Past service in a previous region counts toward promotion eligibility despite inter-region transfer.

The applicant was appointed as a Tax Assistant in the Rajasthan Region on 8 January 2016. He subsequently obtained an inter-charge transfer, on compassionate grounds and on bottom-seniority terms, to the Odisha Region, where he joined on 16 June 2019.

The CBDT’s transfer instruction dated 14 May 1990 provided that service rendered in the old charge would not count for seniority in the new charge, and that the transferee would be placed at the bottom of the cadre seniority list.

The applicant was promoted as Senior Tax Assistant in Odisha, but sought counting of his Rajasthan service from 8 January 2016 to 15 May 2019 for determining his eligibility and for antedating his promotion according to the 2020 vacancy year.

The respondents rejected the claim, relying on the bottom-seniority condition, the undertaking furnished by the applicant, and the requirement of minimum service in the Odisha Region.

The applicant consequently challenged the order dated 14 October 2022 and sought a review DPC with consequential benefits.

Whether regular service rendered by the applicant in the Rajasthan Region before his inter-charge transfer to Odisha could be counted for determining his eligibility for promotion to the post of Senior Tax Assistant?

Whether the condition that the applicant would be placed at the bottom of the seniority list, and the undertaking furnished by him, excluded his previous service from being counted for promotional eligibility?

Whether the respondents were required to reconsider the applicant’s promotion through a review DPC, with notional benefits if he was found eligible?

The Tribunal applied the CBDT instruction dated 14 May 1990, particularly paragraph 2(f), which restricts the counting of previous service for seniority in the transferee charge but does not expressly exclude such service for determining promotional eligibility.

It also relied on the CBDT/CBEC instruction dated 27 October 2011, which states that an inter-charge transferee is to be placed below officers regularly appointed before the transfer but retains eligibility of the parent Commissionerate for promotion to the next higher grade.

The Tribunal followed Union of India v. C.N. Ponnappan, (1996) 1 SCC 524, which held that regular service rendered before compassionate transfer remains regular service and must be counted as experience for promotional eligibility despite bottom seniority at the transferee station.

It further relied on M.M. Thomas v. Union of India, (2017) 13 SCC 722, holding that the prescribed period of service may be satisfied by cumulative service in different regions where the employee has been transferred, and Pratibha Rani v. Union of India, C.A. No. 3792/2019, which specifically held that service rendered in the previous region before compassionate inter-region transfer must be counted for eligibility for promotion.

An undertaking cannot override the applicable Recruitment Rules or administrative instructions where it unlawfully excludes regular service from consideration for promotion.

The Tribunal distinguished between seniority and eligibility for promotion. Although the applicant’s transfer validly placed him at the bottom of the seniority list in Odisha, the CBDT instruction did not state that his earlier regular service would be wiped out for determining the minimum qualifying service for promotion.

The applicant’s service in Rajasthan and Odisha was service in the same feeder cadre, and therefore constituted regular qualifying experience under the principles laid down in C.N. Ponnappan and Pratibha Rani.

The respondents’ reliance on the undertaking and the transfer condition was rejected because those conditions could regulate seniority but could not defeat the applicant’s eligibility under the Recruitment Rules.

The Tribunal also noted that the Supreme Court had already affirmed the same legal position in Pratibha Rani, and that the Orissa High Court had dismissed the Department’s writ petitions challenging the Cuttack Bench’s earlier orders on that basis.

Accordingly, the applicant’s Rajasthan service from 8 January 2016 to 15 May 2019 had to be considered for determining whether he satisfied the qualifying-service requirement for promotion.

The order dated 14 October 2022 was quashed. The respondents were directed to conduct a review DPC and reconsider the applicant’s promotion after taking his prior Rajasthan service into account.

If found eligible, he was to receive promotion on a notional basis from the appropriate date until the date on which he actually assumed the promotional post, with consequential consideration in accordance with the Recruitment Rules.

The OA was allowed to that extent, with no order as to costs.