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2025 Supreme(Online)(CAT) 2549
CENTRAL ADMINISTRATIVE TRIBUNAL
MR. JUSTICE AKHIL KUMAR SRIVASTAVA, MRS. MALLIKA ARYA, JJ
Ashish Mishra – Appellant
Versus
M/o Finance – Respondent
O.A./115/2012
Shri Akash Choudhury, Shri Manish Chourasia
The court affirmed the right to notional promotion from the date of vacancy, emphasizing equal treatment under Article 14 of the Constitution.
Headnote:(A) Recruitment Rules - Notional Promotion - The applicants sought notional promotion to Senior Tax Assistant from 20.01.2003, the date vacancies arose. The respondents failed to conduct timely DPCs, leading to discrimination against the applicants compared to peers in other zones. (Paras 3.1, 3.3, 6)
(B) Article 14 of the Constitution - Equal Treatment - The court emphasized that the applicants are entitled to the same treatment as their counterparts in other zones, affirming the principle of equality before the law. (Paras 7, 8)
Facts of the case:
The applicants were promoted on an ad-hoc basis in 2009 despite vacancies existing since 2003. They argued that the delay in promotion was unjust and discriminatory.
Findings of Court:
The court found no dispute regarding the applicants' entitlement to notional promotion from 2003 and directed the respondents to convene a review DPC for antedating their promotion.
Issues: The main issues included the delay in promotion and the applicants' entitlement to notional promotion from the date of vacancy.
Ratio Decidendi: The court ruled that the applicants should not suffer due to the pendency of other cases and are entitled to notional promotion as per the Board's clarification.
Result: Original Application allowed.
ORDER
By Mallika Arya, AM.-
The applicants are aggrieved in not granting the benefit of notional promotion/pay fixation etc. to them on the post of Senior Tax Assisant from the date of arising of vacancies i.e. w.e.f.20.01.2003.
2. The applicants have sought for the following reliefs in this Original Application:
“7.(i) Summon the entire records of the respondents for scrutiny.
(ii) Direct the respondent No.2 to immediately hold review of the DPC dated June 2009 by preparing year wise select panel as per the direction of Board’s letter dated 18.07.2011 and according issue the promotion order.
(iii) Hold that the action of the respondents authorities in promoting the Senior Tax Assistant on adhoc basis since 2003 is bad in law and command the respondents to promote the applicants as Senior Tax Assistant on regular basis by giving them the benefit of notional promotion and pay fixation w.e.f. 20.01.2003 with all consequential benefits arising thereto in terms of the order dated 18.7.2011;
(iv) After granting notional promotion to the applicants on the post of Senior Tax Assistant w.e.f. 20.1.2003, command the respondents to release the arrears arising out of pay fixation alongwith interest at the rate as deems fit and proper by this Hon’ble Tribunal;
(v) Any other order/orders, which this Hon’ble Court deems fit and proper may also be passed;
(vi) Award cost of the litigation in favour of the applicant.”
3. Brief facts of the case, as projected in the Original Application, are that the applicants were promoted as Senior Tax Assistant on ad-hoc basis vide order dated 09.06.2009 (Annexure A-1). The applicants submit that the post of Senior Tax Assistant is 100% promotional post and as per Recruitment Rules, the eligible Tax Assistants are considered for promotion to the post of Senior Tax Assistant by applying the criteria of selection. Further, the Page 2 of 9 ANUPAM 2025.03.25 posts of Senior Tax Assistants are lying vacant in the Department since 20.01.2003.
3.1 As per the circular issued by the DoP&T dated 08.09.1998 (Annexure A-3), it is necessary for the respondents to convey year-wise DPC after assuming the number of vacancies available for promoting suitable employees. The said circular has also been taken note by the Hon’ble Supreme Court in the case of N.R. Banerjee vs. Union of India and others , (1997) 9 SCC 287 , in which it has been held that it is mandatory on the part of the Department to convene year-wise DPCs in a particular academic year when the posts are lying vacant.
3.2 In the present case, the DPC was convened at a belated stage and the applicants were promoted to the posts of Senior Tax Assistant purely on ad- hoc basis vide order dated 09.06.2009 despite the fact that the vacancies were lying since 2003.
3.3 The applicants have further stated that in the Mumbai and Lucknow Zones, the aspirants who were eligible for promotion as Senior Tax Assistants were considered and subsequently promoted and were also given the benefit of notional promotion and pay fixation from the date of vacancy year while the applicants have been discriminated.
3.4 The respondent No.3 vide Establishment Order No.09/2010 dated 16.02.2010 (Annexure A/4(i) gave notional benefit to the Tax Assistant w.e.f.05.05.2003, i.e. the date of publication of Recruitment Rules of Tax Assistants. However, the applicants have been denied benefit of the same.
3.5 The Cadre Controlling Authority of the applicants sought a clarification from the Central Board of Excise & Customs regarding grant of notional promotion to the applicants vide letter dated 14.09.2010 (Annexure A-6) and in response, the Board has granted concurrence to give notional promotion to the applicants w.e.f. 2003 against the vacancies which have fallen vacant in the year 2003. But, the applicants have yet not been granted the notional promotion since 2003.
4. The respondents have filed their reply and have stated that though the posts of Senior Tax Assistants were vacant since 20.01.2003, the da
