Sureshchand Meena vs D/o Income Tax on 23 October 2026

1. Sureshchand Meena

S/o Loharchya Ram Meena

Aged 50 years (DOB being 01.07.1970)

Presently serving as Income Tax Officer, O/o Jt. Commissioner Of Income Tax 4(2), Ward-4(2)(5) Ahmedabad having address At Pratyaksh Kar Bhawan, Opp- Govt Polytechnic, Ambawadi, Ahmedabad – 380015.

…Applicants (By Advocate: Mr. Hardik V Vora)

V/s.

1. Union of India through

The Secretary, Ministry of Finance,

Government of India, Department of Revenue, Room No. 46, North Block, New Delhi – 110001

2. Jt. Commissioner of Income Tax 4(2), Ward-4(2)(5) Ahmedabad Pratyaksh Kar Bhawan, Opp- Govt Polytechnic, Ambawadi, Ahmedabad - 380015

3. Pr. Chief Commissioner of Income Tax, Gujarat Room No. 206, Second Floor, Aaykar Bhavan, Ashram Road, Ahmedabad – 380009.

… Respondents

(By Advocate: Mr. Chirayu Mehta)

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ORDER(ORAL) Per: Hon’ble Shri Jayesh V Bhairavia, Member (Judicial) In the instant OA, the applicant being aggrieved by the decision of the respondents in reckoning his seniority in the Gujarat Charge from the date of his joining the Gujarat Charge, i.e. 03.08.1998, instead of his initial appointment in the Mumbai Charge on 06.11.1994 and for issuance of direction upon the respondents to reallocate seniority for promotion after the DPC made on the basis of 2003 exams as against the current seniority after considering all the DPCs up to 18th March 2007 as last examination conducted was in 2003 and no departmental examination was conducted after 2003 and ad-hoc promotions were made through the period up to declaration of result for 2006 exams has filed the present OA under Section 19 of the Administrative Tribunals Act 1985 seeking following reliefs:- “8. RELIEF SOUGHT: In view of the facts and ground mentioned in Para 4 and 5 above applicant respectfully pray:

a) For setting aside impugned Order dated 20.03.2020;

b) To direct the respondents to assign the seniority as Inspector of Income tax from the date of appointment as Inspector of Income Tax (DR) and joined at Mumbai on 06.11.1994 as against the current seniority reckoned from the date of joining office of The Chief Commissioner of Income-Tax, Gujarat i.e. 03.08.1998;

c) To direct the respondents, to reallocate seniority for promotion after the DPC made on the basis of 2003 exams as against the current seniority after considering all the DPCs upto 18th March 2007 as last examination conducted was in 2003 and no departmental examination was conducted after 2003 and adhoc promotions were made

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through the period up to declaration of result for 2006 exams;

d) To direct the Pr. Chief Commissioner of Income Tax, Gujarat, to grant all the consequential / notional benefits;

e) Any other order or direction as this Hon’ble Court may deem fit and proper keeping in view the facts and circumstances of the present case and in the interest of justice, equity and good conscience may kindly be issued.”

2. Brief facts of the case are as under:- 2.1 That the applicant was initially appointed as Inspector of Income Tax (Direct Recruit) and joined the Mumbai Charge on 06.11.1994. Subsequently, pursuant to an Inter-Charge Transfer from the office of the Chief Commissioner of Income Tax, Mumbai to the Gujarat Charge, he joined the office of the Chief Commissioner of Income Tax, Gujarat, at Vadodara on 03.08.1998. 2.2 The applicant submits that, pursuant to the transfer order dated 13.07.1998, his seniority in the Gujarat Charge was fixed at the bottom of the seniority list of Inspectors of Income Tax, whether permanent or temporary, in the Gujarat Charge, with effect from the date of his joining the said Charge, i.e. 03.08.1998. According to him, such fixation of seniority has resulted in prejudice to his service career, as his previous service rendered in the Mumbai Charge from 06.11.1994 onwards has not been taken into consideration. 2.3 Further, he contends that the Hon'ble Supreme Court in Pratibha Rani & Others v. Union of India & Others, Civil Appeal No. 3792 of 2019, decided on 10.04.2019, has laid down principles concerning the counting of service rendered in the previous Charge. Placing reliance upon the said judgment, he submitted a representation dated 21.10.2019 seeking restoration

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of his seniority by taking into consideration his initial appointment in the Mumbai Charge. 2.4 It is stated that he appeared in the departmental examination for promotion to the post of Income Tax Officer in July 2003 but could not qualify the same. Thereafter, the Department issued the Income Tax Officer, Group 'B' Posts, Recruitment Rules, 2004, notified on 21.12.2004, wherein the requirement of passing the departmental examination was deleted. Consequently, no departmental examination was conducted during the years 2004 and 2005. 2.5 Further, it is stated that during the aforesaid period, several DPCs were convened and ad hoc promotions to the post of Income Tax Officer were granted on various dates, namely January 2004, 02.03.2005, 07.04.2005, 12.12.2005, 04.01.2006, 03.02.2006, 01.03.2006, 06.09.2006 and 04.10.2006. 2.6 Subsequently, vide Notification dated 24.03.2005, the said Recruitment Rules were amended with retrospective effect from 21.12.2004 and the requirement of passing the departmental examination for promotion to the post of Income Tax Officer was reintroduced. 2.7 Thereafter, the applicant appeared in the departmental examination conducted in October 2006 and qualified the same on 17.04.2007. Thereafter, he was promoted to the post of Income Tax Officer vide Order No. 05 of 2007-08 and was posted to the office of the Chief Commissioner of Income Tax, Gujarat, vide Order No. 06 of 2007-08 dated 09.05.2007. His seniority in the cadre of Income Tax Officer was consequently fixed after considering the DPCs conducted prior to his qualifying the departmental examination. 2.8 Further, he submits that the last departmental examination conducted before the examination of October 2006 was in the year 2003. Since no examinations were conducted during 2004 and 2005, he was deprived of an

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opportunity to qualify for promotion during the intervening period. He further contends that the respondents could not have convened DPCs and granted ad hoc promotions without declaring the result of the departmental examination conducted in October 2006. 2.9 Thereafter, the applicant vide representation no. 2 dated 05.03.2020, requested to reallocate his seniority for promotion after the DPC made on the basis of 2003 exams, however, vide letter dated 20.03.2020, respondent no. 3 has ordered respondent no. 2 to keep the representation no.1 of Applicant in abeyance for the reason that in light of Hon’ble Supreme Court's decision- SLP (C) 31728/2018 in the case of Pratibha Rani & Ors, the CBDT(HRD) has constituted a committee vide OM No. HRD/CM/104/07/2013-14 (Pt. File-Il) 7764 dated 14.02.2020 to analyze various judgements with respect to ICT policy in the department. 2.10 However, the grievance of the applicant was not decided, hence the applicant had approached this Tribunal by way of filing O.A. No. 199/2020 and this Tribunal vide order dated 24.07.2020 directed the respondents to consider and decide the pending representation of the applicant within stipulated time limit. Thereafter, the applicant has again submitted representation dated 31.07.2020 and 12.10.2020 seeking reallocation of his seniority in the Income Tax Officer cadre after the DPC conducted on the basis of the 2003 examination, however, the same remained un-answered, hence this OA.

3. In support of the prayer sought in this OA, learned counsel for the applicant mainly argued as under:- 3.1 That the Departmental examination was to be held in September 2006, which is scheduled to be held from 11 to 25 September, 2006 and the eligibility criteria is prescribed in terms of existing Examination Rules, 1998. It is an admitted fact that no examination had been held in the financial years 2004-05 and 2005-06. Accordingly, DPC could not be held in November

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2005 for considering officials for promotion to the post of ITO when no examination had been held. Further, he relied on the Rule 1 of the Rules for Departmental Examination for Income Tax Officers, 2004, which provides for holding the examination every year in the first quarter of the financial year. According to him, the failure of the respondents to conduct examinations during 2004-05 and 2005-06 cannot be used to deny him his rightful consideration for promotion. 3.2 Further, it is argued that the Applicant was always willing to qualify the promotional exam for V.Y. 2004-05 or 2005-06. However, due to amendment in Recruitment Rule, 2004, departmental examination was not conducted during the year 2004 and 2005. Accordingly, when exams were not conducted due to amendment in Recruitment Rules, 2004 which were effective for only 2 years, the petitioner has been deprived of an opportunity to appear in the examination and resultantly lost his right of consideration for promotion to the post of ITO. If examination was conducted, applicant could get promotion on the basis of the said examination. The respondents thereafter conducted the departmental examination in the year 2006. However, without waiting for the result of 2006 examination have conducted DPC on 01.11.2006, 05.12.2006, 03.01.2007 and 01.03.2007. All DPCs after DPC held on the basis of 2003 exams till April 2007 DPC are unjustified as they are affected without conducting examination. In support of the aforesaid contention, the applicant relied on the order passed by the Allahabad Bench of this Tribunal in O.A. No. 936/2005 wherein in para 8 it was held that “…Respondents are restrained from holding any DPC for the post of Income Tax Officers without conducting necessary departmental examination for promotion to the post of I.T.O. The DPC can be held only after the results of such exams are pronounced and all those who qualify in the exam are also considered for promotion. No cost.”

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Further, the applicant also relied on the order passed by the Principal Bench of this Tribunal in case of Sanjeev Kumar Meena & Others v. Ministry of Finance & Others, O.A. No. 3434/2016 wherein it was held that “16. There is absolutely no justification in the action of the respondents in conducting the regular DPC and promoting the private respondents on regular basis, in utter disregard of the orders of this Tribunal, i.e., without conducting and declaring the results of 2006 Exam and without considering the cases of the applicants along with the private respondents and others who passed the Exam of 2003, as per the directions of this Tribunal. Though the conducting of regular DPC and promoting the private respondents as ITOs, on regular basis itself, is prima facie, contumacious, being violative of the orders of this Tribunal, as the applicants have not challenged the promotion orders of the private respondents and only sought for fixation of their seniority as ITOs, vis-a-vis the private respondents, basing on their inter-se seniority in the feeder category, we resist from considering the said aspect.” 3.3 Further, it is stated that the respondents action of not holding departmental examination to the grade of ITO in the years 2004 and 2005 is clearly violative of the stipulation of examination rules, which envisage holding of the examination every year in the first quarter of financial year. Accordingly departmental examination is a precondition for promotion to the cadre of ITO. The examinations were required to be conducted every year and the officials were to pass the same within the stipulated period. Those who could not pass within the time frame were to be promoted as and when they qualify themselves. Therefore when the examination is not held as per the mandate of rules, the applicant cannot be penalized for the default of the respondent in not conducting the examination every year. For this proposition, the applicant relied on the decision of Honourable Apex Court in the case of State Of Maharashtra Vs. Jagannath Achyut Karandikar reported vide 1989 supp (1) SCC 393 and submits that it is highly arbitrary and unfair to penalize employees by stripping them of their seniority when the delay in passing the

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examination is a direct result of the government's failure to host the exams annually. 3.4 Learned counsel for the applicant submits that the Hon'ble Supreme Court in Pratibha Rani & Others v. Union of India & Others, Civil Appeal No. 3792 of 2019, decided on 10.04.2019, has laid down principles concerning the counting of service rendered in the previous Charge and based on it, the claim of the applicant seeking restoration of his seniority by taking into consideration his initial appointment in the Mumbai Charge is required to be allowed by the respondents. Further, he submits that the decision of the Hon'ble Supreme Court in Pratibha Rani (supra) supports the applicant's claim for counting the service rendered in the previous Charge and the respondents have failed to properly apply the principles laid down therein. Hence, the OA be allowed.

4. Per contra, on receipt of the notice issued by this Tribunal, the respondents have filed the reply and denied the claim of the applicant. Mr. Chirayu Mehta learned counsel for the respondents by referring the reply mainly submitted as under. 4.1 That the applicant's seniority was correctly fixed in accordance with the applicable instructions governing Inter-Charge Transfer and the Recruitment Rules governing promotion to the post of Income Tax Officer. 4.2 It is stated that the applicant was transferred from the Mumbai Charge to the Gujarat Charge vide order dated 13.07.1998. The terms of the transfer specifically stipulated that his seniority in the Gujarat Charge would be reckoned from the date of his joining duty in that Charge and that his name would be placed below all Inspectors of Income Tax, whether permanent or temporary, already borne on the cadre of Gujarat Charge on the date of his joining. 4.3 The respondents further rely upon CBDT Circular F.No. 22020/76/89- Ad.VII dated 14.05.1990 and submitted that paragraph (f) of the said circular

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specifically provides that service rendered in the old Charge would not be counted for the purpose of seniority in the new Charge and that the transferred employee would be placed at the bottom of the seniority list of the concerned cadre in the new Charge from the date of joining. 4.4 It is stated that the applicant was transferred under the applicable ICT policy and was required to accept the consequential loss of seniority in the new Charge. The applicant had accepted the terms of transfer and had not challenged either the transfer conditions or the governing instructions. Therefore, he cannot now seek retrospective seniority in the Gujarat Charge from the date of his initial appointment in Mumbai. 4.5 It is contended that the judgment of the Hon'ble Supreme Court in Pratibha Rani (supra) has been wrongly interpreted by the applicant. According to them, the issue considered in that case concerned counting of service rendered in the previous Charge for the purpose of determining the requisite experience or eligibility for promotion and “not restoration of seniority in the new Charge.” Therefore, the said judgment is not applicable in the facts and circumstances of the present case. 4.6 In this regard, learned counse also rely upon the principles laid down in Union of India & Others v. C.N. Ponnappan, (1996) 1 SCC 524, and M.M. Thomas & Others v. Union of India & Others, (2017) 13 SCC 722, and submit that the benefit of previous service for determining eligibility or experience cannot be equated with a right to carry forward seniority from one Charge to another. 4.7 Learned counsel further submits that the representation dated 21.10.2019 was kept in abeyance because CBDT (HRD) had constituted a committee vide O.M. dated 14.02.2020 to examine various judicial pronouncements concerning the ICT policy of the Department. The matter was also referred to the higher authorities, including the Pr. DGIT (HRD), New Delhi, and the concerned authority in the Ministry of Finance, through communications dated 20.08.2020 and 22.09.2020.

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4.8 With regard to the applicant's claim for reallocation of seniority in the Income Tax Officer cadre, the respondents submit that the applicant appeared in the departmental examination in 2003 but failed to qualify. He subsequently appeared in the examination conducted in October 2006 and qualified only on 17.04.2007. Consequently, he was promoted to the post of Income Tax Officer in May 2007 and was assigned seniority in that cadre accordingly. 4.9 Learned counsel placed reliance upon Rule 14 of the Rules for Departmental Examination for Income Tax Officers, 2004, which expressly provides that delay in conducting the examination or declaring its result does not give rise to any rightful claim for consideration for promotion by deeming an employee eligible as on 1st January of the relevant vacancy year. The provision also makes it clear that no relaxation is permissible on account of delay in conducting the examination or declaration of results. 4.10 Further, it is stated that the Recruitment Rules dated 21.12.2004 initially prescribed three years' regular service in the grade of Inspector of Income Tax for promotion to the post of Income Tax Officer. However, the amendment dated 24.03.2005, made effective retrospectively from 21.12.2004, reintroduced the requirement of passing the departmental examination as a condition precedent for promotion. 4.11 It is stated that the DPC for the vacancy year 2003-04 was convened on 02.03.2005. In terms of the applicable DoPT instructions, eligibility was required to be determined with reference to the crucial date of 01.01.2003. On that date, the applicant had admittedly not qualified the departmental examination for promotion to the post of Income Tax Officer. Therefore, he was not eligible for consideration against the vacancies pertaining to the said vacancy year. 4.12 Learned counsel also pointed out that the applicant is seeking to challenge the All India inter-se seniority list of Income Tax Officers circulated in 2015 and the subsequent seniority list circulated on 05.02.2018,

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wherein his name was placed at different serial numbers. The present Original Application having been filed in 2021, the respondents contend that the challenge is barred by delay and laches and that reopening settled seniority positions would adversely affect other officers. 4.13 On the above grounds, learned counsel submits that the applicant has no enforceable right to claim seniority from 06.11.1994 in the Gujarat Charge or retrospective promotion/seniority in the Income Tax Officer cadre. Therefore, the OA be dismissed.

5. In rejoinder, learned counsel for the applicant by relying on the judgment passed by the Hon’ble Supreme Court in case of M.M. Thomas & Ors v. Union of India (2017) 13 SCC 722 submits that in an All-India Service, components of multi-regional services must be clubbed together to determine total regular experience so that officials are not deprived of their hard-earned feeder cadre experience.

6. Heard learned counsel for the parties and perused the material available on record.

7. Considering the aforementioned submissions, we are of the opinion that following issues requires adjudication by this Tribunal:-

(i) . Whether the applicant is entitled to restoration of his seniority in the cadre of Inspector of Income Tax in Gujarat Charge from the date of his initial appointment in Mumbai Charge, i.e. 06.11.1994, instead of 03.08.1998?

(ii) . Whether the judgment of the Hon'ble Supreme Court in Pratibha Rani & Others v. Union of India & Others is applicable to the applicant's claim for restoration of seniority in the new Charge?

(iii) . Whether the applicant is entitled to reallocation of his seniority in the cadre of Income Tax Officer by placing him immediately after the DPC conducted on the basis of the departmental examination of 2003?

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(iv) . Whether the respondents were justified in not considering the applicant for promotion against the relevant vacancies when he had not qualified the departmental examination as on the prescribed crucial date?

8. With regard to issue no. (i), it is apt to mention that the applicant was initially appointed as Inspector of Income Tax in the Mumbai Charge on 06.11.1994 and was subsequently transferred to the Gujarat Charge vide transfer order dated 13.07.1998. He joined the Gujarat Charge on 03.08.1998. 8.1 The controversy revolves around the terms and conditions governing such Inter-Charge Transfer. The respondents have specifically relied upon CBDT Circular F.No. 22020/76/89-Ad.VII dated 14.05.1990, more particularly paragraph (f) which provides that the service rendered in the old Charge shall not be counted for the purpose of seniority in the new Charge and that the transferred employee shall be placed at the bottom of the seniority list of the concerned cadre in the new Charge from the date of joining. 8.2 We have also perused the transfer order/communication dated 13.07.1998 issued in the applicant's case. The said communication specifically stipulated that his seniority in Gujarat Charge would be reckoned from the date of his joining duty in that Charge and that he would be placed below all Inspectors of Income Tax, whether permanent or temporary, already borne on the cadre of Gujarat Charge on the date of his joining. 8.3 Thus, the applicant by accepting the said Transfer Order and being aware of the consequences of his transfer and the manner in which his seniority was to be regulated in the new Charge has joined the Gujarat Charge, therefore, now he cannot seek to claim seniority in the new Charge from the date of his initial appointment in the previous Charge, contrary to the express terms governing such transfer. 8.4 It is settled that seniority in a particular cadre is governed by the applicable statutory rules and administrative instructions, and an employee

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cannot claim seniority in a new cadre or Charge merely on the basis of the length of service rendered in the previous Charge when the governing transfer policy specifically provides otherwise. 8.5 In these circumstances, we find no infirmity in the action of the respondents in reckoning the applicant's seniority in Gujarat Charge from 03.08.1998, i.e. the date on which he joined the said Charge.

9. So far issue no. (ii) is concerned it is apt to mention that the applicant has placed considerable reliance upon the judgment of the Hon'ble Supreme Court in Pratibha Rani & Others v. Union of India & Others, Civil Appeal No. 3792 of 2019, decided on 10.04.2019 (supra), to contend that the service rendered in the previous Charge should also be counted for determining his seniority in the new Charge. 9.1 On the other hand, the respondents have contended that the applicant has misunderstood the scope and applicability of the aforesaid judgment. According to them, the issue considered therein related to counting the service rendered in the previous Charge for determining the requisite experience and eligibility for promotion and not for the purpose of restoration of seniority in the new Charge. 9.2 It is necessary to distinguish between the benefit of counting previous service for the purpose of determining eligibility for promotion and the right to claim seniority in the new Charge. These are two distinct concepts. The fact that an employee may be entitled to have his previous regular service counted for determining the requisite experience or eligibility for promotion does not automatically confer upon him a right to carry forward his seniority from the previous Charge to the new Charge, particularly when the applicable transfer policy specifically provides for placement at the bottom of the seniority list in the new Charge. 9.3 In this regard, it is apt to mention the judgment passed by the Hon'ble Supreme Court in Union of India & Others v. C.N. Ponnappan, (1996) 1

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SCC 524 wherein it was held that seniority and eligibility for promotion are distinct legal concepts; an employee transferred on compassionate grounds forfeits their seniority but retains their past regular service as qualifying experience for promotion eligibility. 9.4 We are, therefore, unable to accept the applicant's contention that the judgment in Pratibha Rani (supra) automatically entitles him to restoration of his seniority in Gujarat Charge from 06.11.1994. In our considered view, the said judgment cannot be construed as conferring an unrestricted right upon an employee transferred from one Charge to another to claim seniority in the new Charge contrary to the applicable transfer policy and the conditions of transfer.

10. So far issue no. (iii) is concerned that Whether the applicant is entitled to reallocation of seniority in the Income Tax Officer cadre after the DPC conducted on the basis of the 2003 examination, it is apt to mention that the applicant appeared in the departmental examination conducted in 2003 but could not qualify. Thereafter, no departmental examination was conducted during 2004 and 2005, and the Department granted several ad hoc promotions during the said period. 10.1 It is further submitted that the applicant appeared in the examination conducted in October 2006 and qualified the same on 17.04.2007. However, even before declaration of the result of the said examination, the respondents had convened DPCs and granted ad hoc promotions on 01.11.2006, 05.12.2006, 03.01.2007 and 01.03.2007. The applicant contends that such DPCs have adversely affected his seniority and that he ought to have been placed immediately after the DPC conducted on the basis of the 2003 examination. 10.2 We have considered the above submissions in the light of the Recruitment Rules applicable to the post of Income Tax Officer and the

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Rules for Departmental Examination for Income Tax Officers, 2004. The Recruitment Rules notified on 21.12.2004 initially provided for promotion to the post of Income Tax Officer on the basis of three years' regular service in the grade of Inspector of Income Tax. However, by subsequent Notification dated 24.03.2005, the Recruitment Rules were amended retrospectively with effect from 21.12.2004 and the requirement of qualifying the departmental examination was reintroduced as a condition precedent for promotion. Consequently, passing the departmental examination became an essential eligibility condition for promotion in accordance with the amended Recruitment Rules. 10.3 In the present case, the applicant admittedly appeared in the departmental examination in 2003 but failed to qualify. He subsequently appeared in the examination conducted in October 2006 and qualified the same only on 17.04.2007. 10.4 The respondents have specifically explained that the DPC for the vacancy year 2003-04 was convened on 02.03.2005 and that, in accordance with the applicable DoPT instructions, the eligibility of the candidates was required to be determined with reference to the crucial date of 01.01.2003. 10.5 Admittedly, as on 01.01.2003, the applicant had not qualified the departmental examination prescribed for promotion to the post of Income Tax Officer. Therefore, he did not fulfil the requisite eligibility condition for consideration against the vacancies pertaining to the said vacancy year. 10.6 It is important to mention that eligibility for promotion is required to be determined in accordance with the Recruitment Rules applicable to the relevant vacancy year and the prescribed crucial date. The mere fact that an employee subsequently qualifies the departmental examination cannot retrospectively make him eligible for promotion against an earlier vacancy for which he did not satisfy the prescribed conditions.

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10.7 The applicant has sought to contend that, since no departmental examinations were conducted during 2004 and 2005, he should not be made to suffer on account of the administrative lapse of the respondents. However, such a contention, by itself, cannot create a right to retrospective promotion or seniority in the absence of fulfilment of the prescribed eligibility conditions. 10.8 Therefore, the applicant's claim that he should be placed immediately after the DPC conducted on the basis of the 2003 examination is not supported by the applicable Recruitment Rules. The fact that he subsequently qualified the examination on 17.04.2007 and was promoted in May 2007 is a material circumstance which cannot be ignored while examining his claim.

11. So for Issue No. (iv) is concerned that Whether the respondents were justified in not considering the applicant for promotion against the relevant vacancies, in this regard, the applicant has contended that the respondents could not have conducted DPCs and granted ad hoc promotions during the period when no departmental examination was held or before the declaration of the result of the October 2006 examination. In support of this contention, the applicant has relied upon Rule 1 of the Rules for Departmental Examination for Income Tax Officers, 2004, which provides that the examination shall be held every year in the first quarter of the financial year. 11.1 We have also considered Rule 14 of the aforesaid Rules, which has been specifically relied upon by the respondents. The said Rule provides that delay in conducting the examination or declaration of its result, for whatever valid reasons, does not give rise to any rightful claim for consideration for promotion by deeming the employee eligible as on 1st January of the relevant vacancy year, irrespective of the actual date of holding the examination or declaration of its result. It further provides that no relaxation shall be granted on account of such delay. 11.2 The aforesaid provision is material to the controversy involved in the present case. The applicant cannot claim deemed eligibility merely on the

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ground that the Department did not conduct the departmental examination during 2004 and 2005 or that the result of the examination conducted in October 2006 was declared on 17.04.2007. The requirement of passing the departmental examination was an essential condition under the applicable Recruitment Rules and the applicant admittedly failed to qualify the examination conducted in 2003 and acquired the requisite qualification only on 17.04.2007. 11.3 We are also conscious of the applicant's reliance upon the decision in Ashwani Kumar Singh (O.A. No. 936/2005) and Sanjeev Kumar Meena & Others (O.A. No. 3434/2016). However, the decisions relied upon by the applicant cannot be read as creating an automatic entitlement to retrospective promotion or seniority in favour of every employee who could not qualify the prescribed departmental examination by the relevant date. Therefore, the applicant cannot claim the benefit of a promotional vacancy merely because other employees were granted ad hoc promotions before declaration of the result of the examination in which he had appeared. In the present case, the applicant has failed to establish such eligibility as on the relevant crucial date. Consequently, the respondents cannot be directed to grant him retrospective seniority or promotion by treating him as having qualified the examination before the actual declaration of the result.

12. In view of the foregoing discussion and findings on the issues framed above, we find that the applicant has failed to establish any enforceable right to claim restoration of his seniority in the Gujarat Charge from the date of his initial appointment in the Mumbai Charge. He has also failed to establish any entitlement to retrospective promotion or reallocation of his seniority in the cadre of Income Tax Officer by disregarding the prescribed eligibility conditions under the applicable Recruitment Rules, therefore, there is no merit in the OA accordingly, the same is dismissed.

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13. The Original Application is dismissed. Pending MAs, if any, shall also stand dismissed. No costs.

Sanjiv Kumar

Jayesh V Bhairavia Member (A)

Member(J)

/pratik/

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