Ms. Hilda Abraham (IPoS-1979),CPMG, Orissa Circle transferred as CPMG, of Karnataka
Circle Vice Ms Yesodhara Menon promoted in the grade of Member, Postal Services Board.
Ms Devika Kumar (IPoS-1981) DDG (Philately), Postal Directorate transferred as CPMG, Orissa Circle (on downgraded post of SAG) Vice Ms Hilda Abraham transferred as CPMG, Karnataka Circle.
Monday, July 25, 2011
Wednesday, May 25, 2011
Benefit of BCR Scheme is to be extended from the date the employee completes 26 years of service,
Benefit of BCR Scheme is to be extended from the date the employee completes 26 years of service,
CENTRAL ADMINISTRATIVE TRIBUNAL ,ERNAKULAM BENCH
O.A. NO.792/2010
Dated this the 16th day of May, 2011
C O R A M
HON'BLE Mrs.K. NOORJEHAN, ADMINISTRATIVE MEMBER
T.P.Sukumara Pilla, S/o late Parameswara Panicker Parvathy Bhavan, Kadayanikkad P.O,
Kangazha-686541, Kottayam. Applicants
By Advocate Mr P.K.Madhusoodhanan
Vs
1 Superintendent of Post Offices, Changanassery
Division, Changanassery - 686101.
2 The Assistant Director (Staff), Department
of Posts, O/o the Post Master General,
Central Region, Kochi - 682018.
3 Chief Post Master General, Department
of Posts, Kerala Circle, Trivandrum-695033.
4 Union of India, represented by its Secretary
Govt of India, Mini.of Communications, Deptt.
Of Posts, Dak Bhavan, Sansad Marg, NewDelhi-1..
Respondents
By Advocate Mr.M.K.Aboobacker, ACGSC.
The Application having been heard on 1.3.2011 the Tribunal delivered the following:
O R D E R
HON'BLE Mrs.K.NOORJEHAN, ADMINISTRATIVE MEMBER
In this O.A the applicant is aggrieved by the denial of benefits of Biennial Cadre Review (BCR for short) Scheme though he had completed 26 years of service and has sought a direction to the spondents to grant him the benefits of BCR on completion of 26 years of regular service.
2 Brief facts of the case as stated by the applicants are that the applicant entered the service as Extra Departmental Delivery Agent on 19.1.1967. On passing the departmental examination he was promoted as Postman on 13.3.74. Thereafter he was promoted as Clerk on 24.11.1981. He was given Time Bound Onetime Promotion on completion of 16 years of service w.e.f 29.11.1997. While he was working as Sub-postmaster, Kangazha , on attaining the age of superannuation, he retired on 31.12.2007. Having completed 26 years service on 29.11.2007 the applicant became eligible for grant of higher pay scale as a benefit under the BCR Scheme, but he was not granted the same. Hence theO.A.
3 The respondents contested the O.A. It is submitted that the Biennial Cadre Review was introduced in the Department w.e.f 1.10.1991. It was intended to provide a second financial up- gradation to those officials who have completed 26 years of satisfactory qualifying service, linked to posts identified for such up gradation on the crucial dates. This scheme is implemented by earmarking two crucial dates viz. 1st January and 1st July every year, by taking into account the list of officials who have completed 26 or more years of service as on these dates, subject to their otherwise being found fit. It is submitted that the conditions for BCR placement prescribe completion of 26 years of qualifying service which in the case of the applicant is on 18.12.2007 after deducting the non-qualifying service. On the crucial date of review on 1.7.2007 the applicant had not completed 26 years of service. On the next date of review on 1.1.08 he had superannuated from service. The Screening Committee for placement under BCR was held on 4.6.08 and his name was not included as he was not on duty on the cut-off date of 1.1.2008. Therefore the applicant was not granted the BCR placement. There was no willful negligence or omission on the part of the respondents in granting the said benefit to the applicant.
4 Rejoinder to the reply was filed by the applicant disputing the date he has completed 26 years qualifying service on 18.12.2007. He submitted that the non-qualifying service of 24 days in the cadre of Postal Assistant on the occasion of general strikes of postal employees has been decided (Annx.A4) to treat it as Earned Leave. Accordingly the applicant has applied for Earned Leave for 14 days vide Annx.A6.
5 Heard the learned counsel for the parties and perused the record.
6 The issue whether the benefits under the BCR Scheme dated 11.9.1991 are to be granted from the date of completion of 26 years of satisfactory service or from the crucial dates of 1st January or 1st July, as the case may be, has been decided by the CAT Lucknow Bench in A.L.Pal Vs. UOI 2002(1)ATJ 298 and by the CAT Mumbai Bench in K.G.Patil Vs. UOI, 2003(3) ATJ 594. It was held that the benefit of BCR Scheme is to be extended from the date the employee completes 26 years of service.
6 The issue involved in this OA was already under consideration before this Tribunal in OA 430/09, K.Sasidharan Nair Vs. Sr.Superintendent, RMS 'TV' Division, Trivandrum & Ors and by order dated 5.1.2010 this Tribunal held as under:
" Accordingly the O.A is allowed. Annx.A7 order is set aside to the extent it denies the benefits of the BCR scheme to the applicant. The respondents are directed to include the name of the applicant in Annx.A5 list for grant of the BCR benefits w.e.f. 10.9.2007 and grant him all consequential benefits within three months from the date of receipt of a copy of this order. No order as to costs."
8 In view of the above position, I follow the order of this Tribunal in OA 430/2009. Accordingly the O.A is allowed. Annx.A3 order is set aside to the extent it denies the benefits of the BCR scheme to the applicant. The respondents are directed to grant the BCR benefits w.e.f. 4.12.2007, in view of Annx.A4 order and the fact that he applied for EL for 14 days (Annx.A6) and grant him all consequential benefits within three months from the date of receipt of a copy of this order. No order as to costs.
(K.NOORJEHAN)
CENTRAL ADMINISTRATIVE TRIBUNAL ,ERNAKULAM BENCH
O.A. NO.792/2010
Dated this the 16th day of May, 2011
C O R A M
HON'BLE Mrs.K. NOORJEHAN, ADMINISTRATIVE MEMBER
T.P.Sukumara Pilla, S/o late Parameswara Panicker Parvathy Bhavan, Kadayanikkad P.O,
Kangazha-686541, Kottayam. Applicants
By Advocate Mr P.K.Madhusoodhanan
Vs
1 Superintendent of Post Offices, Changanassery
Division, Changanassery - 686101.
2 The Assistant Director (Staff), Department
of Posts, O/o the Post Master General,
Central Region, Kochi - 682018.
3 Chief Post Master General, Department
of Posts, Kerala Circle, Trivandrum-695033.
4 Union of India, represented by its Secretary
Govt of India, Mini.of Communications, Deptt.
Of Posts, Dak Bhavan, Sansad Marg, NewDelhi-1..
Respondents
By Advocate Mr.M.K.Aboobacker, ACGSC.
The Application having been heard on 1.3.2011 the Tribunal delivered the following:
O R D E R
HON'BLE Mrs.K.NOORJEHAN, ADMINISTRATIVE MEMBER
In this O.A the applicant is aggrieved by the denial of benefits of Biennial Cadre Review (BCR for short) Scheme though he had completed 26 years of service and has sought a direction to the spondents to grant him the benefits of BCR on completion of 26 years of regular service.
2 Brief facts of the case as stated by the applicants are that the applicant entered the service as Extra Departmental Delivery Agent on 19.1.1967. On passing the departmental examination he was promoted as Postman on 13.3.74. Thereafter he was promoted as Clerk on 24.11.1981. He was given Time Bound Onetime Promotion on completion of 16 years of service w.e.f 29.11.1997. While he was working as Sub-postmaster, Kangazha , on attaining the age of superannuation, he retired on 31.12.2007. Having completed 26 years service on 29.11.2007 the applicant became eligible for grant of higher pay scale as a benefit under the BCR Scheme, but he was not granted the same. Hence theO.A.
3 The respondents contested the O.A. It is submitted that the Biennial Cadre Review was introduced in the Department w.e.f 1.10.1991. It was intended to provide a second financial up- gradation to those officials who have completed 26 years of satisfactory qualifying service, linked to posts identified for such up gradation on the crucial dates. This scheme is implemented by earmarking two crucial dates viz. 1st January and 1st July every year, by taking into account the list of officials who have completed 26 or more years of service as on these dates, subject to their otherwise being found fit. It is submitted that the conditions for BCR placement prescribe completion of 26 years of qualifying service which in the case of the applicant is on 18.12.2007 after deducting the non-qualifying service. On the crucial date of review on 1.7.2007 the applicant had not completed 26 years of service. On the next date of review on 1.1.08 he had superannuated from service. The Screening Committee for placement under BCR was held on 4.6.08 and his name was not included as he was not on duty on the cut-off date of 1.1.2008. Therefore the applicant was not granted the BCR placement. There was no willful negligence or omission on the part of the respondents in granting the said benefit to the applicant.
4 Rejoinder to the reply was filed by the applicant disputing the date he has completed 26 years qualifying service on 18.12.2007. He submitted that the non-qualifying service of 24 days in the cadre of Postal Assistant on the occasion of general strikes of postal employees has been decided (Annx.A4) to treat it as Earned Leave. Accordingly the applicant has applied for Earned Leave for 14 days vide Annx.A6.
5 Heard the learned counsel for the parties and perused the record.
6 The issue whether the benefits under the BCR Scheme dated 11.9.1991 are to be granted from the date of completion of 26 years of satisfactory service or from the crucial dates of 1st January or 1st July, as the case may be, has been decided by the CAT Lucknow Bench in A.L.Pal Vs. UOI 2002(1)ATJ 298 and by the CAT Mumbai Bench in K.G.Patil Vs. UOI, 2003(3) ATJ 594. It was held that the benefit of BCR Scheme is to be extended from the date the employee completes 26 years of service.
6 The issue involved in this OA was already under consideration before this Tribunal in OA 430/09, K.Sasidharan Nair Vs. Sr.Superintendent, RMS 'TV' Division, Trivandrum & Ors and by order dated 5.1.2010 this Tribunal held as under:
" Accordingly the O.A is allowed. Annx.A7 order is set aside to the extent it denies the benefits of the BCR scheme to the applicant. The respondents are directed to include the name of the applicant in Annx.A5 list for grant of the BCR benefits w.e.f. 10.9.2007 and grant him all consequential benefits within three months from the date of receipt of a copy of this order. No order as to costs."
8 In view of the above position, I follow the order of this Tribunal in OA 430/2009. Accordingly the O.A is allowed. Annx.A3 order is set aside to the extent it denies the benefits of the BCR scheme to the applicant. The respondents are directed to grant the BCR benefits w.e.f. 4.12.2007, in view of Annx.A4 order and the fact that he applied for EL for 14 days (Annx.A6) and grant him all consequential benefits within three months from the date of receipt of a copy of this order. No order as to costs.
(K.NOORJEHAN)
Wednesday, April 20, 2011
Stitching Charges for Uniform Staff revised with effect from 01-04-2011
Stitching Charges for Uniform Staff revised with effect from 01-04-2011
F.No. 141 1/2010-JCA2 Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel 86 Training)
North Block, New Delhi Dated the 18" April, 2011
OFFICE MEMORANDUM
Subject: Revision of Stitching Charges.
The undersigned is directed to say that based on a demand raised by the Staff Side, in National Council (JCM), the question of revising the Stitching Charges of Uniforms, supplied to Common Categories of employees (Multi-Tasking Staff - erstwhile Group 'D' posts of Peon, Daftry, Jamadar, Junior Gestetner Operator, Frash, Chowkidar, Safaiwala, Mali etc. and Staff Car Drivers, Dispatch Riders etc.) in the Central Secretariat and its Attached and Subordinate Offices, has been examined in consultation with the Ministry of Finance. Consequently, it has been decided to enhance the rates of stitching charges, with effect from 1 st April, 20 1 1 thereby modifying the earlier instructions issued vide this Ministry's O.M. No. 14/3/2006-JCA dated 28" September, 2006.
2. The revised rates of stitching charges, with effect from 1st April, 2011, will be as under:-
Winter
(1) Buttoned-up-coat and pant - Rs.750/-
(2) Over Coat for Staff Car Drivers - Rs.600/-
(3) Ladies half-coat - Rs.600/-
Summer
(4) Pant (Terricot) - Rs.135/-
(5) Bush Shirt (Polyvastra) - ' Rs. 60/-
(6) Blouse - Rs. 45/ -
(7) Petticoat - Rs. 30/-
(8) Salwar Kameez - Rs. 90/-
Protective clothing [for Mails / Bhisties]
(9) Wjama Rs.24/-
(10) Short (Half-Pant) Rs.60/-
(11) Shirt (Cotton) Rs.45/-
3. It may please be noted that the reimbursement of Stitching charges at the prescribed format should be done only after the stitched uniforms are produced and are duly stamped, with indelible ink, at an appropriate place on the wrong side of the stitched dress, for identification. A proper record and procedure should be evolved to ensure that the employees produce the stitched uniforms within a reasonable period (say one month) after the cloth is supplied to them.
4. This issues with the concurrence of Department of Expenditure vide ID No. 5(1)/E.I1(A)/2009 dated 08.04.201 1.
Hindi version will follow.
Director (JCA)
To
All Ministries
Tuesday, April 5, 2011
No recovery for Coop-society dues from DCRG
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH Original Application No. 457 of 2009 Tuesday, this the 05th day of April, 2011 CORAM: Hon'ble Mr. K. George Joseph, Administrative Member M. Nagammal, aged 65 years, W/o. Maran, Door No. 579, Jeevanadham Road, Kallukkadai Medu, Pudumai Colony, Erode-638 001. ..... Applicant (By Advocate - Mr. T.C.G. Swamy) V e r s u s 1. Union of India, represented by the General Manager, Southern Railway, Headquarters Office, Park Town, Chennai-3. 2. The Senior Divisional Personnel Officer, Southern Railway, Palghat Division, Palghat. ..... Respondents (By Advocate - Mr. Sunil Jacob Jose) This application having been heard on 16.03.2011, the Tribunal on 05.04.11 delivered the following: O R D E R Hon'ble Mr. K. George Joseph, Administrative Member The applicant is a widow, the only person eligible to receive all the death benefits of her son, late Jaganathan, who died on 05.11.2005 in an accident while working in the Railway service. She was issued with a pension calculation sheet dated 18.04.2006 as at Annexure A-5 showing the amount of DCRG as Rs. 1,15,479/-. But she was paid only about Rs. 50,000/-. Aggrieved, she has filed this O.A for the following reliefs : (a) Direct the respondents to pay the death Gratuity as sanctioned in Annexure A-5 and all other death benefits liable to be paid to the applicant consequent upon the demise of her son late Jaganathan with interest calculated at the rate of 12% per annum from 01.06.2006 till the date of full and final settlement of the same; (b) Award costs and incidental to this application; (c) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case. 2. The applicant contended that the respondents are bound to pay the entire DCRG amount as indicated in A-5 and other death benefits. Non- feasance on the part of the respondents to pay the same is arbitrary and contrary to law. 3. The respondents contested the O.A. In their reply, they submitted that late Jaganathan was a habitual absentee who was removed from service twice in his career for unauthorised absence, but later reinstated in service treating the intervening period as Extra Ordinary leave. On innumerable occasions, he was on unauthorised absence. Even though his span of service extended from 1983 to 2005, his actual qualifying service after deducting the Extra Ordinary Leave for unauthorised absence which are counted as non-qualifying service, comes to 16 years only, based on which the DCRG amount is Rs. 65988/- only. From the above amount, a sum of Rs. 13255/- is to be recovered towards Railway dues which consists of funeral advance, electrical energy, rent and overpayment of pay and further an amount of Rs. 25758/- is to be recovered towards dues to Southern Railway Employees Co-Operative Credit Society, Trichy. Thus, the total amount to be recovered comes to Rs. 39013/-. Afterdeducting the same, the net amount payable towards DCRG comes to Rs.26975/- and the same was paid alongwith other settlement dues amounting to Rs. 26356/-. Based on a wrong notion that the late employee had got qualifying service of 21 years, his DCRG was assessed as Rs. 1,15,479/-. On verification, the qualifying service was found to be only 16 years. Accordingly, his DCRG was estimated as Rs. 65988/-. By an oversight the earlier proposed amount of Rs. 1,15,479/- towards DCRG was left out to be deleted in Annexure A-5. The applicant has no right to claim any additional amount other than what is legally due to her. The O.A is liable to be dismissed. 3. In the rejoinder filed by the applicant, it was submitted that the applicant is not responsible for the mistake alleged to have been committed by the respondents. The period of service not specifically shown as non qualifying in the service records with the acknowledgement of the railway servant concerned cannot be treated as non-qualifying service. The respondents have not shown how they can make the recovery in respect of electrical energy, rent, overpayment of pay and dues towards the Southern Railway Employees Co-Operative Credit Society in the absence of statutory empowerment of respondents to do so. 4. In the reply to the rejoinder, the respondents submitted that the inadvertent omission on the part of the respondents in making necessary corrections in Annexure A-5 will not give the applicant any added advantage for claiming additional benefits other than what is legally due to her. Rule 15 of the Railway Services (Pension) Rules, 1993, authorizes recovery of dues from DCRG. 5. In the additional rejoinder filed by the applicant, it was submitted that arbitrarily reducing the qualifying service as ascertained in Annexure A-5 without giving due notice is unsustainable. In Para 1234 of the Indian Railway Administration and Finance, it is stipulated that the signature of the employees governed by Pension Rules is to be obtained in the service book in token of their having inspected the service books. The recovery as stated by the respondents is impermissible in the absence of any statutory provision. 6. I have heard Mr. T.C. Govindaswamy, the learned counsel for the applicant and Mr. Sunil Jacob Jose, the learned SCGSC, appearing for the respondents and perused the records. 7. Late Jaganathan was an employee governed by the Pension Rules. As per Para 1234 of the Indian Railway Administration and Finance, it is the duty of every Head of Office to initiate action to show the service book to the railway servants governed by pension rules under his administrative control every year and to obtain their signatures therein in token of their having inspected the service books. As per the say of the respondents, late Jaganathan was a habitual absentee. He was removed from service twice in his career for unauthorised absence. Afterwards, considering his appeal he was reinstated in service duly treating the intervening period as Extra Ordinary Leave. Other than Extra Ordinary Leave granted on medical certificates, the appointing authority at the time of granting Extra Ordinary Leave may allow the period of that leave to count as qualifying service if such leave is granted to a Railway servant due to his inability to join or rejoin duty on account of civil commotion or for prosecuting higher scientific or technical studies as per Rule 36 of Railway Services (Pension) Rules, 1993. Therefore, in the case of late Jaganathan, the respondents are justified in not counting his Extra Ordinary Leave for the purpose of pensionary benefits. It is true that his service book does not contain the signature of late Jaganathan in token of his having inspected it. This is a technical infirmity. The respondents have been magnanimous in reinstating a habitual absentee in service on two occasions. If the service book was not inspected by the employee, the blame should be shared by the employee also. The technical infirmity of not having employee's signature in the service book cannot legitimize counting of unauthorised absence as qualifying service for the purpose of pensionary benefits. The respondents have every right to correct an inadvertent error in calculating the qualifying service of late Jaganathan. The initial error on the part of the respondents will not confer an enforceable right on the applicant to claim additional benefits other than what is legally due to her. 8. The relevant part of Rules 15(2) and 15(4)(ii) of Railway Services (Pension) Rules, 1993, read as follows : "15(2) : The railway or Government dues as ascertained and assessed, which remain outstanding till the date of retirement or death of the railway servant, shall be adjusted against the amount of the retirement gratuity or death gratuity or terminal gratuity and recovery of the dues against the retiring railway servant shall be regulated in accordance with the provisions of sub-rule (4)." "15(4) (ii) : .......It is permissible to make recovery of Government dues from the retirement, death, terminal or service gratuity even without obtaining his consent, or without obtaining the consent of the members of his family in the case of a deceased railway servant." 9. As per the above rules, any advance, overpayment of pay and allowance, house rent, dues pertaining to Railway accommodation etc. can be recovered from the DCRG of the employee concerned without obtaining his consent. Therefore, the respondents are justified in making recovery of Rs. 13255/- from the DCRG amount of Rs. 65988/-. However, as per 15(3)(c) of the Pension Rules, the amounts payable by a railway servant to Consumer Co-Operative Societies, Consumer Credit Societies and the autonomous organisation may be recovered from the retirement gratuity which has become payable to the retiring railway servant provided he gives his consent for doing so in writing to the administration. In the instant case, the respondents have no case that late Jaganathan had given his consent for recovering the amount payable by him to Southern Railway Employees Co-Operative Credit Society, Trichy. There is no justification or legal basis for recovering the amount of Rs. 25758/- from the DCRG amount of late Jaganathan. The amount unauthorisedly recovered by the respondents towards dues to Southern Railway Employees Co-Operative Credit Society, Trichy, is to be refunded to the applicant. Accordingly, the O.A. is allowed to the extent indicated below. 10. The respondents are directed to pay the applicant an amount of Rs. 25758/- which was recovered unauthorisedly towards dues to Southern Railway Employees Co-Operative Credit Society, Trichy, within a period of 60 days from the date of receipt of a copy of this order. 11. No order as to costs. (Dated, the 05th April, 2011) (K. GEORGE JOSEPH) ADMINISTRATIVE MEMBER
Monday, April 4, 2011
Option be exercised for retrospective revision of Pay
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH O.A. NO. 180/2010 Dated this the 29th day of March, 2011 C O R A M HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER HON'BLE Dr. K.B. SURESH, JUDICIAL MEMBER C. Radhakrishanan S/o. (late) R. Chami Chief Travelling Ticket Inspector Grade II/Sleeper Southern Railway / Coimbatore Residing at : "Krishna Priya" Swathy Nagar, Kallekulangara (P.O.) Palghat - 9. ..... Applicant (By Advocate Mr. T.C. Govindaswamy) Vs 1. Union of India represented by. The General Manager. Southern Railway, Headquarters Office Park Town (P.O), Chennai. 2. The Senior Divisional Personnel Officer Southern Railway, Palghat Division Palghat. .... Respondents (By Advocate Mr. P. Haridas) The Application having been heard on 18.02.2011, the Tribunal on 29.3.2011 delivered the following: O R D E R HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER The applicant, a Chief Travelling Ticket Inspector in the Palghat Division of Southern Railway, is aggrieved by the refusal of the respondents to accept his option for fixation of pay consequent upon re-fixation of pay with retrospective effect, while implementing the orders of the Tribunal in O.A. 63/2007. 2. The applicant is presently working as a Chief Travelling Ticket Inspector in the pay band of Rs. 9300-34900 with grade pay of Rs. 4200/- in the Palghat Division of Southern Railway. He had earlier approached theTribunal through O.A. 63/2007 for a declaration that he is entitled to have the pay of Rs. 350/- in the scale of Rs. 330-560 w.e.f. 16.12.1984 on par with his junior Shri K.R. Hariharan and to fix his pay at Rs. 350 in the scale of Rs. 260-400 with all consequential benefits. The Tribunal allowed the O.A and ordered the respondents to refix the pay notionally without arrears of pay (A-1). However, as regards denial of arrears, the applicant had filed WP(C) No. 11178 of 2009 before the High Court, which is pending. The applicant has also filed CPC No. 32 of 2009 before the Tribunal against non-fixation of pay as directed in O.A. 63/2007. The respondents filed a statement enclosing copy of order issued by the 2nd respondent (A-2) on the basis of which the Contempt Petition was closed. However, the applicant noticed he was denied an option for fixation of his pay on different dates of promotion. Therefore, he submitted a representation
(A-3). As there was no action he has filed this O.A for a direction to the respondents to act upon the options exercised by him in terms of A-3 and grant consequential benefit with all arrears. The main ground urged by the applicant is that as he has been granted revision of pay with retrospective effect, he is entitled to exercise option /re-option every time when the pay is fixed under FR 22 (I)(a)(1). 3. At the outset the respondents contended that the O.A is barred by limitation as the pay fixation sought to be revised relates to year 1984. They opposed the contention of the applicant that he is entitled to be given an option whenever pay is revised and fixed under Rule FR 22(1)(a)(1). They stated that the Tribunal in O.A. 63/2007 directed the respondents to refix the pay of the applicant in pay scale of Rs. 260-400 as on 14/16.12.1984 w.r.t his presumptive substantive pay in the previous scale and extend consequential benefits without arrears of pay. They contended that the order cannot be treated as a fresh promotion order enabling pay fixation as per the applicant's option. They also relied on the letter No. E(P&A)II-81/PP-4 dated 13.11.1981 under which the employee has an option. They stated that the applicant has however not exercised his option in the prescribed format. There is no record to show that he had exercised his option. Revision of pay on par with his junior is not a promotion order and hence he is not entitled to exercise an option as in the case of promotion. 4. We have heard the parties and perused the documents produced before us. 5. The issue of revision of pay of the applicant started with the direction of the Tribunal in O.A. 63/2007. The operative portion of the order is extracted below: "8 For the reasons stated as above, the OA is allowed as follows. The impugned order dated 7.7.2006 is quashed in so far as it relates to the rejection of the applicants request for refixation of his pay. The respondents are directed to refix the pay of the applicant in the pay scale of Rs. 260-400 as on 14/16.12.1984 with reference to his presumptive substantive pay in the previous scale and extend notional consequential benefits without arrears of pay to the applicant within a period of three months from the date of receipt of copy of this order. No costs." 6. The pay of the applicant is directed to be refixed w.r.t his presumptive substantive pay in the previous scale extending notional consequential benefits. The respondents have not gone on appeal against the order. The Writ Petition filed by the applicant is only against the denial of arrears. Therefore, the order directing pay fixation portion has become final and is binding on the respondents. The Tribunal has directed to refix the pay in the scale of Rs. 260-400 as on 14/16.12.1984. Therefore, while implementing the order of the Tribunal, the respondents are bound to give an opportunity to the applicant to exercise the option available to him and ask him to submit his option in the prescribed proforma. The contention of the respondents that the applicant has not exercised option in the correct format is not tenable. It is the duty of the respondents to inform him about the fixation of his pay and seek option of the applicant. The respondents have not done so. The applicant did represent indicating his option for fixation of pay. The respondents have not accepted it. 7. In this view of the matter, the applicant is permitted to submit his option in the prescribed format and the respondents are directed to accept it and act upon it and refix the pay of the applicant following the direction of the Tribunal in O.A.63/2007. This shall be done within two months from the date of receipt of this order. No order as to costs. Dated 29th March, 2011 DR. K.B. SURESH K. NOORJEHAN JUDICIAL MEMBER ADMINISTRATIVE MEMBER
Wednesday, March 30, 2011
HRA admissible for de-quarterized Post Quarters
CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH, CUTTACK O.A No. 245 of 2010 Cuttack, this the 3rd January, 2011 Niranjan Nayak . Applicant -v- UOI and others . Respondents C O R A M THE HON BLE MR. C.R. MOHAPATRA, MEMBER (A)
Prayer of the Applicant in this OA is for direction to the Respondents to release his House Rent Allowance(in short HRA) and Conveyance Allowance ( in short CA) during his incumbency as Sub Postmaster, Debidol SO from 12.09.2006 to 19-06-2009 after quashing the order rejecting his claim under Annxure-A/11 dated 19.04.2010. 2. The contention of the Applicant is that Respondent No.4 vide Memo No.B/G-75 dated 31.8.2007 intimated the Respondent No.2 that the standard of accommodation required for C class SO comes to 1115 Sq.Ft against plinth area of 652 Sq.ft including post quarter. The rooms of the post quarter in question are very small and in one room of post quarter the post office Almirah and records are kept and used as Store Room. The electricity connection was disconnected since there is pending bill amounting to Rs.61,193/- and the post quarter is also in a dilapidated condition and is not habitable and also the Respondent No.4 recommended for de-quarterization. He has also placed reliance on the correspondence made in this regard so also the periodical inspection report stating that the quarter in question was not habitable for the stay of the Applicant. 3. According to the Respondents, in their counter filed in this case, the Applicant is not entitled to HRA & CA for the reason that prior to his promotion to Postal Assistant cadre, the Applicant (Niranjan Nayak) was working as Gramin Dak Sevak in Balikuda SO. After his promotion to postman cadre he worked as Postman and officiated as O/S Mails at Balikuda SO from 17.10.1977 to 13.07.1981 as a result he had rendered his entire period of service at Balikuda and Borikina SO which are within 8 KM radius of his native place. After that he was transferred to Devidol. His permanent residence is only 1 KM away from Balikuda. Borikina is 7 KM away from Balikuda. So he has spent more than 30 years in two offices namely Balikuda and Borikina. When he was posted at Devidol he became suffocated because he was in habit of residing at home getting HRA. It has further been stated that he being a senior official used to work as PA rather than working as SPM in single handed/double handed offices. The Devidol post office is functioning in the existing building since 1.3.1975. Previously nobody has ever complained about the unsuitability of the building. On his posting as SPM, Devidol the applicant did not occupy the quarters taking lot of pleas. The applicant is not residing in the said quarter and commuting between Devidol and Nagpur (Balikuda) daily. The post office in question is having the Post attached quarter in which the predecessor of the applicant was residing. The quarter was vacant from the day of the joining of the applicant. As per the Rules 37 of Postal V, Manual Vol.VI, Part I (Annexure-R/1) applicant was supposed to reside in the said quarter. When the applicant joined as SPM Debidol the quarter was habitable. Since the applicant did not intentionally and deliberately on some plea or the other occupied the quarters he is not entitled to the relief claimed in this OA and this OA is liable to be dismissed. 4. A rejoinder has been filed by the Applicant more or less stating the same thing as has been stated in the OA. 5. It reveals from the record that with this prayer applicant earlier approached first in OA No. 276 of 2008. Considering the rival submission of the parties made with reference to the pleadings and materials placed on record, in order dated 21st October, 2009 this Tribunal disposed of the matter. Relevant portion of the order is quoted herein below: ( 3). In view of the above, without expressing any opinion on the merit of the matter, this Original Application is disposed of with liberty to the applicant to make a detailed representation incorporating the document relied on in his rejoinder to the Respondent No. 2 within a period of seven days hence. On receipt of such representation, the Respondent No.2 is hereby directed to consider and dispose of the same with a reasoned and speaking order and communicate the result thereof to the Applicant within a period of 60 days. No costs. 6. RA No. 16 of 2009 filed by the Applicant seeking review of the aforesaid order was dismissed by this Tribunal on 07.12.2009. Thereafter, in compliance of the order of this Tribunal, by making representation dated 21.12.2009 by placing materials he tried to justify his claim for payment of the House Rent & Conveyance Allowances for the period from 12.09.2006 to 19.06.2009. He has also taken support of the decision of this Tribunal dated 21.10.2009 rendered in OA No. 463 of 2008. The Respondent No.2 rejected the claim of the applicant and communicated the decision to the applicant in letter dated 11th February, 2010. The said order of rejection was challenged by the Applicant in OA No. 111 of 2010. This Tribunal, in order dated 16th March, 2010 disposed of the matter relevant portion of the order reads as under: ( 4). Having heard the rival submissions of the parties perused the materials placed on record including the earlier orders of this Tribunal vis-`-vis the order under challenge. I find substantial force in the contention of the Learned Counsel for the Applicant as it is seen that all the points taken in the representation of the applicant have not been taken into consideration by the Respondent No.2 while giving consideration and rejecting the representation of the Applicant. As such, for the ends of justice and to avoid waste of time, it is deemed fit and proper to dispose of this Original Application at this admission stage by quashing the order under Annexure-A/9 with direction to Respondent No.2 to give a fresh consideration to the grievance of the Applicant and pass a reasoned order under initiation to the Applicant within a period of 30(thirty) days from the date of receipt of this order. Ordered accordingly. 7. The prayer of the Applicant has again been rejected in Annexure-A/11 dated 19th April, 2010 against which the Applicant has approached this Tribunal in the present OA with the aforesaid prayer. 8. By reiterating the stand taken in the respective pleadings, Learned Counsel appearing for both sides have prayed for the relief in support of their claim and having heard them at length perused the materials placed on record. 9. Order of rejection under Annexure-A/11 for grant of HRA & CA for the period from 12.09.2006 to 10.06.2009 speaks as under: This is regarding compliance of the direction of Hon ble Central Administrative Tribunal, Cuttack Bench, Cuttack dated 16.03.2010 in OA No. 111/10 filed by Shri Niranjan Nayak, Ex-SPM, Debidol SO and presently working as SPM, Borikina SO. The Hon ble Tribunal in its order, dated 16.03.2010 directed the Respondent No.2 that is Chief Postmaster General, Orissa Circle to consider the representation dated 21-12-2009 to give a fresh consideration to the grievance of the applicant and pass a reasoned order and speaking order within a period of 30 days. The Judgment as above was received on 29-03-2010. The said Sri Nayak in his representation has requested for payment of HRA in lieu of rent free accommodation for the period from 12.09.2006 to 10.06.2009 as SPM, Debidol on the plea of unsuitable and insufficient accommodation of the SPM. Shri Nayak joined as SPM Debidol SO on 12.9.2006. After joining he represented to the SPOs, Cuttack South Division, Cuttack as well as to this office for dequarterization of the pot quarters on the plea that the post quarters of Debidol SO is not suitable for residence o the SPM. The post quarters has not been dequarterized by the competent authority. The present SPM staying in the post quarters at Debidol SO has not represented for HRA in lieu of post quarters nor has he been given HRA in lieu of post quarters. In fact he has accepted the post quarters which is ready for occupation. The representation of the applicant and report dated 07.04.2010 of the Superintendent of Post Offices, Cuttack South Division and other records have been considered as per the rulings of the Directorate regarding post quarters meant for Postmasters/Sub Post Masters. The claim of the applicant for payment of HRA for the period 12.9.2006 to 10.6.2009 as SPM Debidol SO has been considered in the light of above discussion and rejected as the same is not admissible as per the departmental rules and instructions on the subject and also because the same is not justified. 10. The reasons given in letter of rejection seem contrary to the record as could be evident from the contents of the letter under Annexure-A/5. Full text of the letter under Annexure-/5 is reproduced herein below: In continuation of this office letter of even no. dated 17.8.2007, the facts of the case is that Debidol C class delivery SO is functioning in the rented accommodation provided by Kanchanbala Padhi At/Po-Debidol. The SPM is provided with post quarter. The standard of accommodation required for C class delivery SO comes to 1115 sqft (copy enclosed) against available plinth area of 652 sft including Post quarter. On receipt of representation of Sri Niranjan Nayak, the ASPOs, I/C Jagatsinghpur Sub Division made spot visit and submitted his report stating that the rooms of the post quarter are very small and in one room of post quarter the SPM has kept post office Almirah and records and used as store room. This is to mention that the electricity connection to the post office has been disconnected since there is pending bill amounting to Rs.61193/- and the said bill is under enquiry. The post quarter is also in dilapidated condition. Hence the post quarters is not habitable and it is recommended for dequarterisatioin. Sri Niranjan Nayak SPM, Debidol joined as SPM Debidol on 12.09.06. He submitted one representation on 12.9.06 stating that he has not taken possession of post quarter since it is not habitable. He further requested that necessary order for drawal of house rent in lieu of rent free accommodation may be sanctioned in his favour. As per Director of Estate OM No.12035 (21)/90-POl.ll dtd 4.10.1991 (instruction under SR 316 A of FRSR Part-I, the successor should take possession of post quarter on his joining. The official joined on 12.9.06 but failed to take possession of post quarter in violating above instructions. Hence no order was issued for drawal of his HRA in lieu of rent free accommodation to the postmaster Jagatsinghpur HO. The Asst. Engineer Civil has proposed to visit the office on 4.7.07 but due to his otherwise engagement it was not feasible. Basing on the report of the ASPOs Jagatsinghpur Sub Division and IR remark of Para 46 of IR dtd 26.11.99 (ASPOs I/C Jagatsingpur) and Para 34 of IR dtd.2.11.01 of SPOs Cuttack South Dvn., it is proposed to dequarterised Debidol post quarter. Moreover as per CO letter No. Inv/Misc.-17/04 dtd.11.7.05 (copy enclosed) the proposal to shift the Post Office to other rented building has not been materialized due to non-availability of suitable accommodation. 11. From the contents of the letter it is clear that the post quarter was not in habitable position for the stay of the Applicant. It was also inadequate according to the yardstick of the space for the post quarter. Merely because the predecessor was and successor is residing in the quarters cannot be a ground to deny the applicant his legitimate right to get the HRA & CA in lieu of the accommodation. Applicant has been agitating the difficulty and expressing his inability to reside in the quarters. Non-availability of suitability accommodation cannot be a ground to compel the applicant to reside in the post quarters which is inadequate and having no minimum requirement for one s residing. It is not the case of the Respondents that the applicant was residing in the said quarters for the period in question. The reason of rejection shows without proper application of mind to the fact available on record. This apart, getting of HRA & CA when the post attached quarters was not adequate for residing came up for consideration before this Tribunal in OA No. 463 of 2008 filed by one Paramananda Nanda claiming HRA & CA for the period from 26.5.2004 to 25.5.2005 as he was not residing in the post attached quarters as the same was not commensurate with his status and position. The said OA was disposed of by this Tribunal on 21st October, 2009 directing payment of the HRA & CA for the aforesaid period. Relevant portion of the order is extracted herein below: (5.)As it appears, the above stand has again been reiterated in the report submitted by Respondent No.5 under Annexure-A/10 dated 08.11.2005 and Annexure-A/12 dated 20.02.2006 while meeting the queries made by Respondent No.4. From the above, it is clear that the quarters in question were not according to the entitlement of the Applicant. None can be insisted to do something beyond the rules. Similarly, none can be compelled upon to stay in a quarters which is not in accordance with his entitlement. Government is under obligation to provide quarters to its employees and in case of non-availability of quarters according to the entitlement of an employee the employee concerned is entitled to HRA. On going through the report submitted by the Respondent No. 4 in my opinion there remains nothing further to hold that in not occupying the quarters in question the applicant had violated the relevant rules. In the ircumstances, it is nothing but fair to hold that non-payment of the HRA and CA in lieu of the quarters cannot be justified. That the predecessors of the Applicant were occupying the quarters cannot be a ground to insist on the Applicant to reside in the quarters which was admittedly inadequate, in other words unsuitable for the applicant to stay. However, I refrain from quashing the order under Annexure-A/14 & A/16 in rejecting the prayer of the applicant for dequarterisation of the Post quarters; as quashing of the orders would tantamount to depriving the successor of applicant who might have been interested to take the quarters even with such deficiency. ( 6). In view of the discussions made above, as the Applicant did not occupy the quarters in question for the period he was holding the post, the Respondents are hereby directed to grant the Applicant HRA and on fulfilling the condition CA for the period from 26.05.2004 to 25.5.2005 within a period of 60 days from the date of receipt of this order. 12. Similar grievance also came up for consideration in OA No. 141 of 2010 [Kabir Charan Mallick v Union of India and others]. This Tribunal allowed the prayer made in the OA by directing the Respondents to make payment of the HRA for the period from 1.10.2005 to 31.3.2009 to the Applicant therein. 13. On examination of the facts and issues involved and decided by this Tribunal in earlier two OAs (referred to above) vis-`-vis the facts and issue involved in the present case, I find no reason to differ from the view already taken in earlier cases. After going through the letter under Annexure-A/5, I also do not find any justifiable reason to uphold the decision taken in Annexuire-A/11 dated 19.04.2010 rejecting the claim of the applicant. Hence the order of rejection under Annexure-A/11 is hereby quashed. The Respondents are hereby directed to sanction and disburse the HRA/CA for the period from 12.09.2006 to 19.6.2009 within a period of 60(sixty) days from the date of receipt of this order. 14. In the result, with the aforesaid observation and direction this OA stands allowed. There shall be no order as to costs. Sd/- (C.R.MOHAPATRA) Member(Admn.)
Wednesday, March 23, 2011
Holiday on account of Birthday of Dr B R Ambedkar
Holiday on account of Birthday of Dr. B R Ambedkar
The Government has decided to declare 14th April 2011 (Thursday) as a Closed Holiday on account of the birthday of Dr. B.R. Ambedkar for all central Government offices, including industrial establishments throughout India.
The above holiday is also being notified in exercise of powers conferred by Section 25 of Negotiable Instruments Act 1881 (26 of 1881)
Friday, March 18, 2011
Employee opting for voluntary retirement no right to withdraw
has no right to withdraw
Court- Karnataka High Court
Citation-
Court- Karnataka High Court
Citation-
Sri A. Balakrishnan S/O Late … vs The General Manager, Hindustan (2007) 208 CTR Kar 337, 2007 290 ITR 227 KAR
Judgement
1. Petitioner was an employee in the 1st respondent – Organization M/s. HMT Ltd. Petitioner availed of a voluntary retirement scheme as on 31.3.2003 that was mooted by the employer and as a result he received an amount of Rs. 6,01,270/-. The employer at the time of paying this amount deducted a sum of Rs. 29,331/- at source under the provisions of Section 192 of the Act and an acknowledgment in Form 16-A was also issued to the petitioner evidencing the deduction of this amount from the amount paid to him and remitted the same to the credit of the Income Tax Department.
2. It is the version of the petitioner that in respect of the amount that he has received in terms of the provisions of Section 10(10)(c), 173(1) and 89 of the Income Tax Act, 1961 [for short the Act] read with Rules 2 (A)(A), the Page 0541 petitioner was not liable for payment of any tax and the amount of Rs. 29,331/- deducted on the amount of Rs. 1,01,270/- purporting to be on the salary part of the assessee was to be refunded even in terms of the law laid down by this Court in the case of The Commissioner of Income Tax, Bangalore and Anr. v. Surendra Prabhu P reported in 2005 (59) KLJ 609 [HC][DB].
3. It appears the petitioner had filed a return in Form No. 2-D seeking refund of this amount A copy of the return is produced as Annexure-C to the writ petition. It is the further case of the petitioner that the Income Tax Authorities did not respond to the return filed by the petitioner in Form 2-D and as a consequence the petitioner pressed into service the provisions of the Right to Information Act 2005 by filing an application on 18.7.2006, copy at Annexure-D to the petition. It is in response to this, the 2nd respondent – Commissioner of Income Tax, Bangalore -5, has intimated the petitioner that return of income is not a valid return and cannot be processed as it has been filed beyond the time limit prescribed under Section 139 of the Act.
4. It is aggrieved by the action of the respondents and at this stage, the petitioner has filed this writ petition, inter alia, seeking for quashing of the endorsement at Annexure-E and for issue of a consequential mandamus to direct the respondent No. 2 to refund the excess deduction of Rs. 29,331/- deducted by his employer and remitted to the Income Tax Department.
5. Notices had been issued to the respondents and respondent No. 2 has entered appearance through its standing Counsel. Statement of objections has also been filed.
6. While the facts are not in dispute, what is urged in the statement of objections is that the assessee having filed the return on 18-5-2006 is beyond the permitted time in terms of Section 139(1) of the Act as according to the respondents, the return should have been filed by 31-7-2003 and the return filed on 18-5-2006 being even beyond the extended period permitted in terms of Section 139(4) of the Act, the return is invalid and is treated as non est. It is also indicated that the respondents are fortified in taking such view in terms of the Judgment of the division Bench of the Calcutta High Court in the case of Commissioner of Income Tax, West Bengal – III v. Srimati Minabati Agarwalla reported in 79 ITR 278 and accordingly prayed for dismissal of the writ petition.
7. Petition was admitted and thereafter Sri. Sukumaran, learned Counsel for the petitioner and Sri. Aravind, learned Counsel for respondent No. 2 have been heard.
8. What is pointed out by learned Counsel for the petitioner is that the return filed in form-2D is not an application for refund but a return of the factual position of the receipts of the petitioner from his salary income etc., and it is not open to the income tax department to decline to process the return.
9. Learned Counsel for the petitioner points out that a non filing of the return within the time stipulated under Section 139(1) of the Act or the extended time under Section 139(4) of the Act would only result in the Page 0542 consequential liability for interest etc., and possible penalty also and is not one which places an embargo on the Income Tax Department from processing the return and passing the orders on the same; that in the circumstances, while endorsement at Annexure-E should be quashed, if not a mandamus for refund, a mandamus for processing the return at least should be issued to the respondent No. 2.
10. Sri. Aravind, learned Counsel for respondent No. 2 on the other hand submits that the 2nd respondent or the Income Tax Department is not so much averse to consider the return of the petitioner but petitioner is required to file an application in terms of Section 139(2)(b) of the Act as the return which was filed on 18-5-2006 on the face of it is a belated return; that unless the Commissioner in exercise of the power delegated by the Board under this provision condones the delay in filing such return, it may not be possible for the assessing officer to process the return and would therefore submit that if the petitioner should file an application before the Commissioner invoking the provisions of Section 139(2)(b) of the Act, it will enable the concerned assessing officer to process the return if the Commissioner should condone the delay in filing the return etc.,.
11. It is the submission of learned Counsel for the respondent No. 2 that unless this procedure is gone through, it is not open to the assessing officer to assess the return as the return is a void return or non est in law and therefore mandamus as sought for cannot be issued nor certiorari for quashing the endorsement at Annexure-E.
12. In support of his submission, learned Counsel for respondent No. 2 would place reliance on the decision of the division Bench of the Calcutta High Court in the case of Commissioner of Income Tax, West Bengal-III v. Srimati Minabati Agarwalla reported in 79 ITR 278 as also a single Bench decision of the Punjab & Haryana High Court in the case of Auto and Metal Engineers v. Union Of India and Anr. reported in 111 ITR 161.
13. The decision of the Calcutta High Court in Minabati’s case was a decision rendered in the context of the provisions of Section 22(2), 22(3) and 34(3) of the Indian Income Tax Act, 1922, holding that as returns filed by the assessee in that case for the years 1953-54 to 1956-57 on 9-8-1961 were invalid, no fresh assessment could have been made on the basis of an order passed by the Commissioner under Section 33B of the Indian Income Tax Act, 1922. The Calcutta High Court was answering the question which reads as under:
Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the returns filed by the assessee for the assessment years 1953-54 to 1956-57 on 9th August, 1961, were invalid and that no fresh assessments could be made on the basis of the Commissioner’s order under Section 33B of the Indian Income-Tax Act?
The learned Judges on considering the case law on the point and also examining the decision of the Supreme Court answered the question in the affirmative holding that such returns were invalid and the Commissioner Page 0543 by issue of directions under Section 33B of the Indian Income Tax Act, 1922 could not have directed for passing fresh assessment orders on such returns.
14. The actual question that arose in that case was about the competence of the Commissioner to issue directions under Section 33B to direct the assessing officer to process a return otherwise invalid under the provisions of the Indian Income Tax Act, 1922.
15. The filing of the returns under the Income Tax Act 1961 is now governed by the provisions of Section 139 of the said Act. A perusal of the provisions of Section 139 does not indicate that the authorities are barred from processing return filed under the Act just because it is not filed within the time stipulated either under Section 139(1) or 139(4) of the Act.
16. While it may not be open to the income tax department to bring to tax any income beyond the period permitted in terms of Section 147 of the Act if within that time either a return is filed whether within the time stipulated under Section 139(1) or 139(4) or otherwise, it can be looked into and there is no embargo as such.
17. In the present case, the petitioner having filed the return though beyond the time permitted, it is not as though the return is one which is per se prohibited to be processed by the income tax authorities under the statutory provisions. It is for this reason, with great respect, I am not inclined to follow the decision rendered by the Calcutta High Court in Minabatt’s case supra.
18. Learned Counsel for respondent No. 2 has also placed reliance on the decision of the Punjab & Haryana High Court in Metal Engineer’s case supra.
19. That was a case where the assessing authority declined to process a return filed by the assessee within the permitted time under Section 139 and on the other hand had issued a notice under Section 147 of the Act calling upon the assessee to make a return and on the other hand the assessee had questioned the legality of the notice issued under Section 147 of the Act.
20. The court took the view that notice under Section 147 was not invalid as the assessee had not filed the return within the time permitted under Section 139(1) of the Act and it cannot be automatically taken that there was an extension of time permitted under Section 139(2) of the Act, just because the Income Tax Officer had impressed upon the assessee the need to file the return immediately in a letter addressed to the addressee.
21. The court again was involved with the question of validity of notice issued under Section 147 of the Act in the context of a belated return by the assessee.
22. I am afraid, this decision does not apply to the case of the petitioner in the present situation.
23. Learned Counsel for respondent No. 2 has also brought to the notice of the court Section 119(2)(b) of the Act and submits that unless the petitioner files an application for refund before the Board and the Board directs for Page 0544 processing the return after condoning the delay, the assessing officer win not be in a position to process the return; that the Board in exercise of its power under Section 119 in turn can delegate the power on other Officers of the Income Tax Department for the purpose of condoning any delay or non-compliance for which there are time stipulations and such power having been delegated to the Commissioner, it is necessary that the petitioner should apply to the Commissioner under this provision seeking the condonation of delay in filing the return of income.
24. While it is no doubt open to an assessee to invoke the provisions, not one invoking the provisions of Section 119(2)(b) does not come in the way of the duly of the income tax department to process the return filed by the petitioner.
25. A reference to Section 119(2)(b) of the Act cannot relieve the respondents from the obligation of examining a return filed by the petitioner. It cannot be used as an excuse for inaction on the part of the respondents.
26. In the present case, it is obvious that the respondent No. 2 is not inclined to process the return as the petitioner may become entitled for refund if the return is processed and orders passed thereon. If it were to be a case where the petitioner was to pay some tax which he had not paid earlier, perhaps the respondents would have been more than willing to even issue a notice under Section 147 of the Act and calls upon the assessee to file a return or a revised return as the case may be and proceed to take further action under the Act The test is if a return pursuant to the notice under Section 147 of the Act could be processed, there is no reason as to why return filed otherwise cannot be processed. The defence put up by the respondents for not processing the return filed by the assessee in Form-2D (copy at Annexure-DJ is not supported by any provision of the statute and can only amount to inaction on the part of the respondents.
27. The time stipulation prescribed for filing return of income in terms of Section 139 of the Act is operative on a person who is compelled to file a return in terms of Section 139(1) of the Act. It is a person who has income over and above the exempted limit and whose income is taxable under the Act, who is required to file the return and while so, is bound to follow the period. The extended periods in terms of several sub-sections are also applicable to such persons.
28. Likewise, the notice in terms of Section 147 and the time stipulation for issue of notice etc., are also in respect of a person who has taxable income and whose taxable income has either not been offered to assessment at all or who has not declared full particulars of his income. For a person like the petitioner, if his taxable income is nil, in the sense that he has no obligation to file a return, the time stipulations also equally cannot apply. Therefore, to say that the income tax authorities are disabled from scrutinizing the return filed by the petitioner, in view of the time stipulation in terms of Section 153 for processing such return may not be correctly apply at all. On the other hand, the employer having deducted certain amount from the Page 0545 petitioner as deduction at source on the payment of salary/retiral benefits and having remitted it to the account of the income tax department and this deduction being in terms of the provisions of the Act and if the assessee is not otherwise enabled to claim refund of this amount under any other statutory provisions and if he is not actually liable to pay the kind of income tax deducted at source nor the teamed counsel for respondent having pointed out to any enabling statutory provision, the only other way the petitioner can seek for refund of the amount is by filing a return of his income and as a result of the assessment if it is found the tax liability of the petitioner is nil, the assessing officer may take note of the amount already deducted from out of the amount paid to the petitioner by his employer and remitted to the income tax department and direct refund of that amount to the assessee as part of the assessment order. For not performing this exercise, the respondents cannot bind the time stipulation indicated in Section 139 of the Act as a defence.
29. For the very reason, reference to provisions of Section 192(1B) of the Act and on which reliance is placed by the learned Counsel for the respondents is also not tenable, as it is only such assessee who is seeking for an extension of the time stipulation or a condonation of delay in compliance, may invoke the provisions of Section 119(2)(a) of the Act. If no time stipulation was in the first instance applicable to the return that is filed by the petitioner, the provisions Section 119(2)(b) arc also not needed at all.
30. Viewed from another angle also, the respondents cannot decline to process the return as the exemption of payment as terminal benefit and exceeding a sum of Rs. 5.00 lakh in terms of Section 10(10C) of the Act is also one on a claim by the assessee as an amount received which qualifies for this exemption. This again can be done only in a return filed by the assessee and not elsewhere. It may be noticed that if the assessee is not entitled for this benefit of Section 10(10C), then the income becomes taxable and it can be brought to tax by the assessing officer by invoking the provisions of Section 147 of the Act At feast for determination of this position, it will be necessary for the assessing officer to process the return and finalize the same and if need be by invoking the provisions of Section 147 also. Even without looking into the return, it will not be possible for the assessing officer to conclude that as there is no taxable income, no need to process the return etc. Therefore, in either view of the matter, it will be necessary for the assessing officer to process the return and to pass orders in accordance with the provisions of the Act and not to justify the inaction.
31. It is the duty of the functionaries under the Income Tax Act to Implement the provisions of the Act in accordance with law. A return filed is bound to be processed by the Income Tax Authorities for which purpose they are meant unless there is an embargo placed. Learned Counsel for respondent No. 2 has not been able to point out a specific statutory provision which places an embargo and on the other hand is only pointing out to other Page 0546 possibilities of invoking relaxation etc., which by itself does not place an embargo to process the return.
32. It is rather unfortunate that the Income Tax Department has taken such an adamant and stubborn stand only to deny a possible refund to the petitioner. An amount which would have been otherwise due to the petitioner if is retained by the Income Tax Department without any justification, then inaction cannot be put up as a defence for retention of an amount. I say this because the amount which can be realised even by way of income tax from any assessee can only be in accordance with the statutory provisions, as is mandated under Article 265 of the Constitution of India.
33. In terms of the law laid down by this Court in the case of The Commissioner of Income Tax, Bangalore and Anr. v. Surendra Prabhu P reported in 2005 (59) KLJ 609 [HC][DB] on which reliance is placed by learned Counsel for the petitioner it does points out that in respect of any payment received by a person seeking voluntary retirement the first five lakhs rupees is exempt under Section 10(10-C) of the Act and in respect of balance of the amount, the tax deducted is not justified as the balance amount is one which entitles for exemption within the permissible limit.
34. It is not necessary for this Court to go into these details. If such is perhaps the factual position, retention of the amount can be obviously in violation of law and as one without proper authority.
35. Though a writ of mandamus could have been issued even for refunding of the amount, as this aspect of the matter has not been examined by the authorities, it is but proper to issue a mandamus directing the 2nd respondent to ensure that the return filed by the assessee is duly processed in accordance with law and appropriate orders passed on the same within three months from today.
36. Petitioner having been put to the ordeal of not processing his return, declining an amount which he would have earned by his toil, respondents are bound to compensate and I am of the view it calls for commensurate cost to be paid to the petitioner. Cost is also increased to make the respondents realise the effect of it, as this Court cannot appreciate an inaction on the part of a public authority being put forth as a defence for not performing the duty and that in turn resulting in harassment and hardship to an hapless citizen like the petitioner, who is compelled to approach this Court for relief.
37. Rule made absolute. The endorsement bearing No. F.No. 5/RTI/CIT V/2006-07 dated 18-8-2006 [copy at Annexure-E] passed by the respondent No. 2 is hereby quashed by issue of a writ of certiorari.
38. Writ petition allowed levying cost of Rs. 10,000/- on the respondents. Cost to be paid within eight weeks from today.
Source-I net
1. Petitioner was an employee in the 1st respondent – Organization M/s. HMT Ltd. Petitioner availed of a voluntary retirement scheme as on 31.3.2003 that was mooted by the employer and as a result he received an amount of Rs. 6,01,270/-. The employer at the time of paying this amount deducted a sum of Rs. 29,331/- at source under the provisions of Section 192 of the Act and an acknowledgment in Form 16-A was also issued to the petitioner evidencing the deduction of this amount from the amount paid to him and remitted the same to the credit of the Income Tax Department.
2. It is the version of the petitioner that in respect of the amount that he has received in terms of the provisions of Section 10(10)(c), 173(1) and 89 of the Income Tax Act, 1961 [for short the Act] read with Rules 2 (A)(A), the Page 0541 petitioner was not liable for payment of any tax and the amount of Rs. 29,331/- deducted on the amount of Rs. 1,01,270/- purporting to be on the salary part of the assessee was to be refunded even in terms of the law laid down by this Court in the case of The Commissioner of Income Tax, Bangalore and Anr. v. Surendra Prabhu P reported in 2005 (59) KLJ 609 [HC][DB].
3. It appears the petitioner had filed a return in Form No. 2-D seeking refund of this amount A copy of the return is produced as Annexure-C to the writ petition. It is the further case of the petitioner that the Income Tax Authorities did not respond to the return filed by the petitioner in Form 2-D and as a consequence the petitioner pressed into service the provisions of the Right to Information Act 2005 by filing an application on 18.7.2006, copy at Annexure-D to the petition. It is in response to this, the 2nd respondent – Commissioner of Income Tax, Bangalore -5, has intimated the petitioner that return of income is not a valid return and cannot be processed as it has been filed beyond the time limit prescribed under Section 139 of the Act.
4. It is aggrieved by the action of the respondents and at this stage, the petitioner has filed this writ petition, inter alia, seeking for quashing of the endorsement at Annexure-E and for issue of a consequential mandamus to direct the respondent No. 2 to refund the excess deduction of Rs. 29,331/- deducted by his employer and remitted to the Income Tax Department.
5. Notices had been issued to the respondents and respondent No. 2 has entered appearance through its standing Counsel. Statement of objections has also been filed.
6. While the facts are not in dispute, what is urged in the statement of objections is that the assessee having filed the return on 18-5-2006 is beyond the permitted time in terms of Section 139(1) of the Act as according to the respondents, the return should have been filed by 31-7-2003 and the return filed on 18-5-2006 being even beyond the extended period permitted in terms of Section 139(4) of the Act, the return is invalid and is treated as non est. It is also indicated that the respondents are fortified in taking such view in terms of the Judgment of the division Bench of the Calcutta High Court in the case of Commissioner of Income Tax, West Bengal – III v. Srimati Minabati Agarwalla reported in 79 ITR 278 and accordingly prayed for dismissal of the writ petition.
7. Petition was admitted and thereafter Sri. Sukumaran, learned Counsel for the petitioner and Sri. Aravind, learned Counsel for respondent No. 2 have been heard.
8. What is pointed out by learned Counsel for the petitioner is that the return filed in form-2D is not an application for refund but a return of the factual position of the receipts of the petitioner from his salary income etc., and it is not open to the income tax department to decline to process the return.
9. Learned Counsel for the petitioner points out that a non filing of the return within the time stipulated under Section 139(1) of the Act or the extended time under Section 139(4) of the Act would only result in the Page 0542 consequential liability for interest etc., and possible penalty also and is not one which places an embargo on the Income Tax Department from processing the return and passing the orders on the same; that in the circumstances, while endorsement at Annexure-E should be quashed, if not a mandamus for refund, a mandamus for processing the return at least should be issued to the respondent No. 2.
10. Sri. Aravind, learned Counsel for respondent No. 2 on the other hand submits that the 2nd respondent or the Income Tax Department is not so much averse to consider the return of the petitioner but petitioner is required to file an application in terms of Section 139(2)(b) of the Act as the return which was filed on 18-5-2006 on the face of it is a belated return; that unless the Commissioner in exercise of the power delegated by the Board under this provision condones the delay in filing such return, it may not be possible for the assessing officer to process the return and would therefore submit that if the petitioner should file an application before the Commissioner invoking the provisions of Section 139(2)(b) of the Act, it will enable the concerned assessing officer to process the return if the Commissioner should condone the delay in filing the return etc.,.
11. It is the submission of learned Counsel for the respondent No. 2 that unless this procedure is gone through, it is not open to the assessing officer to assess the return as the return is a void return or non est in law and therefore mandamus as sought for cannot be issued nor certiorari for quashing the endorsement at Annexure-E.
12. In support of his submission, learned Counsel for respondent No. 2 would place reliance on the decision of the division Bench of the Calcutta High Court in the case of Commissioner of Income Tax, West Bengal-III v. Srimati Minabati Agarwalla reported in 79 ITR 278 as also a single Bench decision of the Punjab & Haryana High Court in the case of Auto and Metal Engineers v. Union Of India and Anr. reported in 111 ITR 161.
13. The decision of the Calcutta High Court in Minabati’s case was a decision rendered in the context of the provisions of Section 22(2), 22(3) and 34(3) of the Indian Income Tax Act, 1922, holding that as returns filed by the assessee in that case for the years 1953-54 to 1956-57 on 9-8-1961 were invalid, no fresh assessment could have been made on the basis of an order passed by the Commissioner under Section 33B of the Indian Income Tax Act, 1922. The Calcutta High Court was answering the question which reads as under:
Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the returns filed by the assessee for the assessment years 1953-54 to 1956-57 on 9th August, 1961, were invalid and that no fresh assessments could be made on the basis of the Commissioner’s order under Section 33B of the Indian Income-Tax Act?
The learned Judges on considering the case law on the point and also examining the decision of the Supreme Court answered the question in the affirmative holding that such returns were invalid and the Commissioner Page 0543 by issue of directions under Section 33B of the Indian Income Tax Act, 1922 could not have directed for passing fresh assessment orders on such returns.
14. The actual question that arose in that case was about the competence of the Commissioner to issue directions under Section 33B to direct the assessing officer to process a return otherwise invalid under the provisions of the Indian Income Tax Act, 1922.
15. The filing of the returns under the Income Tax Act 1961 is now governed by the provisions of Section 139 of the said Act. A perusal of the provisions of Section 139 does not indicate that the authorities are barred from processing return filed under the Act just because it is not filed within the time stipulated either under Section 139(1) or 139(4) of the Act.
16. While it may not be open to the income tax department to bring to tax any income beyond the period permitted in terms of Section 147 of the Act if within that time either a return is filed whether within the time stipulated under Section 139(1) or 139(4) or otherwise, it can be looked into and there is no embargo as such.
17. In the present case, the petitioner having filed the return though beyond the time permitted, it is not as though the return is one which is per se prohibited to be processed by the income tax authorities under the statutory provisions. It is for this reason, with great respect, I am not inclined to follow the decision rendered by the Calcutta High Court in Minabatt’s case supra.
18. Learned Counsel for respondent No. 2 has also placed reliance on the decision of the Punjab & Haryana High Court in Metal Engineer’s case supra.
19. That was a case where the assessing authority declined to process a return filed by the assessee within the permitted time under Section 139 and on the other hand had issued a notice under Section 147 of the Act calling upon the assessee to make a return and on the other hand the assessee had questioned the legality of the notice issued under Section 147 of the Act.
20. The court took the view that notice under Section 147 was not invalid as the assessee had not filed the return within the time permitted under Section 139(1) of the Act and it cannot be automatically taken that there was an extension of time permitted under Section 139(2) of the Act, just because the Income Tax Officer had impressed upon the assessee the need to file the return immediately in a letter addressed to the addressee.
21. The court again was involved with the question of validity of notice issued under Section 147 of the Act in the context of a belated return by the assessee.
22. I am afraid, this decision does not apply to the case of the petitioner in the present situation.
23. Learned Counsel for respondent No. 2 has also brought to the notice of the court Section 119(2)(b) of the Act and submits that unless the petitioner files an application for refund before the Board and the Board directs for Page 0544 processing the return after condoning the delay, the assessing officer win not be in a position to process the return; that the Board in exercise of its power under Section 119 in turn can delegate the power on other Officers of the Income Tax Department for the purpose of condoning any delay or non-compliance for which there are time stipulations and such power having been delegated to the Commissioner, it is necessary that the petitioner should apply to the Commissioner under this provision seeking the condonation of delay in filing the return of income.
24. While it is no doubt open to an assessee to invoke the provisions, not one invoking the provisions of Section 119(2)(b) does not come in the way of the duly of the income tax department to process the return filed by the petitioner.
25. A reference to Section 119(2)(b) of the Act cannot relieve the respondents from the obligation of examining a return filed by the petitioner. It cannot be used as an excuse for inaction on the part of the respondents.
26. In the present case, it is obvious that the respondent No. 2 is not inclined to process the return as the petitioner may become entitled for refund if the return is processed and orders passed thereon. If it were to be a case where the petitioner was to pay some tax which he had not paid earlier, perhaps the respondents would have been more than willing to even issue a notice under Section 147 of the Act and calls upon the assessee to file a return or a revised return as the case may be and proceed to take further action under the Act The test is if a return pursuant to the notice under Section 147 of the Act could be processed, there is no reason as to why return filed otherwise cannot be processed. The defence put up by the respondents for not processing the return filed by the assessee in Form-2D (copy at Annexure-DJ is not supported by any provision of the statute and can only amount to inaction on the part of the respondents.
27. The time stipulation prescribed for filing return of income in terms of Section 139 of the Act is operative on a person who is compelled to file a return in terms of Section 139(1) of the Act. It is a person who has income over and above the exempted limit and whose income is taxable under the Act, who is required to file the return and while so, is bound to follow the period. The extended periods in terms of several sub-sections are also applicable to such persons.
28. Likewise, the notice in terms of Section 147 and the time stipulation for issue of notice etc., are also in respect of a person who has taxable income and whose taxable income has either not been offered to assessment at all or who has not declared full particulars of his income. For a person like the petitioner, if his taxable income is nil, in the sense that he has no obligation to file a return, the time stipulations also equally cannot apply. Therefore, to say that the income tax authorities are disabled from scrutinizing the return filed by the petitioner, in view of the time stipulation in terms of Section 153 for processing such return may not be correctly apply at all. On the other hand, the employer having deducted certain amount from the Page 0545 petitioner as deduction at source on the payment of salary/retiral benefits and having remitted it to the account of the income tax department and this deduction being in terms of the provisions of the Act and if the assessee is not otherwise enabled to claim refund of this amount under any other statutory provisions and if he is not actually liable to pay the kind of income tax deducted at source nor the teamed counsel for respondent having pointed out to any enabling statutory provision, the only other way the petitioner can seek for refund of the amount is by filing a return of his income and as a result of the assessment if it is found the tax liability of the petitioner is nil, the assessing officer may take note of the amount already deducted from out of the amount paid to the petitioner by his employer and remitted to the income tax department and direct refund of that amount to the assessee as part of the assessment order. For not performing this exercise, the respondents cannot bind the time stipulation indicated in Section 139 of the Act as a defence.
29. For the very reason, reference to provisions of Section 192(1B) of the Act and on which reliance is placed by the learned Counsel for the respondents is also not tenable, as it is only such assessee who is seeking for an extension of the time stipulation or a condonation of delay in compliance, may invoke the provisions of Section 119(2)(a) of the Act. If no time stipulation was in the first instance applicable to the return that is filed by the petitioner, the provisions Section 119(2)(b) arc also not needed at all.
30. Viewed from another angle also, the respondents cannot decline to process the return as the exemption of payment as terminal benefit and exceeding a sum of Rs. 5.00 lakh in terms of Section 10(10C) of the Act is also one on a claim by the assessee as an amount received which qualifies for this exemption. This again can be done only in a return filed by the assessee and not elsewhere. It may be noticed that if the assessee is not entitled for this benefit of Section 10(10C), then the income becomes taxable and it can be brought to tax by the assessing officer by invoking the provisions of Section 147 of the Act At feast for determination of this position, it will be necessary for the assessing officer to process the return and finalize the same and if need be by invoking the provisions of Section 147 also. Even without looking into the return, it will not be possible for the assessing officer to conclude that as there is no taxable income, no need to process the return etc. Therefore, in either view of the matter, it will be necessary for the assessing officer to process the return and to pass orders in accordance with the provisions of the Act and not to justify the inaction.
31. It is the duty of the functionaries under the Income Tax Act to Implement the provisions of the Act in accordance with law. A return filed is bound to be processed by the Income Tax Authorities for which purpose they are meant unless there is an embargo placed. Learned Counsel for respondent No. 2 has not been able to point out a specific statutory provision which places an embargo and on the other hand is only pointing out to other Page 0546 possibilities of invoking relaxation etc., which by itself does not place an embargo to process the return.
32. It is rather unfortunate that the Income Tax Department has taken such an adamant and stubborn stand only to deny a possible refund to the petitioner. An amount which would have been otherwise due to the petitioner if is retained by the Income Tax Department without any justification, then inaction cannot be put up as a defence for retention of an amount. I say this because the amount which can be realised even by way of income tax from any assessee can only be in accordance with the statutory provisions, as is mandated under Article 265 of the Constitution of India.
33. In terms of the law laid down by this Court in the case of The Commissioner of Income Tax, Bangalore and Anr. v. Surendra Prabhu P reported in 2005 (59) KLJ 609 [HC][DB] on which reliance is placed by learned Counsel for the petitioner it does points out that in respect of any payment received by a person seeking voluntary retirement the first five lakhs rupees is exempt under Section 10(10-C) of the Act and in respect of balance of the amount, the tax deducted is not justified as the balance amount is one which entitles for exemption within the permissible limit.
34. It is not necessary for this Court to go into these details. If such is perhaps the factual position, retention of the amount can be obviously in violation of law and as one without proper authority.
35. Though a writ of mandamus could have been issued even for refunding of the amount, as this aspect of the matter has not been examined by the authorities, it is but proper to issue a mandamus directing the 2nd respondent to ensure that the return filed by the assessee is duly processed in accordance with law and appropriate orders passed on the same within three months from today.
36. Petitioner having been put to the ordeal of not processing his return, declining an amount which he would have earned by his toil, respondents are bound to compensate and I am of the view it calls for commensurate cost to be paid to the petitioner. Cost is also increased to make the respondents realise the effect of it, as this Court cannot appreciate an inaction on the part of a public authority being put forth as a defence for not performing the duty and that in turn resulting in harassment and hardship to an hapless citizen like the petitioner, who is compelled to approach this Court for relief.
37. Rule made absolute. The endorsement bearing No. F.No. 5/RTI/CIT V/2006-07 dated 18-8-2006 [copy at Annexure-E] passed by the respondent No. 2 is hereby quashed by issue of a writ of certiorari.
38. Writ petition allowed levying cost of Rs. 10,000/- on the respondents. Cost to be paid within eight weeks from today.
Source-I net
Tuesday, March 1, 2011
'Certificate of Posting'. discontinued
'Certificate of Posting'. discontinued
vide:D.G. Posts No.2-4/2008-PO dated 23.02.2011.
Under the provisions of Rule 195 of the Indian Post Office Rules , 1933 'Certificate of Posting' is granted to the public to afford an assurance that letters and other articles for which no receipts are granted by the Post Office and entrusted to servants or messengers for posting have actually been posted.
It has since been decided that' Certificate of Posting' may be discontinued immediately.
A copy of Gazette Notification No. 58(E) dated 31.1.2011 deleting rule 195 of the Indian Post Office Rules, 1933 regarding 'Certificate of Posting' is enclosed for information and necessary action.
This may kindly be brought to the notice of all concerned for strict compliance.
The receipt of this communication may also be acknowledged.
S/d
NIRAJKUMAR
Director (PO&I)
Sunday, February 27, 2011
Performance-based incentive for Central Govt staff
Employees belonging to 62 of central government departments could may receive performance-based incentive, over and above their existing salaries, from as early as the next financial year. The incentive will be based on the department’s scorecard in meeting yearly targets committed by their respective secretaries and ministers as part of the results-framework documents (RFD) system. The committee of secretaries looking into performance-based incentive for government employees is said to have already zeroed in on a formula that offers a secretary-level officer an incentive up to 40% of the basic salary, provided his department has met 100% RFD targets. A scorecard of 70% and less in meeting RFD targets would however attract zero incentive. However, no penalty will be imposed on the non-performing officers. The secretaries’ panel, headed by the Cabinet secretary, has already completed three crucial meetings and is looking to finalise its recommendations in time to enable performance-linked salaries in the coming financial year. For a secretary-level officer, the incentive is proposed to be 15% of cost savings (budgeted expenditure minus actual expenditure) by the department multiplied by its composite score,less 70, divided by 30. The incentive will be higher with each passing year. In other words, secretary of a department that meets 100% RFD targets for a year would get 20% performance-based incentive in the first three years, 30% in the next three years and 40% between the sixth and ninth year. A 70% scorecard would however attract no incentive. For a joint secretary, the incentive will be sum of 30% of departmental composite score and 70% of divisional composite score. Since the incentive will be paid from cost savings of the department resulting from improved performance, there will be no extra burden on the exchequer. The government, incidentally, is not in favour of penalising the non-performing officers. The reasoning being that not getting any incentive, or absence of recognition, would be punishment enough for the under-performers. With the committee of secretaries also planning to lay down the condition that performance-linked incentive will accrue to only those departments that have submitted RFDs for two consecutive years, the key five departments of PMO , home, finance, defence, external affairs who are still not covered by the RFD system will not qualify for the incentive.
Source: Economic Times
Saturday, February 26, 2011
Income Tax can be paid at AXIS bank ATMs
Income Tax can be paid at AXIS bank ATMs
Private sector Axis Bank today announced the launch of the facility to pay income tax at ATMs. This facility, initially, will be available at select ATMs in the major centres and will shortly be made available at all 5,600-plus ATMs across the country, the bank said in a press release issued.
Axis Bank customers holding ATM/debit cards can use this facility to pay income tax/other direct taxes using Axis Bank ATMs .
The Central Board of Direct Taxes (CBDT), as a part of its e-Governance initiative to provide more convenience to taxpayers, had advised authorised banks to roll-out the facility to pay tax using ATMs. Axis Bank is the first private sector bank to make this facility available for its large tax-paying customer base.
Axis Bank’s Executive Director-Corporate Banking, V Srinivasan, said, “there is a vast segment of retail tax- payers who do not have internet-enabled bank accounts and are thus unable to pay income tax on-line. Axis Bank with its vast ATM network will now be able to cater to these retail assesses who account for a substantial portion of all income tax payers.”
This provision will ensure immediate credit of taxes paid to the Government account and is expected to not only improve compliance on part of taxpayer but also substantially reduce paper handling of challans by the banks.
The facility will not only make income tax payment easier and simpler for the individual tax payers but also provide them the convenience of making the payment 24-hours a day–365 days a year, the release said.
Wednesday, February 23, 2011
LGO exam(10-10-2010) result declared
Result of LGO Examination
held on 10-10-2010 declared
Postalinfo congrates all the
candidates for their success
DEPARTMENT OF POSTS: INDIA
OFFICE OF THE CHIEF POSTMASTER GENERAL
ORISSA CERCLE, BHUBANESWAR -751001
Memo No. RE/30-23/09(Con) Dated at Bhubaneswar the 22.02.2011.
The following LGO officials who appeared the departmental examination for promotion to the cadre of PA/SA/PACO held on 10.10.2010 have come out successful. The particulars of the successful officials and Division to which they are allotted are as under. The surplus qualified candidates are allotted to the neighbouring Divisions.
This issue with the approval of the competent authority.
Sl. No. Name of Candidate Community Roll No. of the candidates Division to which belong Division to which allotted
1 Birabar Sahoo UR OR/PA-03/2010 Bhubaneswar Bhubaneswar
2 B.N.Dalai OBC OR/PA-02/2010 Bhubaneswar Bhubaneswar
3 Jakir Hossen Khan UR OR/PA-07/2010 Bhubaneswar Bhubaneswar
4 Baidyanath Behera OBC OR/PA-05/2010 Bhubaneswar Bhubaneswar
5 Arabinda Padhi UR OR/PA-72/2010 Balasore Balasore
6 Sashikanta Sahu OBC OR/PA-75/2010 Balasore Balasore
7 Ashok Kumar Sahu UR OR/PA-65/2010 Bhadrak Bhadrak
8 Byomokesh Barik UR OR/PA-64/2010 Bhadrak Bhadrak
9 Banamali Jena SC OR/PA-66/2010 Bhadrak Bhadrak
10 Sitanshu Sekhar Tripathy UR OR/PA-67/2010 Bhadrak Bhadrak
11 Suvendu Kumar Swain UR OR/PA-17/2010 Cuttack City Cuttack City
12 Debabrata Rout OBC OR/PA-19/2010 Cuttack City Cuttack City
13 Laxmidhar Behera UR OR/PA-20/2010 Cuttack City Cuttack City
14 Shiv Prasad Behera UR OR/PA-18/2010 Cuttack City Cuttack City
15 Ashok Kumar Barik OBC OR/PA-24/2010 Cuttack South Cuttack South
16 Satya Narayan Swain UR OR/PA-29/2010 Cuttack South Cuttack South
17 Pabitra Mohan Swain OBC OR/PA-27(Prov.)/2010 Cuttack South Cuttack South
18 Santosh Kumar Biswal UR OR/PA-41/2010 Cuttack North Cuttack North
19 Sushanta Kumar Sahoo OBC OR/PA-39/2010 Cuttack North Cuttack North
20 Trilochan Sahoo OBC OR/PA-44/2010 Cuttack North Cuttack North
21 Amiya Kumar Sahoo OBC OR/PA-45/2010 Cuttack North Cuttack North
22 Kartik Ch. Dash UR OR/PA-37/2010 Cuttack North Cuttack North
23 Alok Kumar Routray UR OR/PA-60/2010 Puri Puri
24 Umesh Chandra Mansingh UR OR/PA-51/2010 Puri Puri
25 Suresh Chandra Jena UR OR/PA-59/2010 Puri Puri
26 Raj Kumar Sah ST OR/PA-58/2010 Puri Puri
27 Bhabani Shankar Mohanto UR OR/PA-85/2010 Mayurbhanj Mayurbhanj
28 Bidhu Bhusan Behera UR OR/PA-78/2010 Mayurbhanj Mayurbhanj
29 Nayan Ranjan Sahoo UR OR/PA-81/2010 Mayurbhanj Mayurbhanj
30 Hirod Ch. Barik UR OR/PA(CO)-04/2010 Printing Press Circle Office
31 R. K. Satpathy UR ASK/LGO-06/2010 Aska Aska
32 B. N. Pattnaik UR ASK/LGO-03/2010 Aska Aska
33 S. N. Nayak UR ASK/LGO-04/2010 Aska Aska
34 B. Parida UR ASK/LGO-02/2010 Aska Aska
35 P. K. Padhy UR ASK/LGO-07/2010 Aska Phulbani
36 R. C. Panda UR ASK/LGO-01/2010 Aska Phulbani
37 R. S. Sahu UR BF/LGO-20/2010 Berhampur Berhampur
38 S. P. Maharana UR BF/LGO-10/2010 Berhampur Berhampur
39 A. K. Pattnaik UR BF/LGO-09/2010 Berhampur Berhampur
40 P. C. Moharana UR BF/LGO-23/2010 Berhampur Berhampur
41 Arakhita Behera UR BF/LGO-08/2010 Berhampur Berhampur
42 Bhimsen Sahu UR BF/LGO-13/2010 Berhampur Phulbani
43 H. K. Padhy UR BF/LGO-22/2010 Berhampur Kalahandi
44 B. D. Gouda UR BF/LGO-19/2010 Berhampur Kalahandi
45 Subash Muduli UR BF/LGO-14/2010 Berhampur Kalahandi
46 L. N. Pradhan UR BF/LGO-15/2010 Berhampur Kalahandi
47 N. Mahananda SC KLD/LGO-24/2010 Kalahandi Kalahandi
48 S. K. Pattnaik UR KPT/LGO-27/2010 Koraput Koraput
49 A. R. Potanuru UR KPT/LGO-26/2010 Koraput Koraput
50 Tigilal Rana OBC PHI/LGO-28/2010 Phulbani Phulbani
51 Sudhir Ranjan Patel OBC SMB/PA-05/2010 Sundargarh Sundargarh
52 Chaitanya Ch. Behera OBC SMB/PA-07/2010 Sundargarh Sundargarh
53 Bailochan Padhan OBC SMB/PA-03/2010 Sundargarh Sundargarh
54 John Minj ST SMB/PA-06/2010 Sundargarh Sundargarh
55 Jeebanlal Kar UR SMB/PA-04/2010 Sundargarh Sundargarh
56 Rabindra Kumar Nayak UR SMB/PA-09/2010 Sundargarh Sundargarh
57 Ananda Kumar Barai UR SMB/PA-15/2010 Sambalpur Sambalpur
58 Sushil Kumar Senapati UR SMB/PA-16/2010 Sambalpur Sambalpur
59 Anjan Ku. Hota UR SMB/PA-20/2010 Sambalpur Sambalpur
60 Gajendra Ku. Andaja ST SMB/PA-17/2010 Sambalpur Sambalpur
61 Jagdish Podh OBC SMB/PA-21/2010 Sambalpur Sambalpur
62 Akhshay Kumar Sha UR SMB/PA-35/2010 Keonjhar Keonjhar
63 Umakanta Sahoo UR SMB/PA-33/2010 Keonjhar Keonjhar
64 Govinda Ch. Sahoo OBC SMB/PA-36/2010 Dhenkanal Dhenkanal
65 Surendra Kumar Purohit UR SMB/PA-39/2010 Balangir Balangir
66 Gokul Mahananda SC SMB/PA-41/2010 Balangir Balangir
The result of one candidate of Puri Division is kept in sealed cover in obedience to the order issued by the Hon’ble
Central Administrative Tribunal, Cuttack Bench, Cuttack.
Asst. Director (Rect.)
For Chief Postmaster General
Orissa Circle, Bhubaneswar-751001.
Copy to :
1. The Postmaster General, Sambalpur/Berhampur Region.
2. All the SSPOs/SPOs/SSRM/SRMs of Orissa Circle.
3. The Asst. Director (Staff), Circle Office, Bhubaneswar.
4. The Sr. PS to CPMG, Orissa Circle, Bhubaneswar
5. The PA to DPS (HQ), Orissa Circle, Bhubaneswar
6. RE Section File No. 6-2/09 and 6-3/09.
Asst. Director (Rect.)
For Chief Postmaster General
Orissa Circle, Bhubaneswar-751001.
Thursday, February 17, 2011
Once the process is considered to be under the 'Promotion' method, reservation for OBCs/Ex-servicemen are not to be followed
Once the process is considered to be under the 'Promotion' method, reservation for OBCs/Ex-servicemen are not to be followed
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH
Original Application No. 436 of 2010
Monday , this the 14th day of February, 2011.
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1 Smt. Soumya S.D W/o. Remeshkumar GDS BPM P.O.
Vedarplavu (P.O.), Mavelikkara Residing at Kottarathil House
Keerikad South, Kayamkulam.
2 Smt. Sunithakumari K.S W/o. B Harikumar GDS MD, Kota (P.O)
Harihara Vilasom Ullannoor (P.O) Kulanada ..... Applicants
(By Advocate Mr. P.C. Sebastian)
Versus
1 The Postmaster General Central Region, Kochi - 682 018
2 The Superintendent of Post Offices Mavelikkara Division, Mavelikkara
3 The Union of India Represented by Secretary to Government of India
Ministry of Communications Department of Posts, New Delhi
4 Najithamol Y GDS MD, Thrikkunnapuzha (P.O) PIN - 690 515
5 P.O. Rajesh GDS MD Kodukulanji - 689 508
6 D. Vijayan GDS MD Vedarplave (P.O), Mavelikkara
7 V. Anilkumar GDS MD Olakettiambalam (P.O) - 690 510 ... Respondents
(By Advocate Mr. M.K. Aboobacker, ACGSC R1-3) (By Advocate Mr. R. Sreeraj R4-7)
The application having been heard on 18.1.2011, the Tribunal on 14.02.11 delivered the following:
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
The applicants in this O.A. challenge the appointment of private respondents as Postmen under OBC reservation which is not permissible in promotion.
2. The 11 vacancies of Postman/Mail Guard to be filled up in the year 2009 by the Postmaster General, Central Region, Kochi, were split up as under :
Departmental Quota GDS Quota
SC ST PH UR Total Seniority Merit Total
1 1 - 4 6 03 02 05
As there was no candidate for the 50% quota earmarked for promotion from Group-D, as per the Recruitment Rules, the same was added to the 50% GDS merit quota. The respondents selected 4 top scorers from the OBC quota to fill up 4 posts of Postman. Aggrieved by the promotions of the private respondents 4 to 7, who are OBC candidates appointed to the cadre of Postman overlooking the applicants' merit, they have filed this O.A for the following reliefs:
"i) To call for the records leading to the issue of Annexure A-3 and to quash the selection and appointment of respondents 4 to 7 as postmen.
ii) To declare that respondent 1 to 3 are not legally competent or empowered under the Recruitment Rules to fill up the unfilled vacancies in the departmental quota which are to be transferred to the GDS merit quota by way of reservation to the OBC and that the said vacancies are to be filled up by candidates on their merit in the examination.
iii) To issue appropriate direction or order directing the respondents to adhere to the order of merit of the candidate based on the marks obtained by them in the postman examination held on 20.12.2009 in the GDS merit quota and to appoint the applicants as postmen with effect from the dates of their entitlement with all consequential benefits including arrears of pay and allowances.
iv) To grant such other relief which may be prayed for and which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
v) To award costs in favour of the applicant."
2. The applicants submitted that the selection and appointment of respondents No. 4 to 7 as Postman under GDS merit quota overlooking the higher marks obtained by the applicants on the basis of the examination held on 20.12.2009 are illegal, arbitrary, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India. The party respondents have been selected solely for the reason that they belong to the OBC category and have been extended the benefit of reservation. The settled position of law is that the OBC category has the benefit of reservation in direct recruitment only and not in promotion. The method of recruitment of GDS as Postman by departmental examination is by way of promotion only as held by this Tribunal in its order at Annexure A-6 dated 18.07.2007 in O.A. No. 858/2006. There is no justification in transferring the unreserved vacancy to the OBC category.
3. The respondents opposed the O.A. In their reply statement, they submitted that 6 vacancies of the departmental quota were transferred to the GDS merit quota treating the recruitment from GDS to Postman as direct recruitment as held by the Full Bench of this Tribunal in its order dated 21.03.2000 in O.A. No. 807/1999 and O.A.No. 1286/1997. The normal reservation rule would apply to the GDS merit quota. As there was shortfall in the OBC quota, 4 OBC candidates were selected and included in the Annexure A-3 select list. The last selected candidates from the UR and the OBC quota obtained 146.5 and 133 marks respectively. The applicants have scored only 146 marks each and they ranked below the candidate selected from the UR quota. The party respondents 4 to 7 were included in Annexure A-3 list for selection against the OBC vacancies as they were meritorious and thus more qualified, under the OBC category. The applicants cannot claim a post reserved for the OBC category. The selection and appointments of the party respondents 4 to 7 were done strictly in accordance with the Recruitment Rules. The Gramin Dak Sevaks are not regular departmental employees. The order of this Tribunal in O.A. No. 858/2006 at Annexure A-6 has been challenged by the Department in W.P.(C) No. 36443/2007, which is still pending before the Hon'ble High Court of Kerala. The reservation was given to the party respondents 4 to 7 on the basis of the existing rules as the unfilled vacancies in the departmental quota were transferred to the GDS quota. It is settled position of law that the OBC category has the benefit of reservation only in direct recruitment and not in promotion. The method of recruitment of GDS to Postman is by way of direct recruitment as per Annexure R-2 order.
4. We have heard Mr. P.C. Sebastian, learned counsel for the applicant and Mr. M.K. Aboobacker, learned ACGSC for official respondents 1 to 3 and Mr. R. Sreeraj, learned counsel appearing for the private respondents and perused the materials on record.
5. The point for adjudication in this O.A. is whether the method of recruitment of GDS to the cadre of Postman through departmental examination is merit based selection on promotion or not. This issue was dealt with at length by this Tribunal in its order dated 18.07.2007 in O.A. No. 858/2006. The relevant part of the said order is reproduced as under :
"14 The second point of law that has been taken is relating to the Full Bench decision of this Tribunal in O.A. 807/99 and 1286/97. In this Full Bench decision the Bench has considered the following points:
(i) Whether the appointment of extra Departmental Agents as Postman in the 25% seniority quota is by way of direct recruitment or promotion?
(ii) Whether the qualification prescribed for direct recruitment to the post of Postman is applicable to the appointment of Extra Departmental Agents on the cost of Postman in the 25% seniority quota?
(iii) Whether the letter dated 17.5.95 of the Director General (Posts) prescribing a minimum educational qualification of 8th standard pass for Extra Departmental Agents for appointment as Postman in the 25% seniority quota a is valid and enforceable?
15 Though there was dissent by one Member, as per the majority view, the points were settled as follows:
Point No. 1:- Appointment of ED Agents as Postmen in 25% seniority quota is by way of direct recruitment only
Point No. 2: The qualification prescribed for direct recruitment to the post of Postman is applicable to
the appointment of ED Agents on the post of Postmen in 25% seniority quota
Point No. 3: the letter dated 17.5.95 of the Director General of Posts prescribing a minimum educational qualification of 8th Standard pass for ED Agents for appointment as Postmen in 25% seniority quota is valid and enforceable.
16 With reference to the applicability of the decision the rule position extracted below has to be seen: Col. 11:- Method of recruitment-
(1) 50% by promotion failing which by ED Agents on the basis of their merit in the Departmental Examination
(2) 50% of ED Agents of the recruiting Division or unit in the following manner, namely:-
(i) 25% from among ED Agents on the basis of their seniority in service and subject to their passing
the Departmental examination, failing which by ED Agents on the basis of merit in the Departmental
examination. (ii) 25% from amongst ED Agents on the basis of their merit in the departmental examination.
(3) If the vacancies remained unfilled by EDAs of the recruiting Division, such vacancies may be filled by the EDAs of the Postal Division falling in the zone of Regional Directors.
(4) If the vacancies unfilled by EDAs remain unfilled by the EDAs of the recruiting units such vacancies may be filled by EDAs of the Postal Divisions located at the same station. Vacancies remaining unfilled will be thrown open to EDAs in the Region.
(5) Any vacancy remaining unfilled may be filled up by direct recruitment through the nominees of the
Employment Exchange. Col. 12:- In cases of promotion- (1) Promotion from Group-D officials who have put in three years of regular and satisfactory service on the closing date for receipt of applications through a Departmental Examination (2) EDAs through a departmental examination (3) Direct recruitment through a departmental examination.
7 It is evident that point No. 1 under consideration of the Full Bench related to appointment of ED Agents as Postman against 25% seniority quota. The question in this OA is regarding the remaining 25% of the GDS quota which is operated on the basis of merit in the departmental examination i.e. Col. 11(2)(ii) of the Rules and the decision of the Full Bench relates to the quota in Col. 11(2)(i). Therefore the Full Bench order cannot be said to have omnibus application to all the provisions of the Rules since it has decided only the question of filling up of the 25% seniority quota. It is a moot point that when the filling up of the seniority quota itself is held to be direct recruitment whether the filling up the balance 25% on merit can be viewed
as promotion. We are not going in to that aspect. For deciding the applicability of the Full Bench decision to this case, this distinction can certainly be drawn that the point now under challenge in this O.A. has not been covered by the Full Bench decision and hence is distinguishable.
18 The learned Senior Counsel drew our attention to the order of this Tribunal in O.A. 704/06 in which again the claim of the applicants was to the 25% seniority quota of GDS and the main question was whether the approval of the Screening Committee is required for filling up the vacancies and it was held that Screening Committee procedure was not applicable to the promotion quota. Hence, this order has also no relevance here.
19 Having dealt with the legal propositions advanced by the learned Senior counsel which are not directly applicable to the present case, we proceed to examine the Columns 11 and 12 of the Recruitment Rules for promotion to the Postman/Mail Guards as it stands now. The rules have been extracted above. A reading of Columns 11 and 12 put together is required to understand the proper spirit of the rule. To our mind Col. 11 which prescribes the method of recruitment sub clause (1) to (4) being the manner of filling up the vacancies by promotion and also by means of a selection on the basis of seniority and merit in a departmental examination. Sub clause (5) which provides for filling up of any vacancy remaining unfilled after going through all other processes mentioned above, would be by direct recruitment which has to be done purely by inviting applications from the Employment Exchange. Therefore in our view, it has to be construed that all selections made from within the department either from Group-D personnel or from the ED Agents who are also a class of servants under the Postal Department covered by sub clauses (1) to (4), would have to be construed as promotion and filling up of vacancies purely by outsiders through employment exchange can only be construed as direct recruitment. This view is further confirmed by the wordings in column 12 where the cases of promotion have been further categorized in three categories which include promotion from Group-D failing which from ED Agents through departmental examination by seniority as well as merit. Here the second category is relatable to sub clause 2(ii) of Col. 11 and the third category is relatable to sub clause 2(ii) of Col. 11 all of which are clubbed under the heading "promotion" only. We are also informed that the departmental examination referred to in the Col. 11 and 12 of the Rules is a common one. This is also supported by a reading of Rule 7 prescribing the age limit where again a higher age limit has been prescribed for ED Agents considering them as departmental personnel. In the light of such a reading of the Recruitment Rules keeping the entire scheme of promotion in view, we are inclined to hold that the method of recruitment of ED Agents through the departmental examination has to be construed as merit based selection on promotion only.
20 Having arrived at the above finding that the selection of ED Agents under merit quota is not by way of direct recruitment we come to the further interpretation of the 'Note' prescribed in Annexure A-4 viz. that the unfilled vacancies will be added to GDS merit quota and that quota will be increased to that extent and the implications thereof. The respondents had notified more than 6 vacancies under the departmental quota and 1 UR vacancy by Annexure A-5. Out of the 6 vacancies 1 was reserved for PH. When the unfilled vacancies are added to the GDS merit quota, the nature/category of the vacancies should not undergo a change if the method of recruitment remained the same. It is the contention of the respondents that when the recruitment to the post is from GDSs in the event of failure to fill up the vacancies by departmental candidates by promotion, the recruitment changes its nature and becomes direct recruitment, the decision in the Full Bench order and thereby fresh reservation points in the direct recruitment roster would become applicable for such recruitment. Therefore, they had added the 6 vacancies to the 1 vacancy already notified and the total quota of Direct Recruit vacancies were taken as 7, out of which 1 vacancy was for PH and another 1 for Ex-serviceman and the post under merit quota was filled up by unreserved candidate and out of the remaining 4, 2 were filled up by UR and 1 by OBC as there were backlog of OBC candidates in the direct recruitment quota.
21 If the method of recruitment is determined as not by direct recruitment there can be no reservation for OBCs as contended by the applicants. There is no reservation for Ex- servicemen also under promotion quota. We find that apart from stating that OBC candidates were appointed under the backlog quota, the respondents have not come out clearly on the issue of roster points and how they have distinguished the 7th Roster point which position should be available to them if they are maintaining separate rosters for the merit
quota of GDS under direct recruitment. According to their own instruction in Annexure A-5, if the vacancy reserved for PH in the Departmental quota remains unfilled, it should be transferred to GDS quota to be filled up by PH candidate only. By the same rationale the vacancies identified as unreserved when they are filled up by adding the GDS quota cannot be converted to any other category and the nature of the vacancies should remain the same as unreserved. Even if the respondents genuinely construed the filling up of the
unfilled vacancies as belonging to direct recruitment quota, this exercise could not have been done without notifying the revised vacancy position as per the points in the roster and Annexure A-5 should have been modified to that extent as otherwise it results in an imbalance in the rosters and all those who participated in the examination should have been made aware of the same.
22 Therefore considering the provisions of the Rules above position and the legal position as discussed earlier, we are of the view that the filling up of the unfilled vacancies the departmental quota cannot be termed to be direct recruitment and it should have been done against under the same categories as notified in Annexure A-5 and in accordance with the position in the rank list at Annexure A-9. Once the process is considered to be under the 'Promotion' method, reservation for OBCs/Ex-servicemen are not to be followed. Setting apart 1 vacancy for Ex-servicemen, we find is not in accordance with the rules. It is also not logical and practicable to implement the quota for the Ex-servicemen in the GDS quota unless it had been strictly implemented in the first instance at the time of recruitment as GDS. We do not find any provision in the GDS Rules prescribing any quota for Ex-servicemen at the time of recruitment except a general guideline that it if it is possible ex-servicemen may be preferred if other things are equal. When there is no reservation in the lower posts where direct recruitment take place, the probability of finding suitable of the ex-servicemen in the higher post is very unlikely. Therefore any direction as averred by the respondents that the vacancies should be reserved for ex-servicemen and further interpretation being given by the respondents that they should be kept unfilled is not in order. In fact we have already held that no reservation for ex-servicemen was provided for in promotion in the Recruitment Rules. Therefore, the respondents will have to release the 1 vacancy set apart for ex-servicemen quota also when finalising the selection. The respondents shall undertake a revised exercise on the above lines and notify the selection to the 6 unfilled vacancies carried over from the Departmental quota by modifying Annexure A-6 suitably. Unless this exercise is done we cannot come to any conclusion whether respondents 4 & 5 would come within the ambit of selection. Respondents shall complete this exercise within three weeks of date of receipt of this order. Till the selection process is completed and the modified order is issued all the appointments made in Annexure A-6 shall be continued.
23 The OA is disposed of as above. No costs." (emphasis supplied)
6. The decision of the Full Bench in O.A. Nos. 807/1999 and 1286/1997 has also been considered by this Tribunal in O.A. No.858/2006. In our considered view, the decision of this Tribunal in O.A. No.858/2006 squarely covers the instant O.A. The decision of the Full Bench is clearly distinguishable and the method of recruitment of GDS to the cadre of Postman on the basis of merit which is the crucial point in the instant O.A has not been covered by the Full Bench decision as was held in O.A. No. 858/2006. If the Recruitment Rules for Postman/Mail Guard are read keeping the entire scheme of promotion in view then the method of recruitment of GDS to the cadre of Postman through departmental examination is to be treated as merit based selection on promotion only. Admittedly, the reservation for the OBC category does not apply to promotion. Therefore, reservation for the OBC category will not apply to the recruitment of GDS to the cadre of Postman in the instant O.A. Consequently, the nature of the unfilled unreserved vacancies in the departmental quota when added to the merit quota of GDS will remain the same as unreserved. Therefore, there is no justification for transferring the unreserved vacancies to the OBC category. That being so, the appointment of the party respondents 4 to 7 is against unreserved vacancies. This appointment is legally untenable because the claim of the applicants for appointment against unreserved vacancies, on account of their having higher merit than the party respondents cannot be ignored.
7. Though the order of this Tribunal in O.A. No. 858/2006 is challenged before the Hon'ble High Court of Kerala that by itself is not a reason not to follow the same. As held by the Hon'ble Punjab and Haryana High Court in Roshan Jagdish Lal Duggal and Others vs. The Punjab State Electricity Board, Patiala and Others, 1984 (2) SLR 731, the admission of an appeal against the order of the High Court and the suspension of its operation during the pendency of the appeal does not have the effect of rendering it non est till the disposal of the appeal.
8. In the result, the O.A. is allowed. Annexure A-3 order dated 15.02.2010 issued by the 2nd respondent relating to selection and appointment of the party respondents 4 to 7 as Postmen is quashed and set aside. The respondents are directed to adhere to the order of merit of the candidates based on the marks obtained by them in the Postman examination held on 20.12.2009 in the GDS merit quota and to appoint them as Postmen with effect from the date of their entitlement with all consequential benefits including arrears of pay and allowances within a period of 3 months from the date of receipt of a copy of this order.
8. No order as to costs.
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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