O.A.Nos.1132, 1133 & 1375/2014. Case: 1. Mr.Rohith Nathan 2. Mr.G.Babu Vs 1. Union of India 2. The Secretary Government of India 3. The Under Secretary, Government of India. Central Administrative Tribunal
| Case Number | O.A.Nos.1132, 1133 & 1375/2014 |
| Counsel | For Appellant: Ms.U.Karunakaran, Adv. and For Respondents: Mr.K.Rajendran, Adv. |
| Judges | Mr. A.Arumughaswamy, Member(J) and Mr.R.Ramanujam, Member(A) |
| Issue | Wealth Tax Act |
| Judgement Date | January 12, 2017 |
| Court | Central Administrative Tribunal |
Order::
Mr.R.Ramanujam, Member(A), (Madras Bench)
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The applicants have filed this OA seeking the following relief:-
to call for the records related to the impugned orders dated 31.5.2012 received during the second week of June 2012 made by the 4th respondent and to quash the same and further to direct the respondents to uphold the up-gradations to the grade pay of Rs.4600/- and to the grade pay Rs.4800/- both effective from 01.9.2008.
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These OAs are taken up together and disposed of by this common order as the relief sought as also the issues raised therein are of a similar nature.
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In OA 1132/2014, the applicant had appeared in the UPSC for Civil Service Examination for the year 2011 and was placed at 574th rank. He was allotted to the IRAS in the general category. He applied again for the Civil Service Examination for the year 2012 under the OBC category. The applicant chose IFS as his first option. He obtained the 174th rank in the said examination. Four months after the publication of the results, the respondents made some enquiries regarding his OBC status with the Government of Tamil Nadu which formed a District Level Committee. The Committee, after conducting an enquiry, confirmed the validity of the OBC Certificate issued to the applicant. However, the applicant was still not allotted to the services based on his OBC status.
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The 1st respondent, after a lapse of 1 year and 2 months informed the applicant that he could not be considered under the OBC category. The applicant alleges that the decision of the respondents in this regard is arbitrary as the competent authority issuing the OBC Certificate had already tested his OBC status for creamy layer. He accordingly prays for a direction to the 1st respondent to allocate him to the Indian Foreign Service (IFS) as an OBC candidate.
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In OA 1133/2014, the same applicant citing the same circumstances seeks to challenge as unconstitutional the OM dated 08.9.1993 issued by the Department of Personnel & Training to the extent that the rule of exclusion contained in II C of the Schedule attached thereto provides as follows:-
and also to equivalent or comparable posts and positions under private employment, pending the evaluation of the posts on equivalent or comparable basis in these institutions, the criteria specified in Category VI below will apply to the officers in these institutions.
It is alleged that the said OM discriminated between salaried Government employees and salaried employees of the Private Sector in as much as the salary of the Government servant is treated as 'non-income' for deciding the creamy layer while it is 'income' when it comes to employees of PSUs and Private Sector establishments. It is contended that as per the explanation under clause VI of the said OM, the phrase gross annual incomeshould be considered to exclude salary and take into account only sources of income other than the income from salary and agricultural land. The 1st respondent attempted to consider the salary of the applicant's father as income, interpreting the said clause II C of the Schedule to the OM which has resulted in the alleged discrimination.
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It is further contended that the rule of exclusion from OBC on the ground of creamy layer is based on whether the post held by the parent of a candidate is Group A/Class-I or Group-B/Class-II and not based on the salary received by the employee. Even though some persons working in Group B/Class II may get more salary than the officers under Group A/Class I, they are not excluded on the basis of income from salary.
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In OA 1375/2014, the applicant states that he passed the Central Police Force Examination-2009 conducted by the UPSC as an OBC candidate and was selected as Assistant Commandant in the Central Industrial Security Force (CISF) which he joined on 2.9.2011. Thereafter, the applicant appeared for the Civil Services Examination in the year 2014 under the same OBC category. He cleared the preliminary and main examination and attended the interview following which he was placed at an All India rank of 629. His rank in the OBC category would be anywhere between 120-130. The person who ranked 648 was selected for IPS under the OBC category. The applicant was accordingly entitled to be selected for the IPS. However, the respondents regarded him as one belonging to UR category and his service allocation was made accordingly. He alleges that the respondents had made the service allocation in violation of the reservation policy without appreciating that the applicant did not belong to the creamy layer. He accordingly seeks a direction to the respondents to allocate him to the Indian Police Service (IPS) or any other service which he will be entitled to as per his OBC status.
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The respondents have filed reply and additional reply the thrust of which is on the following lines:-
OA 1132/2014:
(i) The applicant qualified in the Civil Services Examination-2012 under OBC category with rank No.174. He was recommended by the UPSC as a General Merit candidate. In other words, the applicant had not taken the benefit of reservation for OBC (Non-Creamy Layer) candidates. He was allocated to the IPS, keeping in view his merit, preference, vacancies available at his turn. The candidates claiming OBC reservation are required to provide complete details regarding occupation, income, etc. of parents, wealth, land (irrigated and unirrigated) and other details in support of their claim for OBC (Non-Creamy Layer) reservation. The applicant's details provided in the prescribed form did not reveal the promotion details and classification of posts, as to whether they were equivalent to Group 'A', 'B', 'C' or 'D' posts under the Central or the State Government. The total annual income of the parents of the applicants at Annexure-7 was more than the prescribed 4.5 lakhs in all the three last consecutive financial years.
(ii) The applicant's father was working in a Private organization namely M/s. HCL Technologies Ltd. The applicant produced a certificate from the employer stating that the father of the applicant joined HCL Technologies as Head Retail Practice in the grade E5 at the age of 45 years. After necessary evaluation, this post can be said to be comparable to a Group B/Class II post of the Government of India. He was promoted to grade E7 effective 1st October 2007 at the age of 48 years, which is comparable to a Group A/Class I Officer of the Government of India. He is currently at grade E9 and our age of superannuation is 55 years.M/s. HCL had further clarified the matter stating that for the purpose of comparison with Government employment, the company considered the age of retirement, roles and responsibilities, relevant work experience, basic pay/basic salary of the employee.
(iii) The Ministry of Social Justice and Empowernment referred the matter to NCBC in October 2003 and December 2007 for evaluation of the equivalent or comparable posts in public sector undertakings Banks, Insurance Organizations, Universities etc. or comparable posts and positions under private employment for the purpose of application of criteria enumerated in Category-II-A and II-B vis-a-vis II-C of OM dated 8.9.1993 of the DoPT which laid down the criteria for the Creamy Layer status. However, no equivalence or comparability of posts could be established as envisaged in the OM.
(iv) It is further submitted that a clarificatory OM was issued subsequently on 14.10.2004. Para 9 of the OM is applicable to category IIC in which equivalence or comparability of posts had not been established vis-a-vis posts in the Government. Under Category II-C wherever equivalence is pending, income/wealth test under Category VI(a) shall apply. It is not violative of the OM dated 8.9.1993 wherein the scope of explanation under Category VI(b) has been clarified to state that income from salaries or income from agriculture land shall not be clubbed. It is stated that scope of Category VI(b) in the OM dated 8.9.93 extended to Category I, II, III and V-A. Even though the category of employees of Public Sector Undertakings, Banks, Financial Institutions, Universities, Private companies etc., fall under Category-II-C, the scope of VI(b) can be made applicable to them only after the establishment of equivalence/comparability of posts vis-a-vis Government. Pending the evaluation of the posts on equivalent or comparable basis in these institutions, the criteria specified in Category VI(a) will apply as indicated in Category II-C of OM dated 8.9.93.
(v) On facts, it is mentioned that the total annual income of the father of the applicant for the last three consecutive financial years was Rs.85,02,944/- and his mother's annual total income for the last three consecutive years was Rs.6,60,000/-.
OA 1375/2014:
The reply of the respondents in this case is very much on the same lines except to also point out that the aggregate annual income of the applicant's father for the last three consecutive financial years was Rs.35,36,889/-. It is also stated that the applicant's father was working in the Neyveli Lignite Corporation (NLC), a public sector undertaking.
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Heard both. Learned counsel for the applicants would contend that the applicants had produced a certificate from the competent authority regarding their Non-Creamy Layer OBC status. Once such a certificate is produced, it is not for the respondents to independently redetermine the applicants' status based on their own discriminatory interpretation of the relevant OM. Even assuming that the respondents had the authority to test the validity of the certificate in terms of the provisions of the OM dated 8.9.93, the applicants admittedly came under Category II-C Employees of Public Sector Undertakings etc.which included comparable posts and position under private employment. It is clearly stated in the said OM that pending evaluation of the posts for equivalence or comparability in these Institutions vis-a-vis...
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