Appeal issued by the ITEF(CHQ)

Monday, November 28, 2011

Circular.No.13

INCOME TAX EMPLOYEES FEDERATION

Manishinath Bhawan A/2/95 Rajouri Garden,New Delhi. 110 027.

www.itef.blogspot.com email: itefcentral@gmail.com.

Telefax. 2510 5321; 6543 1807

President: K.P. Rajagopal. Secretary General: Ashok B Salunkhe

Cir. No. 13 Dated: 25.11.2011.

Dear Comrades,

You must have come across a circular issued by the All India SC-ST Employees Welfare Federation to their members, which has also been placed on their website. It has been alleged that ITEF and all other service Associations/Unions have failed to protect the interest of the SC-ST employees of the Department and have asked the SC/ST employees to resign from the primary membership of Associations/unions. In sofar as ITEF is concerned, we must tell with all emphasis at our command that the said allegation is untrue especially the one that states that ITEF is opposed to the formation and functioning of SC-ST Welfare Associations. The ITEF firmly believes that the reservation policy advocated by the political leaders in our country and enunciated in the Constitution was not only a right initiative but also a progressive step to bring about upliftment of certain segments of Indian society who were oppressed for centuries. We have endeavored to ensure that what is decided by the Govt. of India i.e. the political authorities are implemented by the bureaucracy. Our functionaries at all levels have abided by this policy. We consider that resignation of any individual from the primary membership of ITEF will weaken the organization and will consequently strengthen the hands of the authorities.

ITEF is a trade union and functions democratically. We are proud of the fact that despite divergent views, it could over the years bring into existence a monolithic movement of employees below the level of Officers and functions as such for several decades now. We have not and we could not afford to make any distinction or discrimination in the name of Caste, Religion, Region, Language, Gender etc. In its development as a militant and strong Trade Union movement of the employees, immense contribution has been made by all sections of employees and undoubtedly the SC & ST employees have played a great and significant role. The SC-ST employees of the Department have both in the past and presently adorn leadership positions in the ITEF.

It is the sense of belonging that integrates the members of a trade union and makes it the binding force. It should be our endeavour to eradicate any misgivings be it real or perceived for we cannot afford to have even a slight disfavor from any of our members. We therefore appeal to our leaders and cadres at all levels to meet the employees especially those belonging to SC-ST , explain the basic tenets of ITEF as a democratic Trade Union and ensure that our unity is not disrupted through desertion, dissention or disinformation.

Yours fraternally.

Sd/

(Ashok B Salunkhe)

Secretary General

Promotion to the post of ITO

          Income Tax Employees Federation, Mumbai Circle  

         Promotions to the post of ITO                                                                       

       On the issue of promotion to the post of ITO, we met the CCIT on 15.11.2011 and requested him to expedite the matter and fill up all the vacant posts immediately. The CCIT has assured us that promotion orders will be issued within a week's time.

        General Secretary,

        ITEF, Mumbai.
       
        Dated: 15.11.2011                                                                                        

Bombay High Court decision on Writ petition on own-merit

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wp.8986.2011

vss

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.8986 OF 2011

Union of India & Ors. .. Petitioners

V/s.

All India Income Tax SC/ST Employees

Welfare Federation & Ors. .. Respondents

Mr.Om Prakash Jha with H.V. Kode I/b The Law Point for the

Petitioners

Mr.Rahul Walia for the Respondent No.1

CORAM: B.H. MARLAPALLE &

SMT.NISHITA MHATRE, JJ.

DATED: NOVEMBER 8, 2011

P.C.:

1. We have heard the learned Counsel for the petitioners and the

petitioners’ challenge to the order passed by the Central Administrative

Tribunal on 3.8.2011 allowing the Original Application No.76 of 2011, in

our considered opinion, has no substance.

2. In the first round in Original Application Nos.825 of 2010 and

762 of 2010, the present respondents had approached the Tribunal

seeking directions to implement the DoPT O.M. dated 10.8.2010 so as

to redraw the seniority of the petitioners who were otherwise belonging

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wp.8986.2011

to the reserved category but came to be selected on the basis of merit

cum seniority. By a common order dated 5.1.2011, the Original

Applications were allowed. However, the present petitioners thereafter

claimed that the O.M. dated 10.8.2010 would be applicable only to nonselection

posts. Accordingly by an order dated 24.1.2011, the claim

made by the original applicant was turned down. This order dated

24.1.2011 was the subject matter of challenge in O.A. No.76 of 2010.

3. In the case of Ms.K.Manorama vs. Union of India & Ors., 2010

(10) SCALE 304, the Supreme Court in para 14 held, “even otherwise

the principle that when a member belonging to a scheduled caste gets

selected in the open competition filed on the basis of his own merit, he

will not be counted against the quota reserved for scheduled caste but

will be treated as open candidate, will apply only in regard to

recruitment by open competition and not to the promotions effected on

the basis of seniority-cum-suitability”.

4. By following the law laid down by the Supreme Court in the

case of Ms.K. Manorama (supra), the O.M. dated 10.8.2010 was issued

and clause 3 of the said O.M. stated as under:

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wp.8986.2011

“the matter has been examined in the light of the above referred

judgements it has been decided to withdraw the O.M.

No.36028/17/2001-Estt. (Res.) dated 31.1.2005 referred to

above. It is clarified that SC/ST candidates appointed by

promotion on their own merit and seniority and not owing to

reservation or relaxation of qualifications will be adjusted against

unreserved points of reservation roster, irrespective of the fact

whether the promotion is made by selection method or nonselection

method. These orders will take effect from 2.7.1997, the

date on which post based reserved was introduced”.

5. By its earlier common judgement dated 5.1.2011, the Tribunal

had directed to comply with the O.M. dated 10.8.2010. In the second

round, the Tribunal considered the law laid down by the Supreme Court

in the case of R.K. Sabharwal & Ors. V/s. State of Rajasthan & Ors.,

1995 2 SCC 745; Suraj Bhan Meena v/s. State of Rajasthan & Ors.,

2001 (1) SCC (L&S) 1; M.Nagaraj vs. Union of India, (2006) 8 SCC

212. It held that the decision in Surajbhan Meena‘s case (supra) was

clearly distinguishable and was of no help to the case of the

interveners/respondents. The view taken by the Tribunal in reiterating

to implement the O.M. dated 10.8.2010 does not call for any

interference. The learned Counsel also submitted that the Division

Bench of Punjab & Haryana High Court by its judgment dated

15.7.2011 in Lachhmi Narain Gupta & ors. V/s. Jarnai Singh & Ors.,

CWP No.13218 of 2009 has set aside the O.M. dated 10.8.2010. The

learned Counsel for the original applicant stated that the said decision

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wp.8986.2011

is a subject matter of challenge in a Special Leave Petition before the

Supreme Court. Be that as it may, in our opinion, the view taken by the

Central Administrative Tribunal in the impugned order dated 3.8.2011

does not suffer from any errors apparent on the face of the record and,

therefore, this petition must fail at the threshold.

6. The petition is therefore rejected summarily.

(SMT.NISHITA MHATRE, J.) (B.H. MARLAPALLE, J

Summary of developments with regard to own-merit issue

Income tax employees federation, Mumbai circle

S U M M A R Y : Chronology of developments with reference to own-merit & other issues in a nutshell based on our understanding of the issues and judgments over a period of time:

1995	Own Merit   came into operation through 77th amendment of the constitution. Object of reservation is to provide adequate representation to the SC/ST candidate
2002	Through this OM DOPT clarified the Own merit concept and stated that post will be adjusted against general quota, this is after the 85th amendment of the Constitution.
2005	Through this OM DOPT issued fresh clarification and stated that OM of 2002 is effective from the date of issue, and that concept of own merit did not apply to the promotions made by non – selection method.
2006	Madras CAT in the case of Kalugasalamoorthy  vs Union of India  has set aside the OM of 2005 and held that when a person is selected on the basis of his own seniority , the scope of considering and counting him against quota reserved for SCs does not arise.
2007	Madras High Court  has upheld the decision of the CAT  in the above case
August, 2010	DOPT withdrawn the OM of 2005 and clarified that SC/ST candidates appointed by promotion on their own merit and seniority and not relaxation of qualifications will be adjusted against un reserved points. And further stated that the same is applicable from 02.07.1997
27th Sept. 2010	Manulal Bhaita & others filed OA in Mumbai  CAT for implementing the  OM
8th Dec. 2010	The above persons filed fresh Misc. Application in the CAT for  interim relief  restraining  from conducting any DPC
9th  December 2010	The Hon’ble CAT  allowed the MA and stayed the DPC up to 5.01.2011
12th January 2011	Mumbai CAT passed order   and directed to implement the OM from 1997. within 4  months and stayed  all the regular DPC till then
January 2011	Some General Candidate also approached the Mumbai CAT for extended Zone of consideration and brought stay on 29 vacancies
24th January 2011	Board issued a circular and clarified that OM of August 2010 is not applicable to Income Tax Dept.
March 2011	ITSEWA filed fresh OA  in Mumbai CAT challenging the direction of Board.
April 2011	Since we moved to new recruitment year  new eligibility list published  after exam result
May 2011	Mumbai CCIT filed MA for  vacation of stay
July 2011	Mumbai CAT reserved the order on OA and  stay continued
15th July 2011	High Court  of Punjab & Haryana  which was dealing a case filed by General candidate(Inspector) against 2007 Punjab CAT decision  allowing own merit from 1995, and after considering the DOPT OM of August 2010, ruled that  no reservation in promotion could be made in  pursuance to OM  dated 2.07.1997.  Judgment of Punjab CAT set aside   Instruction dated 31.01.2005 stands withdrawn on 10.08.2010.  Further Instructions dated 10.08.2010 are quashed because they are in direct conflict with the view taken by the Constitution Bench in M. Nagaraj”s case and Suraj Bhan Meens’s case.   Further directed that seniority and promotion of the Income Tax Inspector shall be made without any element of reservation in Promotion.
3rd August 2011	Mumbai CAT delivered the judgment and imposed penalty of Rs. 25000/- on Respondent and directed to implement the OM within 2 months.
24th August 2011	CBDT issued instruction to all the CCIT (CCA)_to implement the Mumbai CAT order before 15th  October, 2011
Sept.2011	Punjab  High ighCc court  also  passed   order in respect of ITO  and quashed all the earlier OM of  DOPT dealing with own merit and element of  reservation  in  promotion  in the cadre of ITO
October 2011	Jaipur CAT   quashed the direction  of board  directing  to implement the OM August 2010
14th October 2011	Mumbai CCIT challenged the order of Mumbai CAT in Bombay High Court.  Some general candidate also challenged the Mumbai CAT order in High Court.   The matter is likely to come up on 8th November, 2011
21stOctober 2011	ITSEWA once again brought stay on regular promotion for a period of two weeks and CAT  again  directed the dept.to implement  the OM and  to maintain status quo
21stOctober 2011	Mumbai CCIT  filed MA before the CAT for vacating the stay on  promotion
22-10-2011	CAT posted the matter for hearing on 31.10.2011
31.10.2011	CAT again adjourned the matter  to 14.11.2011 for filing the rejoinder and posted the matter to 14.11.2011
4th November 2011	In the matter of Zone of  consideration  the case once again adjourned and posted to 29th Nov. 2011 for filing rejoinder

Circular dt. 1.11.2011 on Promotion related matters

INCOME TAX EMPLOYEES FEDERATION, MUMBAI CIRCLE

                                                                                                                                                                            

                                                           Dated: 1.11.2011

Dear Comrades,            

              
     A broad look at the issues delaying promotions and the stand of  ITEF

    Many of Our members are waiting for their long over due promotions and there seems to be no end to their wait with the never ending litigations. Through this circular our endevour is to place before our members in correct perspective the chronology of events, the stand of the ITEF and efforts made to overcome the situation created by the court cases so as to have a clear idea of the situation in which we are placed today.

   As you are aware the Mumbai CAT through its order in the month of January, 2011, directed the department to implement the OM dated 10.8.2010 within 4 months and stayed all promotions till then.  On the issue of consideration zone CAT also stayed the promotion for 29 vacancies of ITO. However, the Board issued a circular and clarified that the OM of August, 2010 is not applicable to Income Tax Department against which a fresh OA was filed in Mumbai CAT in the month of March. In the meanwhile after consistant pressure put by the ITEF the Mumbai administration filed MA for vacation of stay in the month of May. The CAT however ruled that vacation of stay is not required as the case is in the final stage of hearing. In the month of July, 2011 the hearing in the Original appeal was completed and CAT, Mumbai reserved the order and hence the stay continued.

   In the meanwhile, the Federation demanded that ad-hoc promotions should be issued in the post of ITO in the light of the ongoing litigations and stay on promotions. However, inspite of series of negotiations, the administration was reluctant to accept our suggestion. In the light of  the negative attitude of the Mumbai   admn.  the ITEF decided to embark on agitation from the month of July, 2011 along with other 14-point demands. The Mumbai CCIT referred the matter to the CBDT even though the Federation was of the view that this was unnecessary. However,  after the agitation was commenced the admn. deputed officers to get a direction from the CBDT for effecting ad-hoc promotions. In the background of the agitation the CCIT had a full- fledged meeting with the Federation representatives on 4^th August, 2011. In the meeting it was informed that the admn. has got a favourable legal opinion and the CBDT has also approved the proposal for ad-hoc promotion to the post of ITO and on other issues too the outcome was positive. You may recall that on the basis of this development the agitation was called off in the month of August.

   However, when the department was in the process of going ahead with effecting ad-hoc promotions the CAT, Mumbai delivered its judgment in August itself directing the department to implement the OM within 2 months and avoid further promotions till then, bringing  to naught our efforts to get at least ad-hoc promotions to the cadre of ITO.

   We have always been taking the consistent stand that all vacancies should be filled up whatever way the department feel it can be done as per the rules. When the CAT decision came our efforts was to ensure that the implementation of OM from 1997 was expedited. In this regard we met the CCIT on various occasions and suggested that additional man power may be posted in the office of Addl.CIT(HQ)Pers. so that the data from 1997 to 2001 can be prepared as the data from 2002 to 2007 was already available. By the time the addlCIT(HQ)pers.  was in the final stages of  compilation of the data another development in the form of the Judgement of Punjab & Haryana High Court came.  The Punjab & Haryana High Court quashed the OM dated 10.8.2010.  When we met the CCIT after this development there seems to be no clear stand on the issue. The CCIT was of the view that since it was having an all India ramification the CBDT should give some direction.

   Since no direction was forthcoming from the CBDT, we requested to the CCIT to go ahead with the implementation of OM as per the CAT, Mumbai direction so that promotions can take place. Subsequently, the data was finalized by the Addl.CIT(HQ)Pers and given to the Addl.CIT(HQ)Admn. Office.  In the meanwhile, the Board directed the Mumbai CCIT to challenge the penalty imposed by CAT in the High Court after taking legal opinion. The dept. counsel gave opinion to challenge the CAT order in toto.    

                                                                                                                                                   
  In view of this development in the month of October, 2011, as per the direction of the CBDT the Mumbai CCIT filed a Writ Petition in the Mumbai High Court challenging the order of CAT, Mumbai and the admn. seems to be going slow on the issue of implementation of the CAT order.  The ITEF on the basis of our understanding of the situation, through a letter demanded that the promotions should be effected either by implementing the OM or holding regular DPC in par with promotions effected during the last 3 years on which there was no dispute. We had also given an ultimatum to the CCIT, Mumbai to issue promotion in all cadres before 31.10.2011 failing which we will be forced to go on agitation from the 1^st of Novemer. The CCIT in turn assured us that promotion orders will be issued before Diwali.

   However, in a surprise development another stay order on promotions came from the CAT on 21.10.2011. But the DPC for promotions for the post of LDC, NS, DB, Peon, SCD etc had already taken place on 20.10.2011. But uncertainty prevailed over the promotion to the post of Inspector etc eventhough the DPC meeting was to take place on 24.10.2011. The Federation had a clear-cut view on this issue which was conveyed to the Addl.CIT(HQ)Pers. and we are happy that the admn. has held DPC and issued promotion order to the post of Inspector today (1.11.2011.) We are of the considered opinion that bringing stay on promotions is un-called for as it will have adverse affect on the career advancement of our members only. Moreover, any judicial pronouncement can be implemented at any point of time by holding review-DPC. In the present scenario this legal battle may prolong and settle only in the Supreme Court and the ITEF cannot subscribe to the stand that till such time no promotion should take place.

   The  Admn. filed MA before the CAT for vacating the stay on  promotion on the same day i.e. 21.10.2011 which was fixed for hearing on 31.10.2011. However, the matter was subsequently adjourned for 14.11.2011. The writ filed by the department is also coming up for hearing in the Mumbai High court on 8.11.2011. This is as far as the legal developments are concerned.

   From the above it can be seen that the ITEF has taken a consistent and principled stand on the issue of promotions that promotion should be effected in time and as per rules. We have always tried to take all sections of our members along in the struggle we waged till date. The promotion is an issue of importance for the members waiting for their promotions for years, irrespective of which region, religion etc they belong. However it must be understood that this is only a passing phase. The regular promotion every year brings relief to a limited number of people.  As happened in 2001, if today the situation has to undergo a change and bring about large scale promotions, it can only be achieved through the cadre restructuring which is still pending with the Govt.  The cadre restructuring is expected to create large number of posts triggering promotions which can  wipe out the long waiting lists. In order to achieve this task we have to have strong organization and a sustained and militant struggle in the days to come.

   Therefore, we caution all our members to guard against elements that are waiting for an opportunity to disrupt our Unity. ITEF is not a one issue organization. We have many issues concerning our members that calls for sustained struggles. A strong and united organization alone can spearhead the struggle in the coming days for a better career in the department. The endeavor of each and every one of us in this situation is not to be carried away by misinformation campaign being spread by vested elements, but stand united beyond caste, creed, religion and region under the banner of Income Tax Employees Federation which alone can take you to a better future. In conclusion we can assure you that our efforts for getting promotions and other issues achieved will continue in right earnest. We seek the co-operation and support of each and every member of our Federation so that we can succeed and march forward unitedly with resolute determination to win many more battles ahead.

With greetings,

                                                                                               Yours fraternally,

              

                                                                                             Ravindran B Nair)

                                                                                            General Secretary.