Sunil Thomas, Judicial Member -

1. The applicant in OA No. 281 of 2016 was employed as Tax Assistant under the 3rd respondent. He was initially posted at Chennai charge on 01.10.2012. While so, on inter-change request transfer he was transferred to Kerala charge on 8.8.2014, on loss of seniority. The next promotion post of the Tax Assistant is Senior Tax Assistant. The eligibility service for the promotion is two years. According to the applicant if the service rendered by the applicant in previous charge is not considered for reckoning the service as prescribed for the purpose of promotion the applicant would not be eligible to be considered for promotion as on 1.4.2016, for promotion to the vacancies of the post of Senior Tax Assistant, for the year 2016-2017. He claimed that there were various posts in the cadre of Senior Tax Assistant/Office Superintendent/Stenographer Grade-I etc. which were merged together to constitute a new cadre of Executive Assistant. Though no Recruitment Rules were framed for the newly formed common cadre of Executive Assistant, Annexure A1 was issued by the 4th respondent dated 15.3.2016 which, inter alia, in paragraph 6 stated that the service rendered in previous charge would not be reckoned to determine the eligibility of service of such persons. He claimed that several vacancies of Senior Tax Assistants were available and unless paragraph 6 of Annexure A1 was struck off, the applicant will not fall within the zone of consideration for promotion. Apprehending that the Departmental Promotion Committee was likely to be convened immediately, the OA was filed.

2. The relief sought in the OA was to quash paragraph 6 of Annexure A1 and to direct the respondents to consider and promote the applicant as Senior Tax Assistant for the vacancy year 2016 with all consequential benefits at par with others, who were being considered in the DPC for the vacancy year of 2016-2017.

3. In the reply statement filed, the respondents contended that inter- charge transfers for the employees in the respondents' Department were regulated and entertained strictly adhering to the terms and conditions stipulated in CBDT's letter dated 14.5.1990, which was produced as Annexure R1(a) and which was being followed till date. It provided, inter alia, that the service rendered in the old charge will not be counted in the new charge for the purpose of seniority. He/she will be placed at the bottom of the list of the employees of the concerned cadre in the new charge. Seniority in the cadre of the charge to which the person was transferred will start from the day that persons report for duty in that charge. However, he will not rank senior to an official who belonged to a batch selected on merits whose inter se seniority was not regulated by the date of joining. The respondents further relied on Annexure R1(b) instructions dated 15.3.2016 of the CBDT (HRD), which stipulated that service rendered by an inter-region transferee in the old region shall not be counted in the new region which he has joined on such transfer. The respondents relied on few decisions to supplement their contentions.

4. In OA No. 362 of 2016, the applicant therein was appointed as Tax Assistant under the 3rd respondent. He originally joined the Pune charge on 15.6.2007. While so, he was promoted as Senior Tax Assistant. Thereafter, he was transferred to Kerala on 13.4.2015 on request transfer, with bottom seniority. After the transfer Annexure A2 provisional list of eligible candidates of those in the feeder category for further promotion to the post of Income Tax Inspectors was published as Annexure A2. Applicant's name was not included only because his service rendered in the previous charge was not considered. He claimed that he had qualified in the departmental examination for promotion to the post of Income Tax Inspector during the period 2015-2016. It was contended that as per Annexure A1 Recruitment Rules, a Tax Assistant with three years service in the grade was entitled to be considered for promotion as Income Tax Inspector. Refusal on the part of the respondents to consider him for promotion was ultra virus and hence unconstitutional. The OA was filed to declare that he was eligible to be considered for promotion as Income Tax Inspector to the ST vacancies of the year 2016-2017 and to direct the respondents to consider and promote him against ST point for vacancy of the year 2016 and 2017 with all consequential benefits, at par with others who were being considered in the DPC for the vacancy year 2016-2017.

5. In the reply statement it was contended that the applicant was transferred to Kerala charge on his own request and he joined as a junior most officer in the cadre. CBDT had issued executive instructions which specifically clarified that services rendered by an inter-charge transferee should not be considered for eligibility service in the Kerala region. It was contended that in the light of the decisions of the Supreme Court in Renu Mallick v. Union of India  (1994) 1 SCC 373], Union of India v. Deo Narain(2008) 10 SCC 84] and the decisions of the various Benches of CAT, the past service in the other regions cannot be reckoned for the purpose of seniority, in the new region/charge.

6. Heard both sides and examined records.

7. Basic facts are not in dispute. The common crucial question that arises in both the OAs is whether on a transfer on compassionate ground to another region on loss of seniority, the incumbent is entitled to count his past service in the previous charge/region for the purpose of reckoning his seniority.

8. Contending that the applicants are not entitled to claim so, on the strength of executive instructions, the respondents placed reliance on the decision reported in Renu Mallick's case (supra). That was a case wherein Renu Mallick joined the service as an LDC on 17.12.1974. She was promoted as UDC on 10.5.1981. Thereafter, she was transferred to another collectorate on loss of seniority on 4.8.1987. Executive instructions issued and relied on by the respondents specifically provided that such an employee was not entitled to treat the service in previous collectorate for the purpose of reckoning the seniority. The condition required for promotion to the next cadre, was "UDC as 4 years or UDC with 13 years of total service as UDC and LDC taken together, subject to the condition that they should have put in a minimum 2 years of service in the grade of UDC". The Supreme Court held that the service in the previous collectorate was taken away only for the purpose of seniority but not for determining the eligibility for promotion.

9. In Deo Narain's case (supra) the Hon'ble Supreme Court relied on Renu Mallick's case (supra) and held that on a transfer from one collectorate to another the incumbent does not loose his seniority in the previous collectorate for the purpose of eligibility and that does not mean that in the case of a voluntary transfer, where a person is transferred as junior to others, he can claim seniority over all others. It was held that the concept of eligibility and seniority are quite distinct, different and independent of each other. The Hon'ble Supreme Court also referred to the earlier decision of the Supreme Court in Scientific Advisor to Raksha Mantri & Anr. v. V.M. Joseph (1998) 5 SCC 305] in which also, a similar view was taken.

10. Per contra, the learned Counsel for the applicant placed heavy reliance on the decision of the Hon'ble Supreme Court in Union of India and Others v. C.N. Ponnappan  AIR 1996 SC 764]. That was a case wherein the question that came before the Hon'ble Supreme Court was whether an employee who was transferred from one unit to another on compassionate grounds and as a result was placed at the bottom of seniority can have his service in the early unit from where he has been transferred counted as experience for the purpose of promotion in the unit, to which he was transferred. Affirming that he was entitled to reckon that period for the purpose of his experience and that his past experience was not wiped off, the Hon'ble Supreme Court held as follows:

"4. The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retrial benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred."

11. This view was affirmed by a Division Bench of the Hon'ble High Court of Kerala in OP(CAT) No. 1995/2015. A copy of which was produced as enclosure B by the applicant in O.A No. 281/2016. In that case, exactly the same question came up for consideration before the Division Bench. Relying on the decision of the Hon'ble Supreme Court in Deo Narain's case (supra) the Senior Panel Counsel contended that the eligibility and seniority are distinct, different and independent. It was contended that despite persons satisfying the criterion of seniority, he may not be eligible for promotion. The Division Bench though did not disagree with that proposition, held that though on such a transfer the employee would be placed in the bottom of the list of employees of the concerned cadre in the new charge and the seniority would start from the date he reports for duty in the charge. It related only to the seniority of the incumbent and not to his eligibility for further promotion. Thereby, the Division Bench upheld the principle that eligibility of an employee takes in his past service also.

12. The same issue came up before the Hon'ble Supreme Court in M.M. Thomas and Others v. Union of India and Others AIR 2017 SC 2510]. Interpreting the provisions for eligibility which prescribed that "promotion required five years regular service in respective regions". The Hon'ble Supreme Court held that those words must be understood to mean that the candidate should have served in respective regions that is regions where they were posted earlier and region from where they seek promotion, together, totaling to five years. Thus, if a candidate had served in one region, and then transferred to another and seeks promotion in that region, Rule does not prescribe that the candidate must have acquired experience of five years in the region from where he seeks promotion, for being considered eligible. What was necessary was total experience of five years. This must necessarily be so, because service to which rival parties belong was an All India Service in which, the country was demarcated into several regions. It was noted that in an All India Service, officers are posted from one region to another in a routine matter. The purpose of the Rule was that such officers are not deprived of their experience in feeder cadre, merely because they have been transferred from one place to another.

13. The same issue came up before a three Judges Bench of the Hon'ble Supreme Court in Prathibha Rani and Others v. Union of India and others in Civil Appeal No. 3793/2019. The question that came up before the Bench was whether in a case of compassionate transfer, which was inter region, the service rendered in the previous postings was liable to be counted in the new posting area for the purpose of eligibility, for consideration of such promotion. The Hon'ble Supreme Court held that the above issue was no longer in res integra in the light of the judgment in C.N. Ponnappan's case (supra). It also referred to the decision of Hon'ble Supreme Court in M.M. Thomas's case (supra) which affirmed the same view. Relying on these propositions, the Hon'ble Supreme Court held as follows:

"5. Thus, it is quite clear that in so far as issue of eligibility of promotion is concerned, the service rendered in the previous region, prior to transfer on compassionate ground, will be counted towards service for eligibility for consideration of such promotion. That it is non-transferable job, makes no difference on this aspect as service is rendered in the same cadre."

It is seen that the same view was reiterated by the three Judges Bench again in Union of India and Others v. Remesh Kumar Panwar [SLP No. 3479/2016].

14. The above judgments were reiterated and followed by a Division Bench of the Hon'ble High Court of Kerala in Sujith P. Pai and Others v. Union of India and Others [OP(CAT) No. 219/2016] after referring to Ponnappan's case (supra) and M.M. Thomas's case (supra) it was reiterated that in so far as the issue of eligibility of promotion was concerned, the service rendered in the previous region prior to the transfer on compassionate ground will be counted towards service for eligibility for consideration of promotion.

15. This being the consistent view even in Deo Narain's case and Renu Mallick's case both relied by the respondents, the stand taken by the respondents that for the purpose of promotion, the past service rendered by the respective applicants in their region will not be reckoned relying on the executive instructions cannot stand. To that extent, the contention of the applicant is liable to the affirmed.

16. Coming to the relief sought, however, there are few crucial facts which are to be taken into consideration. Both the applicants approached this Tribunal apprehending that their past service may not be reckoned for promotion that was due for the vacancy year 2016 and 2017. Reliefs were sought to consider the applicant against such vacancy for the anticipated promotion. Clearly reliefs sought were preventive in nature, apprehending exclusion from the zone of consideration. Both the applicants approached in this Tribunal in April 2016 and interim reliefs were sought to direct the respondents to consider the applicants provisionally in the DPC proposed to be convened for filling up the vacancies for the period 2016-17. No interim relief was granted. It seems that though the matter has been pending since 2016 the applicants did not pursue interim relief thereafter. In the argument notes filed in both the O.As, it has been stated that in the absence of any interdiction, the DPC were held; other employees were considered and were promoted. It is affirmed that DPC proceedings were going on every year, and promotions were being affirmed. It was stated that the applicants, who were working in the Department were fully aware that their colleagues were promoted from 2016 onwards. No steps were taken by them to implead the persons who had been promoted subsequent to the institution of the O.A, and whose promotions were likely to be affected, if any order in favour of applicant was granted by this Tribunal. Necessarily, if any final relief is granted by this Tribunal at this stage, it is likely to upset the seniority of several other persons.

17. In the light of the above change of circumstances, during the pendency of OA, the dispute has taken the shape of one touching the seniority of the persons who had been promoted. Such persons are not on record. The O.A has also not been amended by incorporating necessary reliefs in the light of the changed circumstances. Relying on the decision of the Hon'ble Supreme Court in Devendra Prasad Sharma v. State of Mizoram and Others (1977) 4 SCC 422], the learned SPC contented that the Hon'ble Supreme Court had held that in such cases lower post looses significance and the seniority in the promoted post has to be counted from the date of entry in that cadre.

18. Having appreciated the facts, we are in full agreement with the learned SPC that at this juncture, no relief can be granted to the applicants because, of the subsequent events.

19. Having considered this, though we are inclined to hold that the applicant is entitled to succeed on the legal point of reckoning his past service no, relief can be granted in the present O.As in the light of the facts mentioned above. O.As fail and are accordingly dismissed. No costs.