Central Administrative Tribunal - Ernakulam
Titto S vs Union Of India Represented By on 26 July, 2016
Author: P.Gopinath
Bench: P.Gopinath
Central Administrative Tribunal
Ernakulam Bench
OA/180/00113/2014
Tuesday, this the 26th July, 2016
CORAM
Hon'ble Mr.Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs.P.Gopinath, Administrative Member
Titto S,
Tax Assistant
Office of the Additional Commissioner of Income Tax
Range 2, Aayakar Bhavan,
Kowdiar, Trivandmm - 695003. . . . Applicant
(By Advocate: Mr.Arun Raj.S.)
Versus
1. Union of India represented by
the Secretary, Ministry of Finance,
North Block, New Delhi 110001
2. The Chairman,
Central Board of Direct Taxes,
North Block, New Delhi. New Delhi 110001
3. The Chief Commissioner of Income Tax
Central Revenue Building
I.S. Press Road, Kochi. 682018.
4. The Regional Director
Staff Selection Commission,
1st Floor, b�Eb� Wing. Kendriya Sadan,
Koramangala, Bangalore 560034.
5. The Additional Commissioner of Income tax,
Range III, Unity Building Annexe,
Mission Road, Bangalore. 560027
6. Deepa M,
Senior Tax Assistant,
Office of the Additional Commissioner of Income tax,
Kollam Range, Karbala Junction, Kollam - 691 001.
7. Ratheesh O.B.
Senior Tax Assistant,
Office of the Additional Commissioner of Income tax
Kollam Range, Karbala Junction
Kollam 691 001.
8. Bose Anand
Senior Tax Assistant,
Office of the Additional Commissioner of Income Tax
Range-I, Ayakar Bhavan, Kowdiar
Trivandrum-695 003.
9. Rajani T. Krishnan
Senior Tax Assistant
Office of the Additional Commissioner of Income Tax
Range-II, 3rd Floor, C.R. Buildings
I.S.Press Road, Kochi-682 018.
10. Dilna E.V.
Senior Tax Assistant
Office of the Commissioner of Income Tax
Ayakar Bhavan, Mananchira,
Opp.Head Post Office
Kozhikode-673 001. . . . Respondents
By Advocate:
Mr.N.Anilkumar, Sr.PCGC
Mr.T.R.Jagadeesh (R6 to 10)
The OA having been heard on 07/07/2016, this Tribunal delivered the
following order on 26/07/2016:-
ORDER
By N.K.Balakrishnan, Judicial Member The applicant seeks a declaration that he should be deemed to have been given appointment and joined the service as Tax Assistant in the Cochin Region of Chief Commissioner of Income Tax under OBC category prior to the appointment of other OBC candidates in service, who are lower in the rank list issued by the selection committee. For that purpose, he also seeks to quash Annexure A1 appointment order appointing the applicant at Bangalore under general category. He also seeks a direction to be given to the respondents posting the applicant as Senior Tax Assistant in the Cochin region with effect from the date other OBC candidates were made senior to the applicant. The applicant further seeks a declaration that he should be placed in Annexure A7 seniority list of the Senior Tax Assistant just above Sl.No.143 Deepa M. He also service benefits in terms of seniority, promotion and monetary benefits treating him as posted in Cochin region prior to the appointment of other OBC candidates who are lower in the rank list.
2. The gist of the case stated by the applicant is as under:-
The applicant appeared for the Staff Selection Commission for Tax Assistant in the Income Tax Department in the year 2006. He was ranked 1009 as per the SSC result published. The applicant is an OBC candidate. He had submitted relevant documents to prove the same. The applicant had given his first option for posting at Cochin Chief Commissioner of Income Tax Range. He received appointment order as Tax Assistant for posting at Bangalore. At that time, it was neither mentioned in the order nor was the applicant informed that he was given appointment under general merit quota and not under OBC quota. Hence he was under the bonafide impression that he was given appointment under OBC quota and that he was given posting at Bangalore as there was no vacancy for OBC quota in Cochin Region. On 3.1.2011, the applicant got an interstate transfer to the Cochin Commissionerate of Income Tax. He joined duty as Tax Assistant in that Commissionerate. In August 2012, the applicant came across the disposition list of Tax Assistants in the office of the Chief Commissioner of Income Tax Cochin Region. Annnexure A3 is the list so published. The applicant then noticed that other OBC candidates who were lower in the rank list than the applicant had been given appointment even prior to the appointment of the applicant and they were given posting at Cochin under the Chief Commissioner's charge. Such candidates belonging to OBC were ranked below the applicant. The applicant was informed, when applied for under the RTI Act that the method of allocation of recommended candidates to the various CCA regions will be based on merit cum preference depending on the vacancies available in each of the CCA regions as well as category wise - General, OBC, SC/ST, PH and Ex-Servicemen. Though the applicant is an OBC candidate senior in rank above the other persons mentioned earlier, despite the applicant's first choice of posting being Cochin region, the posting of the applicant in Bangalore under general category, without giving him the benefit of reserved OBC category at the time of appointment is highly illegal, arbitrary and discriminatory. Though a representation was submitted on 10/8/2012, pointing out his grievances and requesting them to give the applicant the due seniority, that was not heeded to by the respondents. Again a petition dated 18/6/2013 was sent, the copy of which is marked as Annexure A6. On account of the illegal action of the respondents, persons junior to the applicant in the rank list are now senior Tax Assistants. The applicant is still Tax Assistant. Recently seniority list was published by the Chief Commissioner of Income Tax Cochin Region and as per the list, the applicant figures at Sl. No.90. His seniority is counted from 3/1/2011, the date of joining the Kerala Region of Chief Commissioner of Income Tax, Kochi on inter state transfer. Had the applicant been given posting at Kerala region under OBC quota during Nov 2007, the applicant would have been the senior Tax Assistant, senior to many of the other OBC Tax Assistants. Hence the applicant has approached this Tribunal seeking the reliefs as aforesaid.
3. A committee was constituted for allocation of direct recruitment candidates on 25/6/2007. The procedure for allocation of the recommended candidates was stated therein. Some candidates who belong to some other category as well as unreserved had jumped to the UR category on merit. It was clarified by the 4th respondent that those candidates will occupy General/UR seats in the list for the purpose of merit as well as allocation of regions and no preference will be given to them in allocation of regions on account of their belonging to a particular category, per se illegal. In the General List, the number of candidates were more than the available UR vacancies. 4 th respondent recommended a list of 3473 candidates for consideration for issuance of letter of appointment running into 70 pages. The name of the applicant appears at Sl.No.1009. Though the applicant applied under the OBC category, he was declared successful under general standards. On 20.8.2007, the committee issued a complete list of allotment of recommendations made by the 4th respondent in respect of 3046 candidates except for categories - Physically Handicapped and Ex-servicemen - for which separate lists were issued. The complete list of 3046 candidates was issued. In that list, the name of the applicant figures at 1036.
4. The OA was filed with a petition to condone the delay of 2135 days. The application for condonation of delay is also opposed by the respondents. Objections have been raised contending that the applicant is not entitled to have the delay condoned.
5. Respondents 6-10 were impleaded as the seniority claimed by the applicant is likely to affect their service. Those respondents (R6-10) filed reply statement contending that the present application filed after about 8 years, challenging the appointment order issued in the year 2007 is to be dismissed on the ground of delay itself. There is no reasonable explanation for the delay It is hopelessly barred by limitation. Though the applicant is an OBC candidate, he found place in the merit list. His name was considered for appointment under general category on the basis of merit. Therefore, the present contention raised by the applicant is unsustainable. The candidates who appear under general category and who got selected under merit quota need not be considered for reservation quota. There are separate lists for General/OBC/SC&ST candidates.
6. As per the Recruitment Rules, the candidates who appeared in general examination and got selected for merit quota need not be considered for reservation quota. Separate list of General/OBC/SC&ST candidates are prepared according to their All India ranking. Female and physically handicapped candidates in each zone are given first preference in appointment. Excess of candidates is adjusted in other zones which are nearest to the zones/stations. Since vacancy for unreserved general merit candidates was not available at Cochin, the applicant was adjusted in the nearest zone i.e, at Bangalore. He received the appointment order and joined duty at Bangalore. The plea that he was not informed that he was given appointment under the general merit quota and not under OBC quota is unsustainable. The applicant was well aware of his rank position and the category to which he was appointed. The result of the competitive examination was published in the official website as well as in the Gazette, giving the details of selected candidates, their rank position, category, their regional choice and organization to which they are selected. The information was accessible to all candidates and general public. Individual memorandum was sent in July 2007 to all the candidates. Therefore, the applicant cannot plead ignorance of these facts. The applicant requested for inter-state transfer from Bangalore to Ernakulam. He joined duty at Ernakulam on 3.1.2011. Respondents 6 & 7 had crossed the prescribed age limit for candidates in the general standards so as to consider them against unreserved quota. They were eligible to be considered only against the respective reservation quota i.e., OBC after age relaxation and thus they have been adjusted and appointed against the vacancies earmarked for the quota in Kerala region. Respondents 8 & 10 were also qualified in the general quota but they have not been adjusted against unreserved vacancies on account of lack of vacancies to accommodate them in general quota. They have been considered against the respective reservation quota of OBC and appointed against the vacancies earmarked for reservation. No unfair treatment was given to the applicant. Hence the respondents prayed for dismissal of the OA.
7. The point for consideration is whether the applicant is entitled to get seniority above respondents 6 to 10 as claimed by him and whether the application is barred by limitation.
8. It is the admitted case that the applicant appeared for the SSC examination for the post of Tax Assistants in the year 2006. It is also not disputed that the applicant was ranked 1009 as per the list of the selected candidates published by the Department. It is also not in dispute that the applicant applied for OBC quota and that he had produced the relevant documents. It is contended by the respondents that under the general category there was only one post available in Cochin Commissionerate, but that had to be allotted to Smt Rekha.S. whose rank as per the list was 159. According to the official respondents, the applicant was considered for appointment under the general merit quota (UR). Since there was no vacancy for UR candidate to accommodate in Cochin Commissionerate, the applicant was given the nearest station i.e., at Bangalore under the general merit quota (under UR vacancy). The lists of candidates belonging to OBC who ranked below the applicant are shown as below:-
Rank Number Name Category Place of Posting 1009 Titto.S (Applicant) OBC Bangalore/7/1/2008 1181A Deepa.M. -do- Kochi/9/11/2007 1228 Ratheesh O.B. -do- Kochi/7/11/2007 1461 Priya K.M. -do- Kochi/14/11/2007 1781 Rajani T.Krishnan -do- Kochi/26/11/2007 1811 Bose Anand -do- Kochi/5/11/2007 1958 Dilna E.V Kochi/9/11/2007
9. Priya K.M., whose rank was 1461 shown above is not seen made as a respondent. Whatever that be, on the premise that there was no vacancy under UR, other than the post against which Smt.Rekha was appointed, the applicant was considered for appointment under UR quota and accordingly he was appointed as Tax Assistant and posted at Bangalore. The fallacy or illegality in the allocation is well discernible in posting the applicant at Bangalore. He did not seek appointment under the UR quota. His choice of station was at Kochi. The rank of the applicant was 1009 whereas the ranks of the party respondents and Priya K.M., were far below than that of the applicant. It seems the department wanted to see that one more OBC candidate is accommodated at Kochi and for that purpose a clever device appears to have been devised in sending the applicant out of Kochi and posting him at Bangalore, stating that he was considered under UR category. There is no case for the official respondents that the applicant was not otherwise entitled to be given appointment under OBC quota. Whether it was only due to misconception of law or was it a deliberate act on the part of the officers concerned? The applicant has come to this Tribunal only in 2014 after about 7 years of the said appointment. There was no justification for giving allotment to the applicant under OBC quota and posting him at Kochi. Admittedly to accommodate respondents 6 to 10 under the OBC quota, there were sufficient vacancies. Therefore, it eludes comprehension why the applicant was not considered for allocation under OBC quota when he claimed only allocation under the OBC quota and not under UR quota. The applicant was not to gain anything by getting selected under UR quota. Had the applicant been posted at Kochi in the OBC quota, there would have been no necessity for him to apply for transfer. According to the applicant, without realizing the fact that he was not considered under the OBC quota and without further realizing the fact that the respondents 6 to 10 who were far lower in rank than the applicant were posted at Bangalore. Annexure A1 order of appointment was passed by the respondent department on 19/12/2007.
10. It is not disputed that the applicant got an inter-state transfer to Cochin Commissionerate on 3/1/2011. Since that was a request transfer, he had to occupy bottom seniority. Thus respondents 6-10 happened to be above the applicant. This is the great injustice done to the applicant. No doubt, on inter- state request transfer the applicant has to accept bottom seniority though he may not lose the service rendered in the previous organization. But the fact that he would lose seniority because of the inter-state transfer cannot be lost sight of. In order to give appointment to the persons who were lower in rank, the department has mercilessly denied the appointment to the applicant at Cochin Commissionerate but instead he was given appointment at Bangalore. The ignorance of the applicant that there was no vacancy at Kochi was taken advantage of by the respondents to deny the applicant appointment at Kochi. The plea of injustice put forth by the applicant is thus found to be well justified.
11. The delay in approaching this Tribunal stares at him. This OA has been filed by the applicant with a petition to condone the delay of 2135 days. The reason for condonation of delay has been taken strong exception to by the respondents. Learned counsel appearing for the respondents 6 to 10 would submit that those respondents were not at fault. It was not at their instance they were appointed at Cochin Commissionerate. There were vacancies and so they were posted at Kochi. The applicant should have been alive to the situation. He cannot now plead ignorance of all these aspects after about 7 years nor can he request to unsettle the settled seniority. Admittedly, so many Tax Assistants were promoted as Senior Tax Assistants during this period. If the claim made by the applicant is allowed, then the seniority position of all those persons would be affected. It is not only respondents 6 to 10 who are before this Tribunal but so many other Tax Assistants also would be affected, the learned counsel for the official respondents submits.
12. It is argued by the learned counsel for the applicant that the applicant was totally unaware of all these aspects. The applicant was under the impression that he was appointed at Bangalore under OBC quota. He was also under the impression that there was no vacancy for accommodating OBC candidate at Cochin Commissionerate. Otherwise, the applicant would have certainly approached the authorities concerned then and there. No list was published and there was no other source for the applicant to come to know of the same, the applicant contends. This contention has been countered by the respondents pointing out that there was every reason to believe that the applicant was aware of his rank position and the category to which he was appointed. The Staff Selection Commission had published the result of the competitive examination in the official website and there was also a gazette notification giving the details of the selected candidates, their rank position, category, region of their choice and organization to which they were selected. That fact cannot be denied. The information was accessible to all candidates and even to general public. Therefore, a candidate who had participated in the examination cannot now feign ignorance and come to the court for restoration of the seniority after about 7 years. He cannot be oblivious of the fact that based on the allocations made in the year 2007-08 the candidates so appointed had occupied their respective positions. The applicant sat back and rest content with the position and appointment given to him. He cannot request to unsettle the settled position of seniority. It is contended that there was only one general category vacancy at Cochin and so the applicant was given appointment in his second preference. But that contention cannot be accepted since the first preference given by him was under OBC quota and so he should have been appointed under the OBC quota in Cochin itself. But because the applicant has woken up only after about 7 years, the claim made by him cannot be sustained. The applicant was all through out sleeping over the matter and allowed the seniority position to continue as it existed when the result was published and the appointments were made. It is contended that so many promotions were also effected subsequent to that date. It is not only respondents 6 to 10, so many other persons who were also ranked above the applicant because of the interstate transfer, had to be promoted during the said period. It would also appear that respondents 6 & 7 who were qualified in the competitive examination would have been ineligible for consideration under UR category as they were over aged. Therefore they had to be given relaxation under the OBC quota. Had the applicant been given appointment under OBC quota, the last among them would have lost the opportunity to get selected as that applicant would be over aged. Even in such a situation there was no justification for posting the applicant at Bangalore. If at all the last among them should have been sent out of the region. Whatever that be, in order to accommodate another person, the legitimate claim of the applicant was denied.
13. It is contended by the respondents that the applicant did not make any effort to find out whether any vacancy under OBC category was available in the office of the Chief Commissioner of Income Tax, Cochin region during that period or whether any OBC category appointment was made in Kerala region during that period. It is rightly contended by the applicant that the only sin committed by him appears to be that he ranked above all other OBC candidates and so a 'punishment' was indeed given to him to get his appointment at Bangalore when all the other OBC candidates who ranked far below him were posted at Cochin itself. In that way, the injustice done to the applicant has been rightly projected by the learned counsel for the applicant. It is pointed out that the party respondents who stood ranked in the select list at 1181A, 1228, 1781, 1811 and 1958 were given posting at Cochin under OBC quota whereas the applicant's rank was 1009. But still he was sent to Bangalore. Therefore the injustice done to the applicant is so loudly obtrusive.
14. As stated above, though we could perceive the injustice done to the applicant at the time of his appointment and posting at Bangalore, the inordinate delay in approaching this Tribunal dis-entitles him to gt the relief claimed in this OA.
15. Learned counsel for the applicant has relied upon the decision of the Hon'ble Supreme Court in Alok Kumar Pandit Vs. State of Assam & Ors., Civil Appeal No.8499/12 (decided on 26/11/2012). There it was held thus:-
'1) A reserved category candidate who is adjudged more meritorious than open category candidates is entitled to choose the particular service/cadre/post as per his choice/preference and he cannot be compelled to accept appointment to an inferior post leaving the more important service/cadre/post in the reserved category for less meritorious candidate of that category.
2) On his appointment to the service/cadre/post of his choice/preference, the reserved category candidate cannot be treated as appointed against the open category post.'
16. Though the judgment was rendered in respect of Assam Civil Service, the principle laid down by the Hon'ble Supreme Court is applicable to the facts of the present case.
The Constitution Bench decision in Union of India Vs. Ramesh Ram (2010) 7 SCC 234 was referred to by the Hon'ble Supreme Court, in the Alok Kumar Pandit case, cited supra. In Ramesh Ram, the following question was framed:-
'Whether candidates belonging to reserved category, who get recommended against general/unreserved vacancies on account of their merit (without the benefit of any relaxation/concession) can opt for a higher choice of service earmarked for reserved category and thereby migrate to reserved category.'
17. Therefore, based on this, the learned counsel for the applicant would perforce submit that even if the department wanted to accommodate the applicant under UR category, his option or choice to be posted at Cochin should have been acceded to. That was not done by the official respondents.
18. Now coming to the delay aspects, the respondents would rely upon the Constitution Bench decision in Malcom Lawrence Cecil D'Souza Vs. Union of India (AIR 1976 1 SCC 599) wherein it was held:-
'Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be re- opened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.'
19. This decision was followed by the Hon'ble Supreme Court in R.S.Makashi Vs. I.M.Menon [(1982) 1 SCC 379]. Those two decisions were again followed by the Supreme Court in K.R.Mudgal and others Vs. R.P.Singh and others [(1986) 4 SCC 531]. In Makashi's case, it was held by the Supreme Court:-
'In these circumstances, we consider that the High Court was wrong in overruling the preliminary objection raised by the respondents before it, that the writ petition should be dismissed on the preliminary ground of delay and laches, in as much as it seeks to disrupt the vested rights regarding the seniority, rank and promotions which had accrued to a large number of respondents during the period of eight years that had intervened between the passing of the impugned resolution ad the institution of the writ petition. We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 22, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition in so far as it related to the prayer for quashing the said Government Resolution should have been dismissed.'
20. Following the Constitution Bench decision in R.S.Makashi and Malcom Lawrence cases, cited supra, the Hon'ble Supreme Court declined to embark upon an inquiry into the merit of the case in K.R.Mudgal and others Vs. R. P.Singh and others (Supra), since it was found that the writ petition was to be dismissed on the ground of delay and laches. Thus the Supreme Court allowed the Civil Appeal, set aside the judgment of the Division Bench of the High Court and dismissed the Writ Petition filed before it. In this case also, there is a delay of about 7 years in the applicant approaching this Tribunal questioning his posting at Bangalore instead of posting at Cochin. The contention that he was unaware of his rank position or appointment of the party respondents who were under OBC category, at Cochin Commissionerate, cannot be accepted at all. The further fact is that even in 2011, when he was transferred on interstate/inter commissionerate transfer to Kerala, he did not bother to verify his rank position or seniority position. He had to occupy the bottom seniority as it was a request transfer. Since the seniority position as such existed for 7 years and since promotion had to be effected during the period of interregnum, it cannot be upset and unsettled after about 7 years. Therefore on the ground of delay, this Application is to be disallowed. MA is dismissed. OA also stands dismissed. No order as to costs.
(P. Gopinath) (N.K.Balakrishnan) Administrative Member Judicial Member aa.