Vakhtaram S Solanki vs Income Tax Appellate Tribunal on 30 October 2026

ORDER

Per: Hon’ble Shri Sanjiv Kumar, Member (A)

1. The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs: “(A) That the Hon’ble Tribunal be pleased to allow this petition. (B) That the Hon’ble Tribunal further be pleased to hold/declare that the impugned ex-facie, illegal, arbitrary, unjust and unconstitutional action, decision, order No. F/OA/394/2013 dated 9.2.2018 issued by the respondents rejecting the claim of the applicant for financial upgradation during his tenure/service carrier is nullity in the eyes of law. (C) That, the Hon’ble Tribunal further be pleased to quash and set aside the impugned ex-facie, illegal, arbitrary, unjust and unconstitutional action, decision, order No. F/OA/394/2013 dated 9.2.2018 issued by the respondents rejecting the claim of the applicant for financial upgradation during his tenure/service carrier and further be pleased to direct the respondents to give/grant financial upgradation from due date with arrears and 12% interest thereon. (D) Such other and further relief/s as may be deemed just and proper in view of the facts and circumstances of the case may be granted.”

2. The facts, as stated by the applicant, are briefly as follows. 2.1 The applicant worked as a Staff Car Driver in the Income Tax Appellate Tribunal (ITAT). He joined service on 13.01.1982 and retired on superannuation on 31.12.2012. In more than 30 years of service he received neither a regular promotion nor any financial upgradation. P ANUKUMA

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2.2 On 28.08.2012, the applicant made a representation seeking financial upgradation under the Assured Career Progression (ACP) Scheme / Modified Assured Career Progression (MACP) Scheme. As no decision was communicated to him, he filed O.A. No. 394/2013. By order dated 06.03.2017, this Tribunal directed the respondents to consider his claim under the applicable scheme. If he was found eligible, they were to grant the benefit, re-fix his pay and pay the arrears. If not, they were to pass a reasoned and speaking order. 2.3 In compliance, the respondents passed the impugned order dated 09.02.2018 (Annexure A/1) rejecting the claim. The order relies on the proceedings of the Departmental Promotion Committees (DPCs) held in 2002, 2004, 2005, 2006, 2007, 2008, 2009–2010 and 2012, and on the Office Memorandum of the Department of Personnel and Training (DoPT) dated 19.05.2009. The applicant’s grievance is that the adverse reports and the doubts about his integrity relied upon in that order, were never communicated to him. Hence, this OA.

3. Learned counsel for the applicant submitted that the ACP and MACP Schemes were introduced to give relief to employees who remain stuck in one grade for want of promotion. The applicant served for over three decades without any promotion and was entitled to a fair consideration of his claim. The impugned order merely refers to old DPC proceedings. The applicant was never told of any adverse assessment. Had he been told, he could have P ANUKUMA

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represented against it or improved his performance. Counsel disputed that the applicant was found unfit in all the DPCs cited. He also pointed out that the earlier OA was decided in the applicant’s favour precisely because the respondents had not given specific and satisfactory reasons.

4. The respondents have filed a reply opposing the OA. Learned counsel for the respondents first raised three preliminary objections. First, the applicant retired from the Guwahati Bench of the ITAT and, as per the revised Pension Payment Order dated 05.01.2018, he resides at Bishangarh, District Jalore, Rajasthan. The OA, therefore, lies before the Jodhpur Bench and not before this Bench. Second, the applicant has not impleaded his last office, and the OA is bad for non-joinder of a necessary party. Third, the applicant retired on 31.12.2012 but approached this Tribunal with the present OA only on 27.02.2018, and the claim is barred by limitation. 4.1 On merits, learned counsel submitted that financial upgradation under the ACP/MACP Scheme does not follow automatically on completing a length of service. The employee must meet the conditions of the scheme, including the benchmark prescribed in the DoPT OM dated 19.05.2009. The order of 06.03.2017 (Annexure A/2) directed consideration of the claim, not grant of the benefit. In compliance, the President, ITAT examined the representation and the service record and passed a reasoned order. P ANUKUMA

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4.2 The DPCs considered the applicant on several occasions and found him unfit for confirmation, promotion or financial upgradation. The reasons recorded are:

(i) Not recommended for confirmation on account of adverse reports from concerned bench [DPC-2002]

(ii) Not recommended for promotion in the Staff Car Driver Grade on account of adverse reports on record [DPC-2004]

(iii) Not recommended as he is found unfit for promotion [DPC-

(iv) Not confirmed due to average confidential reports [DPC-

(v) The integrity is in doubt. Hence, not recommended [DPC-

(vi) The integrity is in doubt, his case considered and not confirmed [DPC-2008]

(vii) Found unfit for confirmation as he is educationally not qualified, integrity clearance not being received and also being not qualified as per the relevant Recruitment Rules [DPC 2009-

4.3 Counsel added that the applicant’s Annual Confidential Report (ACR) gradings were consistently below the benchmark. As he was repeatedly found unfit, he cannot claim financial upgradation on length of service alone, and the OA deserves dismissal. P ANUKUMA

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5. In the rejoinder, the applicant has specifically stated that the adverse entries and remarks relied upon by the respondents were never communicated to him, and has put the respondents to strict proof of their communication. Otherwise, he has reiterated the averments made in the OA.

6. We have heard learned counsel for the parties and perused the record.

7. The following points arise for determination:

(i) Whether this Bench has territorial jurisdiction to decide the OA, and whether the OA fails for non-joinder of a necessary party?

(ii) Whether the OA is barred by limitation?

(iii) Whether the impugned order rejecting the claim for ACP/MACP is sustainable when the adverse entries relied upon were not communicated to the applicant?

(iv) To what relief, if any, is the applicant entitled?

8. We first take up the objection to territorial jurisdiction. Such an objection goes to the root of the matter and has to be decided before the merits. Rule 6(1) of the Central Administrative Tribunal (Procedure) Rules, 1987 permits an application to be filed before the Bench within whose jurisdiction the applicant is posted or the cause of action, wholly or in part, has arisen. Rule 6(2) gives a person who has ceased to be in service by reason of retirement, dismissal or termination the option to file before the Bench within whose jurisdiction he is ordinarily residing at the P ANUKUMA

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time of filing the application. It is true that the applicant retired from the Guwahati Bench of the ITAT and that his revised Pension Payment Order dated 05.01.2018 shows an address in District Jalore, Rajasthan. But the applicant stays at Ahmedabad, and in the OA he has given his present address at Ahmedabad, which lies within the jurisdiction of this Bench. A Pension Payment Order records the address furnished for pension purposes; it does not by itself show where the pensioner ordinarily resides when he files the OA. The respondents have placed no other material to show that the applicant was not residing at Ahmedabad on that date. The applicant has exercised the option available to him under Rule 6(2), and this Bench has territorial jurisdiction. 8.1 As to non-joinder, the impugned order was passed by the President, ITAT, and the ITAT is arrayed as a respondent. The relief sought is the setting aside of that order and the grant of financial upgradation. Both can be carried out by the respondents already before us. The respondents have not shown what order only the applicant’s last office could carry out. 8.2 As regards limitation, the applicant made his representation on 28.08.2012, while still in service. When it was not decided, he filed O.A. No. 394/2013, decided on 06.03.2017 with a direction to the respondents to pass a reasoned order. The respondents passed the impugned order on 09.02.2018 in compliance with that direction. The present OA challenges that order. The Supreme P ANUKUMA

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Court in Union of India v. M.K. Sarkar, (2010) 2 SCC 59, has held that where a court directs consideration of a representation on a stale or dead claim, the decision taken in compliance does not furnish a fresh cause of action, and does not extend limitation or erase the delay and laches; the original cause of action governs. That is not the case here. The applicant’s claim was not stale when this Tribunal directed its consideration. It was raised while he was in service, brought before this Tribunal in O.A. No. 394/2013 when it was not decided, and directed to be considered on merits. The applicant has pursued his claim without a break from 2012 onwards. The respondents themselves decided the claim on merits under the Tribunal’s direction. The present OA, filed on 27.02.2018 against that decision, is within the period of one year allowed by Section 21 of the Administrative Tribunals Act, 1985. The objection of limitation is, therefore, rejected. The period for which arrears may be paid is a separate matter, dealt with in para 8.10. 8.3 Under the ACP Scheme and under the MACP Scheme notified by the DoPT OM dated 19.05.2009, financial upgradation is not automatic on completing a length of service. It is subject to fitness and to the benchmark prescribed by the scheme. The applicant cannot, therefore, claim the benefit on long service alone. 8.4 The question, then, is whether the material on which the applicant was found unfit could be used against him. The reasons relied upon by the respondents are mainly adverse or average ACRs P ANUKUMA

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(DPCs of 2002, 2004 and 2006) and remarks that his integrity was in doubt (DPCs of 2007 and 2008). The DPC of 2005 records only that he was found unfit, without a reason. The DPC of 2009- 2010 found him unfit for confirmation for want of the educational qualification under the Recruitment Rules and for want of integrity clearance. The impugned order also refers to a DPC of 2012, but records neither its finding nor any reason. Most of these DPCs were held for confirmation or regular promotion, and not for screening under the ACP/MACP Scheme. Nothing on record shows that any of them was a Screening Committee constituted under either scheme to consider the applicant for financial upgradation. The applicant’s claim has, thus, never been examined by the Screening Committee, and against the norms, prescribed by the schemes. 8.5 The Supreme Court in Dev Dutt v. Union of India, (2008) 8 SCC 725, has held that every entry in the ACR of a public servant must be communicated to him within a reasonable time, so that he may represent against it; an entry not so communicated cannot be used against him in matters of promotion. This view was affirmed by a three-Judge Bench in Sukhdev Singh v. Union of India, (2013) 9 SCC 566. In line with this, the DoPT, by OM No. 21011/1/2010- Estt(A) dated 13.04.2010, directed that where ACRs of a period before 2008-09 are below the benchmark, a copy shall be given to the employee for representation before they are placed before a DPC. P ANUKUMA

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8.6 The applicant has stated in the OA and again in the rejoinder that the adverse entries and the remarks about his integrity were never communicated to him. He has put the respondents to strict proof. The respondents hold the service record. Yet they have not placed on record any document showing that these entries were communicated to him, such as a letter of communication, an endorsement or an acknowledgement. In these circumstances, we hold that the adverse entries were not communicated to the applicant. In view of the law noted in para 8.5, they could not be used to deny him financial upgradation. The impugned order rests substantially on such entries and therefore cannot be sustained. 8.7 The DPC of 2009-2010 also recorded that the applicant was not educationally qualified as per the relevant Recruitment Rules. That remark was made while considering his confirmation. The impugned order does not examine whether the educational qualification prescribed in the Recruitment Rules is a condition for financial upgradation under the ACP Scheme or the MACP Scheme. Nor can it be said that the respondents would have rejected the claim on this ground alone, since the impugned order rests on the remarks of all the DPCs taken together, most of which could not be used against the applicant. This ground, therefore, does not save the impugned order. Whether the applicant fulfils the conditions of the schemes, including any qualification they require, is for the review DPC to examine. P ANUKUMA

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8.8 At the same time, it is not for this Tribunal, but the competent authority to assess the applicant’s fitness. The proper procedure is to have the adverse entries communicated to the applicant now, give him a chance to represent against them, decide his representation, and then have his case placed before a review DPC for fresh consideration under the ACP/MACP Scheme. 8.9 The applicant has claimed interest at 12%. As his entitlement is yet to be decided by the review DPC and the competent authority, interest is not granted at this stage. 8.10 The claim relates to the fixation of pay, which is a recurring wrong. The Supreme Court in Union of India v. Tarsem Singh, (2008) 8 SCC 648, has held that in such cases the consequential relief of arrears is normally to be restricted to a period of three years before the date of filing of the proceedings. The applicant first approached this Tribunal in O.A. No. 394/2013. If he is found fit, his pay shall, therefore, be fixed notionally from the due date(s), and the actual arrears of pay and pension shall be confined to the period commencing three years before the filing of O.A. No. 394/2013.

9. In the light of facts and circumstances mentioned above:

(i) The impugned order dated 09.02.2018 (Annexure A/1) is set aside.

(ii) The respondents shall communicate to the applicant copies of all adverse and below-benchmark entries, including the remarks on P ANUKUMA

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integrity, relied upon in the impugned order, within four weeks from the date of receipt of a copy of this order.

(iii) The applicant may submit a representation against those entries within four weeks of receiving them. The competent authority shall decide it by a reasoned and speaking order within four weeks thereafter.

(iv) The respondents shall then convene a review DPC to consider the case of the applicant for financial upgradation under the ACP Scheme and the MACP Scheme, as on each due date, in accordance with the conditions of those schemes and in the light of the decision on his representation. This shall be done within six weeks of the decision under (iii).

(v) If the applicant is found fit, his pay shall be fixed notionally from the due date(s), his pension and retiral dues shall be revised, and the arrears, confined as stated in para 8.10, shall be paid within two months of the review DPC’s decision.

10. OA is partly allowed.

11. There shall be no order as to costs.

12. Pending MA(s), if any, also stand disposed of.

(Sanjiv Kumar)

(Jayesh V Bhairavia)

Member (A)

Member (J)

//Anu// P ANUKUMA