Past service before inter-charge compassionate transfer counts toward promotional eligibility, despite loss of seniority.

The applicant was appointed as Stenographer Grade-III in the Mumbai Region on 24 February 2009 and was promoted as Stenographer Grade-II by order dated 2 January 2014.

He was thereafter transferred, on his request and on the principle of bottom seniority, from the Mumbai Region to the Odisha Region and joined there on 13 January 2014.

Subsequently, he qualified in the departmental examination for Income Tax Inspector and was promoted to that post for the recruitment year 2017–18 by order dated 1 April 2017.

The applicant contended that his regular service rendered in Mumbai from 24 February 2009 to 12 January 2014 ought to be counted for determining his eligibility for promotion in the Odisha Region.

His representation dated 9 September 2022 was rejected by the respondents on 14 October 2022.

He therefore sought quashing of the rejection order, counting of his past service for promotional eligibility, and a review DPC with consequential benefits.

Whether regular service rendered by the applicant in the Mumbai Region before his inter-charge transfer to the Odisha Region could be counted for determining his eligibility for promotion to the posts of Stenographer Grade-II and Income Tax Inspector, notwithstanding his placement at the bottom of the seniority list in the transferee region?

Whether the undertaking and transfer condition that past service would not count for seniority also operated to exclude that service from the minimum service requirement for promotional eligibility?

Whether the applicant was entitled to reconsideration by a review DPC and notional promotional benefits, subject to the Recruitment Rules?

The Tribunal applied the CBDT instruction dated 14 May 1990, particularly paragraph 2(f), which provides that service rendered in the old charge will not count for seniority in the new charge and that the transferee will be placed at the bottom of the cadre seniority list.

It also relied on the CBDT clarification dated 27 October 2011, which expressly provides that an inter-charge transferee remains eligible for promotion by retaining the eligibility of the parent Commissionerate.

The Tribunal followed Union of India v. C.N. Ponnappan, (1996) 1 SCC 524, holding that regular service rendered before compassionate transfer remains part of the employee’s experience for promotion and is not extinguished by bottom seniority.

It further relied on M.M. Thomas v. Union of India, (2017) 13 SCC 722, which treated service rendered in different regions cumulatively for satisfying a minimum experience requirement.

Pratibha Rani v. Union of India, Civil Appeal No. 3792 of 2019, wherein the Supreme Court held that pre-transfer service in the same cadre must be counted for promotional eligibility after inter-region compassionate transfer.

The governing distinction was between loss of seniority and preservation of past regular service for eligibility and experience.

The Tribunal distinguished between seniority and promotional eligibility.

It held that paragraph 2(f) of the 14 May 1990 instruction only restricted the applicant’s seniority in the Odisha Region; it did not state that his earlier regular service would be disregarded for calculating the minimum service required for promotion.

The respondents could not identify any rule or circular expressly excluding such past service from promotional eligibility.

The undertaking executed by the applicant could not override the Recruitment Rules or impose a condition inconsistent with the applicable administrative instructions, particularly when the 27 October 2011 clarification preserved the transferee’s eligibility for promotion.

Applying C.N. Ponnappan and Pratibha Rani, the Tribunal held that service in the same cadre remains regular service notwithstanding the change of region and must be counted as qualifying experience.

Accordingly, the respondents’ rejection of the applicant’s claim was legally unsustainable.

The respondents were directed to reconsider the applicant’s eligibility for promotion to Stenographer Grade-II/Income Tax Inspector by convening a review DPC and by counting his regular service rendered before transfer to the Odisha Region.

In undertaking such reconsideration, the respondents were also directed to consider the applicant’s seniors in the Odisha Region in accordance with the applicable Recruitment Rules.

If found eligible, the applicant was to receive promotion on a notional basis up to the date on which he actually assumed the promotional post, with the consequential relief determined accordingly.

Pending miscellaneous applications were disposed of and there was no order as to costs.