Chameli Majumdar, Member (J):

1. In these three Original Applications the applicants have prayed for same relief, as such, the three O.As. were heard together with the consent of the counsel for the parties and a common order is being passed. M.A. No. 531/2011 in O.A. 544/2011 for joint application was allowed on 04.08.2011. M.A. No. 24/2012 in O.A. 34/2012 and M.P. No. 163/2012 in O.A. 167/2012 filed by the applicants seeking permission to file joint application are allowed.

2. The issue involved in these three O.As. are that two advance increments would be admissible to the applicants on their passing of departmental examination for the post of Inspector in the Income Tax Department under the Department of Revenue, Ministry of Finance. The grievance of the applicants in all these three O.As. is that they have been denied two advance increments on passing departmental examination for the post of Inspector.

3. The facts of each of the three O.As. are briefly stated separately herein below :

3.1 The applicants state that they are presently working in the Income-Tax Department, Mumbai Commissionerate, on various posts and in various offices. The hierarchy of promotions for ministerial staff in the Income Tax Department is Tax Assistant, Senior Tax Assistant, Inspector and Income Tax Officer.

3.2 Prior to the year 2003, the hierarchy of posts in the ministerial cadre were Lower Division Clerk, Upper Division Clerk, Steno (OG) and Tax Assistant. After restructuring exercise in the department, the cadre of Data Entry Operators was merged with the ministerial cadres and the erstwhile posts of LDC and UDC were merged and redesignated as Tax Assistant. As per Recruitment Rules, for the post of Inspector of Income Tax, Sr. Tax Assistants with three years service, who passed departmental examination, are eligible for promotion to the post of Inspector of Income Tax.

3.3 All the applicants passed the departmental examination for promotion to the post of Inspector. The dates of passing of departmental examination for the post of Inspector in respect of each applicants are as follows:

Sl.No.NameDate of result/ passing Departmental exam for Inspector

1Chandra Shekhar Kumar12/04/07

2Sanjeev Kumar12/04/07

3Sanjay Kumar12/04/07

4Saroj Kumar12/04/07

5Upendra Pratap Singh07/05/08

6Binay Kumar12/04/07

7Sanjay Chaudhary07/05/08

8Dhananjay Kumar Sinha12/04/07

9Bishwajeet Kumar08/06/09

10Dileep Kumar12/04/07

11Abinash K. Verma12/04/07

12Md. Arshad12/04/07

13Annie J. Verghese12/04/07

14Jyoti Naik07/05/08

15Anuradha P. Chavan07/05/08

16Poolakkil Ajay Raman12/04/07

17Raj Kishore Singh12/04/07

18Karthikeyan R. Chettiar12/04/07

19Khatib Sajid Ayub07/05/08

Sl. No.NameDate of passing Departmental exam for Inspector

1Mrs. Priya Sunil K.12/04/07

2Mrs. Rekha Laxman12/04/07

3Smt. Aparna Mhaskar12/04/07

4Smt. Sujata Pradhan12/04/07

5Smt. Sharmila Pradhan12/04/07

6Smt. Anjhana Dilip12/04/07

7Shri Vijay P. Lotankar12/04/07

8Mrs. Vasantha venkatraman07/05/08

9Shri Milind Mhatre07/05/08

10Smt. Vandana Kamble07/05/08

11Smt. Sangeeta Pawar07/05/08

12Smt. Seema Dhuri07/05/08

13Shri Vishnu V. Reddy01/01/09

14Smt. B. Nair01/01/09

15Shri Biju Thomas01/01/09

16Smt. H. Pakle17/05/2010

17Mini N. Menon12/04/07

18Shiney Thomas07/05/08

19Harsha S. Pillai01/01/09

20Uma U Parab07/05/08

21Sandhya S. Rane12/04/07





Sl. No.NameDate of result/ passing Departmental exam for Inspector

1Shri Ranbir (Randhir) Singh17.10.2006

2Shri Nitesh Kumar10/05/07

3Shri Pankaj Kumar17/10/2006

4Shri Vijay Mishra01/01/09

5Shri Jagmohan Prasad01/01/09

6Shri Awadesh Kumar17.10.2006

7Shri Avinash Chandra17.10.2006

8Shri Mukesh Kumar Singh01/01/09

9Shri Rajesh Kumar Pandey10/05/07

10Smt. Suman Ajit Wadekar01/01/09

11Shri Vijay Rathore17.10.2006

12Shri Mayank Kumar Lal01/01/09

13Shri Vivek B. Takke10/05/07

14Shri Umesh B. Dere10/05/07

15Smt. Manisha R. Chavan10/05/07

16Shri S. G. Telang01/01/10

17Smt. Priti P. Parab10/05/07

18Smt. Pankaja H. Bagwe10/05/07

19Smt. Vanita R. Bangera10/05/07

20Smt. Sharmila V. Shetty17/10/2006

21Smt. Shilpa S. Shirgaonkar10/05/07

22Shri Milind D. Tambde10/05/07

23Shri Anant V. Ghaisas10/05/07

24Shri Ramakant Roy17/10/2006

25Shri Hemendra Kumar01/01/10

26Shri Omprakash Verma01/01/09

27Shri Chand Subhani17.10.2006

28Shri Harendra Kumar01/01/09

29Shri Jawahar Lal01/01/09

30Shri Jitendra Kumar17.10.2006

31Shri Ajay Kumar17.10.2006

32Smt. Manasi R. Naik10/05/07

33Smt. Mini Sasidharan01/01/09





4. The respondents have filed individual replies in these three O.As. The respondents have raised the point of delay in approaching this Tribunal by the applicants. The applicants, more or less, passed their departmental examination ranging from 3 to 6 years back. The respondents have relied on the judgment in the case of Union of India Vs. M. K. Sarkar [2010 (1) SCC (L&S) 1126] and have submitted that the Honble Supreme Court has categorically ruled that stale claim cannot be gone into by the Tribunal.

The contention of the respondents regarding common issue of non-payment of two advance increments are more or less the same. In reply to O.A. No. 544/2011, the respondents contentions are as follows :

5. The claim made by the applicants is contested on the basis of CBDTs F.No. A-26017/10/98-Ad IX dated 26.11.1998, in respect of Grant of Advance Increment on passing the departmental exam of next higher grade in the revised pay scale. The aforesaid O.M. states that the advance increments are given in the following circumstances:

(i) LDC ... On passing the ministerial grade examination.

(ii) UDCs/Stenos(OG) & TAs ... On passing the Inspectors grade examination.

(iii) Head Clerks/Supervisors Stenos (S.G.) & Inspector

... On passing the ITOs (Group B) Examination.

Accordingly, the applicants were not entitled for grant of two advance increments from the date of passing of departmental examination for the post of Inspector, as they were Sr. Tax Assistants on the date of passing.

6. We have heard Shri S. V. Marne, Learned Counsel for the applicants and Shri V. S. Masurkar, Learned Counsel for the respondents. The pleadings, along with the documents annexed, have also been perused.

7. Shri V.S. Masurkar, Learned Counsel for respondents, has relied on the judgement reported at AIR 2011 SC 3046 [LQ/SC/2011/1183] [High Court of Judicature at Patna Vs. Madan Mohan Prasad & Others]. Relying on the said judgment, the learned counsel for respondents has submitted that before condoning the delay, notice was not issued on the respondents. The Honble Supreme Court in paragraph 18 has categorically mentioned that it may be prudent to issue notice to the respondent before condoning the delay caused in filing the special leave petition. However, if the respondent is not noticed, then a right would be available to him at the stage of hearing to point out that the Court was not justified in condoning the delay and that the leave, if granted, should be revoked or notice issued should be dismissed.

8. The Learned Counsel for the applicant refuted the allegation of delay raised by the learned counsel for respondents. The learned counsel for applicant, referring to the order dated 10.03.2010, subject being Advance Increment and Special Pay to the officials of the Income Tax Department Its continuation, regarding, submits that the cause of action arose only after this letter was issued. The said letter dated 10.03.2010 says that Sixth Central Pay Commission did not deal with the matter relating to the advance increment or the special pay issues and that the sanction has been accorded by the Government of India long time back. Since the Government has issued no such order of withdrawal, the same is restored back from the date of withdrawal. The learned Counsel for the applicants submits that in spite of this order the benefit of two advance increment was not extended to the applicants.

9. It appears that M.A. No. 532/2011 for condonation of delay in O.A. No. 544/2011 was allowed on 04.08.2011. M.A. Nos. 25/2012 and 164/2012 in O.A. Nos. 34/2012 and 167/2012 respectively, filed by the applicants seeking condonation of delay in filing the present Original Applications stand allowed.

10. As per letter dated 05.01.1989 issued by the Ministry of Finance, a decision was taken to continue grant of advance increment to staff in Income Tax Department on passing departmental examination of the next higher grade which was earlier provided by the Ministrys letter dated 24.07.1955 and 08.12.1960. All the applicants, after passing departmental examination, made representations to Respondent No. 3 for grant of two advance increments. The issue of non-grant of advance increments on passing departmental examination for the post of Inspector was first raised before the Tribunal in O.A. 591/2001 which was decided on 19.02.2002. The Tribunal, while dealing with the case of Stenographers, held that the pay scale of the post of Inspector is higher than that of Stenographers. This Tribunal rejected the stand of the department that the post of Stenographer Grade-II and that of Inspector are equivalent and, therefore, held that the applicant therein was entitled for two advance increments on passing of departmental examination for the post of Inspector. The said order dated 19.02.2002 was upheld by the High Court by dismissing the Writ Petition of the department on 19.06.2005.

11. Another O.A. No. 405/2005 was filed for similar benefits. In the said O.A., the department took the stand that as the applicant in O.A. 405/2005 was already working on the post of Sr. Tax Assistant, she was not eligible for two advance increments. This Tribunal held that the post of Sr. Tax Assistant was in the pay scale of Rs. 5000-8000 whereas the post of Inspector was in the pay scale of Rs. 6500-10500. This Tribunal relying on the Ministrys letter dated 05.01.1989 observed that there are two more orders of the Tribunal in addition to the order passed in O.A. No. 591/2001. According, the O.A. No. 405/2005 was allowed on 03.07.2006. The Tribunal held that the applicant would be entitled for two advance increments from the date of passing of the examination. The said judgment was implemented by the Department by order dated 23.08.2007. Extracts from the Ministrys letter dated 11.06.2007 is set out herein below:

Subject: Order dated 19.2.2002 in the case of Smt. Sita Devi Balan, Common order dated 16.9.2004 in the cases of Shri V. R. Lakka & V. M. Hingorani and order dated 3.7.2006 in thecase of Smt. S.U. More reg.

Sir,

I am directed to say that orders passed by CAT, Mumbai in the subject matter cases have been considered in this Department and has decided to accept and implement the said orderssubject to the outcome of W.P./SLP, which maybe on this issue/case. It is, therefore, requested that necessary action may please be taken to implement the said orders.

2. Honble Tribunal may please be informed regarding implementation of its order dated 16.09.2004 in the case of Shri V. R. Lakka, as he has filed C.P. No. 04/2007.

12. The Learned Counsel for the applicants submits that the applicants case in this O.A. is identical to various cases decided by this Tribunal. All the applicants passed the departmental examination for the post of Inspector. Even in the Sixth Pay Commission regime, the post of Sr. Tax Assistant and Inspector are in different pay grades. The grade pay for the post of Sr. Tax Assistant is Rs. 4200/-against the grade pay of the post of Inspector is Rs. 4600/-. Therefore, the applicants are entitled to grant of two advance increments from the date of passing of the departmental examination. However, after implementation of the Six Pay Commission, there was ambiguity about continuation of scheme of grant of advance increments during the 6th Pay Commission regime. The 6th Pay Commission did not make any specific observation about continuation of scheme of grant of advance increments. The matter in this regard was clarified by the Ministry of Finance by order dated 10.05.2010 and it was clarified that the Scheme of grant of advance increment will continue to remain in force even after 01.01.2006. Now, with the issuance of the letter dated 10.05.2010 after clarification by the Ministry, there cannot be any justification for denying such benefits. The respondents granted advance increment to persons working on the post of Tax Assistant from the date of passing of departmental examination on the post of Inspector on the ground that Pay Band as well as Grade Pay of the post of Tax Assistant were lower than that of Inspector. However, by issuance of order dated 13.11.2009 the Grade Pay of the post of Inspector was enhanced to Rs. 4600/-retrospectively w.e.f 01.01.2006.

13. The learned counsel for the applicants annexed a recent judgment passed by the Central Administrative Tribunal, Ernakulam Bench, passed in O.A. No. 1010/2010 dated 30.07.2012. Paragraph 5 of the said judgment is set out herein below:

5. Arguments were heard and documents perused. Order in O.A. 238/05 was in factpassed on the basis of the earlier order in O.A. 591/2001 vide order dated 19.02.2002 of the Mumbai Bench. The said order reads as under:

7. The learned counsel for the applicant has drawn our attention topara 4.7 at page 7 of the OA wherein the grades along with their payscales under the Third, Fourth andFifth Pay Commission of those gradeshave been given. Accordingly, Stenographer Grade-II was in the scale of Rs. 425-700 whereas the grade of Income Tax Inspector was inthe scale of Rs. 425-800 under the Third Pay Commission which was further revised to Rs. 500-900 w.e.f. 1980-81. After the recommendations of the Fourth Pay Commission, Stenographer Grade II was merged with Stenographer (Selection Grade) and the scale was revised to Rs. 1400-2600. As against this, the grade of Inspectors was given the pay scale of Rs. 1640-2900. After the Fifth Pay Commissions recommendations the distance between the Stenographer Grade II and that of the Inspector was continued to be maintained. The Stenographer Grade II was merged with Stenographer (Selection Grade) and placed in the scale of Rs. 5000-8000 whereas the Income Tax Inspectors were placed in the scale of Rs. 5500-9000. Looking at this chart, it is very clear that the post of Inspector is higher compared to that of Stenographer Grade II. Even under the Third Pay Commission, the maximum of the scale of Inspector was higher than that of Stenographer Grade II and, therefore, the learned counsel for the applicant presses that Stenographer Grade II which the applicants are holding were rightly given advance increments on passing the departmental examination for the post of Inspector of Income Tax.

8. The learned counsel for the respondents, however, defended the stand that it is not only the payscale to be seen but it is for the equivalence of posts and accordingto the respondents StenographerGrade II is treated equivalent to that of Inspectors and hence the respondents are justified in withdrawing the advance increments given to the applicants. Further, as revealed from the reply dated 13.08.2000 on the representations ofthe applicants, it appears that therespondents are going by the original pay scales which were available to the Stenographers GradeII and the Inspectors under the Third Pay Commission.

9. We have given careful consideration to the rival pleadings. Going strictly by the phrases used in the original schemethe advance increments are to be granted on passing the departmentalexamination of a higher grade. As far as pay scales are concerned, thegrade of Inspector is certainlyhigher compared to that of Stenographers. The respondents have not produced any material to show that these grades have been treatedas equivalent. It is to be seen that even under the Third PayCommission, from 1980-81 onwards, there has been a hike in the pay scale of Inspectors. We are, therefore, not persuaded to accept the stand of the respondents that the post of Stenographer Grade II and that of Inspector are equivalent. In our considered view, therefore, the applicants are not entitled to retain the advance increments already granted to them. We therefore quash and set aside the impugned orders dated 17.11.2000, 29.01.2001, 13.08.2001. Accordingly, the O.A. succeeds and is allowed without any order as to costs.

14. It appears from the said judgment passed by the Ernakulam Bench that Ernakulam Bench followed the judgment and order dated 19.02.2002 passed by the Bombay Bench of the Tribunal in O.A. No. 591/2001. In paragraph 6 of the judgement passed by the Ernakulam Bench it is held that O.A. No. 238/2005 was passed on the basis of the above mentioned order of the Bombay Bench. The operative portion of the order was set out, which is as follows:

6. O.A. 238/2005 was passed on the basisof the above order. The operative portion ofthe order reads as under:

9. In view of the above, the OA succeeds. Annexure A-6 order dated 12.11.2003 is hereby quashed and set aside. It is declared that the two applicants are entitled to the two advance increments in accordance with the provisions contained in Annexure A-1 order read with Annexure A-3 order of the Tribunal. Respondents are directed to pass suitable orders granting the entitled advance increments to the applicants, and fix their pay in accordance with rules, for the subsequent periods as well and make available the arrears of pay and allowances arising on account of such revision of pay, within a period of three months from the date of communication of this order.

15. Finally, the Ernakulam Bench of this Tribunal passed its order on 30.07.2012 in O.A. No. 1010/2010 which is as under :

8. Accordingly, the O.A. is allowed. Respondents are directed to grant two advance increments to the applicant as per rule for his passing the relevant examinations of Inspector and Income Tax Officer. This order may be complied with, within a period of four months from the date of receipt of a copy of this order. No costs.

16. It is not disputed that these three O.As are identical with the O.A. No. 1010/2010 decided by the Ernakulam Bench of this Tribunal and, therefore, a similar order may be passed by the Department in this case as well.

17. Accordingly, the three Original Applications are allowed. Respondents are directed to grant two advance increments to the applicants as per rules, on their passing the relevant examination of Inspector for the post of Inspector/Income Tax Officer. The respondents are directed to comply with the order within a period of eight weeks from the date of receipt of a copy of this order. No order as to costs.

18. Miscellaneous Applications No. 389/2012 and 807/2012 in O.A. 544/2011 stand allowed.