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2009 (3) TMI 909 - HC - Income TaxPenalty imposed - promotion of respondent to the post of Chief Commissioner of Income Tax - Held that:- It is a case where in exercise of our extraordinary jurisdiction under Article 226 of the Constitution of India, we should not interfere with the direction given by the Tribunal in the impugned judgment. From the minutes of the DPC meeting held on 25.11.2005, it is clear that the DPC had found the respondent fit for promotion even after taking into consideration the penalty imposed upon the respondent herein. The note of the Cabinet Secretary, which was prepared for ACC, has to be read in this backdrop. The Tribunal is right that it is only because the period of penalty had not been over the recommendation was that the respondent should not be promoted at that stage. Matter would have been different if after taking into consideration the said penalty, the DPC would have held the respondent to be "unfit" for promotion inasmuch as it is within the jurisdiction of the DPC to check the overall record of the candidate. However, as mentioned above, penalty was taken into consideration. We may also take note of Para 12.2 of the Government Instructions dated 30.8.1990 as per which, when the employee is found fit for promotion, notwithstanding the penalty, such promotion is to be given after the currency of the penalty. Moreover, had the intention of ACC was to deny the promotion outright, even when DPC had recommended the case of the respondent for promotion finding him "fit", as per the procedure ACC would have sent the matter back to the DPC, which was not done. Appeal dismissed.
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