Promotion to NFSG must adhere to statutory rules and cannot be overridden by administrative orders, as established under Article 309.

ORDER (ORAL)

Hon’ble Mr. Manish Garg, Member (J):

By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant has prayed for the following reliefs:-

“(i) To quash and set aside the impugned order/Notification No. 27/2023 dated 26.12.2023 to the extent the applicants’ name have not been included in the list for promotion to NFSG in the rank of Addl. Commissioner of Income Tax and direct the respondents to consider the name of applicants for promotion to NFSG in the rank of Addl. Commissioner of Income Tax with all consequential benefits by holding review DPC.

(ii) To direct the respondents to promote the applicants to the post of Addl. Commissioner of Income Tax / JAG (NFSG) from the date of promotion of their juniors of 2011 batch by relaxing eligible service by 2 years and accord all consequential benefits including arrears of pay.

(iii) To declare the action of the respondents in not promoting the applicants to NFSG in the rank of Addl. Commissioner from the date of grant of same to juniors/ direct recruits Group 'A' Officers from 01.01.2024 as illegal and direct the respondents to grant the applicants NFSG in the rank of Addl. Commissioner in the pay scale of Rs. 37400-67000 (with Grade Pay of Rs. 8700) including arrears of pay and Interest.

(iv) To direct the respondents to remove the pay anomaly by granting same pay to the applicants as being paid to the juniors in the pay scale of Rs. 37400- 67000 with Grade Pay of Rs. 8700 (Level 13 of Pay Matrix) with all consequential benefits including arrears of pay.

(v) to allow the OA with cost.

(vi) to pass such other and further orders which their lordships of this Hon'ble Tribunal deem fit and proper in the existing facts and circumstances of the case.”

2. Though, counter reply to the OA is yet to be filed. Learned counsel for the respondents has placed reliance on the decision rendered by Coordinate Bench of this Tribunal in OA No. 3795/2022 decided on 23.04.2024 titled Jagdish Singh & Ors. Vs. Union of India & Ors. which was also challenged before Hon’ble High Court of Delhi by way of W.P. (C) 13770/2024 titled Union of India & Ors. Vs. Jagdish Singh & Ors. decided on 01.10.2024. Hon’ble High Court of Delhi has upheld the order of the Tribunal in Jagdish Singh (supra) and the said WP is dismissed. Paras 13 to 17 of W.P. (C) 13770/2024 titled Union of India & Ors. Vs. Jagdish Singh & Ors. decided on 01.10.2024 read as under:-

“13. The writ petition offers no answer to the reliance, by the learned Tribunal, on Rule 7 (4) of the Schedule II to the IRS Rules. Before us, Mr. Satya Ranjan Swain is also candid in acknowledging the position that emerges from Rule 7 (4) but submits that promotion involves a process of selection and other such indicia, which are not involved in ascendancy to the post of Additional CIT (NFSG). He, further, submits that the DOPT was correct while opining, in its OM dated 5 October 2021, that the post of Additional CIT (NFSG) cannot be treated as a promotional post.

14. We are unable to agree with Mr. Swain. The judgment of the learned Tribunal is obviously unexceptionable. The learned Tribunal is correct in holding that the DOPT OM cannot supersede or hold contrary to the statutory Recruitment Rules framed in exercise of the power conferred by Article 309 of the Constitution of India. The IRS Rules were, admittedly, promulgated under Article 309.

15. Rule 7(4) to the Schedule II to the IRS Rules is clear in envisaging promotion to the post of Additional CIT (NFSG). There is no escape from this Rule. The Rule clearly envisages the post of Additional CIT (NFSG) as being a promotional post.

16. In that view of the matter, the learned Tribunal has correctly held the respondents to be entitled to the benefit of Note 1 below Rule 7(4) of the Schedule II to the IRS Rules. Thus, reckoned, there is no dispute that the respondents would be entitled to be promoted as Additional CIT