CBDT instructed all CCIT(CCA) to get stay vacated on promotion issue in different CAT cases.
View the CBDT instruction dated 26.08.2013
View the CBDT instruction dated 26.08.2013
URGENT
COURT MATTER
SPEED POST
F.No.C-18012/26/2003-V&L(Pt. II)
Government of India
Ministry of Finance
Department of Revenue Central Board of Direct Taxes
New Delhi, 26th Aug., 2013
To,
All the Chief Commissioners of Income Tax (CCA),
Sub: Judgement of the Hon'ble Supreme Court dated 27.11.2012 in the case of UOI &
Ors.Vs. N.R. Parmar & Ors. -Reg.-
Sir/Madam,
I am directed to refer to the subject cited above and to state that the advice of DoPT is being sought on the decision of Hon'ble Supreme Court in the case of Sh. Parmar. However, presently the DoPT has returned the file with the following advice:
"The DoR has sought our advice on the implications of the judgment of Supreme Court dated 27.11.2012 in the case of Sh. N.R. Farmer & Ors.. This department is already seized with this issue in the contact of the impact of Supreme Court judgment on the policy for determination of inter se seniority of direct recruit and promotee and consequent administrative action to be taken in consultation of DoLA. However, the impact of the judgment on the seniority of the officers of Income Tax Department has to be assessed and analyzed by the Department of Revenue and specific issues should be brought forward so as to enable DoPT to examine the same and give its comments. The comments of DoR would also facilitate a comprehensive examination/advice of the DoLA while considering the general policy file of DoPT. In this context, the advice of DoLA in the Para 24 of p-88/Notes is relevant. The department of Revenue may be advised to take necessary action accordingly."
The matter has now been referred to DGIT(HRD) for inputs on the above aspect.
2. Further, it is to be informed that the interim advice of the DoPT communicated on a reference by the department for the DPC for the post of ACsIT, in DOR F.NO. 32013/2/2012 Ad VI/DoPT Dy. No. 11640/13/CR dated 06.03.2012, inter-alia states that
"The implementation or otherwise of decision of Hon'ble Supreme Court is being processed separately. As per the instructions on the subject, the administrative department can consider regular promotion on the basis of existing list circulated and finalized seniority list. However, the promotion of these Officers shall be subject to revision of the seniority list of Inspectors/ITOs, if any, while implementing the Hon'ble Supreme Court judgment in N.R. Parmar case.”
3. In view of the above, I am directed to request that suitable steps may be taken to get the stay on promotions, if any, granted by various Tribunals, vacated on the ground of the instructions of the DoPT in OM No. 28027/9/99-Estt. (A) dated 01.05.2000, advice dated 06.03.2012 given by the DoPT(above) and also for the functional requirement of the Department.
Yours faithfully
-sd-
(Mukesh Sharma)
DCIT (OSD)(V&L)
C.B.D.T.
4 comments:
Will they (HCs and CATs) honour executive(DOPT) direction? This is the million dollar question..
Basic data requirement to implement NR permar case are
1.Vacancy of the year was identified in the same year and in the same year the said vacancies were requisitioned to CBDT and the said vacancies were notified to SSC in the same year and finally, the SSC has advertised the said same vacancies in the employment news/official gazzette in public domain in the same year.
2. The above mentioned requirements has to be ascertained from 1986 on words in all cadres.
3. To implement this , the exercise should be taken both from the administrative side and from the SSC side.
4. Cases of seniority already decided (prior to issue of this O.M. dated 3.3.2008), with reference to any other interpretation of the term `available’ as contained in O.M. dated 3.7.1986 need not be reopened.
5. As such, if any identical issue was found exact matching with the conditions mentioned at S.No.1 , then such candidates is falls within the judgement of NR permar case and the rest of any , the DoPT OM dated 3.3.2008 is applicable and no specific direction is required from DoPT is necessary.
6. Whether if some states are not followed the principle laid down by Supreme court since 1986, and now to change the seniority after doing all the exercise as mentioned at S.no.1 it will leads to immoralise the employees by unsettling the settled issue for the past 25 years and more over whether the revenue can give promotion to a retired employee after doing exercise this.
7. In my opinion, the honorable Supreme court has not brought out any new issue in the case of NR permar and more it has clarified the DoPT OM dated 7.2.86 and 3.7.86 by linking with the advertisement of vacancies. that means, the vacancies identified, notified, and advertised in public domain all should fall within the same year. In such a situation, the period of selection process has to be treated as delay attributable to the department but not the candidate.
Hence, my sincere request is do not misuse or mistaken and do not take undue advantage by interpreting the words that every direct recruit will get seniority from the date of notification without born in the respective department. The honorable Supreme court has dealt this issue in several cases, that without born in the respective department, even notional seniority could not be given since promotions are based on the ACRs. How the ACRs will be drawn and certified by the authorities to those who are not born in the department.
DoPT in No.2201111/2011-Estt.(D) dated 11.3.2001 on the subject
Procedure to be observed by the Departmental Promotion Committees (DPCs) - Model Calendar for DPCs and related matters - Regarding.
issued. As such, staying the DPCs is against the principle as laid down by many High court and supreme court decisions. Seniority claims could be reviewed at any time but for this claim holding DPC could not be stopped.
The No work No pay principle is not hurdle to the person who was promoted later than early by virtue of default with the concerned department even after his/her representation was with them before the said date of DPC. The Principle CAT delhi, Gujarat High court, Kolkatta High court and Allhabad High court has given justification on this issue. hence No worry about this principle. My request do not stop DPCs .
DoPT has withdrawn their OM dated 03.03.2008 ab initio means from the beginning and seniority of DR and promotees should be decided up to 27.11.2012 according to DoPT OM dated 07.02.1986/03.07.1986 on the basis of vacancy year.
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