VIVEK CHOUDHARY vs INCOME TAX DEPARTMENT on 7 October 2026

O R D E R

PER: DR. SANJIV KUMAR, MEMBER (A)

This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-

Bangalore

Mikasha Suneja

“A} In view of the facts and grounds enumerated above, it is most respectfully prayed that respondent order dated 14.10.2024, Ann. A/1 may kindly be quashed and the respondents directed to protect the working as SG Gr-I and pay and allowances of that period of the applicants. B} To promote the applicants as Steno Gr.I from 1.1.2022 with all consequential benefits. C} Any other appropriate writ, order or direction, which may be considered just and proper in the facts and circumstances of the case, may be issued in favour of the applicants.”

2. These reliefs are claimed on the following grounds and legal provisions:- “5/A Because, the applicants were promoted as Steno Gr-I from 1.12.2022 and are continuously working as Steno Gr-I since then. In view of the CAT order dated 22.4.2024, their earlier service, when they actually worked as Steno Gr-I cannot be erased and nullified. As the applicants actually worked as Steno Gr-I for quite some period, that too on promotion granted by the authority themselves, the applicants are entitled for protection of all the benefits of their working as Steno Gr-I and protection of the pay and allowances of the period. 5/B Because, the Tribunal in the order dated 22.4.2024 nowhere directed to revert the applicants. The CAT Bench Bangalore in para 26 of the order dated 22.4.2016 in OA No. 854-863/2013 has directed that “In its initial order of 17.1.2003 the Tribunal felt that reversion of the persons who stand promoted to the post of income Tax Officer would not be desirable and hence was not ordered. We too hold a similar view that when a person has worked in promotional post for quite some time that too granted by the authority

Bangalore

Mikasha Suneja themselves, reverting them back to the post of Income-tax Inspector would not be desirable. Since the applicants have already worked as Income-tax Officers for specific periods and have now been promoted though from a later date, we are of the view that the period of their functioning in the post of Income-tax Officer should be protected. In other words the benefits including pay and increment availed by them from date when they started working as Income Tax Officer should be protected and granted to them on personal basis.” The direction has been reiterated in the para 27 of the order also. The Tribunal order dated 22.4.2016 was further confirmed by the Hon’ble High Court in order dated 15.2.2024 in WP No. 40152/2018 and other WPs. These orders are squarely applicable to the case of the applicants. 5/C Because, the respondents have reverted the applicants without giving any notice, against the principles of natural justice. 5/D Because, the applicants were due for promotion for Steno Gr.I from 1.1.2022. As per directions of the DOPT OM dated 8.5.2017 the crucial date for determine the eligibility for promotion was shifted to 1st January, and DPC for promotion was also to be held on 1.1.2022, in this case. On 1.1.2022, there existed vacancies also. The respondents intentionally held DPC on 1.12.2022 and issued promotion orders from 1.12.2022, for the reasons best known to them. The respondents intentionally caused loss to the applicant in their seniority as well as financial benefits. The applicants deserved promotion from 1.1.2022. 5/E The applicants craves leave to add and supplement more grounds at the time of arguments.”

3. The brief facts of the case, as mentioned in the synopsis, are as follows:-

Bangalore

Mikasha Suneja

“Dates Events 14.10.2024 The applicants joined as Steno Gr.II in Income Tax Karnataka & Goa Region in 2019. They were promoted as Steno Gr.I in order dated 1.12.2022. The respondents in order dated 14.10.2024 have reverted the applicants to the post of Steno Gr.II. 23.10.2024 Aggrieved, the present OA is filed.”

4. On notice, the respondents have filed their reply statement. Thereafter, the applicants have filed rejoinder. An additional reply has also been filed, followed by rejoinder to the additional reply. Further additional replies have thereafter been filed.

5. The case came up for final hearing on 28.09.2026. Shri B.S. Venkatesh Kumar, learned counsel for the applicants, and Shri N. Amaresh, learned counsel for the respondents, were present and heard.

6. We have carefully gone through the records and considered the rival contentions. The material facts of the case are neither denied nor seriously contested.

7. The applicants are working as SG Grade-I under the jurisdiction of the Pr. Chief Commissioner of Income Tax, Karnataka and Goa Region, Bangalore, from different dates from 2019 onwards. They were promoted to Steno Grade-I vide order dated 01.12.2022. Subsequently, the respondents reverted the applicants vide order dated

Bangalore

Mikasha Suneja

14.10.2024, without issuing a separate notice, on the basis of the order of this Tribunal dated 22.04.2024 in OA No.449/2021 in the case of Ms. Sudha.

8. The principal contention of the applicants is that they were duly promoted on 01.12.2022 and, therefore, the respondents could not unilaterally withdraw the said promotion. It is further contended that the order of this Tribunal dated 22.04.2024 in OA No.449/2021 did not direct the respondents to reverse the promotion of the applicants. According to the applicants, their case is also covered by the order of this Tribunal in OA No.854-863/2013 dated 22.04.2016, which was subsequently confirmed by the Hon’ble High Court of Karnataka vide order dated 15.02.2024 in Writ Petition No.40152/2018 and other WPs.

9. On the other hand, the respondents contend that, when the applicants were promoted in 2022, they were not independently eligible for promotion, since the basic eligibility condition required four years of service in the feeder cadre, which they had not completed. They were considered only because their junior, Ms. Sudha, was eligible for promotion and, under the applicable rule, where a junior is considered for promotion, the seniors are also required to be considered subject to the conditions prescribed therein.

Bangalore

Mikasha Suneja

Consequently, the applicants were considered and promoted provisionally. The promotion order itself expressly stated that the promotion was subject to the decision of this Tribunal in OA No.449/2021 in the case of Smt. Sudha vs. Union of India.

10. The respondents further contend that, when the order in OA No.449/2021 was subsequently passed and Ms. Sudha became eligible for promotion for an earlier year, her name was taken out of the promotion list dated 25.11.2022 for the vacancy year 2022. Consequently, the basis on which the applicants had been considered under the junior-senior clause ceased to exist. Since the applicants themselves had not fulfilled the prescribed four-year residency in the feeder cadre, they consequently ceased to be eligible for promotion. Their provisional promotions were, therefore, withdrawn and they were reverted to the feeder cadre. According to the respondents, the impugned order dated 14.10.2024 was thus issued in accordance with the applicable rules and procedure and suffers from no infirmity. The respondents accordingly pray for dismissal of the OA.

11. Let us examine, one by one, the contentions taken by the applicants in para 5 of the OA:- a) In para 5A, the applicants contend that they were promoted as Steno Gr-I from 01.12.2022 and had continuously worked as Steno

Bangalore

Mikasha Suneja

Gr-I thereafter. According to them, in view of the CAT order dated 22.04.2024, the period during which they actually worked as Steno Gr-I cannot be erased or nullified. Since they had actually discharged the duties of Steno Gr-I for a considerable period, pursuant to a promotion granted by the authorities themselves, they contend that they are entitled to protection of all the benefits attached to such service, including pay and allowances for the period. This contention, however, has to be examined in the context of the nature and terms of the promotion granted to the applicants. While para 5(A) principally seeks protection of pay and allowances for the period during which the applicants actually worked in the promotional post, the reliefs sought in the OA go substantially further, namely, quashing of the order dated 14.10.2024, continuation in the promotional post and grant of promotion from 01.01.2022. Therefore, the question whether the applicants are entitled to retain the promotional post must be distinguished from the separate question whether the emoluments already received for the period during which they actually discharged higher duties can be recovered. In the present case, the applicants were promoted provisionally on 01.12.2022, and their promotion was expressly made subject to the decision of this Tribunal in OA No.449/2021 in the case of Ms. Sudha.

Bangalore

Mikasha Suneja

The subsequent order dated 14.10.2024 was issued pursuant to implementation of the order dated 22.04.2024 in OA No.449/2021. Therefore, the applicants cannot claim an unconditional or vested right to continue in the promotional post merely on the ground that they had worked in that post for the intervening period. We may examine the original promotion order of 2022, which has been filed by the applicants as Annexure-A2 dated 01.12.2022 in F. No. 209(5)/2022-23/Pr.CCIT, being Order No.51 of 2022-23. Para 3 thereof clearly mentions the following:- “3. The promotion of the official(s) shall be subject to decision of the Hon’ble Central Administrative Tribunal, Bengaluru Bench in OA No.449/2021 in the case of Smt. Sudha vs. Union of India & OA No.448/2021 in the case of Smt. Moni Kumari vs. Union of India. Further, the promotion of the official(s) shall be subject to revision of the seniority, if any, consequent to directions issued by CBDT in N.R. Parmar case vide letter dated 27/05/2019 & directions issued by CBDT K. Meghachandra Singh case vide letter dated 26/10/2021 read with DOPT’s OM dated 13/08/2021 and other similar cases on matter pending, if any, in various courts (Supreme Court/High Court/CAT etc.).”

A plain reading of the above condition makes it clear that the promotion granted to the officials vide order dated 01.12.2022 was expressly made subject to the decision of this Tribunal in OA

Bangalore

Mikasha Suneja

No.449/2021 in the case of Smt. Sudha vs. Union of India and OA No.448/2021 in the case of Smt. Moni Kumari vs. Union of India. Further, para 2 of the said order specifically stated that the promotion order was issued purely on a temporary basis and that an official was liable to reversion at any time without assigning any reason if, upon review of vacancies, it was found that his/her appointment was in excess of the vacancies available or for any other reason, including directions of any Court/CBDT/DoPT etc. Thus, the applicants were expressly put on notice, at the very inception of their promotion, that the promotion was provisional and liable to review depending upon the outcome of the pending proceedings and other relevant directions. Such a provisional order cannot ordinarily create a legitimate expectation that the promotion would become irrevocable irrespective of the outcome of the proceedings to which the promotion was expressly made subject. The applicants accepted the said promotion subject to those conditions and did not challenge or protest against them at the relevant time. Thereafter, the impugned order dated 14.10.2024 was issued and filed as Annexure-A1 vide F. No. 209(5)/2024-25/Pr.CCIT. It clearly records that, consequent upon implementation of the order of this

Bangalore

Mikasha Suneja

Tribunal, Bengaluru Bench, in OA No.449/2021 dated 22.04.2024 in the case of Smt. Sudha vs. Principal Chief Commissioner of Income Tax, Bengaluru & others, the promotion order issued in the cadre of Stenographer Grade-I (erstwhile Stenographer Grade-II) vide Office Order No.51 of 2022-23 dated 01.12.2022 stood withdrawn and a revised order was accordingly issued with immediate effect. Thus, the condition attached to the original promotion order itself constituted notice that the applicants’ promotional status was subject to the outcome of the pending proceedings. The applicants were aware of the condition and had accepted the provisional promotion without challenging it. The respondents have further explained that the applicants had not rendered the requisite four years of eligibility service in the feeder cadre, although they had completed their probation. They came within the zone of consideration only because their junior, Ms. Sudha, who had come from another region on transfer and had become junior to the applicants, was otherwise eligible for promotion. Since she had rendered four years of regular service as on 01.04.2022, the applicants, being senior to her, were also considered under the junior- senior clause of the Recruitment Rules, which provides that:- “ If a junior person is considered for promotion on the

Bangalore

Mikasha Suneja basis of his completing the prescribed qualifying period of service in that grade, all persons senior to him in the grade shall also be considered for promotion notwithstanding that they may not have rendered the prescribed qualifying period of service in that grade but have completed successfully the prescribed period of probation.”

Accordingly, on the recommendation of the DPC held on 25.11.2022, the applicants were promoted to the post of Stenographer Grade-I vide order dated 01.12.2022 (Annexure-A2). The applicants have not controverted the essential factual position that they had not independently completed the requisite four years of service in the feeder cadre. Their consideration for promotion for the vacancy year 2022 was thus dependent upon the operation of the junior-senior clause in consequence of Ms. Sudha being within the zone of consideration. Once the position of Ms. Sudha changed pursuant to the order passed in her case, the basis on which the applicants had been brought within the zone of consideration also ceased to exist. Subsequently, due to the order in Ms. Sudha’s case in OA No.449/2021 dated 24.02.2024, she became eligible for the year 2018 and was considered accordingly vide Annexure-R2. Once she was considered for the earlier vacancy year, she was no longer within the

Bangalore

Mikasha Suneja zone of consideration for the year 2022, and consequently the applicants could no longer derive the benefit of the junior-senior clause for the 2022 vacancy year. Since they had themselves not completed the requisite four years of residency in the feeder cadre, their provisional promotions were accordingly reconsidered and withdrawn vide the impugned order dated 14.10.2024 (Annexure-A1) in F. No. 209(5)/2024-25/Pr.CCIT. The applicants do not deny or contest these material facts. Their principal contention is that, once the respondents had granted them promotion and they had worked in the promotional post, the promotion ought not to have been withdrawn. However, such contention cannot be accepted when the very order granting promotion expressly made it provisional and subject to the outcome of the pending proceedings. Accordingly, para 5(A), insofar as it seeks to establish an entitlement to continue in the promotional post or to invalidate the impugned order, does not advance the case of the applicants. The separate question of recovery of the emoluments already received for actual service rendered in the higher post is considered separately hereinafter. b) In para 5(B), the applicants contend that this Tribunal, in its

Bangalore

Mikasha Suneja order dated 22.04.2024, nowhere directed their reversion. They rely upon para 26 of the order dated 22.04.2016 passed by the CAT, Bangalore Bench, in OA No.854-863/2013, wherein the Tribunal directed as follows:- “ In its initial order of 17.1.2003 the Tribunal felt that reversion of the persons who stand promoted to the post of income Tax Officer would not be desirable and hence was not ordered. We too hold a similar view that when a person has worked in promotional post for quite some time that too granted by the authority themselves, reverting them back to the post of Income-tax Inspector would not be desirable. Since the applicants have already worked as Income-tax Officers for specific periods and have now been promoted though from a later date, we are of the view that the period of their functioning in the post of Income-tax Officer should be protected. In other words the benefits including pay and increment availed by them from date when they started working as Income Tax Officer should be protected and granted to them on personal basis.”

The direction has been reiterated in para 27 of the order also. The Tribunal order dated 22.04.2016 was further confirmed by the Hon’ble High Court in order dated 15.02.2024 in WP No.40152/2018 and other WPs. The applicants contend that these orders are squarely applicable to their case. The respondents, on the other hand, vehemently oppose the

Bangalore

Mikasha Suneja

applicability of the said orders and contend that those decisions were rendered on their own facts and do not lay down a rule of universal application. According to the respondents, the applicants were promoted in 2022 only provisionally and subject to the outcome of OA No.449/2021. Once the order in the said OA was passed, the basis on which the applicants had been brought within the zone of consideration under the junior-senior clause ceased to exist. Consequently, the respondents undertook reassessment of the promotions in accordance with the Recruitment Rules. We have carefully examined the orders relied upon by the applicants. In OA Nos.854-863/2013 dated 22.04.2016, the Tribunal ordered as follows:- “26. As it would be evident from the above, all the applicants are now working as ITOs. Only the date of promotion to the post of ITO before the review DPC had changed at present. Since the respondents rightly or wrongly promoted them as Income Tax Officers and they have been functioning as Income Tax Officers during this period, it would not be fair to order their reversion as Income Tax Inspectors. In the OM dated 28.8.2013, the respondent authorities have mentioned with regard to the reversion that they are merely implementing the order of the Hon’ble Tribunal dated 17.8.2005 and since there was a clause in their promotion order that the promotion can be reviewed, blaming administration for reversion is not just.

Bangalore

Mikasha Suneja

No other specific ground has been stated in the order for enforcing the reversion. In its initial order of 17.01.2003 the Tribunal felt that reversion of the persons who stand promoted to the post of Income Tax Officer would not be desirable and hence was not ordered. We too hold a similar view that when a person has worked in promotional post for quite some time that too when granted by the authority themselves, reverting them back to the post of Income Tax Inspector would not be desirable. Since the applicants have already worked as Income Tax Officers for specific periods and have now been promoted though from a later date, we are of the view that the period of their functioning in the post of Income Tax Officer should be protected. In other words the benefits including pay, and increment availed by them from date they started working as Income Tax Officer should be protected and granted to them on personal basis. However it would not in any way affect or influence their position in the seniority list which has been prepared based on the review DPCs or which may change based on review pursuant to Apex Court’s judgment in N.R.Parmar’s case as specified in the OM dt.28.8.2013. The pay and increments received by the applicants in the post of Income Tax Officer shall therefore be protected. In the case of the applicant who has passed away in the meanwhile, his last drawn salary as Income Tax Officer should be reckoned towards his pensionary benefit without any reversion to the post of Income Tax Inspector. It is however made clear that all future promotions beyond the post of Income Tax Officer would be decided strictly in accordance with the revised seniority list prepared by the respondents.

27. Therefore, on detailed consideration of all the records and considering the facts and circumstances of the case and in the light of the observation made in the preceding paras, we hold that the OM dt.28.8.2013 issued by the respondents pursuant to the holding of review DPCs and in terms of the earlier direction of this Tribunal dt.

Bangalore

Mikasha Suneja

17.8.2005 is in order. However in regard to the order withholding the promotion is concerned, there shall not be any reversion in so far as the applicants are concerned and their service as Income Tax Officer from the date of their initial promotion shall be protected as indicated in the preceding para. However this shall not affect and influence their position in the seniority list as prepared by the respondents based on review DPC or as it may change based on review in cadre of Income Tax Inspector pursuant to Apex Court’s judgment in N.R.Parmar’s case and as specified in OM dt.28.8.2013.

28. The OAs are accordingly disposed of in terms of above directions.”

This Tribunal order was challenged before the Hon’ble High Court of Karnataka in Writ Petition No.40152/2018 (S-CAT) and other writ petitions dated 15.02.2024, wherein the Hon’ble High Court ruled as follows:- “11. We may record that it is not disputed that respondents were promoted as ITOs and functioned as such. Their seniority was realigned based on the order passed by the CAT. What has changed is only the date of promotion. In any event, the respondents have worked as ITOs in the relevant period. In the facts of this case, in our considered opinion, the CAT has rightly held that the pay and increment availed by the private respondents must be protected. Hence, we find no ground to interfere. Resultantly, these writ petitions are dismissed.”

The applicants assert that the principles emerging from these

Bangalore

Mikasha Suneja decisions are rules of universal application. The respondents, however, contend that no such universally applicable rule was enunciated and that the relief granted in those proceedings was based upon the facts and circumstances of those cases. Having carefully considered the said orders, we are unable to accept the applicants’ submission that they lay down a general rule that a person who has worked for some period in a promotional post must, irrespective of the terms on which the promotion was granted and irrespective of subsequent developments affecting eligibility, necessarily be permitted to continue in that post. The orders have to be understood in the factual context in which they were rendered. In the present case, the factual position is materially different. The applicants were not independently eligible for promotion for the vacancy year 2022 because they had not completed the requisite four years of service in the feeder cadre. They came within the zone of consideration only because their junior, Ms. Sudha, was being considered and the junior-senior clause operated in their favour. Their promotion order dated 01.12.2022 expressly recorded that the promotion was subject to the decision of this Tribunal in OA No.449/2021. The applicants thus had notice from the very inception that their

Bangalore

Mikasha Suneja promotion was conditional upon the outcome of the pending proceedings. Their entitlement to promotion was not independent of Ms. Sudha’s position; rather, their consideration itself was derivative of the application of the junior-senior clause to the circumstances prevailing at that time. Once, pursuant to the order dated 22.04.2024 in OA No.449/2021, Ms. Sudha became eligible for an earlier vacancy year and ceased to be within the zone of consideration for the 2022 vacancies, the factual foundation for extending the junior-senior benefit to the applicants also ceased to exist. Consequently, the applicants could not claim an independent right to promotion for the vacancy year 2022 merely because they had been provisionally promoted pursuant to the earlier position. We therefore do not find that OA Nos.854-863/2013 order dated 22.04.2016 or the consequent order of the Hon’ble High Court in Writ Petition No.40152/2018 dated 15.02.2024 lays down a general rule which compels the respondents to continue the applicants in the promotional post in the facts of the present case. The factual and legal foundation of the promotion in the two cases is materially different. Hence, the reliance placed by the applicants on those orders does not justify interference with the impugned order dated 14.10.2024.

Bangalore

Mikasha Suneja c) In para 5(C), the applicants contend that the respondents reverted them without giving any notice and that such action is contrary to the principles of natural justice. The respondents, on the other hand, contend that the applicants had notice ab initio because their promotion itself was expressly provisional and subject to the decision in OA No.449/2021 in the case of Smt. Sudha vs. Principal Chief Commissioner of Income Tax. The promotion order also specifically stated that the applicants were liable to reversion in the circumstances mentioned therein. We find considerable force in the respondents’ contention. The applicants were aware, at the time of their promotion, that they had not independently fulfilled the prescribed four years of residency in the feeder cadre and that their consideration was dependent upon the junior-senior clause because Ms. Sudha, who was junior to them, was being considered. They were further expressly informed that their promotion was subject to the outcome of OA No.449/2021. They neither challenged nor protested against the said condition at the relevant time. Thus, the impugned order dated 14.10.2024 cannot be viewed as an entirely unforeseen or unrelated adverse action. It was the consequence of a contingency expressly incorporated into the original

Bangalore

Mikasha Suneja promotion order. The subsequent order merely gave effect to the changed legal and factual position arising from the decision in OA No.449/2021. We are conscious that, ordinarily, an order involving civil consequences may require observance of the principles of natural justice. However, the extent and manner of such opportunity must also be examined in the factual setting of each case. In the present case, the applicants had been expressly put on notice that their promotion was provisional and subject to the outcome of the pending proceedings. The subsequent reversion was a consequence of the determination of that very contingency. Further, even assuming that a separate notice ought to have been issued before the formal reversion, the applicants have not demonstrated what substantive defence they could have raised which would alter the admitted position that they had not completed the requisite four years of service in the feeder cadre and that their consideration for promotion had depended upon the junior-senior clause operating in consequence of Ms. Sudha’s eligibility. Once the basis of that consideration ceased to exist, the applicants could not establish an independent eligibility for the 2022 vacancy year. Accordingly, the plea of violation of natural justice, in the facts

Bangalore

Mikasha Suneja

and circumstances of the present case, does not warrant interference with the impugned order. This ground, therefore, does not advance the case of the applicants. d) In para 5(D), the applicants contend that they were due for promotion as Steno Gr.I from 01.01.2022. According to them, pursuant to the DOPT OM dated 08.05.2017, the crucial date for determining eligibility for promotion was shifted to 1st January and the DPC for promotion was also required to be held on 01.01.2022 in the present case. They further contend that vacancies existed on 01.01.2022 and that the respondents intentionally held the DPC on 01.12.2022 and issued promotion orders from 01.12.2022, thereby causing loss to the applicants in their seniority as well as financial benefits. According to the applicants, they deserved promotion from 01.01.2022. The respondents, on the other hand, contend that the applicants had not rendered the requisite four years of eligibility service but had completed only two/three years of probation. They were considered for promotion only because they were senior to the official at Sl. No.86, Smt. Sudha, who was being considered for promotion as she had rendered four years of regular service as on 01.04.2022. The respondents further contend that the applicants were fully aware that

Bangalore

Mikasha Suneja they had not completed the prescribed four years of regular service as SG-II as on 01.04.2022 for promotion to SG-I cadre for the vacancy year 2022 and that their promotion was originally granted only because their junior, Smt. Sudha, had completed the requisite eligibility service. It was also expressly made clear in the promotion order that their promotion was subject to the outcome of OA No.449/2021 in the case of Smt. Sudha vs. Union of India. We have examined these submissions. The material fact remains that the applicants had not fulfilled the prescribed four-year residency in the feeder cadre for being independently eligible for promotion. This position is not disputed. They had completed either two or three years of service and were brought within the zone of consideration only because Ms. Sudha, their junior, had completed four years of service and was being considered pursuant to the junior-senior clause. Thus, the mere existence of vacancies on 01.01.2022 or the question of the date on which the DPC was held cannot, by itself, confer upon the applicants an independent entitlement to promotion from 01.01.2022 when the applicants did not satisfy the prescribed eligibility condition. Their consideration for the 2022 vacancies was dependent upon the specific operation of the junior-senior clause in the circumstances then prevailing.

Bangalore

Mikasha Suneja

The applicants’ assertion that the respondents intentionally caused them loss in seniority and financial benefits is, therefore, not established by the material on record. The promotion granted on 01.12.2022 was expressly conditional and provisional, and the applicants were aware of the underlying eligibility position. Accordingly, the contentions raised in para 5(D) do not establish any enforceable right to promotion from 01.01.2022 and do not furnish a ground to interfere with the impugned order. e) In para 5(E), the applicants mention that the applicants craves leave to add and supplement more grounds at the time of arguments. No fresh ground has, however, been brought on record in the manner contemplated by the said averment. The applicants have, during arguments, apprehended that recoveries may be made from them and have contended that no such recovery can be made. They have relied upon the decision in Rafiq Masih case and submitted that, since they had actually discharged the higher responsibilities, recoveries cannot be made from them. They have also emphasised that there was no direction in the Tribunal order dated 22.04.2024 in OA No.449/2021 to revert them or to deny protection of the pay received by them while working as SG-I. The question of recovery, however, is distinct from the question

Bangalore

Mikasha Suneja of the applicants’ entitlement to continue in the promotional post and is considered separately below.

12. We are in agreement with the applicants that no recovery can be made from them in respect of the pay and allowances already drawn for the period during which they actually discharged the duties of the higher post. The principle laid down in Rafiq Masih case is applicable to the facts of the present case, particularly when there is no allegation of fraud or misrepresentation on the part of the applicants and they actually discharged the duties of the promotional post.

13. The applicants have further emphasised in the additional rejoinder that, against the High Court order dated 15.02.2024 in one of the WP No.40736/2018, the SLP (Civil) No.7182/2025 filed by the respondents has already been dismissed by the Hon’ble Apex Court by order dated 07.03.2025. However, this aspect also does not advance the applicants’ claim for continuation in the promotional post, since the order of this Tribunal and the order of the Hon’ble High Court relied upon by the applicants do not propound a rule of general applicability governing the facts of the present case. Those decisions were rendered on the facts and circumstances of the respective cases and cannot be applied without examining the material factual distinction in the present case.

Bangalore

Mikasha Suneja

14. In the present case, the relaxation of the eligibility condition available to the applicants while they were promoted in 2022 was consequential upon the fact that their junior, Ms. Sudha, had completed four years of residency and was within the zone of consideration. By virtue of the junior-senior clause, the applicants, although having only two or three years of residency in the feeder cadre, were also considered and provisionally promoted. The promotional order itself expressly stated that the promotion was subject to the outcome of OA No.449/2021 and also contained the further conditions regarding revision.

15. The benefit which brought the applicants within the zone of consideration was, therefore, derivative and contingent. It did not amount to an independent relaxation of the prescribed eligibility condition in favour of the applicants. It was dependent upon the continued existence of the circumstances in which the junior-senior clause operated.

16. Once Ms. Sudha ceased to be within the zone of consideration for the year 2022 as a consequence of the order in her case and was considered for the earlier vacancy year, the applicants could no longer derive the same benefit for the 2022 vacancies. Since they themselves did not satisfy the prescribed four-year residency requirement, their

Bangalore

Mikasha Suneja provisional promotions were consequently liable to be reconsidered in terms of the conditions incorporated in the original promotion order.

17. Accordingly, the respondents were justified in withdrawing the provisional promotions through the impugned order dated 14.10.2024. However, such withdrawal of the provisional promotion cannot be equated with recovery of the emoluments already earned by the applicants while actually discharging duties in the higher post. These are two legally distinct consequences. The former follows from the conditional nature of the promotion and the subsequent change in the basis of eligibility; the latter is governed by the principles relating to recovery of excess payment where the employee has actually performed the duties and there is no fraud or misrepresentation.

18. In service law, an order passed “subject to the outcome of a court case” creates no vested right, no title to the post, and no permanent seniority. It operates under a defeasance clause: if the court order alters the underlying facts/seniority, the provisional promotion automatically becomes subject to review, adjustment, or cancellation, which the respondents have done in the present case.

19. We are, however, conscious that before issuing a formal order of reversion having civil consequences, ordinarily a formal notice may be required. Nevertheless, in the present case, the applicants had been

Bangalore

Mikasha Suneja put on notice ab initio through the very promotion order that their promotion was provisional and subject to the decision in OA No.449/2021 in the case of Ms. Sudha. They were also aware that they had not independently fulfilled the prescribed four-year qualifying service and that their consideration was a consequence of the junior- senior clause.

20. After Ms. Sudha was subsequently considered for the 2018 vacancy and was consequently out of the zone of consideration for the 2022 vacancy year, the applicants no longer satisfied the qualifying service requirement for the latter year. The contingency expressly contemplated in the original promotion order thus materialised.

21. Ordinarily, an opportunity of hearing is required before an order having adverse civil consequences is passed. However, the requirement of procedural fairness cannot be applied mechanically where the employee had already been expressly informed of the precise contingency upon which the provisional benefit was granted, accepted the benefit subject to that contingency, and the subsequent order merely gives effect to the consequence expressly contemplated in the original order.

22. In the facts of the present case, therefore, we do not find that the absence of a separate notice, by itself, vitiates the impugned order.

Bangalore

Mikasha Suneja

In any event, on the substantive issue, the applicants have not established an independent right to the promotional post, since they admittedly did not satisfy the prescribed eligibility condition and their provisional consideration was dependent upon the junior-senior clause.

23. We have gone through both the orders dated 01.12.2022 and 14.10.2024. We find that the original promotion order clearly stipulated the conditional and provisional nature of the promotion, while the subsequent order dated 14.10.2024 recorded the reason for withdrawal of the provisional promotion, namely, implementation of the order dated 22.04.2024 passed in OA No.449/2021. The orders, therefore, disclose the basis on which the respective decisions were taken, and we do not find any such irregularity therein as would warrant interference with the impugned order.

24. However, while reverting the applicants to the lower grade, recovery of any pay or allowances already drawn by them for the period during which they had actually worked in the higher post is not permissible. The applicants discharged the duties of the promotional post without any allegation of fraud or misrepresentation on their part. Therefore, the principle laid down in State of Punjab vs. Rafiq Masih, (2015) 4 SCC 334, applies to protect them against such

Bangalore

Mikasha Suneja recovery.

25. Further, the increments earned by the applicants during the period in which they actually worked in the higher post, having been earned by reason of their actual service in that post and there being no allegation of fraud or misrepresentation, shall also be retained by them as special increments in the feeder grade as special pay.

26. When a promotional order explicitly incorporates a clause stating that the promotion is “provisional” or “subject to the result of pending writ petitions/court orders,” the promotee accepts the position with full knowledge of its conditional nature. If the litigation ultimately goes against them or regularisation is denied, they cannot claim protection under the doctrine of legitimate expectation, continuous officiation, or equity.

27. The present case falls within that principle. The applicants’ promotion was not unconditional; it was expressly made subject to the outcome of OA No.449/2021. Their independent eligibility for promotion for the vacancy year 2022 was admittedly absent, and their consideration resulted from the operation of the junior-senior clause because Ms. Sudha, their junior, was then within the zone of consideration. Once the subsequent judicial determination altered that position, the basis for extending the benefit of the junior-senior clause

Bangalore

Mikasha Suneja to the applicants also ceased to exist.

28. The applicants have, therefore, not been able to establish a vested or independent right to continue in the promotional post or to claim promotion from 01.01.2022. Nor do the decisions relied upon by them establish any general rule which would compel continuation in the promotional post notwithstanding the express conditions attached to their promotion and the subsequent change in the underlying eligibility position.

29. At the same time, the applicants are entitled to protection against recovery of the emoluments already drawn for the period during which they actually discharged the duties of the higher post, and to retain the increments earned during such period in the manner indicated above.

30. Hence, we pass the following orders:-

ORDER

OA is partly allowed. There shall be no recovery from the applicants as they have drawn higher emoluments for actually discharging duties in the higher grade. The applicants will further be eligible for retaining their increments earned in higher grade as special increment in the feeder grade as those are earned legitimately. All pending MA(s), if any pending, shall be treated as disposed

Bangalore

Mikasha Suneja of. No order as to costs.

Sd/-

Sd/- (DR. SANJIV KUMAR) (JUSTICE S. SUJATHA) MEMBER (A)

MEMBER (J)

/ms/

Bangalore

Mikasha Suneja