Central Administrative Tribunal - Mumbai
Abhijeet Sharma vs Union Of India on 1 August, 2013
1 OA Nos.233 & 234/2013 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI O.A. No. 233/2013 & 234/2013 Date of decision : August 1st, 2013 Coram: Hon'ble Shri Justice A.K. Basheer, Member (J) Hon'ble Shri R.C. Joshi, Member (A) O.A. No. 233/2013 1. Abhijeet Sharma R/At: C-68, Anand Nagar Cooperative Housing Society Ltd., Nr. Sankalp Chowk, Raghunat Nagar, Thane (W) 400 604 2. Vikas Meena R/At: B-124, Vikas Finlay Tower, Parel Tank Road, Parel (E), Kala Chowki, Mumbai 400 033. 3. Rajesh Kumar R/At: 1003, Ahwini, Tarangan Wayle Nagar, Kalyan (W) 421 301. 4. Jagdish Kumar Verma R/At: Flat No. 8, Highway Shirin Apartment, Mental Hospital Road, Nr. Dhyansadhna College Parabwadi, Thane (W) 5. Rakesh Ranjan, R/At: 1F, Shankeshwar Residency, Phase II, Tawripada, Nr. Water Treatment Plant, Kalyan (W) Thane 421 301 6. Dinesh Kumar Verma R/At: Flat No. 001, B-Wing, B-2 Swastik Park, Ghodbunder Road, Opp. Brahmand Phase IV, Thane (W) 400 607 7. Mani Kant Jha R/at: 1F-501, Shankeshwar 2 OA Nos.233 & 234/2013 Residency Phase II, Tawari Pada, Kalyan (W), District Thane 421 301 8. Satish Kumar Bhadani R/At: A-3, Income Tax Colony, CIDCO Ambad Link Road, Nr. Brukule Hall, Krishna Nagar Nashik 422 010 9. Shivjee Singh R/At: F-702, Shankeshwar Residency,Pada, Kalyan (W), District Thane 421 301 10. Pankaj Kumar R/At: B-8, Income Tax Officers And Staff Quarters, Khutwad Nagar, Kamathwada, Nr. CITU Bhawan, Nashik 11. Indu Bhusan Kumar R/At: B-404, Purushottam Park, Ghodbunder Road, Nr. Mucchala College, Thane (W) 400 607 ... Applicants in OA No.233/2013 O.A. No. 234/2013 1. Shankar Prasad R/At: 502/13-A, Income Tax Colony, MHADA Residential Complex Ram Baug, P.O. IIT, Powai, Mumbai 400 076 2. Deepak Prakash Bishnoi R/At: 603/13-B, Income Tax Colony, MHADA Residential Complex Ram Baug, P.O. IIT, Powai, Mumbai 400 076 3. Rajesh Soni R/At: Room No. 52, Building No. 3, CGS Colony, Sector 7, Antop Hill Mumbai 400 037 4. Ujjawal Kumar Sinha R/At: Old Income Tax Colony, Yashodham Enclave Goregaon (E), Mumbai 400 063 3 OA Nos.233 & 234/2013 5. Pankaj Kumar Jha R/At: III/33/325, Ekta Vihar, CGS Colony, CBD Belapur, Navi Mumbai 400 614 ... Applicants in OA No. 234/2013 (By Advocate Shri R.G. Walia) VERSUS 1. Union of India, through The Chairman, Central Board of Direct Taxes, CBDT,l Ministry of Finance, Department of Revenue North Block, New Delhi 110 011 2. The Revenue Secretary Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, North Block, New Delhi 110 011 ... Respondents in both the O.As 3. The Chief Commissioner of Income Tax, Pune-I (CCA), Pune, Aayakar Bhavan, Sadhu Vaswani Chowk, Pune 440 001. ... Respondent in O.A. No. 233/2013 3. The Chief Commissioner of Income Tax, Mumbai (CCA) Aayakar Bhavan, M.K. Road, Churchgate, Mumbai 400 020. ... Respondent in O.A. No.234/2013 (By Advocates S/Shri R.R. Shetty, D.A. Dubey, P. Khosla and Smt. H.P. Shah) ORDER (ORAL) Per: Justice A.K. Basheer, Member (J)
These two Original Applications are the off shoot of a dispute which has been settled once and for all by their Lordships of the Supreme Court in Union of India v/s. N.R. Parmar 2013 (2) Service Cases Today.
4 OA Nos.233 & 234/20132. The issue that came up for consideration in Parmar (supra) was in relation to the dispute of inter-se seniority between Direct recruits and Promotees in the cadre of Income Tax Inspectors. After an elaborate consideration of the entire issue, the Supreme Court held thus :
33. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraph 20 and 21 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued by the SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as confirmed by the rival parties, is common in all matters being collectively disposed of. In all these cases the advertised vacancies were filled up in the original/first examination/selection conducted for the same. None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried forward vacancies or vacancies which came to be filled up by a later examination/selection process. The facts only reveal, that the examination and the selection process of direct recruits could not be completed within the recruitment year itself. For this, the modification/amendment in the manner of determining the inter-se seniority between the direct recruits and promotees, carried out through the OM dated 7.2.1986, and the compilation of the instructions pertaining to seniority in the OM dated 3.7.1986, leave no room for any doubt, that the rotation of quotas principle, would be fully applicable to the direct recruits in the present controversy. The direct recruits herein will therefore have to be interspaced with promotees of the same recruitment year.
34. In view of the above, the Civil Appeals, the Transferred Case, as well as, the Transfer Case (filed by the direct recruits and the Union of India) are hereby allowed. The claim of the promotees, that the direct recruit Income Tax Inspectors, in the instant case should be assigned seniority with reference to the date of their actual appointment in the Income Tax Department is declined.
3. The applicants in the two cases on hand are direct recruit Inspectors of Income Tax. Their grievance is that the respondents are trying to promote 5 OA Nos.233 & 234/2013 their juniors (departmental candidates) to the cadre of Income Tax Officer from the panel drawn up by the Departmental Promotion Committee based on the old seniority list which has been found to be inoperable by the Apex Court. According to the applicants, the attempt of the respondents is to circumvent the judgment of the Apex Court in Parmar (supra) by which the respondent-department has been interdicted from giving effect to the seniority list, which in principle was based on wrong interpretation or understanding of Office Memorandum of 2008. The Apex Court has in unambiguous terms held that Rota and Quota needs to be maintained and direct recruit Inspectors will have to be interspaced with promotees of the same recruitment year. Applicants contend that if the judgment of the Supreme Court is implemented in letter and spirit then they would all stand promoted to the post of Income Tax Officer as the promotee Officers of 2005-2006 batch have already been promoted. Therefore, the applicants pray for issue of an appropriate order quashing A-1 order dated March 21, 2013 by which the Central Board of Direct Taxes has given permission to pass orders of promotion to the cadre of Income Tax Officers from the panel already drawn up by the Departmental Promotion Committee in the year 2012 subject to revision of the seniority of the Income Tax Officers, if any, while implementing the 6 OA Nos.233 & 234/2013 judgment of the Apex Court in Parmar (supra). Applicants further pray for issue of a direction to the respondents to implement the judgment of the Apex Court in Parmar by publishing and circulating the correct and valid seniority list immediately, and to hold the meeting of the Departmental Promotion Committee only thereafter, to make further promotions.
4. It may at once be noticed that the applicants in O.A. No. 233/2013 are working in Pune Zone, whereas the applicants in O.A. No. 234/2013 are under the Mumbai Zone. In the written statement filed by the respondents in O.A. No. 233/2013, it is stated that respondent no. 3 viz. Chief Commissioner of Income Tax, Pune had formed a Task Force to examine the effects of the judgment of the Apex Court in Parmar and to refix the seniority list of Income Tax Officers and Inspectors of Income Tax. It is further stated that:
the task force has submitted its report and the same has already been submitted to the Board on 11/02/2013. However, while submitting the report, clarifications on various issues that has cropped up during recasting such seniority list has been sought from the Board. The same is awaited and upon receipt of clarification, the process will be again undertaken to place the applicants amongst other direct recruit Inspectors...............
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Moreover, the CBDT vide letter dated 13.06.2013 has now informed the CCIT, Pune that the case of Union of India and Others V/s N.R. Parmar and others, (Civil Appeal 7514-7515 of 2005) is under examination in DOP&T. Thus implementation of the decision of the Hon'ble Supreme Court is pending for clarification from DOP&T.
5. The respondents have further stated in para 39 of the written statement thus:
7 OA Nos.233 & 234/201339. With reference to para 5(p) of the Original Application, the respondents submit that the CCIT, Pune has already carried out the work of refixing the seniority in the cadre of Income Tax Officers and have also conducted mock review DPC for arriving at the seniority according to the Hon'ble Supreme Court judgement dated 27/11/2012.
However, it has sought certain clarifications from the CBDT i.e. respondent no. 1 and the process will be completed on receipt of the clarifications only.
6. In O.A. No. 234/2009, the case of the respondents is made explicit thus in para 14:
14. With reference to para 4.16, 4.17, 4.18 and 4.19 of the OA, the respondents submit that the contention of the applicants that respondents are conducting DPC for promotion to the post of ITO without revising seniority list and implementing the above mentioned Supreme Court judgment is absolutely false as no eligibility list for promotion to the post of ITO for R.Y 2013-2014 has been released till date. In old seniority list loses its relevance for any of the future Recruitment Year. Hence no promotion in R.Y. 20132014 to the post of ITO can be resorted until eligibility list for promotion to ITO for Recruitment Year 2013-2014 is released. The respondents are earnestly striving for implementation of the said judgment dated 27/11/2012.
However, as this judgment has impact on seniority across all cadres of Income Tax, the same cannot be done until the clarification from CBDT is received.
7. It can be seen from the contention raised by the Bombay Zone in OA No.234/2013 that they have not prepared or published any eligibility list for promotion to the post of Income Tax Officer for the Recruitment Year 2013-14 on the basis of the old seniority list. They have further asserted that old seniority list has lost its relevance for any of the future Recruitment Years and, therefore, no promotion in the Recruitment Year 2013-2014 can be made until an eligibility list is prepared and published.
8 OA Nos.233 & 234/20138. More importantly, the respondents in OA No.234/2013 have further stated that their earnest endeavour is to implement the judgment in Parmar (supra). However, their only reservation or apprehension is that it may not possible to implement the same unless and until clarification sought for from CBDT is received since the judgment has impact on seniority across all cadres of Income Tax. In short, as far as Bombay Zone is concerned, it appears that there is no imminent prospect of any promotion on the basis of the old or existing seniority list.
9. However, the situation is different as far as Pune Zone is concerned. According to the respondents in OA No.233/2013, there are 19 vacancies in the cadre of Income Tax Officer in the Pune Region addition to 7 more vacancies which will arise during the year due to retirements. Thus, they contend that if these 26 vacancies are not filled up, it will severely affect the functioning and tax collection in the Region and hence there is an immediate need to conduct the DPC for ITOs. They further contend that all the Commissionerates in this charge are already pressing hard for providing ITOs as there are huge vacancies for ITOs. The Respondents further contend that even if the DPC for promotion to the post of Income Tax Officer and Inspector of Income Tax is conducted with the existing seniority list, it will be subject to 9 OA Nos.233 & 234/2013 revision, if any, upon implementing the Hon'ble Supreme Court judgment. It is further contended that on refixing the seniority list of Income Tax Officers and Income Tax Inspectors in terms of the above judgment, review DPC will be conducted wherever necessary and the claims of Direct Recruits will be automatically taken care of, as per their seniority upon giving effect to the Supreme Court judgment in Parmar. In short, the contention of the Respondents in OA No.233/2013 is that even if the above 26 vacancies are now filled up on the basis of the existing seniority list, the interest of the applicants will be protected. The priority of the Respondents appears to be to meet the immediate crisis of shortage of Income Tax Officers and consequently in the cadre of Income Tax Inspectors.
10. The short question that arises for consideration is whether on the face of the law laid down by the Apex Court, the Respondents have to be permitted to resort to this modus operandi at this juncture.
11. It may at once be noticed that the judgment in Parmar was pronounced by the Supreme Court on November 27, 2012. As on today, nine months have elapsed after pronouncement of the above judgment. The case of the Respondents is that the question for implementation has been pending consideration before the Department of Personnel and Training. They contend that certain difficulties and issues may crop up while fixing the 10 OA Nos.233 & 234/2013 seniority in the cadre of Income Tax Officer if the judgment in Parmar is implemented. According to the Respondents the ramification is too huge and, therefore, Central Board of Direct Taxes, in consultation with the Ministry of Finance, has referred the matter to the Department of Personnel and Training.
12. Mrs. Shah, who appears for the Respondents in OA No.233/2013 has invited our attention to the latest communication dated July 30, 2013 issued by the Central Board of Direct Taxes to the Chief Commissioner of Income Tax (CCA), Pune. The communication reads thus I am directed to refer to your letter No.PN/CC/VIG/CAT/Abhijeet & Ors./2013-14/2649 dated 18.07.2013 on the subject cited above and to state that the matter in the case of Sh. N.R. Parmar was referred to DoPT on 12.07.2013 for their opinion/advice on the implementation of the order dated 27.11.2012 of the Hon'ble Apex Court. However, the same has since been received back from DoPT on 28.07.2013. The DoPT has sought certain clarifications. As such, the process of taking decision regarding implementation or otherwise of the Hon'ble Supreme Court's decision may take further time.
(emphasis supplied by us)
13. We have extracted the entire text of the communication only to highlight the casual and lackadaisical manner in which this issue has been dealt with so far by the authority concerned. It is seen from the above communication that the matter has been referred to the DoP&T only on July 12, 2013. But Mrs. Shah contends that the process of consultation with DoP&T had commenced sometime back and not July 12, 2003. Even assuming that this consultation process had 11 OA Nos.233 & 234/2013 been going on for quite sometime, as is now contended by the Respondents, one fails to understand how the DoP&T can stand in the way of implementation of the judgment in Parmar. The last sentence in the above communication is still more strange and baffling. It reads that the process of taking decision regarding implementation or otherwise of the decision of the Apex Court may take further time. Are we to assume that DoP&T, CBDT or for that matter, any Department or Ministry of the Union or State Government can sit in judgment over the decision taken by the Supreme Court and decide whether or not to implement the same?
14. As has been noticed already nine months have elapsed after the pronouncement of the judgment in Parmar. Even assuming that the task of refixing the seniority is so huge or mammoth, it does not stand to reason as to why the authorities concerned did not take any steps to complete the process till date. In this modern era of advanced technology, it may be only a matter of a few days (if not hours) to complete the process of refixation of seniority. The number of Officers in the Income Tax department does not run to millions. Therefore, we have no hesitation to repel the contention raised by the Respondents that they have not been able to implement the judgment so far because of the enormous nature of the task or the complexity involved therein. In our view the Respondents are not 12 OA Nos.233 & 234/2013 entitled to place any reliance on the existing seniority list which has been found to be inoperable by the Supreme Court. We do not propose to deal with this issue in extenso any further since in our view the operative portion of the judgment of the Apex Court which has been extracted in the earlier part of this order, is self explicit.
15. The next question that arises for consideration is whether the Respondents should be allowed to make promotions to fill up the 26 vacancies of Income Tax Officers in Pune Zone at this stage. It is true that the Respondents have stated that the promotions will be subject to refixation of seniority in terms of the judgment in Parmar. Why such an exercise especially when the issue has been settled by the Apex Court? There is no answer.
16. In this context, we may refer to one aspect which may have some significance. It is pointed out by learned counsel for the applicants that in Annexure A-1 it is seen mentioned that the decision to make promotions to the cadre of Income Tax Officers has been taken keeping in view the request made by Income Tax Employees Federation. He submits that this revelation gives a clue as to what prompted the authorities to go ahead with this clearly illegal act. We refrain from making any comment or observation on the above contention.
13 OA Nos.233 & 234/201317. Shri R.R. Shetty who appears for the respondents in OA No.234/2013 has invited our attention to an order passed by a co-ordinate bench of this Tribunal at Jabalpur in OA No.531/2013. The short order passed by the Jabalpur Bench on July 22, 2013 in the above case is extracted hereunder for the sake of convenience:
2. Through this Original Application, the applicants have prayed for the following reliefs:
(i) That, respondents be restrained from holding DPC for the post of Income Tax Officers (ITO) on the basis of the old seniority list.
(ii) By an appropriate Order or Direction the respondents be directed to hold the DPC on the basis of the recasted seniority list dated 11.03.2013 (Annexure A3) as per the judgment dated 27.11.2012 of the Apex Court in the case of N R Parmar.
(iii) Any other order of direction, which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case, may kindly be passed in favour of the applicant.
(iv) Cost of the present case.
3. The respondents have filed their detailed reply. In para 17 of their reply they have categorically stated as under:
17. To take care of the interest of the aggrieved applicants, the Hon'ble Tribunal is hereby assured that the promotion orders to the post of ITO shall be passed only after incorporating the following rider:
The promotion of these officers shall be subject to revision of the seniority of Inspectors/Income-tax Officers, if any, consequent to implementation of Hon'ble Supreme Court judgment dated 27.11.2012 in N.R. Parmar case and other similar cases on the matter pending, if any, in various court including the present Original Application. It is pertinent to mention that the CBDT itself has followed the same line of action while releasing the promotion orders to the post of Assistant Commissioner of Income Tax by incorporating in the promotion order the aforementioned rider.
4. In view of the above averments in the reply filed by the respondents, nothing survives in this Original Application and the same is accordingly disposed of. 14 OA Nos.233 & 234/2013
18. Shri Shetty submits that these two cases on hand can also be disposed of in the same terms as has been done by the Jabalpur Bench by making it clear that the promotion of the officers concerned shall be subject to revision of the seniority of Inspectors/Income Tax Officers, if any, consequent to implementation of the judgment of the Apex Court in Parmar (supra). However, Shri Walia, who appears for the Applicants has invited our attention to an order passed by the Ahmedabad Bench in OA Nos.506/2012 and 508/2012. In the above two cases, the Respondents had informed the Tribunal that holding of DPC had been deferred pending decision to be taken by the Department concerned. The Tribunal had recorded the statement made by the Respondents in their written statement that after due consultation with the Department of Personnel and Training, the judgment of the Apex Court in Parmar will be implemented and till such time no DPC would be held.
19. It may at once be noticed that the Jabalpur Bench in its order had no occasion to take stock of the developments which has come to the fore in this case. We have already referred to the communication dated July 13, 2013 which clearly indicates that this so called consultation process is still going on.
20. Learned counsel for the Respondents have submitted before us that several queries and 15 OA Nos.233 & 234/2013 clarifications have been sought by the various Departments and the Board, so far. But it seems that no light is seen at the end of the tunnel so far. It is evident from the latest communication dated July 13, 2013, itself that the decision regarding implementation or otherwise of the Supreme Court judgment may take further time.
21. In our view this attitude of the department, and that too on the face of the judgment passed by the Apex Court, cannot be countenanced at all. It is true that the Bombay Zone does not seem to be in a hurry to hold DPC and make any promotion as has been clarified by them. But the Pune Zone has decided to proceed further and make promotions on the basis of the existing seniority list inspite of the admitted position that the Task Force has submitted its report. They have, of course, given a solemn assurance that these promotions will be subject to revision of the seniority list in tune with the order passed by the Apex Court. But, as rightly pointed out by the learned counsel for the applicants this appears to be nothing but a ploy to delay the process of implementation of the Apex Court's order.
22. The respondents have not been able to give any satisfactory explanation as to why the judgment of the Apex Court could not be implemented so far even though nine months have elapsed. In any view of the matter, we 16 OA Nos.233 & 234/2013 have no hesitation to hold that the Respondents are not entitled to hold the DPC and make any promotions on the basis of the existing seniority list. Ordered accordingly. Annexure A-1 is quashed.
23. Before we part with the case we deem it appropriate to alert the respondents that the judgment in Parmar is the law of the land as on today and it has to be necessarily implemented without any further delay.
24. Original Applications are allowed. Miscellaneous Application Nos.448/2013 and 495/2013 also stand closed. No costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J) ma/sc.