Office Memorandum Is a Statutory Instruction, Cannot Supersede Statutory Rules: Delhi High Court Reiterates

A Division Bench of the Delhi High Court comprising Justices C. Hari Shankar and Sudhir Kumar Jain upheld the decision of the Central Administrative Tribunal reaffirming that Office Memorandum could not supersede the Statutory Rules. It observed that the Office Memorandum being a statutory instruction can supplement the Statutory Rules, however, it cannot override or supersede the said Rules.

Background

On 17 September 2010, the Respondents were elevated to the post of Joint Commissioners of Income Tax (CIT). Their juniors were also promoted along with them. It was the 14th year of the services of the Respondents to Petitioners since they had joined. The junior officers who were promoted on the same date when the Respondents were promoted, were subsequently promoted as Additional CIT (NFSG) on 3 January 2022 and 12 December 2022.

The Respondents challenged the promotion of the junior officers before the Central Administrative Tribunal alleging that such promotion was violative of sub-Rules 3 and 4 of Rule 7 of Schedule II to the Indian Revenue Service Rules, 2015. As per 7(4), the officers were to be selected based on selection, however, promotion to the post in the grade of Additional Commissioner of Income Tax (NFSG) was to be granted based on seniority. Moreover, as per note 1 to Rule 7(4) of the Schedule II, it was laid down that where juniors having completed their qualifying service were being considered for promotion, their seniors would also be considered, subject to possessing the requisite qualifying service by more than half of such qualifying service or two years, whichever was less.

In addition to this, they were required to have successfully completed their probation period for promotion to the next higher grade along with their juniors having completed such qualifying service already.

The Respondents claimed an entitlement to two years’ relaxation for being promoted to the NFSG, as their juniors had been promoted on 1 January 2022.

On the other hand, challenging the application before the Tribunal, the Petitioners argued that the grant of NFSG was only a placement in a higher scale and not a promotion. Relying on office memorandum dated 5 October 2021 issued by the Department of Personnel & Training, it was contended that as per Note 1, the extension of any such benefit to the Respondents was not ensured, as claimed by the Counsel.

Dissatisfied with the contentions of the Petitioner, the Tribunal stated that since promotion to the post of Additional CIT (NFSG) was entailed within Rule 7(4) of the Schedule II to the IRS Rules, it could not be held that the post of Additional CIT (NFSG) was not a promotional post.

Citing the judgment of the Supreme Court in UOI v Ashok Kumar Aggarwal, the Tribunal held that as per Article 309 of the Constitution of India, the Office Memorandum could not override the Recruitment Rules. The Tribunal further held that an Office Memorandum being an executive instruction could supplement the statutory Recruitment Rules, however, it could not replace the said rules.

Holding so, the Tribunal observed that the Respondents were entitled to relaxation of two years to gain eligibility for promotion to the post. Accordingly, the Respondents were promoted along with their juniors who were promoted on 1 January 2022.

Dissatisfied with the decision, the Petitioners approached the High Court.

Findings of the Court:

The Court noted that the even though the Petitioners relied upon Rule 7(4) of the Schedule II to the IRS Rules, they did not justify the same. Dissatisfied by the contention regarding promotion involving a process of selection and not treating the post of Additional CIT (NFSG) as a promotional post, the Court held that it could not be accepted. It was stated that Rule 7(4) to the Schedule II to the IRS Rules clearly entitled the Respondents to the promotion to the post of Additional CIT (NFSG) as was laid down in the Rules.

Disagreeing with the Counsel for the Petitioners, the Court reaffirmed the decision of the Tribunal to consider the Office Memorandum as only an executive instruction which could not supersede the Recruitment Rules or be contrary to such Rules.

Making these observations, the Court held that the Tribunal had not committing an error by stating that the Respondents were entitled to the benefit of promotion as Additional CIT (NFSG) along with their juniors as per the IRS Rules, w.e.f. 1 January 2022.

Accordingly, the Writ Petition was dismissed.

Case Title: UNION OF INDIA & ORS versus JAGDISH SINGH & ORS

Click here to read the Order/Judgement

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