central Administrative Tribunal and also Fundamental Rules 27 governing the field relating to grant of increments.
In the present case, advance increments have been granted to all the respondents as they qualified in the departmental examination of Inspector of Income Tax while serving as Tax Assistants. The anomaly in matter of pay fixation in the present case is only because, in the year 2010, respondent Nos.1 to 11 have passed the departmental examination. The rate of increment was less than the rate of increment which was fixed for the year 2011 and two advance increments at the rate of Rs.640/- were granted to respondent Nos.1 to 11 who were seniors respondent No.12, whereas in case of a junior, two advance increments were granted at the rate of Rs.800/-. In the present case, respondent No.12 who is junior and admittedly, who could not qualify in the departmental examination in time and who qualified in the examination later in the year 2011, is receiving higher pay than that of his seniors, who qualified in the departmental examination earlier to their junior.
Therefore, if the arguments canvassed by the learned counsel for Union of India are accepted, it will result in awarding a person who was not able to prove his worth in the first round of examination and will also result in penalizing the seniors who qualified in the examination in the year 2010.
Fundamental Rule 22 deals with removal of such anomaly. The Government of India, Ministry of Finance has issued executive instructions dated 5.01.1989 and the same is reproduced under:- “INSTRUCTION NO.1804/1989 Dated 5.1.1989 Grant of advanced increment to officials in the income-tax department on passing the departmental examination for next higher grade- Removal of anomaly in pay-
In accordance with this Ministry’s letter F.No.2(29)/Ad. VII/53 dated the 24th July, 1955, F.No.6/83/57-Ad.IX dated the 8th December, 1960 and F.No.A-26017/2/76-Ad.IX dated 16.2.1976, two advance increments are allowed to LDCs, UDCs, Inspectors, Stenographers, etc. in the Income tax Department on their passing the Departmental
Examination of the next higher grade. It has been brought to the notice of this Ministry that the officials who passed the departmental examination of the next higher grade before 1.1.86 and thereby got the benefit of the advance increments at a lower rate in the pre-revised scales, are drawing less, pay than their juniors who passed the examination on or after 1.1.86 and thereby drew the advance increments at a higher rate in revised scale of pay.
It has decided to remove anomaly in such cases by stepping up the pay of the senior official with reference to the pay of his junior, from the date of the date of grant of advance increments to the latter. The orders refixing the pay of the senior be issued in accordance with aforesaid decision under FR 27. He will draw his next increment from the date of drawal of increment by the junior with reference to whom the stepping up of pay has been allowed. The arrears of pay will be drawn accordingly.
This sanction issues with the concurrence of the Department of Personnel & Training, A.R. Estt (Pay) and the Department of Expenditure vide Dy. Nos. 327/88/Pay 1 dated 7.4.88 and 2117/Estt/888 dated 9.5.88, respectively.
They may be brought to the notice of all officers working in your region.
(F.No.A26017/70/87-Ad.IX dated 5-1-1989 from Central Board of Direct Taxes)”
The aforesaid executive instructions issued to all the Commissioners make it very clear to remove such anomaly which is involved in the present case.
Thus, in the present case, similar controversy is involved on account of revision of pay and grant of increments on clearing the departmental examination. The rate of increment became higher in the year 2011 and it was Rs.400/- for one increment, and it was Rs.320/- for one increment in the year 2010. Therefore, the seniors were granted Rs.640/- on account of two advance increments in the year 2010 and the junior was granted two advance increments amounting to Rs.800/- in the year 2011. The department itself has issued a circular for removal of such anomalies. The Central Administrative Tribunal was justified in allowing the application.
The learned counsel for Union of India has placed reliance on the judgment delivered in W.A.No.5602/2013 (State of Karnataka and another v/s Mohammed Ilyas). This Court has carefully gone through the aforesaid judgment and paragraph 15 of the said judgment reads as under:- “15. The particulars of the pay drawn by the respondent and Sri. Karunakaran are as hereunder:- Sri Mohammed Illyas Sri K.Karunakaran Date Basic pay (Rs.)
Date Basic Pay (Rs.)
01.04.74 140.00 Annual increment 01.06.74 140.00 Annual Increment 18.10.74 156.00 Two advance increments for graduation
01.04.75 164.00 Annual Increment 01.06.75 148.00 Annual Increment 01.04.76 172.00 Annual Increment 01.06.76 156.00 Annual Increment 01.01.77 500.00 Revised scale 1977 01.01.77 480.00 Revised scale 1977 01.06.77 500.00
29.11.77 55.00 Annual Increment two advance increments for proficiency in shorthand 01.01.78 525.00 Annual Increment 01.06.78 575.00 Annual Increment 01.01.79 550.00 Annual Increment 01.06.79 600.00 Annual Increment
With reference to the aforesaid pay particulars of the respondent and Sri. Karunakaran, it is evident that the respondent is senior and he was drawing
higher pay than that of Sri. K. Karunakaran till 29.11.1977. The respondent was granted two advance increments for acquiring B.A., graduation qualification w.e.f. 18.10.1974 in terms of the G.O. No. FD 73 SRP (1) 69 dated 18.2.1970. He was drawing basic pay of Rs.172/- in the pre-revised scale as on 1.1.1977. In the case of Sri. Karunakaran, without there being benefit of any advance or additional increment he was in the basic of Rs.156/- in the pre-revised scale as on 1.1.1977. In view of the Karnataka Civil Service(Revised Pay) Rules, 1977, the pay of the respondent who was drawing the basic pay of Rs.172/- was fixed at the stage of Rs.500/- as on 1.1.1977 on the other hand, Sri. Karunakaran who was drawing a basic pay of Rs.156/- was fixed at Rs.480/-. In view of the G.O. No.EV 14 SRP (1) 77 dated 24.5.1977 for acquiring the qualification of proficiency in Shorthand two advance increments is permissible. With reference to the said Government Order read with acquisition of proficiency in shorthand qualification by Sri. Karunakaran on 29.11.1977 two advance increments were granted, consequently pay of Sri. Karunakaran was enhanced from Rs.480/- to Rs.550/- (annual increment was granted as on 1.6.1977 by which the pay was enhanced from Rs.480/- to Rs.500/- + two advance increments). In view of the aforesaid circumstances read with Government orders dated 18.2.1970 and 24.05.1977 the respondent has not made out a case so as to step up his pay on par with Sri. Karunakar.”
In the considered opinion of this Court, the aforesaid judgment does not help petitioner in any manner and it is distinguishable on facts.
Resultantly, no case for interference is made out in the matter. Writ petition is dismissed. No orders as to costs.
Sd/-
JUDGE
Sd/- JUDGE