Central Administrative Tribunal - Delhi
Dass Officers Association Through Its ... vs Gnctd on 24 September, 2024
1
(C-5, Item -24) OA No. 1378/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1378/2023
Reserved on: 30.08.2024
Pronounced on: 24.09.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
1. DASS Officers Association,
through its Member, Managing Committee,
Sunil Anand Burark,
Grade-II DASS, Group 'B',
Aged About 32 Years,
S/o Sh. Brahmanand Burark
R/o 1590, Delhi Administration Flats, Gulabi bagh
Delhi-110007
2. Vikas, Grade-II DASS, Group 'B',
Aged About 34 Years,
S/o Sh. Satyawan Nain
R/o VPO Bhikewala, Tehsil Narwana,
Haryana-126152
3. Raman Garg, Grade-II DASS, Group 'B',
Aged About 34 Years,
S/o Sh. Pawan Garg
R/o H.No. 73/A Agarwal Colony, Bahadurgarh,
Haryana-124507,
4. Varun Sharma, Grade-II DASS, Group 'B',
Aged About 32 Years,
S/o Sh. Yogender Kumar Sharma
R/o D-1/21, Street No. 1, Ashok Nagar,
Shahdara-110093
5. Rahul Sagar, Grade-II DASS, Group 'B',
Aged About 38 Years,
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(C-5, Item -24) OA No. 1378/2023
S/o Sh. Har Prasad
R/o BC-15, Shalimar Bagh (West), Delhi-110088
6. Shivani Gakhar, Grade-II DASS, Group 'B', Aged
About 30 Years,
D/o Mr. S.K. Gakhar
R/o 32/21, Old Rajinder Nagar,
Delhi-110060
7. Sunil Anand Burark, Grade-II DASS, Group 'B',
Aged About 32 Years,
S/o Sh. Brahmanand Burark
R/o Flat No. 1590, Delhi Admin Flats,
Gulabi Bagh, Delhi-110007,
8. Rajeev Mann, Grade-II DASS, Group 'B',
Aged About 33 Years,
S/o Sh. Randhir Singh Mann
R/o H.No. 599, VPO Khera Khurd, Delhi-110082
9. Murari Kumar Jha, Grade-II DASS, Group 'B',
Aged About 31 Years,
S/o Sh. Aditya Nath Jha
R/o Village Chhlera, Sector-44, Noida, U.P-201301
10. Naveen Mathur, Grade-II DASS, Group 'B',
Aged About 30 Years,
S/o Sh. Jagdish Singh
R/o 211, VPO Karala,
Delhi-110081,
11. Ajay Kumar, Grade -II DASS, Group 'B',
Aged about 33 Years,
S/o Sh. Rishi Rama Sharma
R/o H3/104, Sector -18, Rohini,
Delhhi - 110085
....Applicants
(By Advocate: Mr. M K Bhardwaj)
VERSUS
3
(C-5, Item -24) OA No. 1378/2023
1. Govt. of NCT of Delhi
Through its Chief Secretary,
I.P. Estate, Delhi Secretariat,
New Delhi - 110002
2. The Secretary (Services)
I.P. Estate, Delhi Secretariat,
New Delhi - 110002
3. The DSSSB
Through its Chairman
FC-18, Institutional Area, Karkardooma,
New Delhi - 110092
4. The Secretary,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances, &
Pensions
North Block, New Delhi
.... Respondents
(By Advocate: Mr. Amit Anand)
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(C-5, Item -24) OA No. 1378/2023
ORDER
Hon'ble Mr. Manish Garg, Member (J):
1. As narrated by learned counsel for the applicants, the brief facts of the case are as under:-
1.1 Applicants have been appointed as DASS Grade- II pursuant to an advertisement No. 3/13 dated 12.09.2013 against the vacancies for the year 2012-13 meant for direct recruitment quota to the extent of 33½ per cent and promotees were given promotion against the 66½ percentage. Dates of appointment of applicants as DASS Grade-II are given below:-
S.No Name of the Applicants Date of Joining/ Remarks 1 DASS Officers Association ---
2 Vikas 21.06.2019 3 Raman Garg 02.08.2019 4 Varun Sharma 22.07.2019 5 Rahul Sagar 10.06.2019 6 Shivani Gakhar 26.06.2019 7 Sunil Anand Burark 13.06.2019 8 Rajeev Mann 21.06.2019 9 Murari Kumar Jha 26.06.2019 5 (C-5, Item -24) OA No. 1378/2023 10 Naveen Mathur 28.06.2019 11 Ajay Kumar 18.07.2019 1.2 It is contention of the learned counsel for the applicants that the respondents were required to fix the seniority of applicants along with the promotees DASS Grade-II of the year 2012-13. However, seniority of the applicants, who are direct recruits, was not fixed, and, therefore, they submitted representations dated 05.10.2020, 06.09.2021 and 14.09.2021 in this regard, which were forwarded for fixation of their seniority by the Dy. Secretary (GAD) as well as other officers depending on the posting of the applicants vide forwarding letters dated 28.09.2021 as well as other similar letters. Thereafter, subsequent reminders were sent vide representations dated 05.07.2022 and 14.07.2022.
1.3 As the names of the applicants were not reflected in any of the seniority list, they filed an OA bearing No. 3157/2022, which was disposed of vide order dated 31.10.2022 with directions to the respondents to decide the pending representation of applicants regarding fixation of their seniority as DASS Gr-II. In the meantime, the 6 (C-5, Item -24) OA No. 1378/2023 applicants also obtained information under RTI as per which, the DOPT vide note dated 04.05.2022 directed to fix the seniority of the applicants as per para 7 (iii) of OM dated 13.08.2021. However, the said directions of the DOPT as reiterated by Ministry of Home Affairs were not implemented and the representation of the applicants were rejected by order dated 06.04.2023. Aggrieved by the same, the applicants have approached this Tribunal seeking the following reliefs:-
"a) To quash and set aside the impugned order dated 06.04.2023 and direct the respondents to fix the seniority of applicants as Grade-II DASS as per para 7
(iii) of DoP& T OM dated 13.08.2021.
b) To declare the action of respondents in not fixing the seniority of applicants as Grade-II DASS by interspacing them with the promote Grade-II DASS of relevant years as illegal and issue appropriate directions to fix the seniority of applicants as Grade-II DASS as per para 7 (iii) & (iv) of OM dated 13.08.2021 and consider their claim for promotion to the post of Grade-I (DASS) by relaxing the conditions of qualifying service as stipulated in DoP&T OM dated 25.03.1996 with all consequential benefits.
c) To allow the OA with cost.
d) Pass such other and/or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
1.4 Learned counsel for the applicants states that the respondents have admitted in para 10 of the impugned 7 (C-5, Item -24) OA No. 1378/2023 order dated 06.04.2023 as well as para Nos. 12 (3) and 12(4) of their counter reply to the present OA, that the inter-se seniority of applicants is required to be fixed as per DOPT instructions, therefore, the respondents cannot raise any arguments contrary to their aforesaid stand taken on affidavit. The above referred paras of the counter reply read as under:
"12.3 That the position as explained above had been communicated to DoPT/ MHA and it has been advised to assign the seniority as per the provisions of DoPT OM dated 13.08.2021 which provided a window for Govt. employees who are appointed between 27.11.2012 & 18.11.2019 to as governed by DoPT OM dated 4.3.2014.
12.4 The instant case i. e. the case of post code 40/13 Gr. II (DASS) batch, seems to falls under above provisions for assigning of seniority as the whole recruitment process i. e. publication of advertisement, recruitment year, declaration of result and final appointment of selected candidates covered under the two dates i.e. 27.11.2012 to 18.11.2019."
1.5 It is the contention of the learned counsel for the applicants that in view of the admission of the respondents in the impugned order as well as in the counter reply, the plea raised in the written arguments regarding denial of seniority cannot be accepted as it is a settled law that the impugned order cannot be supplemented by additional plea in the reply or during arguments [Mohinder Singh Gill vs 8 (C-5, Item -24) OA No. 1378/2023 Chief Election Commissioner (1978) 1 SCC 405] nor any argument can be raised beyond pleadings as held in Judgment dated 10.07.2024 in OMP (COMMR) no 45/2024, Intex Technologies India Ltd vs Rincor Energy (Annexure-3) Para 12: If a plea is available, whether on facts or law, it has to be raised by the party at an appropriate stage in accordance with law. In para 13 it has been held "it is settled principle in law that a party cannot go beyond pleadings".
1.6 Applicants have prayed for fixation of their seniority as DASS Gr. II as the inter-se seniority of DASS Gr. II is governed by DOPT instructions as evident from the impugned order dated 06.04.2023, counter reply to the OA as well as amended RR dated 24.05.2022. In clause 8 (1) (Seniority) of said amended RR dated 24.05.2022, it has been provided that "the relative seniority of members of the service, appointed to any grade, on commencement of these rules, shall be the relative seniority in their respective grades as determined before the date of commencement of these rules." The seniority of applicants as DASS Grade-II has 9 (C-5, Item -24) OA No. 1378/2023 been fixed for the first time after Recruitment Rules dated 24.05.2022.
1.7 Learned counsel for the applicants argued that the judgment in case of K. Meghachandra Singh & Ors. Vs. Ningam Siro & ors. cannot be applied in the case of applicants. Also, in view of the judgment of Hon'ble Supreme Court in the case of Mervyn Coutindo & Ors. Vs. Collector of Customs, Bombay & Ors. reported in 1967 AIR 52, it has been held that the inter-se-seniority between DRs and promotees are required to be fixed strictly in order in which the vacancy in that grade is filled by direct recruits and promotees. While dealing with the argument of actual recruitment and joining, the Hon'ble Supreme Court clearly ruled that "stress has been laid on behalf of the petitioner on the words "is filled" in the circular and it is urged that this means that until the DR is actually recruited and fills the vacancy meant for DR he cannot get seniority from the date he fills the vacancy merely on the ground of rotational system of fixing seniority' 'we do not think that this is the meaning of words "is filled" used in the circular. In order to clarify further, it has been further ruled 'As we read these 10 (C-5, Item -24) OA No. 1378/2023 words, their plain meaning is that seniority as between direct recruits and promotees should be determined in accordance with the roster and in giving the seniority by rotational system there is no violation of Article 16(1)" (Page 5 & 6 of the said judgment). The relevant para of the said judgment read as under:-
"One of the principles in this circular of 1959 is with respect to relative seniority of direct recruits and promotees. It provides that relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of reservation for direct recruitment and promotion respectively in the recruitment rules. It was further explained that a roster should be maintained based on the reservation for direct recruitment and promotion in the recruitment rules."
1.8 The Hon'ble Supreme Court has also considered the said judgment of Hon'ble Supreme Court in the case of Hariharan & Ors vs Harsh Vardhan Singh Rao & Ors and held as under:-
"The decision in the case of K. Meghachandra requires reconsideration by a larger Bench in view of the fact that the binding decision of a Constitution Bench in the case of Mervyn Coutindo and another binding decision of a Coordinate Bench in the case of M. Subba Reddy were not placed for consideration before the Bench which decided the case of K. Meghachandra. Even assuming that the case of K. Meghachandra was correctly decided, paragraph 39 of the decision shows that the decision in the case of N.R. Parmar has been prospectively overruled by observing that the decision will not affect the inter-se-seniority already fixed on 11 (C-5, Item -24) OA No. 1378/2023 the basis of the case of N.R. Parmar and the same was protected. It is also held that the decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/the date of advertisement."
1.9 Learned counsel for the applicants states that the case of the applicants is on better footing than the case of Hariharan & Ors. (supra)_ inasmuch as, in the Statutory Recruitment Rules itself (Clause 8 (1) it has been clearly meant that if the seniority has not been fixed till notification of Recruitment Rules, the same shall be fixed as per DOP&T instructions. The applicants' seniority was fixed for the first after notification of Recruitment Rules dated 24.05.2022 as evident from the final seniority list dated 31.07.2024. At the time of issuing seniority dated 22.04.2016 & 04.07.2018, the applicants' names were not even referred as their seniority was not determined when the said two seniority lists were issued.
1.10 The contentions as raised by the learned counsel for the applicants, with regard to determination of the seniority, strictly as per the rotation of quota, also find support from another judgment of Hon'ble Supreme Court in the case of 12 (C-5, Item -24) OA No. 1378/2023 Arvinder Singh Bains vs State of Punjab, JT 2006 (11) SC 553 (Annexure-4) wherein it has been held:-
"Para 52: That by getting appointment orders ahead of direct recruits the promotees had already enjoyed more perks than the direct recruits by way of pay etc. This became possible because selection process of promotees was shorter as compared with that of direct recruits. The injustice to direct recruits cannot be compounded by relegating them in the matter of seniority also by placing the promotees enblock above the direct recruits especially when both of them (promotees and direct recruits) were selected against same requisition sent by the Government of the Punjab Public Service Commission."
Para 58: "We have also referred to the decisions rendered by this Court. This Court said rota and quota must necessarily be reflected in the seniority list and any seniority list prepared in violation of rota and quota is bound to be negated. The action of the respondents in determining the seniority is clearly in total disregard of rota-quota prescribed in Rule 18 of the 1976-Rules. The action is, therefore, clearly contrary to the law laid down by this court."
2. Opposing the grant of relief, learned counsel for the respondents reiterates the averments made in the counter affidavit and written submissions filed on behalf of the respondents. He states that the applicants herein are direct recruitees appointed in the year 2019 and are praying for grant of seniority from the retrospective date, even though they were not in existence at that particular time. He highlights the decision rendered in K. Meghachandra Singh (supra). He submits that the paragraph Nos. 3, 4, 5, 6 and 7 13 (C-5, Item -24) OA No. 1378/2023 of the counter affidavit may be read in consonance with the paragraph Nos. 3, 4 and 5 of the written submission. The chart depicting the applicants' date of joining and date of appointment is as under:-
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S.N. Name Date of Birth Category Date of Remarks appointment /Joining 1 RAMAN GARG 15-09-1988 UR 02-08-2019 2 VIKASH 15-04-1992 UR 13-09-2019 3 AMIT KUMAR 14-12-1991 UR 28-06-2019 4 MEENAKSHI GUPTA 27-09-1989 UR 01-07-2019 5 AJAY DHONCHAK 09-12-1991 UR 26-06-2019 6 MOHIT KUMAR 06-01-1987 UR 27-06-2019 7 GAUTAM 30-09-1991 UR 12-07-2019 8 SANDEEP 08-12-1989 UR 01-08-2019 9 SUNIL KUMAR 11-12-1991 UR 21-06-2019 SHOKEEN 10 POONAM GAHLOT 01-01-1988 UR 24-07-2019 11 PARAS GOEL 06-10-1991 UR 04-07-2019 12 ABHIMANYU SINGH 01-01-1991 UR 11-10-2019 13 NEETU KUMARI 19-12-1992 UR 17-05-2019 14 ARUN PARASHAR 23-03-1989 UR 25-06-2019 15 ANURAG KUMAR 28-09-1989 UR 25-06-2019 PANDEY 16 NIKHIL 30-05-1988 UR 07-06-2019 17 DEEPAK KUMAR 15-04-1989 UR 27-08-2019 18 SHASHI MOHAN 29-10-1986 UR 21-06-2019 OHLAN 19 SOUMYA SAXENA 30-09-1992 UR 26-06-2019 20 SUMIT DABAS 12-10-1988 UR 26-07-2019 21 VARUN SHARMA 12-05-1990 UR 22-07-2019 22 NAKUL YADAV 26-01-1990 UR 11-07-2019 23 GOPESH 29-11-1984 UR 07-08-2019 24 NAVEEN KUMAR 30-11-1986 UR 09-07-2019 DAGAR 25 SANDEEP SINDHU 05-06-1991 UR 23-07-2019 26 SATISH KUMAR 16-09-1989 UR 21-06-2019 27 NITISH GOEL 28-11-1989 UR 21-08-2019 28 HEMANT 24-04-1988 UR 28-06-2019 AGGARWAL 29 RAJEEV MANN 06-08-1989 UR 21-06-2019 30 DEEPAK KUMAR 13-03-1990 UR 27-09-2019 31 YATIN THAPAR 22-05-1989 UR 11-10-2019 32 RAVINDER 01-07-1990 UR 14-08-2019 14 (C-5, Item -24) OA No. 1378/2023 33 MONIKA 12-12-1990 UR 01-07-2019 34 GAURAV SHARMA 23-09-1990 UR 15-07-2019 35 ABHINAV SHARMA 13-02-1990 UR 25-06-2019 36 PULKIT BANSAL 20-03-1990 UR 10-07-2019 37 VINAYKUMAR 19-02-1989 UR 24-07-2019 PAWANKUMAR 38 01-05-1991 UR 05-07-2019 SINGH 39 LITINUPADHYAY 05-08-1988 UR 08-06-2019 40 ANKITDESWAL 03-11-1989 UR 25-06-2019 41 PANKAJGUPTA 22-06-1988 UR 06-06-2019 42 PANKAJSHARMA 29-05-1990 UR 20-05-2019 PANKAJKUMAR 43 30-06-1990 UR 28-06-2019 YADAV 44 KIRAN 17-07-1992 UR 16-07-2019 45 GEETA 10-06-1990 UR 08-07-2019 46 AJAYKUMAR 01-08-1991 UR 14-06-2019 47 SANDEEPKUMAR 13-09-1981 UR 23-05-2019 48 RAHULKUMAR 10-10-1990 UR 28-08-2019 49 ANKURSHARMA 16-05-1992 UR 25-06-2019 50 HARISHSHARMA 10-10-1989 UR 11-09-2019 51 ANKUSHMANN 12-05-1990 UR 11-07-2019 52 GAURAVDRALL 17-07-1992 UR 29-08-2019 GYANENDER 53 03-09-1990 UR 25-07-2019 SINGH 54 ARUN KUMAR 03-01-1991 UR 20-08-2019 55 SUMITKHARB 11-09-1991 UR 12-07-2019 56 GAURAVSINDHU 29-09-1988 UR 27-06-2019 PAWANKUMAR 57 08-02-1992 UR 02-09-2019 MEENA BRIJENDRA 58 15-07-1992 UR 28-06-2019 KUMAR SHUKLA 59 SATISH 07-04-1993 UR 01-10-2019 60 ANKUSHGARG 08-10-1987 UR 27-08-2019 61 ROHIT 26-12-1991 UR 19-06-2019 62 ANIL THAKRAN 01-04-1990 UR 27-08-2019 63 DINESHKUMAR 28-08-1990 UR 03-07-2019 64 RAHULGAHLOT 06-11-1991 UR 18-07-2019 65 SAHILSALUJA 23-03-1989 UR 06-08-2019 66 GAURAVSHARMA 30-09-1990 UR 21-10-2019 67 SUMIT 05-08-1991 UR 15-07-2019 68 TARUN MALIK 18-05-1993 UR 10-07-2019 69 MAHESH KUMAR 20-11-1991 UR 02-08-2019 70 LOKESH 06-01-1989 UR 05-07-2019 71 RAHULDHAKA 10-07-1989 UR 20-06-2019 72 PUNEETWALIA 13-06-1989 UR 11-10-2019 73 SAURABH 24-02-1990 UR 04-09-2019 74 HITESH WARDHAN 18-08-1989 SC 13-08-2019 75 MOHITMANN 13-01-1992 UR 27-06-2019 76 VIKAS 15-10-1988 UR 21-06-2019 GOPALJEE 77 01-06-1989 UR 28-06-2019 CHOUBEY 78 NITISH KHATTAR 30-01-1992 UR 28-06-2019 79 DEEPAK 04-09-1986 UR 15-07-2019 VAIBHAV KUMAR 80 20-08-1993 UR 22-07-2019 15 (C-5, Item -24) OA No. 1378/2023 VASHSHTHA 81 NAVEEN 10-11-1988 UR 20-08-2019 82 VIKASKHATRI 19-07-1990 UR 20-06-2019 83 RAJSINGHRANA 21-10-1990 UR 04-06-2019 84 PRAVEENSOLANKI 22-12-1990 UR 11-07-2019 85 SACHIN SOLANKI 08-07-1991 UR 18-06-2019 86 AASHNASOLANKI 27-10-1991 UR 25-06-2019 87 SOURAVKASANA 06-08-1992 UR 23-08-2019 88 SHIVANI GAKHAR 17-03-1992 UR 26-06-2019 89 SAGARKHANNA 29-07-1992 UR 28-05-2019 90 PRAVEENKUMAR 02-03-1988 UR 17-07-2019 MANISHKUMAR 91 01-12-1989 UR 20-06-2019 GULIA 92 RAJIVYADAV 09-10-1985 UR 25-07-2019 93 ANIL 19-05-1991 UR 09-09-2019 94 DIKSHA 14-02-1993 UR 20-08-2019 MANISHKUMAR 95 05-04-1987 UR 01-07-2019 JAIN VINAYKUMAR 96 11-07-1989 UR 03-10-2019 SHARMA GAURAV 97 23-07-1991 UR 01-08-2019 UPADHYAY 98 MOHITMANN 24-07-1991 UR 14-06-2019 ABHISHEK 99 25-10-1992 UR 13-06-2019 SHARMA 100 PRAVEENKADIAN 14-11-1983 UR 01-07-2019 101 PARVEENKUMAR 30-04-1986 UR 01-07-2019 102 VIJAYPOPLI 01-01-1988 UR 29-06-2019 103 RAHULKUMAR 02-08-1989 UR 26-06-2019 104 DINESHSINGH 15-02-1990 UR 19-08-2019 LALITKUMAR 105 02-11-1990 UR 13-08-2019 SINGH YUDHVEERSINGH 106 24-02-1992 UR 20-06-2019 TOMAR 107 ANIL 25-10-1992 UR 16-08-2019 108 DEVPRIYA 25-02-1987 UR 01-08-2019 ARVIND KUMAR 109 16-04-1991 UR 09-09-2019 SINGH 110 NITISH SHARMA 12-12-1988 UR 03-07-2019 SUNILANAND 111 11-02-1990 UR 13-06-2019 BURARK HARISHKUMAR 112 01-04-1990 UR 18-07-2019 SHARMA 113 MAYANKGAURAV 01-09-1990 UR 14-08-2019 114 LALITKUMAR 01-07-1985 UR 03-07-2019 115 ARJUN SHARMA 03-12-1990 UR 14-06-2019 MURARIKUMAR 116 09-06-1991 UR 26-06-2019 JHA GAURAV 117 20-10-1991 UR 01-07--2019 SHOKHANDA 118 ABHAYKUMAR 19-12-1991 UR 28-06-2019 PRAVEEN 119 CHANDRA 23-02-1992 UR 31-07-2019 SHARMA 16 (C-5, Item -24) OA No. 1378/2023 HARSHEENKAUR 120 06-09-1992 UR 16-07-2019 ANAND 121 SANDEEPYADAV 20-12-1985 UR 12-06-2019 PREMPRAKASH 122 22-09-1988 UR 20-06-2019 SINGH 123 AJAYKUMAR 03-05-1989 UR 18-07-2019 DEEKSHANT 124 23-09-1990 UR 25-06-2019 SHOKEEN 125 ROHIT KUMAR 01-04-1991 UR 11-06-2019 126 ROSHANTIWARI 04-05-1991 UR 27-06-2019 127 VIBHAVSHUKLA 11-07-1991 UR 08-06-2019 128 RAHUL 30-08-1991 UR 01-07-2019 SUMITKUMAR 129 02-07-1992 UR 05-07-2019 SHARMA 130 HIMANSHU 10-05-1989 UR 16-09-2019 131 SACHIN 10-04-1993 UR 26-06-2019 132 AMITMAAN 04-05-1986 UR 28-06-2019 133 NIRANJANKUMAR 17-04-1988 UR 20-08-2019 AKSHAYKUMAR 134 29-01-1991 UR 11-07-2019 SHARMA 135 MANISHSINGH 14-10-1991 UR/SC 16-07-2019 SAGARSINGH 136 09-02-1986 UR 28-08-2019 DANGI 137 KRISHANKUMAR 15-07-1989 UR 08-08-2019 138 JITESHTIWARI 02-03-1990 UR 29-07-2019 139 SACHIN YADAV 25-12-1991 UR 03-09-2019 140 PANKAJ 31-12-1991 UR 19-07-2019 141 SHREYASSINGH 12-11-1987 UR 02-09-2019 142 SANDEEPKUMAR 05-12-1990 UR 14-09-2019 143 SUNNY DALAL 03-04-1991 UR 09-07-2019 144 MONIKA TANWAR 02-02-1993 UR 28-06-2019 145 DEVENDERGOYAT 12-01-1987 UR 06-09-2019 146 SHRINIWAS SINGH 10-06-1988 SC 21-06-2019 147 AMIT RAJAIN 27-12-1990 UR 30-08-2019 148 RAJDEEPMALIK 12-11-1988 UR 27-06-2019 149 ARVIND KUMAR 21-04-1991 UR 16-07-2019 150 PRATEEK 17-05-1986 SC 11-07-2019 151 SUDHIRDALAL 01-04-1988 UR 28-08-2019 RAJESH 152 10-06-1991 UR 22-05-2019 SEHRAWAT UR/Sports 153 ANIL TUSHIR 07-06-1982 27-06-2019 154 MANISHKHARB 01-06-1992 UR 28-06-2019 155 ROHIT SHOKEEN 21-04-1989 UR 21-06-2019 SUNILKUMAR 156 25-01-1990 UR 11-09-2019 CHAUHAN 157 AJAYRANA 31-01-1991 UR 27-06-2019 HIMANSHU 158 27-02-1991 ST 19-08-2019 RAWAT 159 SANJEEVKUMAR 07-08-1990 UR 01-08-2019 160 NITINTOMAR 20-01-1988 SC 27-05-2019 161 VINAY 20-12-1991 UR 19-07-2019 162 SANDEEPKUMAR 12-07-1986 UR 02-09-2019 17 (C-5, Item -24) OA No. 1378/2023 163 SUMITSEHRAWAT 28-09-1989 UR 21-08-2019 164 NITINLOHCHAB 13-02-1990 UR 28-06-2019 165 VIKASYADAV 12-11-1990 UR 05-08-2019 SERVESH 166 27-12-1989 UR 12-09-2019 GOSWAMI 167 PARVEEN DABAS 15-04-1990 UR 01-07-2019 168 NIKKYSHOKEEN 15-08-1990 UR 27-06-2019 169 IMRAN 10-10-1990 UR 27-08-2019 170 RAUNAKRAIRANA 01-01-1991 UR 01-07-2019 AMIT KUMAR 171 01-01-1991 UR 25-06-2019 YADAV 172 SANJAYKUMAR 09-08-1989 SC 23-09-2019 173 ATUL BHATRIYA 10-02-1992 UR 13-06-2019 174 JITENDER KUMAR 28-06-1985 UR 03-07-2019 175 AMIT KUMAR 17-10-1989 UR 25-06-2019 176 SAURABH 05-01-1990 UR 25-07-2019 177 SUMIT 30-10-1990 UR 30-05-2019 178 NITINTOMAR 01-04-1990 UR 11-07-2019 179 NAVEEN 17-01-1993 UR 01-08-2019 180 ANILKUMAR 19-07-1987 SC 28-06-2019 181 RAJATYADAV 17-01-1991 UR 07-06-2019 182 NAVEENMATHUR 06-01-1992 UR 28-06-2019 183 SANJEEVSINGLA 10-01-1980 UR/PH 13-08-2019 JITENDER KUMAR 184 10-08-1989 ST 06-09-2019 MEENA PRIYANKA 185 17-01-1991 UR 21-10-2019 GAUTAM 186 VIVEKREDHU 08-04-1993 UR/PH 20-09-2019 187 RAVIKANT 15-12-1985 SC 01-07-2019 188 NARENDER 21-10-1990 SC 01-07-2019 189 YOGESHKUMAR 05-08-1991 SC 24-05-2019 190 ASHISH 07-09-1990 SC 13-06-2019 191 TOSHIT RALHAN 28-09-1984 SC 10-08-2019 192 PARAMSINGH 13-01-1993 SC 31-05-2019 UR/Sports 193 NAVEEN 03-10-1990 01-07-2019 194 MUNESHMEENA 20-09-1991 ST 27-06-2019 195 AMIT CHAUHAN 10-10-1987 SC 29-08-2019 196 RAJKUMARMEENA 16-08-1990 ST 26-06-2019 197 PAWANKUMAR 04-04-1991 SC 31-05-2019 UR/Sports 198 VIJAYRAI 16-11-1986 03-07-2019 DUSHIYANT 199 01-08-1988 SC 01-07-2019 KUMAR NIGAM 200 SURAJ 20-04-1991 SC 01-07-2019 201 RAHULSAGAR 11-10-1983 SC 10-06-2019 NITINKUMAR 202 21-01-1987 UR/PH 13-06-2019 TYAGI 203 SUDHIR 22-02-1989 SC 20-08-2019 204 SANDEEP 30-06-1984 SC 11-06-2019 205 SUSHANTP SINGH 15-10-1984 SC 14-08-2019 206 DINESHKUMAR 08-01-1989 SC 01-08-2019 207 AMIT KUMAR 18-09-1989 SC 30-07-2019 18 (C-5, Item -24) OA No. 1378/2023 JITENDRAKUMAR 208 15-06-1993 SC 28-08-2019 JATAV 209 VARUNSEHRA 04-09-1990 ST 13-07-2019 210 KUNALNINANEYA 19-08-1985 ST 28-08-2019 211 MANOJKUMAR 28-07-1987 SC 29-06-2019 212 KAMALKANT 08-08-1992 SC 02-09-2019 213 MUKTISHANKAR 01-04-1991 SC 20-06-2019 214 AVINASHKUMAR 14-10-1984 SC 28-06-2019 PRANESHGAUTAM 215 27-06-1989 SC 10-06-2019 SINGH 216 VINAYKUMAR 02-06-1987 SC 28-06-2019 VIJAY KANT 217 04-12-1982 SC 08-11-2019 ANAND 218 RAHUL 14-09-1986 SC 13-06-2019 219 SUNNY 05-12-1987 SC 14-08-2019 NAVEENKUMAR 220 01-08-1990 ST 07-06-2019 MEENA 221 KAMALRATHORE 12-09-1990 SC 23-08-2019 222 RISHABHKUMAR 30-10-1990 SC 19-09-2019 223 ABHISHANT 04-04-1992 SC 13-06-2019 224 LALITKUMAR 17-11-1987 SC 19-06-2019 225 LESHANT SINGH 09-09-1990 SC 04-07-2019 RAJIVKUMAR 226 23-06-1990 ST 19-06-2019 MEENA 227 PREETAM KUMAR 06-07-1992 SC 28-06-2019 228 BEENAMEENA 20-07-1991 ST 12-07-2019 229 GAURAVCHAUHAN 28-11-1987 SC 05-09-2019 230 PANKAJ KUMAR 13-09-1988 ST 16-07-2019 231 MUKESH KUMAR 05-11-1987 SC 21-06-2019 RAKESHKUMAR 232 24-12-1988 ST 21-06-2019 MEENA 233 BALRAM MEENA 02-06-1993 ST 28-06-2019 GAHLOTKUMAR 234 20-07-1984 ST 14-08-2019 MEENA 235 SANDEEPKUMAR 01-05-1981 UR/EXSM 19-09-2019 MEENA VARUN 236 28-12-1985 ST 28-06-2019 KUMAR 237 VINODKUMAR 04-03-1975 UR/EXSM 26-06-2019 238 HARISH 07-07-1979 UR/EXSM 29-11-2019 MITHILESH 239 21-05-1981 UR/EXSM 15-06-2019 KUMAR MISHRA UR/Sports 240 SANDEEPYADAV 09-12-1985 25-06-2019 241 KULBIRGULIA 30-06-1985 UR/PH 27-08-2019 242 DINESHKUMAR 18-09-1986 UR 27-05-2020 243 VIKASDAGAR 04-03-1991 UR 20-12-2019 UR/Sports 244 VIKAS 17-03-1988 23-03-2020 245 ASHISH RANA 11-07-1986 UR 31-01-2020 NEEREJKUMAR 246 27-08-1988 ST 26-10-2019 MEENA 247 DUSHYANT 11-06-1985 SC 01-11-2019 248 NITINRANA 18-09-1990 UR 17-09-2020 Waitlisted 19 (C-5, Item -24) OA No. 1378/2023 249 AMITKUMAR 10-08-1988 UR 07-11-2020 candidates 250 REKHANEGI 08-07-1990 UR 11-09-2020 of the same ABHISHEK batch who 251 25-02-1992 UR 28-10-2020 KUMAR JHA joined 252 DIVYAMALIK 19-01-1990 UR 29-09-2020 pursuant 253 PIYUSHSHARMA 13-03-1990 UR 01-02-2021 to the 254 ANKITKUMAR 13-03-1990 UR 11-09-2020 supplement 255 ROSHANKUMAR 01-09-1991 UR 31-08-2020 ary result 256 SONUTIWARI 19-01-1992 UR 24-12-2020 dated AMANKUMAR 257 23-03-1990 UR 08-10-2020 22.05.2020 TIWARI 258 POOJAVERMA 30-10-1991 UR 29-09-2020 259 AKSHYA 05-10-1985 UR 25-09-2020 260 PANKAJMATHUR 31-12-1990 UR 28-08-2020 261 ARUNRANA 25-03-1991 UR 18-12-2020 262 RITUCHAUHAN 04-12-1988 SC 11-11-2020 263 PANKAJKUMAR 24-10-1989 SC 28-10-2020 264 BRAHMPRAKASH 19-11-1989 SC 10-10-2020 265 HANSRAJMEENA 26-07-1990 ST 22-09-2020 2.1 The sum and substance of the arguments put forth by learned counsel for the respondents is that the DoP&T's OM dated 13.08.2021 was never a proposal to examine the issue.
In the light of the same, they already have re-examined the claim of the applicants. He further contends that much water has been shed pursuant to the decision rendered in the cases of K. Meghachandra (supra) and Hariharan & Ors. (supra). He further relies on the decision rendered in Rati Ram Meena & Ors. (OA No. 733/2021) by a co- ordinate Bench of this Tribunal.
3. In rejoinder to the arguments put forth by learned counsel for the respondents, learned counsel for the applicants states that insofar as the first plea of the 20 (C-5, Item -24) OA No. 1378/2023 respondents based on the Recruitment Rules dated 19.05.1989 (R-1) of the Written Arguments is concerned, it cannot be taken into consideration as the same has neither been raised in the impugned order nor in the counter reply. Furthermore, the said Recruitment Rules of 19.05.1989 have been amended on 24.05.2022 much before fixation of seniority of applicants and the same have been found irrelevant not only by the respondents but also by DOP&T as well as Ministry of Home Affairs. Therefore, the respondents cannot rely upon aforesaid irrelevant rules and are bound to fix the seniority of applicants as per DOP&T instructions dated 13.08.2021 & 04.03.2014 as referred in the Counter Reply as well as in the impugned order. 3.1 He further states that insofar as the plea of respondents based on judgment of Hon'ble Supreme Court in K. Meghachandra as well as Rati Ram Meena & Ors. (OA No. 733/2021) is concerned, both the aforesaid judgments are not binding inasmuch as, the same have been rendered without considering the Constitution Bench judgment on the same subject i.e. Mervyn Coutindo & Ors. Vs. Collector of Customs, Bombay & Ors., 1967 AIR 52 21 (C-5, Item -24) OA No. 1378/2023 (Annexure-1). While considering the identical issue regarding law precedent, the Full Bench of Hon'ble High Court of Delhi in the case of Deepak Kumar & Ors. Vs. District & Session Judge, Delhi & Ors., WP (C) No. 5390/2010 dated 12.09.2012 (Annexure-2) held as under:-
"In view of the above discussion, this Court holds that whatever reservations may exist and might have even been voiced in Subhash Chandra about the holding in S. Pushpa being contrary to earlier Constitution Bench rulings in Marri, Action Committee, Milind etc, it was not open to a Division Bench of this court, in Delhi and State Subordinate Selection Board v Mukesh Kumar (Supra) to say that Subahsh Chandra prevailed, particularly since S. Pushpa was by a larger three member bench. It is true that the concerns and interpretation placed by Subhash Chandra flow logically from a reading of the larger Supreme Court Constitution Bench rulings. Nevertheless, since this Court is bound by the doctrine of precedent, and by virtue of Article 141 has to follow the decision in Pushpa, as it deals squarely with the issue concerning status of citizens notified as scheduled castes from a state to a Union Territory, it was not open, as it is not open for this court even today, to disregard Pushpa. The court further notices that the correctness of Subhash Chandra has been referred for decision in the State of Uttaranchal case; the matter is therefore at large, before the Constitution Bench, which will by its judgment show the correct approach. Till then, however, Pushpa prevails."
3.2 He further states that insofar as the pleas raised by way of Written Arguments are concerned, the same cannot be taken into consideration as the same have not been 22 (C-5, Item -24) OA No. 1378/2023 signed or made part of pleadings. The same are also neither based on relevant applicable rules nor the same plea have been even considered and found relevant by DOP&T, Ministry of Home Affairs as well as the respondents themselves. Even otherwise also, only such pleas can be considered by court of law which have been raised by way of pleadings or in the impugned order and not otherwise. The Hon'ble Supreme Court in UOI v. Susaka Pvt. Ltd and Ors, (2018) 2 SCC 182 has held as under:-
"27. If a plea is available-whether on facts or law, it has to be raised by the party at appropriate stage in accordance with law. If not raised or/and given up with consent, the party would be precluded from raising such plea at a later stage of the proceedings on the principle of waiver. If permitted to raise, it causes prejudice to other party. In our opinion, this principle applies to this case."
4. Heard learned counsel for both the parties and perused the material available on record.
5. ANALYSIS 5.1 How the inter-se-seniority of the applicants after joining services along with their batch-mates (DASS Grade- II of the year 2012-13 promotees), is required to be fixed is the question to be answered?
23
(C-5, Item -24) OA No. 1378/2023 5.2 There is no dispute to the fact that the applicants have
been appointed as DASS Grade- II pursuant to an advertisement No. 03/13 dated 12.09.2013 against the vacancies for the year 2012-13 meant for direct recruitment quota to the extent of 33½ per cent and promotees were given promotion against the 66½ percentage. 5.3 Subsequent to the judgment of the Hariharan (supra), the Hon'ble Apex Court decided Civil Appeal No.1838 of 2018, titled Sushil Pandey & Another Vs. State of U.P. through Principal Secretary again upheld the principle "birth in the cadre first would automatically accord the seniority over and above those who are appointed at a later date". From the above, it is clear and distinct that irrespective of the judgment of K. Meghachandra (supra) being referred to a larger bench, the Hon'ble Apex Court has not disturbed the basic principle of service jurisprudence. 5.4 In the case of Pawan Pratap Singh and others vs. Reevan Singh and others, (2011) 3 SCC 267, the Hon'ble Apex Court observed as under:-
24
(C-5, Item -24) OA No. 1378/2023 "45. From the above, the legal position with regard to determination of seniority in service can be summarised as follows:
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory of rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime." 5.5 A Civil Appeal Nos. 8324-8327 OF 2022 [Arising out of Special Leave Petition (Civil) Nos. 30734- 30737 of 2014] Amit Singh Vs. Ravindra Nath Pandey decided on 11.11.2022 by the Hon'ble Apex Court is a clincher to the issue in hand, wherein, it was held that in case of inter-se- 25
(C-5, Item -24) OA No. 1378/2023 seniority between the direct recruits and promotees, the seniority list shall be prepared by applying the rota system to direct recruits and promotees appointed in one recruitment year and not otherwise when the recruitment process took a long time and did not end within the said recruitment year. The Hon'ble Apex Court observed as under:-
"22. A bench of three learned Judges of this Court in the case of P. Sudhakar Rao and others vs. U. Govinda Rao (2013) 8 SCC 693 and othershas approved the law as laid down by this Court in the case of Pawan Pratap Singh and others (supra).
23. It is thus clear that the inter se seniority between the promotees and the direct recruits will have to be determined in accordance with the 1992 Rules. The 1992 Rules fix the quota of 67% for direct recruits and 33% for promotees. A "year of recruitment" has been defined to be a period of twelve months, commencing from the first day of July of the calendar year and as such, in the present case, the year of recruitment would be from 1st of July of 1997 to 30th of June 1998.
24. Admittedly, the direct recruits were appointed on 18th August, 1997, whereas the promotees were appointed on 16th December, 1997, i.e. both were appointed in the selection/recruitment year 1997-98. In view of sub-rule (2) of Rule 19 of the 1992 Rules, where the appointment of both the direct recruits and of the promotees were to be made in the same year of recruitment, regular appointments should not have been made unless selections were made from both the sources and a combined list was prepared in accordance with Rule 18 of the 1992 Rules. In view of sub-rule (3) of Rule 19 of the 1992 Rules, since the appointments in the same selection/recruitment year were made both by direct recruitment and by promotion, the names were required to be arranged in 26 (C-5, Item -24) OA No. 1378/2023 accordance with the cyclic order referred to in Rule 18 of the 1992 Rules. In view of Rule 18 of the 1992 Rules, a combined select list has to be prepared by taking the names of candidates from the relevant list, as per the quota for the direct recruits. In other words, the first name in the list was required to be that of a promotee.
25. A combined seniority list was initially prepared in accordance with the said provisions of the 1992 Rules on 18th September 2003. However, it had been erroneously changed on 29th July, 2005, thereby giving undue benefits to the direct recruits over the promotees. Such a list was in contravention of the provisions of Rules 18 and 19 of the 1992 Rules. When the 1992 Rules specifically emphasized that, where in any year of recruitment, appointments were to be made both by direct recruitment and by promotion, regular appointments could not have been made unless selections were made from both the sources and a combined list was to be prepared in accordance with Rule 18 of the 1992 Rules, the seniority list dated 29th July 2005, which provided a higher seniority to the direct recruits, is, for the aforesaid reasons, not sustainable in law.
26. Insofar as the judgment of this Court in the case of Uttaranchal Forest Rangers' Assn. (Direct Recruit) and others (supra) is concerned, the same would not be applicable to the facts of the present case. In the said case, the promotees, who were promoted in 1991, claimed seniority over the direct recruits who were substantively appointed at a prior point of time in 1990. In any case, the 1992 Rules did not fall for consideration in the said case.
27. As already discussed herein above, we are of the considered view that, in view of Rules 18 and 19 of the 1992 Rules, the seniority list dated 29th July 2005, impugned before the High Court, is not sustainable in law.
28. In the result, we find no merit in the present appeals. The appeals deserve to be dismissed and, as such, are dismissed."27
(C-5, Item -24) OA No. 1378/2023 5.6 In K. Meghachandra (supra), N R Parmar (supra) was overruled by the Hon'ble Apex Court, observing as under:-
"38. When we carefully read the judgment in N. R. Parmar (Supra), it appears to us that the referred OMs (dated 07.02.1986 and 03.07.1986) were not properly construed in the judgment. Contrary to the eventual finding, the said two OMs had made it clear that seniority of the direct recruits be declared only from the date of appointment and not from the date of initiation of recruitment process. But surprisingly, the judgment while referring to the illustration given in the OM in fact overlooks the effect of the said illustration. According to us, the illustration extracted in the N.R. Parmar (Supra) itself, makes it clear that the vacancies which were intended for direct recruitment in a particular year (1986) which were filled in the next year (1987) could be taken into consideration only in the subsequent year's seniority list but not in the seniority list of 1986. In fact, this was indicated in the two OMs dated 07.02.1986 and 03.07.1986 and that is why the Government issued the subsequent OM on 03.03.2008 by way of clarification of the two earlier OMs.
39. At this stage, we must also emphasize that the Court in N.R. Parmar (Supra) need not have observed that the selected candidate cannot be blamed for administrative delay and the gap between initiation of process and appointment. Such observation is fallacious in as much as none can be identified as being a selected candidate on the date when the process of recruitment had commenced. On that day, a body of persons aspiring to be appointed to the vacancy intended for direct recruits was not in existence. The persons who might respond to an advertisement cannot have any service-related rights, not to talk of right to have their seniority counted from the date of the advertisement. In other words, only on completion of the process, the applicant morphs into a selected candidate and, therefore, unnecessary observation was made in N. R. Parmar (Supra) to the effect that the selected candidate cannot be blamed for the administrative delay. In the same context, we may usefully refer to the ratio in vs. Shankarsan Dash 28 (C-5, Item -24) OA No. 1378/2023 Vs. Union of India4, where it was held even upon empanelment, an appointee does not acquire any right."
5.7 Later on, in Hariharan (supra), the Hon'ble Apex Court has referred the issue of inter-se-seniority observing as under:-
"In the facts of the case, there is no dispute that as far as the posts of Income Tax Inspectors are concerned, the principle of rota and quota or rotation of quota will apply. The posts of Income Tax Inspectors are being filled in by direct recruits and promotees in the proportion already fixed. Therefore, a roster will apply where the points will be for direct recruits and promotees as per the proportion fixed. ******
22. We have, therefore, no manner of doubt that till the year 2018, in relation to the recruitment and vacancies to the posts of Income Tax Inspectors, the financial year was being treated as the recruitment year or vacancy year. Thus, on facts, it can be concluded that the process of recruiting direct recruits to 35 posts of Income Tax Inspectors of the vacancy/recruitment year 2009-10 commenced in the same year 2009-10. The argument made before us is that the decision in the case of K. Meghachandra will have to be ignored on the ground that it is per incuriam as the attention of the Bench which decided the case was not invited to the binding decisions of the Constitution Bench in the case of Mervyn Coutindo and a Coordinate Bench in the case of M. Subba Reddy. Prima facie, we find substance in the argument that the attention of the Bench which decided the case of K. Meghachandra was not invited to the aforesaid binding precedents. Therefore, we are of the view that the appropriate course of action will be to refer the question to a larger Bench. We are dealing with a case where the 'rotation of quota' or rota and quota system is being followed. If the promotees are recruited in the relevant recruitment year, but the process of recruitment of the direct 29 (C-5, Item -24) OA No. 1378/2023 recruits which commenced in the same recruitment year could not be completed in the same year, the direct recruits appointed subsequently will have to be interspaced between the promotees of the same recruitment year. In such a case, it cannot be said that direct recruits were not available during the recruitment year. Their appointment could not be made during the same year, though the process of appointment commenced in the same year. But, if the process of recruitment of the direct recruits is completed in the same recruitment year but an adequate number of candidates could not be selected, the shortfall should be carried forward to the next recruitment year. In such cases, the candidates who are selected against shortfall vacancies will have to be bunched below the promotees of the earlier years. Unless such a procedure is followed, the rotation of quota system will be defeated. *****
31. Coming to the facts of the case, though process of recruitment of direct recruits to the post of Income Tax Inspectors commenced in the recruitment year 2009- 10, the same could not be completed in the same recruitment year. This is not a case where an adequate number of direct recruits could not be recruited even though the recruitment was done in the recruitment year itself. In this case, those who were eligible for direct recruitment were deprived of the opportunity as the process of recruitment could not be completed during the same recruitment year 2009-10 due to no fault on their part. The documents annexed to the counter affidavit show that the segregation of vacancies for 2009-10 and 2010- 11 has been properly made.
32. In any event, the decision in the case of K. Meghachandra2 has a prospective operation. The seniority list of 7th September 2016 was made in terms of the decision in the case of N. R. Parmar1. Hence, the same could not have been altered on 13th February 2018, when the said decision was in force.
33. Thus, our conclusion can be summarised as under:
The decision in the case of K. Meghachandra requires reconsideration by a larger Bench in view of the fact that the binding decision of a Constitution Bench in 30 (C-5, Item -24) OA No. 1378/2023 the case of Mervyn Coutindo and another binding decision of a Coordinate Bench in the case of M. Subba Reddy were not placed for consideration before the Bench which decided the case of K. Meghachandra ; Even assuming that the case of K. Meghachandra was correctly decided, paragraph 39 of the decision shows that the decision in the case of N.R. Parmar has been prospectively overruled by observing that the decision will not affect the inter- seseniority already fixed on the basis of the case of N.R. Parmar and the same was protected. It is also held that the decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy / the date of advertisement. In this case, as on the date when the case of N.R. Parmar was decided, there was no rule which required that the interse-seniority of direct recruits and promotees to the post of Income Tax Inspectors should be fixed from the date on which a person is born in the cadre. In the facts of the case, the seniority list was correctly published on 7th September 2016 in terms of the decision in the case of N.R. Parmar by interspacing those direct recruits who were eligible in the recruitment year 2009-10 and were appointed against the vacancies of the said year with 53 promotees who were promoted vide DPC dated 29th June 2009. The seniority list was later on modified on 13th February 2018 without giving an opportunity of being heard to the affected direct recruits.
34. At this stage, we may note here the factual aspects stated in the affidavit dated 12th October 2022 filed by Shri Anurag Chandra, Deputy Commissioner of Income Tax in the Office of the Principal Chief Commissioner of Income Tax, Gujarat.
The affidavit refers to the interim order dated 13th July 2018 in the Civil Appeal arising out of S.L.P. (C) No.16161 of 2018, by which status quo as of that date with respect to the posts held, was ordered to be maintained. The affidavit notes that as a result of the interim order, the promotion to the cadre of Income Tax Officers from the cadre of Income Tax Inspectors could not take place. As a result, 33.33% of posts in the cadre of Income Tax Officers are vacant as the same cannot be filled in. As noted earlier, the decision in the case of K.Meghachandra applies prospectively 31 (C-5, Item -24) OA No. 1378/2023 i.e. from 19th November 2019. Prima facie, the seniority fixed based on the decision in the case of N.R. Parmar has to be given effect. Therefore, while we are recommending a reference to a larger Bench, interim relief will have to be vacated and seniority will have to be fixed on the basis of the impugned judgment, subject to the final outcome of the appeal or the decision of the larger Bench, as the case may be.
35. Hence, we pass the following order:
i. We are of the considered view that the following questions need to be decided by a larger Bench of five Hon'ble Judges:
a.Whether the decision in the case of K. Meghachandracan be said to be a binding precedent in the light of the law laid down by the Constitution Bench in the case of Mervyn Coutindo and the law laid down by a Coordinate Bench in the case of M. Subba Reddy?
b.In absence of specific statutory rules to the contrary, when the 'rotation of quota' rule is applicable, whether the seniority of direct recruits who were recruited in the recruitment process which commenced in the relevant recruitment year but ended thereafter, can be fixed by following 'rotation of quota' by interspacing them with the direct recruits of the same recruitment year who were promoted earlier during the same year? ii. We direct the Registry to place this petition before Hon'ble the Chief Justice of India for appropriate orders.
iii. The interim relief granted on 13th July 2018 stands vacated. Effect shall be given to the impugned judgment subject to the final outcome of this appeal or reference, as the case may be. We also clarify that the seniority of promotees and direct recruits who may be appointed hereafter will be subject to the final outcome of the decision of this appeal or the decision in reference, as the case may be. Accordingly, concerned persons shall be informed in writing by the Income Tax Department.
36. In the Civil Appeal arising out of Special Leave Petition (C) Diary No.12422 of 2022, the challenge is to the judgment and order dated 6th February 2018 passed by the High Court of Judicature at Patna which follows the decision in the case of N.R. Parmar1 dealing with the issue of appointment of Income Tax 32 (C-5, Item -24) OA No. 1378/2023 Inspectors pertaining to the recruitment year 2009-10. This appeal be heard along with the main appeal." 5.8 In Ashok Ram Parhad and others vs. State of Maharashtra and Others, 2023 SCC OnLine SC 265, the Apex Court explained that in service jurisprudence, the Service Rules are liable to prevail. There can be Government Resolutions being in consonance with or expounding the Rules, but they cannot be in conflict with the same. The Government Resolutions issued by the Administrative Department cannot have the status of a statutory rule although such resolutions may have their own effect. In para 52 it was held as under:
"52. The principle of determination of inter se seniority amongst direct recruits &promote officers that emerge from the aforesaid discussion of Rules and Notifications makes it clear that for the purpose of fixation of inter se seniority, the date to be reckoned for the direct recruits is "the date of appointment". (Ref:
Jagmohan Vishwakarma And Ors. vs Union Of India And Ors. in WP No. 13176/2019 decided on 31 July, 2023, Hon'ble High Court of Delhi)."
5.9 Thus, the seniority cannot be given on retrospective basis when an employee has not even borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. 33
(C-5, Item -24) OA No. 1378/2023 5.10 vide Notification dated 13.8.2021 in terms of para 7 following instructions were issued based on the above, where it has been decided to modify the instructions relating to determination of inter-se seniority between promotees and direct recruits as under:
i) DoPT's O.M. No. 20011/l/2012-Estt.(D) dated 4.3.2014. issued in pursuance of Order dated 27.11.2012 in N.R. Parmar case. is treated as non-est/withdrawn well 19.11.2019.
(ii) As the Order dated 19.11.2019 is prospective, cases of inter-se seniority of direct recruits and promotees already decided in terms of O.M. No. 2001 l/l/2012-Estt.(D) dated 4.3.2014, shall not be disturbed. i.e. old cases are not to be reopened.
(iii) In case of direct recruits and promotees appointed/joined during the period between 27.11.2012 and 18.11.2019 and in which case inter se seniority could not be finalised by 18.11.2019, shall also be governed by the provisions of O.Ms. dated 7.2.1986/3.7.1986 read with OM dated 4.3.2014, unless where a different formulation/manner of determination of seniority has been decided by any Tribunal or Court.
(iv) For cases where the recruitment process has been initiated by the administrative Department/Cadre Authority before 19.11.2019 and where some appointments have been niade before 19.11.2019 and remaining on or after 19.11.2019, the inter xc seniority of direct recruits and promotces. shall also be governed by the provisions of O.Ms. dated 7.2.1986/3.7.1986 read with OM dated 4.3.2014 to ensure equal treatment of such appointees.
(v) For recruitments initiated on or after 19.11.2019 as well as for future recruitments, in addition to cases where the recruitment process 34 (C-5, Item -24) OA No. 1378/2023 has been initiated by the administrative Department! Cadre Authority before 19.11.2019, but where alt appointments, subsequent to the initiation of recruitment process could be made only on or after 19.11.2019 i.e. date of order of Apex Court, the inter se seniority of direct recruits and promotes shall be determined in the following manner-
(a) The rotation of quota based on the percentage of vacancies allocated to direct recruitment and promotion in the notified recruitment rules/service rules, shall continue to operate for determination of vacancics to be filled by the respective quotas in a recruitment year.
(b) Determination of inter-se seniority between direct recruits and promotees, who are appointed against the vacancies of respective quota. would, however, be reckoned with reference to the year in which they are appointed i.e. year in which they are borne in the cadre or formal appointment order is issued. In case. where the recruitment year is the same as the year of appointment the appointees shall be given seniority of that year.
(c) Where in case of promotees or direct recruits the year of appointment is the next year or any year subsequent to the recruitment year the seniority of such promotees and direct recruits would be determined with reference to the year of their actual joining/appointment to the post. since they were not able to join in the said recruitment year in which the vacancy arose. Thus, they would get seniority of the year in which they actually join i.e. year in which formal appointment order is issued or they are borne in the service/cadre and that they shall not get seniority of any earlier year (viz. year of Vacancy/panel or year in which recruitment process is initiated).
(d) In terms of OMs dated 7.2.1986/3.7.1986, rotation between promotees and direct recruits for the purpose of determination of inter-se seniority, would be undertaken only to the extent of available direct recruits and promotees in a 35 (C-5, Item -24) OA No. 1378/2023 particular year. The term 'available direct recruits or promotees' appearing in these OMs dated 7.2.1986/3.7.1986, for the purpose of rotation of quota in fixation of inter-se seniority, shall mean the actual number of direct recruits and promotees appointed during the year after declaration of results/selection and completion of preappointment formalities as prescribed.
(e) As per (d) above, if adequate number of direct recruits (or promotees) do not become available in a particular year the rotation of quotas" for the purpose of determining inter se seniority, would stop after the available direct recruits and promotes are assigned their slots on their appointment/joining in that year.
(f) If no direct recruit is available in a particular year available promotees would he bunched together in accordance with their position in the panel approved for promotion. Similarly, if no promotee is available in that year available direct recruits would be bunched together, as per their position obtained in the selection process.
(g) In case, where direct recruits or promotees as the case may be, belonging to two more selections/panel approved for promotion. join in the same year, then those who have been appointed/joined as a result of earlier selection/panel would be placed senior in the seniority list to those been appointed/joined as a result of a subsequent selection/panel.
(h) Instructions contained in OMs dated 7.2.1986 and 3.7.1986, stand modified to the extent indicated in above paragraphs.
8. These provisions shall conic into effect from 19.11.2019 onwards."
5.11 We also refer herein that in Hariharan (supra) in para 7, the Hon'ble Apex Court had noticed that "a status quo order (in favour of direct recruits) was passed noticing the 36 (C-5, Item -24) OA No. 1378/2023 fact that on 13th July 2018, notice was issued in the Special Leave Petition no.16161 of 2018 which is the subject matter of the present Civil Appeal and by an interim order, the status quo as of that date was ordered to be maintained. The appellants who were respondents in the writ petition before the High Court, are the promotees who were promoted vide DPC dated 29th June 2009."
5.12 We find that the ratio of K. Meghachandra (supra) has neither been set aside nor there has been stay on the operation of the same. At this stage, the promotion cannot be curtailed which would lead to administrative difficulties. A reference of case to larger Bench by itself is not a ground to deny the claim of the applicants, which definitely is subject to the final outcome of the appeal or reference pending before the Hon'ble Apex Court in Hariharan's case (supra). The applicants, who are direct recruits have been overshadowed and swayed by the observations made in Hariharan's case (supra). They cannot take plea of the observations made in Hariharan's case (supra) and finalize a list on an overruled decision in N.R.Parmar's case (supra) to further create a confusion which is of their own actions. 37
(C-5, Item -24) OA No. 1378/2023 We also reiterate the observations made in
K.Meghachandra (supra) "in as much as none can be identified as being a selected candidate on the date when the process of recruitment had commenced. On that day, a body of persons aspiring to be appointed to the vacancy intended for direct recruits was not in existence. The persons who might respond to an advertisement cannot have any service- related rights, what to talk of right to have their seniority counted from the date of the advertisement. In other words, only on completion of the process, the applicant morphs into a selected candidate". ( emphasis added). 5.13 We also observe that the case of the applicants cannot be merely tested on the touchstone of the OM dated 13.8.2021 but ratio as laid down by the Hon'ble Apex Court. The pleadings made by the respective counsel are to supplement their stand and cannot be read in addition and not in derogation to the same. The pleadings in present case per se do defy the ratio of Mahendra Singh Gill (supra). 38
(C-5, Item -24) OA No. 1378/2023 6. CONCLUSION 6.1 In view of the above detailed analysis, we do not find
any infirmity in the action of the official respondents. The OA is devoid of any merits, thus dismissed. All pending MAs, if any, shall also stand disposed of. No order as to the costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sm/