UNION OF INDIA Vs. KISHORE CHANDRA MOHANTY

JUDGEMENT

(1.) IN these two writ applications, this Court is called upon to decide as to whether the judgment of the Central Administrative Tribunal, Cuttack Bench, Cuttack rendered on 9th August, 2002 in O.A. No.542 of 1995 is legally sustainable. One Kishore Chandra Mohanty (Opposite Party No.1 in W.P.(C) No.224 of 2003 and Opposite Party No.4 in W.P.(C) No.4493 of 2002) was the applicant before the Tribunal in the aforesaid Original Application and the petitioner in W.P.(C) No.4493 of 2002 was Respondent No.5 before the Tribunal.

(2.) THE case of Kishore Chandra Mohanty before the Tribunal was that he had served for more than three years as Inspector of Income Tax and appeared in the departmental examination held during June/July 1995, but the results were published on 12.2.1996 and two annual increments were allowed to him with retrospective effect, i.e., from 3.7.1995. During the period from June/July, 1995 and publication of result on 12.2.1996, five posts of Income Tax Officer (Group -B) were sanctioned for Orissa Region and to fill up the said post, the Department Promotion Committee was convened on 13.10.1995. However, the case of the applicant -Kishore Chandra Mohanty was not considered. According to the applicant -Kishore Chandra Mohanty, he having appeared in the departmental examination by the time the Departmental Promotion Committee was convened, his case should have been considered and kept in sealed cover till publication of the results of the departmental examination. It is also the case of the applicant -Kishore Chandra Mohanty that on earlier occasions whenever any DPC used to be convened in between the last date of examination and publication of results thereof, the Department used to convene a review DPC to consider the cases of those Inspectors of Income Tax who clear the examination and give them promotion with retrospective effect, i.e., from the date on which the last examination was held. Such a practice having been given a go -bye by the Department in the relevant year in which the applicant -Kishore Chandra Mohanty appeared in the departmental examination, he approached the Tribunal by filing the Original Application out of which both the writ applications arise. The Department filed a counter affidavit in the said Original Application and the petitioner before this Court Sovesh Chandra Mohanty in W.P.(C) No.4493 of 2002 also intervened in the case and filed a counter affidavit. Reliance was placed by the applicant -Kishore Chandra Mohanty on an earlier decision of the Tribunal in T.A. No. 214 of 1986 in the case of Dhirsa Raj Dev v. Union of India and others, decided on 27.6.1991 upholding the deferment of the DPC under similar circumstances. Reliance was also placed by the applicant -Kishore Chandra Mohanty on a decision of the Government of India (Ministry of Finance) dated 18.11.1996 laying down that the date of passing of examination is to be taken as the date on which the last paper of the said examination was held and not the declaration of the result. The learned counsel for the Department relied on two decisions of the Tribunal rendered in O.A. No.543 of 1995, disposed of on 15.10.2001 and O.A. No.207 of 1996, disposed of on 16.11.1999 in which the Tribunal held that the DPC has to consider the persons who are eligible at the relevant time and the subsequent passing of the examination would not make a candidate eligible for promotion from the last date of holding of the examination. The Tribunal referring to a decision of this Court in the case of Ajaya Kumar Das v. Union of India and others, decided on 28.3.2001 in O.J.C. No.1594 of 1999 decided the case and directed the Department to hold a review Departmental Promotion Committee within a period of ninety days from the date of receipt of a copy of the order and consider the case of the applicant -Kishore Chandra Mohanty and grant him retrospective promotion by granting only notional financial benefit for the intervening period till his actual promotion. The Tribunal also directed the Department to consider the case of such other similarly placed Income Tax Inspectors along with the applicant -Kishore Chandra Mohanty

(3.) SHRI R. K. Rath, the learned Senior Counsel appearing for Kishore Chandra Mohanty and learned counsel appearing for some of the intervenors contended that the earlier practice of the Department was that in an year during which the departmental examination is held and before publication of result, a DPC is convened for promotion, a review DPC is held after publication of results and cases of those Income Tax Inspectors whose cases could not consider by the DPC earlier because of non -publication of result used to be considered and they used to be given promotion with effect from the date on which the last paper of the Examination was held. Only in 2000 administrative instructions were issued to hold DPC only after publication of departmental examination result in order to avoid litigations and thereafter there has not been any grievance from any quarter. It is also contended by the learned counsel appearing for Shri Kishore Chandra Mohanty and other intervenors that such practice having been adopted by the Department for a long, that has been rightly accepted by the Tribunal while allowing the prayer of the applicant -Kishore Chandra Mohanty.