Central Administrative Tribunal - Delhi
Vikram Niranjan vs Expenditure on 16 April, 2025
1
Item 21 C-3
OA No.
No.1864/2023
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.1864/2023
No.
Order Reserved on: 28
28.02.2025
Order
er Pronounced on ::16.04.2025
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
1. Vikram Niranjan, Aged About 27 years,
S/o Indrapal Niranjan R/o 272,23'd Block, Panchkuian Road, Mandir Marg,
New Delhi
Delhi-110001 SEN.No.667
2. Jitendra Kumar, Aged About 25 years,
S/o Mahpal Singh
R/o WZ-148148 Ravi Nagar New Delhi
Delhi-110018
110018
SEN.No.620
sviris Narayan,
Aged About 30 years,
StoKanhaya Lal
R/o VPO Bhandoli Palwal Haryan aa-727107
727107
SEN.No.534
4. Sachin Yadav,
Aged About 28 years,
S/o Moti Ram
R/oB-195
195 Vikash Nagar Uttam Nagar New Delhi-110059
Delhi
SEN.No.625
5. Narendra Kumar,
Aged About 34 years,
S/o Netra Pal Singh
R/o 11.No.96 Street No.3 Block A Brijpuri Main Wazirabad Road Delhi
Delhi-
110094
SEN.No.923
6. Yashpal,.
Aged About 26 years, S/o Veerpal R/o 3-224
3 224 Gali No. 15 Nala Road Pandav
Nagar New D Delhi-110092
110092 SEN.No. 662
2
Item 21 C-3
OA No.
No.1864/2023
7. Ranjeet Kumar,
Aged About 26 years, S/o Mathura Singh R/o Wazirabad Gali No.6
North Delhi
Delhi-110084
SEN.No.689
8. Gagan Verma
Aged About 27years,
S/o Mundrika Verma
R/o F, 53 1't floor gali no.2
West Vinod Nagar New DelhiDelhi-110092
110092
SEN.No.638
9. Arvind Kumar,,
Aged About 29 years,
S/o lagdish Prasad
R/o II.No. 111 Indira Complex Nahar Par
Old Faridabad Haryana
Haryana-1 ztooz
SEN. No. 614
10.Mo Gufran
Aged About 29 years,
S/o Akhtar
R/o 573112 Saini Colony Panipat
la ryana- 132103
SEN.No. 687
11.Devvrat Singh,
Aged About 31 years,
S/o lai Prakash
R/o Nirman Vihar New Delhi
Delhi-110092
110092
SEN.No.931
12. Shashi Bhushan Pal,
Aged About 30 years,
S/o Bhola Pandit
R/o 4D/55 Old Rajinder Nagar Delhi
Delhi--110060 SEN.No.673
13. Raj Kumar,
Aged About 27 years,
S/o Rambriksh Mahto R/o Village Rohua Post Office Kohbarva Distt.
Sitamarhi Bihar
Bihar-843330
SEN.No.699
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Item 21 C-3
OA No.
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14. Sher Singh Bairwa,
Aged About 30 years,
S/o Rajju Bairwa
R/o BhaypurMohanpur Post Raghuvanshi Ten
Distt. Karauli Rajasthan
Rajasthan-322247
SEN.No.5BB
15.. Ashish Garg,
Aged About 30 years,
S/o Ajay Garg
R/o tq1-BB Pocket
Pocket-M Sarita Vihar
New Delhi
Delhi-110076
SEN.No.613
16.Om Prakash Kumar,
Aged About 26 years,
S/o Anil Singh
R/o Shanti Niwas near Tyagi Dairy Shakarpur
New Delhi
Delhi-110092
SEN.No. 678
17. Banwari Lal Meena,
Aged About 26 years,
S/o Sumer Meena
R/o Dundipura Post Gothra Tehsil Sapotra
Distt. Karuli Rajastha nn-322218
SEN.No. 746
18. Rahul Choudhary,
Aged About 26 years,
S/o Ashok ChoudharY
R/o 435, School Block Shakar Pur
Laxmi Nagar New Delhi-110092
SEN. No.730
19. Neetu Kumari,
Aged About 28 years,
D/o Brijnandan Paswan
R/o Village Govindpqr Post. Modanganj
Distt. Jahanabad Bihar
Bihar-804432
SEN.No. 1028
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Item 21 C-3
OA No.
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20. Aakash Shakla,
Aged About 32 years,
S/o Omprakash
R/o16/427
R/o16/427-E Bapa Nagar Padam Singh Fl.oad
Karol Bagh New Delhi
Delhi-110005
SEN.No.934
21. Abhinav Bajpai,
Aged About 30 years,
S/o Parshuram Kumar BajPai
R/o F-136,
136, Mangal Bazaar road Laxmi Nagar Delhi-110092
Delhi
SEN.No.751
22.Shivam Kumar,
Aged About 29 years, S/o Satish Kumar Singh R/o Pushp
Pushp Vihar Sector
Sector-03
New Delhi
Delhi-110017 SEN.No.594
23. Abhishek, Aged About 30 years, S/o Amarnath Sharma R/o 323 A block
Gopal Nagar Najafgarh New Delhi
Delhi-110043
110043 SEN.No.756
..Applicants
(By Advocate :Mr. M.K. Bhardwaj)
Bhardwaj
VERSUS
1. Secretary, Ministry of Finance, Department of Revenue, North Block, New
Delhi 110 001
2. Chairman, Central Board of Direct Taxes, Ministry of Finance, North Block,
New Delhi
Delhi-110001
3. Pr. Chief Commissioner of Income Tax, Delhi Zone, Ministry of Finance,
CR Building, IP Estate
Estate, New Delhi-110002
110002
4. Pr. Director General of Income Tax (HRD), CBDT, Ministry of Finance,
2nd Floor, JLN Stadium, New Delhi
Delhi-110003
110003
5. Ramkesh Meena, Serving as Tax Assistant, O/o. Pro CCIT, Delhi
5
Item 21 C-3
OA No.
No.1864/2023
6. Sachin Amar Kholwad, Serving as Tax Assistant,
O/o. Pro
ro CCIT, Delhi
7. Sandeep, Serving as Tax Assistant, O/o, Pro CCIT, Delhi
8. Rakesh Kumar Sonkar, Serving as Tax Assistant, O/o. Pro CCIT, Delhi
9. Sonu Kumar, Serving as Tax Assistant, O/o. Pr. CCIT, Delhi
10. Nitish Kumar Rawat, Serving as Tax Assistant, O/o. Pr. CCII, Delhi
CANTS
11.Amit Lakra, Serving as Tax Assistant, O/o. Pr. CCIT, Delhi
12. Rishu Raj, Serving as Tax Assistant, O/o. Pr. CCIT, Delhi
13. Kripal Singh, Serving as Tax Assistant, O/o. Pro CCIT, Delhi
14. Manoj Kumar Mishra, Serving as Tax Assistant, O/o. Pro CCIT, Delhi
15.Atul Bhatt, Serving as Tax Assistant, O/o. Pro CCIT, Delhi
16. Aniket Kumar
Serving as Tax Assistant, O/o. Pro CCIT, Delhi.
...Respondents
(By Advocate : Mr. Sanjeev Yadav, Ms. Sriparna Chatterjee, Mr. S.K.
Gupta)
6
Item 21 C-3
OA No.
No.1864/2023
ORDER
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J):
Review Application No. 59/2024 has been filed against O.A. No. 1864/2023 seeking review and recall of the order dated 30.04.2024 passed in O.A. No. 1864/2023 (Vikram Niranjan & Ors. vs. Union of India & Ors.).
Ors.) The applicants have prayed that the said O.A. may be restored to its original number number. Upon restoration, and after completion of pleadings, the matter was heard afresh with the consent of all the parties concerned concerned.
3. Learned cou counsel nsel for the applicants Mr. M.K. Bhardwaj submit submitted that the applicants were initially appointed as Multi-Tasking Multi Tasking Staff (MTS) in the year 2016 after undergoing the due selection process conducted by the Staff Selection Commission. The next higher post in the hierarchy after MTS is that of a Tax Assistant.
3.1 On 18.12.2015, in supersession of the earlier Recruitment Rules of 2003 (hereinafter referred to as "RRs of 2003"), the respondents notified the new Recruitment Rules (hereinafter referred to as "RRs of 2015") governing promotions to the post of Tax A Assistant.
ssistant. As per these rules, 25% of the posts of Tax Assistants were to be filled through promotion from the feeder cadre comprising MTS, Process Server, Notice Server, Lower Division Clerk (LDC), etc., while the remaining 75% of the posts were to be filled filled through direct 7 Item 21 C-3 OA No. No.1864/2023 recruitment. However, vide letter dated 13.04.2005, the respondents issued instructions based on the un un-amended amended RRs of 2003, stipulating that for promotion to the post of Tax Assistant, an Eligibility List must be prepared from amongst MTS, S, Process Server, Notice Server, LDC, etc. Further, only those employees who successfully clear the departmental typing test would be included in the Eligibility List for consideration by the Departmental Promotion Committee (DPC) for promotion to the pos postt of Tax Assistant. These instructions are in direct contradiction to the extant RRs of 2015. 3.2. Subsequently, the respondents issued a clarification vide letter dated 28.06.2019 (Annex A A-6),
6), stating that the instructions dated 13.04.2005 had become redundant ndant with the implementation of the amended RRs of 2015. Consequently, all actions pertaining to promotions to the post of Tax Assistant would be governed strictly in accordance with the RRs of 2015. The relevant portion of the letter dated 28.06.2019 rea reads as follows:
".....3. I am further directed to say that in preparing eligibility list for promotion to the post of Tax Assistant, the Board's letter dated 13.04.2005 comes into play only when the conditions given in the existing Recruitment Rules are fulfilled.
lfilled. As the above mentioned feeder posts have different pay levels at present and as the existing Recruitment Rules contain specific eligibility conditions for promotion to the grade of Tax Assistant the para "a common eligibility list in chronological order with reference to passing of the computer skill examination shall be prepared for consideration of the DPC. Inter-se Inter se seniority of the candidates recommended for promotion as Tax Assistants shall be fixed in order of the select list so prepared by ththee DPC" in the Board's letter F. No. A-
A 12018/1/2005 12018/1/2005-Ad.VII dated 13.04.2005, has become redundant and, hence, superseded. Henceforth, all action for promotion to the post of Tax Assistant will be taken as per Recruitment Rules.8
Item 21 C-3 OA No. No.1864/2023 3.3. Since the RRs 2003 had been amended in 2015, the aforesaid instructions dated 13.04.005 were rightly declared redundant by the respondents vide letter dated 28.06.2019. However, in the same letter, in response to a query no.(ii), it was stated as under:
under:-
Queries Reply
(ii) Whether all the candidates, who have List of eligible candidates
candidates for
earlier led the Computer Skill Test are to be promotion to the post of TA has to be treated as eligible for promotion and seniors prepared in the following manner: to those, who have qualified computer skill test on later date irrespective of their (I) Prepare a list of those who fulfill all seniority. the following conditions given in RR:
(a) 5 years regular service in the concerned region in the Grade (MTS/NS/LDC/Record Keeper/Sr. Gest. Op.) including service rendered in the erstwhile Group 'D'.
b) Having passed Matriculation examination or equivalent.
(c) Having qualified the prescribed Department Examination for data entry skill for 5000 key depressions per hour.
(II) After that, arrange the list as per date of passing the data entry skill test (amongst those whose names appear in the list at step I).
3.4 On one hand, vide instructions dated 28.06.2019, the earlier instructions dated 13.04.2005 13.04.2005--wherein wherein the eligibility list was prepared based on the date of passing the Computer Skill Test Test--were were rendered redundant. However, on the other hand, in the same lette letter, r, while responding to query no. (ii), the respondents decided to prepare the list of eligible candidates based on the date of passing the Data Entry 9 Item 21 C-3 OA No. No.1864/2023 Skill Test. This contradiction created confusion in the minds of the respondents regarding the preparation of the eligibility list. 3.5. As per the extant Recruitment Rules (RRs), for promotion to the post of Tax Assistant, MTS and other Group 'D' staff from different cadres were required to pass the Computer Skill Test/Data Entry Test with a speed of 5000 ke key depressions per hour. Since the applicants were appointed based on their merit position secured in the Staff Selection Commission (SSC) recruitment examination, the Computer Skill Test/Data Entry Test, being merely a qualifying criterion, could not have been the determining factor for their placement in the eligibility list for promotion to the post of Tax Assistant. Therefore, the respondents' reliance on the instructions dated 28.06.2019 is contrary to the extant RRs, which have been framed under the proviso proviso to Article 309 of the Constitution of India by the Hon'ble President of India. Moreover, the said clarification cannot be applied by the Departmental Promotion Committee (DPC) without the approval of the competent authority.
3.6. Aggrieved by this, the applicants raised objections regarding the eligibility list. However, upon receiving no response from the respondents, they filed OA Nos. 1499/2022 and 2511/2022. These OAs were disposed of by the Tribunal vide orders dated 01.06.2022 and 06.01.2023, respectively, respectively, directing the respondents to decide on the applicants' representations. 10 Item 21 C-3 OA No. No.1864/2023 3.7. Instead of deciding the applicants' representations, the respondents, relying on the eligibility list prepared under the un-amended un amended RRs, issued promotion orders on 14.09.2022, .09.2022, 15.09.2022, and 02.03.2023, promoting juniors of the applicants to the post of Tax Assistant. These promotion orders are now under challenge in the present OA.
3.8. It is pertinent to mention that inter-se inter se seniority in the MTS cadre is determinedd based on the merit position secured by candidates in the SSC SSC-
conducted open examination. The applicants had secured higher marks and were placed above their juniors in merit. However, in the qualifying/eligibility Typing/Data Entry Test Test--aa mere eligibility eligibility requirement for promotion to Tax Assistant, and not a competitive examination--the examination the said juniors may have passed the test earlier than the applicants. However, such a factor alone cannot justify superseding the applicants, especially when the original inter-se inte se seniority remains intact. Allowing juniors from the same or subsequent batch to gain an undue advantage over the applicants under the garb of the eligibility list is unjust. Thus, the eligibility list dated 28.12.2021, prepared by the respondents, is arbitrary and illegal. The respondents, however, refused to accede to the applicants' request to be considered and promoted to the post of Tax Assistant based on inter inter-se seniority.
11
Item 21 C-3 OA No. No.1864/2023 3.9. Aggrieved by the respondents' actions, the applicants have filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
"a. To quash and set aside the impugned order dated 26.04.2023 (A (A-1) and letter dated 27.06.2023 (A (A-1A) 1A) and direct the respondents to consider the claim of Applicants for promotion to the post of Tax Assistant by holding review DPC and promote the Applicants to to the post of Tax Assistant with all consequential benefits.
b. To quash and set aside the promotion order dated 14.09.2022, 15.09.2022 & 02.03.2023 to the extent the Applicants have not been promoted to the post of Tax Assistant alongwith their juniors and direct the respondents to consider the Applicants for promotion to the post of Tax Assistant strictly as per the seniority in the cadre of MTS and grant them promotion of their juniors with all consequential benefits. c. To quash and set aside the para 4 of letter dated 31.05.2023 to the extent it has been provided that any action already taken as per redundant instructions contained in letter dated 13.04.2005, 23.05.2016, 03/04.10.2018 & 28.06.2019 shall not be altered and direct the respondents to hold review DPC of the original DPC dated 14.09.2022 and 01.03.2023 by ignoring the aforesaid letters dated 13.04.2005, 23.05.2016, 03/04.10.2018 & 28.06.2019 and strictly as per the Recruitment Rules and the DoP&T OMs referred in the OA.
d. to allow tthe OA with cost.
e. pass any further orders as this Hon'ble Tribunal may deemed fit and
proper in the facts and circumstances of the case."
4. Per contra contra,, the official respondents have filed a counter affidavit admitting that the eligibility list for promotion to the post of Tax Assistant was prepared in accordance with the Board's letter dated 13.04.2005, in compliance with the Directorate of Income Tax (HRD)'s letter dated 23.05.2016. As per the said clarification, while preparing the eligibility list list for promotion to the post of Tax Assistant, even after the enforcement of the new Recruitment Rules (RRs) of 2015, 12 Item 21 C-3 OA No. No.1864/2023 the instructions dated 13.04.2005 were to be followed. Consequently, the eligibility lists dated 28.12.2021 and 02.03.2023 were prepared with with reference to the date/year of passing the Computer Skill Test. 4.1 Learned counsel for the official respondents submitted that rregarding the clarification issued by the Directorate of Income Tax (HRD) on 28.06.2019, the respondents have admitted that Para 3 of the said letter explicitly stipulates that the instructions dated 13.04.2005 were rendered redundant and, henceforth, all actions related to promotions to the post of Tax Assistant were to be governed strictly by the 2015 RRs. However, relying on the response to specific query No. (ii) of the said letter dated 28.06.2019, the respondents have sought to justify their actions and contend that the applicants are not entitled to any relief in the present OA, as their names did not appear in the eligib eligibility ility list prepared by the department.
5. Learned cou counsel nsel for Respondents No. 2 to 4, Ms. Sriparna Chatterjee further submits that it is an admitted fact that the applicants in the Original Application (O.A.) and the answering respondent were all appointed as Multi Multi-Tasking Staff (MTS) through a competitive examination conducted by the Staff Selection Commission pursuant to an advertisement. They were subsequently posted as MTS. The next promotional post in the hierarchy is that of Tax Assistant, which, as per er the Recruitment Rules dated 18.12.2015, is to be filled in the following manner:
13
Item 21 C-3 OA No. No.1864/2023 25% through promotion, and 75% through direct recruitment.
6. She further submits that w with ith regard to the eligibility criteria for promotion, the following categories of em employees ployees--MTS, MTS, Lower Division Clerk (LDC), Notice Server, Record Keeper, and Senior Gestetner Operator--are Operator are considered eligible, subject to the fulfillment of the following conditions:-
conditions:
(i) Five years of regular service in the grade, including service rendere rendered in the erstwhile Group Group-D;
(ii) Passing of the Matriculation Examination or an equivalent qualification; and
(iii) Qualification in the prescribed departmental examination for data entry skills at a speed of 5000 key depressions per hour.
7. Learned counsel for the respondents No. 2 to 4 submitted that iin this context, it is pertinent to note that the Central Board of Direct Taxes (CBDT), Department of Revenue,, issued a notification dated 02.09.2003, 02.09.2003, whereby, in the exercise of the powers conferred un under der the proviso to Article 309 of the Constitution Constitution, and in supersession of the Income Tax Group Group--C C Recruitment Rules, 1990, the Income Tax Group-C C Recruitment Rules, 2003 2003,, were promulgated. These rules governed the post of Senior Tax Assistant and stipulated stipulated that promotions to the said post would be made 100% by promotion from amongst Tax Assistants who had 14 Item 21 C-3 OA No. No.1864/2023 rendered at least three years of regular service in the grade and had qualified the prescribed departmental examination for ministerial staff.
8. Subsequently, on 13.04.2005,, the Department of Revenue, Ministry of Finance, Government of India India,, issued a letter to all Cadre Controlling Chief Commissioners of Income Tax regarding the preparation of the eligibility list, promotion to the post of Tax Ass Assistant, istant, and fixation of inter se seniority seniority. The letter stated that 25% of the vacancies in the post of Tax Assistant were reserved for Group-C C & D employees employees.. Since it was not feasible to earmark a separate quota for each eligible category, the Board, after considering representations from the staff side, decided that a common eligibility list would be prepared in chronological order based on the date or year of passing the computer skill test test, which would serve as the basis for consideration by the Departmental Departmental Promotion Committee (DPC). The inter se seniority would be arranged in the order of the select list prepared by the DPC. Promotions continued to be effected accordingly.Subsequently, on 28.06.2019, 28.06.2019 the Directorate of Income Tax (HRD) issued a clarific clarification letter to the Principal Chief Commissioner of Income Tax, Gujarat,, in response to their letter dated 23.05.2019. The letter clarified that, as per the Recruitment Rules dated 18.12.2015, 18.12.2015, various posts mentioned therein constitute the feeder cadre for promotion to the post of Tax Assistant. It further noted that, at the time of the issuance of the 13.04.2005 letter, the posts of LDC, Notice Server, Record Keeper, and Senior Gestetner Operator were in the pay scale 15 Item 21 C-3 OA No. No.1864/2023 of ₹3050-4590.
4590. These posts were later revised and placed in Pay Band Band-I (₹5200- 20200) with Grade Pay of ₹2000, ₹1900, and ₹1800, respectively respectively, and subsequently categorized under Pay Level-III, Level Pay Level-II, II, and Pay Level Level-I, respectively. T The relevant extract of the letter dated 28.06.2019 reads as follows:
follows:-
"I am further directed to state that, in preparing the eligibility list for promotion to the post of Tax Assistant, the Board's letter dated 13.04.2005 shall be applicable only when the conditions prescribed in the existing Recruitment Rules are met. Since the aforesaid feeder posts are now placed in different pay levels and the existing Recruitment Rules specify distinct eligibility conditions for promotion to the grade of Tax Assistant, the provision in the Board's letter F. No. A-12018/1/2005-Ad.VII A Ad.VII dated 13.04.2005, which stated that a common eligibility list shall be prepared in chronological order based on the passing of the computer skill examination for consideration by the DPC, has become redundant and is, therefore, superseded. Henceforth, all actions for promotion to the post of Tax Assistant shall be governed strictly as per the Recruitment Rules."
9. It is noteworthy that, as per the 2015 Recruitment Rules, Rules all feeder grades grades--
MTS, LDC, Notice Server, Record Keeper, and Senior Gestetner Operator Operator--were equally eligible for promotion to the post of Tax Assistant. Consequently, the variation in grade pay among these posts was immaterial for promotion purposes. The letter dated 13.04.2005 remained applicable until 31.05.2023,, when th the Board prospectively withdrew both the 13.04.2005 and 28.06.2019 letters. Both the 13.04.2005 and 31.05.2023 letters were issued by the Board and addressed to all Cadre Controlling Authorities. However, the 28.06.2019 letter was issued solely by the Directorate torate of Income Tax (HRD) and was addressed exclusively to the Principal Chief Commissioner of Gujarat.
Gujarat The Cadre Controlling Authority (CCA) of the Delhi Zone was neither addressed nor made aware of it. 16 Item 21 C-3 OA No. No.1864/2023
10. Additionally, the Directorate of Income Tax had earlier issued a letter dated 23.05.2016,, addressed to all Cadre Controlling Authorities, including the Delhi Zone,, directing them to continue following the Board's instructions dated 13.04.2005 for the preparation of the eligibility list. This position was was reaffirmed in the Departmental Promotion Committee (DPC) meetings held on 20.11.2020 and 14.09.2022 (Annexure A A-10 10 of the O.A.).
11. Learned counsel for the respondents has relied upon the judgments of the Hon'ble Supreme Court in the following cases:
1. Naushad Rahaman &Ors. v. Union of India &Ors. (Civil Appeal No. 1243/2022) - Holding that administrative instructions can supplement statutory rules but cannot override them.
2. Sant Ram Sharma v. State of Rajasthan &Ors. (Writ Petition No. 182/1966) - Affirm Affirming that, in the absence of statutory rules, the government may issue administrative instructions, provided they do not contradict existing rules.
12. Learned counsel for Respondent No. 5, 5 Mr. S.K. Gupta submits that the applicants have not challenged the letter dated 28.06.2019 (Annexure (Annexure-A-6), and unless the said letter is set aside, they are not entitled to any relief.
(i) The Central Board of Direct Taxes (CBDT) issued a circular dated 13.04.2005 (Annexure-A-5, 5, page 77 of the O.A.), stipulating that for the preparation of the eligibility list among various feeder cadres, a common eligibility list must be prepared in chronological order based on the date of passing the computer skill examination, which would then be placed before the Departmental Promotion Committee (DPC).
17Item 21 C-3 OA No. No.1864/2023
(ii) Upon the supersession of the Recruitment Rules dated 02.09.2003 and the introduction of GSR No. 990(E) dated 18.12.2015, the Respondents issued another circular dated 23.05.2016 (Annexure (Annexure-R R-1),
1), addressed to all Principal Chief Commissioners sioners of Income Tax (Cadre Controlling Authorities) [Pr. CCIT (CCA)], reaffirming that a single eligibility list of candidates must be prepared based on the date/year of passing the computer skill examination, in accordance with the circular dated 13.04.
13.04.2005.
(iii) Subsequently, the CBDT issued another circular dated 03/04.10.2018 (Annexure-R-2),
2), reiterating the provisions contained in the circular dated 13.04.2005.
(iv) The office of the Pr. CCIT (Gujarat) sent a communication dated 23.05.2019, regarding representations for conducting the DPC for promotion to the post of Tax Assistant and sought certain clarifications in this regard.
(v) In response to the reference made by Pr. CCIT (CCA), Gujarat, the CBDT issued a circular dated 09.03.2023 (Annexure-R-3), (Annexure ), clarifying that there was no contradiction between the Recruitment Rules and the instructions/OMs issued by the Board from time to time. It was further stipulated that the DPC for promotion to the post of Tax Assistant should be conducted in accordance with the Recruitment Rules and relevant instructions/OMs.
13. Learned counsel for Respondent No. 5 further contended that the determination of eligibility must be undertaken as per the two two-step process 18 Item 21 C-3 OA No. No.1864/2023 mentioned above. Accordingly, the aforesaid circular was was issued to ensure the effective implementation of the Recruitment Rules, and its provisions do not conflict with any provision of the Recruitment Rules notified under the proviso to Article 309 of the Constitution of India.
14. We have carefully perused the pleadings, the documents available on record, and have heard the arguments advanced by the learned counsel for both parties. During the course of arguments, the learned counsel for the applicants drew attention to the latest order dated 31.05.2023 passed by the Board, wherein the following decision was taken:
taken:-
Dated: 31.05.2023 To The Pr. CCIT (CCA), Delhi The Pr. CCIT (CCA), Mumbai, etc. Subject: Clarification regarding the interpretation of the term "Seniority" in the feeder cadre (NS/MTS/LDC) while considering promotion to the post of Tax Assistant.
Ref: Letter F No. 4. CCIT/GUJ/ABD/HQ(Pers.) Clari, MTS to TA/23 TA/23-24 dated 01.05.2023 from Pr. CCIT (CCA), Gujarat.
Kindly refer to the subject cited above.
22. In this context, it has been observed that there is some lack of clarity in certain field offices across the country regarding the methodology to be adopted while conducting DPCs for promotion to the the cadre of Tax Assistant (Ref: Letter of Pr. CCIT (CCA), Gujarat, dated 01.05.2023). Accordingly, a clarification in this matter is issued for the convenience of all, based on the extant Recruitment Rules for the cadre of Tax Assistant:
Senior Senior-Junior Clause: As mentioned in Column 11 of the Schedule to the Recruitment Rules for the post of Tax Assistant, as included in the RRs notified vide GSR No.990(E) on 18.12.2015, the provision states:19
Item 21 C-3 OA No. No.1864/2023 "Where juniors who have completed their qualifying or eligibility sservice are being considered for promotion, their seniors would also be considered, provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less, aand nd have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service."
3. As per Article 309 of the Constitution of India, the Recruitment Rules for the post of Tax Assistant, notified vide GSR No.990(E) on 18.12.2015, are statutory in nature. Accordingly, I am directed to convey that the DPC for promotion to the post of Tax Assistant shall be conducted strictly in accordance with the extant Recru Recruitment itment Rules for the post of Tax Assistant.
4. The earlier clarifications issued by the Board/HRD in this matter, including letters of even number dated 13.04.2005 (issued by Ad VII, CBDT based on the then RRs dated 02.09.2003 of the Tax Assistant cadre), 23. 23.05.2016, 03/04.10.2018, and 28.06.2019, stand withdrawn with immediate effect. It is also clarified that any action already taken based on earlier instructions of the Board/HRD in this regard shall not be altered to ensure that settled seniority lists rema remain undisturbed.
This order is issued with the approval of the Chairman, CBDT."
15. From perusal of the above letter indicates that the respondents have withdrawn their earlier instructions dated 23.05.2016, 03/04.10.2018, and 28.06.2019. Although the lette letterr dated 28.06.2019 had already declared the earlier instructions redundant, some confusion persisted due to inconsistent replies to query no. (ii). ultimately,, this confusion has been clarified through the letter dated 31.05.2023.
16. Respondents espondents argued that even after withdrawal of instructions dated 23.05.2016, 03/04.10.2018 and 28.06.2019 vide letter dated 31.05.2023, the relief claimed by applicants could not be granted to them as letter dated 31.05.2023 clearly provided that ''any any action already taken as per earlier instructions of the Board/HRD in this regard shall not be altered so that settled seniority list is not 20 Item 21 C-3 OA No. No.1864/2023 disturbed'.. For the sake of clarity, relevant para of the aforesaid letter is reproduced hereunder:
hereunder:-
"...4. The earlier clarifications issued by the Board/HRD in the matter such as letters of even number dated 13.04.2005 (issued by Ad VII, CBDT based on the then RRs dated 02.09.2003 of Tax Assistant cadre), 23.05.2016, 03/04.10.2018 and 28.06.2019 stand withdraw withdraw with immediate effect. It is also clarified that any action already taken as per earlier instructions of the Board/HRD in this regard shall not be altered so that settled seniority lists are not disturbed.
disturbed.' We shall come this later
17. The issue for our consideration revolves around the applicability of RRs of 2015 and/or the earlier instructions issued by the Board as per the un un-amended RRs of 2003. Somewhat Somewhat, similar situation, as in the present case, was before the Hon'ble Apex Court iin the case of S. L. Sachdev &Anr. Vs. Union of India &Ors.
[1981 SCR(1) 971 971], ], wherein the following had been held:-
held:
"Apart from this consideration, we are unable to understand how the Director General could issue any directive which is inconsistent with the the Recruitment Rules of 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution. Those rules do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organization. It may be recalled that the Recruitment Rules only provide for a classification on the basis of the length of service in the new organization. Any directive which ggoes oes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction. No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309.. That is elementary. We are unable to accept the learned Attorney General's submission that the directive of the Director General is aimed at further and better implementation implementation of the Recruitment Rules. Clearly, it introduces an amendment to the Rules by prescribing one more test for determining whether U.D.Cs. drawn from the Audit Offices are eligible for promotion to the Selection grade/Head Clerks Cadre."
18. In case oof State of Maharashtra vs. Jagannath Achyut Karandikar [1989 SCC (SUPP) 1 393] also, Hon'ble Apex Court held as under:-
under:21
Item 21 C-3 OA No. No.1864/2023 "Executive instructions cannot amend or supersede the statutory rules or add something therein, nor the orders be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory Rule nor does it have any force of law; while statutory rules have full force of law provided the same are not in conflict with the provisions of the Act."
19. In Secretary State of Karnataka and Ors. Vs. Uma Devi &Ors &Ors., [AIR 2006 SC 1806], Hon'ble Supreme Court held as under:-
under:
"5. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules."
20. As per case laws disc discussed ussed above, in any conflict between instructions and RRs promulgated under Article 309, the scale would weigh in favour of the RRs.
21. Further more aan n identical issue has been considered by Mumbai Bench of the Tribunal wherein one of the Member myself Member Member (J) is the member of in case of Vinod Kumar Kanaujiya&Ors. Vs UOI &Ors[OA &Ors[OA No. 715/2019 decided on 28th March, 2024] and the said OA has been allowed with directions.
22. Regarding the submissions of the respondents (para 16 aforesaid mentioned) that as per letter dated 31.05.2023 providing 'action 'action already taken as 22 Item 21 C-3 OA No. No.1864/2023 per earlier instructions of the Board/HRD in this regard shall not be altered so that settled seniority list is not disturbed', disturbed', the applicants are not entitled to any relief prayed for in tthe instant OA.
23. In this regard, it is seen that seniority between the applicants and the private respondents has not yet been settled as the lis between both the parties is still pending and they are aware that wind could blow either way. Noting the complexity of the issue, the Tribunal vide order dated 24.08.2023 by way of an ad interim measure, recorded that ""Meanwhile, Meanwhile, any promotions made on tthe basis of letters dated 13.04.2005, 23.05.2016, 03/04.10.2018 & 28.06.2019 shall be subject to the outcome of this OA." Therefore, in our considered opinion, the seniority between both the parties, i.e., the applicants and the private respondents in the present case cannot be treated to be settled one for want of decision in the pending litigation between them. Accordingly, the contention of the respondents in this regard has no force and the same stands rejected.
24. In the conspectus of the facts and circumstances brought out above, we dispose of the present OA with the following directions:-
directions:
(i) Eligibility Lists dated 28.12.2021 and 02.03.2023 prepared by the respondents as per the redundant instructions are quashed and set aside;23
Item 21 C-3 OA No. No.1864/2023
(ii) The respondents are directed to re-issue issue the Eligibility List based on the inter inter-se seniority position of eligible candidates including the applicants at the time of their initial appointment and not on the basis of the date of passing the eligibility qualifying Data Entry S Skill/Typing kill/Typing Test;
(iii) The respondents are further directed to hold a review DPC of the earlier DPC which led to issuance of promotion orders dated 14.09.2022, 15.09.2022 and 02.03.2023 and to consider grant of promotion to the applicants as Tax Assistant as per their inter inter-se seniority/re-drawn drawn eligibility list, as directed above; and
(iv) In case, the applicants are found otherwise eligible and suitable for the post in question, promote them from the date when their immediate junior(s) had been promoted to the post of Tax Assistant and assign them seniority accordingly. The applicants will be entitled to all consequential benefits, e.g., seniority, fixation of pay on notional basis etc., except back wages.
25. The exercise, as ordained above, shall be completed completed by the respondents within a period of eight weeks from the date of receipt of a certified copy of this Order. Pending MAs, if any, also stand disposed of.
26. No order as to costs.
( Dr.SumeetJerath ) ( Harvinder Kaur Oberoi ) Member (A) Member (J) /Arti/