Regular service rendered before compassionate inter-charge transfer counts toward promotion eligibility despite bottom seniority placement.

The applicant was appointed as a Tax Assistant under the Mumbai Region on 1 January 2008 and was promoted as Senior Tax Assistant on 21 August 2012.

He was subsequently transferred on compassionate/inter-charge grounds from the Mumbai Region to the Odisha Region and joined there on 29 July 2013, subject to placement at the bottom of the seniority list in the transferred cadre.

The applicant claimed that his regular service rendered in Mumbai from 1 January 2008 to 28 July 2013 should be counted for determining his eligibility for promotion as Senior Tax Assistant and Income Tax Inspector.

After submitting representations on 5 August 2022 and 9 September 2022, the applicant’s claim was rejected by order dated 14 October 2022.

1. Whether service rendered by an employee in the previous region before an inter-charge/compassionate transfer can be counted for determining eligibility for promotion in the transferee region, notwithstanding bottom seniority in the new region?

2. Whether the undertaking given by the applicant that his past service would not count for seniority precluded its being counted for the minimum qualifying service required for promotion?

3. Whether the respondents were required to conduct a review DPC after taking the applicant’s past regular service into account?

The Tribunal applied the CBDT instruction dated 14 May 1990, particularly clause 2(f), which provides that service rendered in the old charge will not count for seniority in the new charge and that the transferred employee will be placed at the bottom of the relevant seniority list; it does not expressly exclude such service for promotion eligibility.

It also relied on the clarification dated 27 October 2011, which expressly stated that an inter-commissionerate transferee would retain 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 relevant experience for promotion eligibility, even though the employee loses seniority in the transferee region; M.M. Thomas v. Union of India, (2017) 13 SCC 722, which treated service in different regions cumulatively where the rule required prescribed experience; and Pratibha Rani v. Union of India, Civil Appeal No. 3792 of 2019, which specifically held that prior service in the previous region must be counted for eligibility for promotion after inter-region compassionate transfer.

The Tribunal distinguished between seniority and eligibility for promotion.

Clause 2(f) of the 1990 CBDT instruction operated only to determine the applicant’s position in the seniority list after transfer; it did not extinguish or exclude his regular service rendered in Mumbai for calculating the minimum service required under the applicable Recruitment Rules.

The Tribunal further held that the undertaking furnished by the applicant could not override the Recruitment Rules or impose a restriction not contained in the governing instructions.

Consistent with C.N. Ponnappan and Pratibha Rani, the applicant’s service in Mumbai and Odisha had to be treated as continuous qualifying experience in the same cadre for promotion eligibility.

The rejection of his claim on the ground that he had not completed the requisite period in Odisha alone was therefore legally unsustainable.

It directed the respondents to reconsider the applicant’s promotion to the posts of Senior Tax Assistant and Income Tax Inspector by convening a review DPC and counting his regular service rendered before transfer from Mumbai to Odisha for determining promotional eligibility.

The Tribunal clarified that the applicant’s seniors in the Odisha Region would also be considered in accordance with the Recruitment Rules.

If found eligible, the applicant was to receive promotion on a notional basis up to the date on which he actually assumed duties in the promotional post, with consequential benefits as applicable.

No order as to costs was made.