Regular service before inter-region transfer counts toward promotional eligibility, though not seniority in the transferee region.

The applicant was appointed as a Tax Assistant under the Principal Chief Commissioner of Income Tax, Karnataka and Goa Region, and served there from 27.09.2012 to 03.08.2014.

He was thereafter transferred on compassionate/inter-charge grounds to the Odisha Region, where he was placed at the bottom of the cadre seniority list and joined on 04.08.2014.

He was subsequently promoted as Senior Tax Assistant, passed the departmental examination for Income Tax Inspector, and was promoted as Office Superintendent on 01.01.2021.

The respondents declined to count his Karnataka and Goa service towards the minimum qualifying service required for promotion to Senior Tax Assistant and Income Tax Inspector, relying on the condition that past service would not count for seniority and on the undertaking given by him at the time of transfer.

His representation was rejected on 14.10.2022, leading to the present Original Application.

1. Whether service rendered by the applicant in the Karnataka and Goa Region before his compassionate inter-charge transfer to the Odisha Region could be counted for determining his eligibility for promotion to Senior Tax Assistant and Income Tax Inspector.

2. Whether the condition that past service would not count for seniority, and the undertaking furnished by the applicant at the time of transfer, barred recognition of that service for the minimum qualifying-service requirement for promotion.

3. Whether the applicant was entitled to reconsideration through a review DPC and consequential notional advancement in promotion at par with his juniors.

The Tribunal applied paragraph 2(f) of the CBDT’s instruction dated 14.05.1990, which provides that service in the old charge is not counted for seniority and that an employee transferred to another charge is placed at the bottom of the seniority list; however, the instruction does not expressly exclude such service for promotion eligibility.

It also relied on the inter-commissionerate transfer clarification dated 27.10.2011/2021, particularly clause 2(ii), which preserves the transferred employee’s 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, holding that regular service rendered before compassionate transfer remains valid service and must be counted as experience for promotion eligibility, notwithstanding bottom seniority at the transferred station.

It further relied on M.M. Thomas v. Union of India, (2017) 13 SCC 722, and Pratibha Rani v. Union of India, Civil Appeal No. 3792/2019, decided on 10.04.2019, which establish that prior regular service in the same cadre cannot be disregarded merely because the employee was transferred between regions.

An undertaking cannot override the applicable Recruitment Rules or administrative instructions where the latter preserve eligibility for promotion.

The Tribunal distinguished between seniority and eligibility for promotion. Paragraph 2(f) of the 14.05.1990 CBDT instruction restricted the applicant’s seniority position in Odisha but did not state that service rendered in the previous charge would be excluded from the qualifying-service requirement.

Similarly, the later transfer clarification expressly preserved the transferred employee’s promotional eligibility of the parent Commissionerate.

Since the applicant’s service in Karnataka and Goa was regular service in the same cadre, the principles in C.N. Ponnappan and Pratibha Rani required it to be counted as experience for promotion eligibility.

The applicant’s undertaking and the transfer order could not validly impose a restriction inconsistent with the governing Recruitment Rules and instructions.

The respondents’ rejection was therefore legally unsustainable, and the applicant’s case required reconsideration by a review DPC along with the consequential consideration of similarly placed seniors in the Odisha Region.

The respondents were directed to hold a review DPC and reconsider his promotions by taking that prior service into account.

If found eligible, the applicant was to receive promotion on a notional basis from the appropriate date until the date on which he actually assumed the promotional post, with corresponding consideration of his seniors under the Recruitment Rules.

The Original Application was allowed to that extent, pending miscellaneous applications were disposed of, and there was no order as to costs.