Gujarat High Court
Mukeshkumar Mansukhbhai Solanki vs Union Of India & 4 on 4 April, 2017
Author: Anant S. Dave
Bench: Anant S. Dave, A.Y. Kogje
C/SCA/4720/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4720 of 2017
With
CIVIL APPLICATION NO. 4296 of 2017
In
SPECIAL CIVIL APPLICATION NO. 4720 of 2017
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MUKESHKUMAR MANSUKHBHAI SOLANKI....Petitioner(s)
Versus
UNION OF INDIA & 4....Respondent(s)
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Appearance:
MR MS TRIVEDI, ADVOCATE for the Petitioner(s) No. 1
MR C B UPADHYAYA, ADVOCATE for the Respondent(s) No. 5
MRS MAUNA M BHATT, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 3
SERVED BY RPAD - (N) for the Respondent(s) No. 1 - 2 , 4
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 04/04/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. Heard learned Advocates for the parties.
2. In this writ petition filed by the writ petitioner, the basic grievance is about non- implementation of the judgment delivered by the Apex Court in the case of Union of India & Ors. Vs. N.R.Parmar & Ors, reported in (2012) 13 SCC, 340 [Per : Hon'ble Mr. Page 1 of 14 HC-NIC Page 1 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER Justice J.S.Khehar][as His Lordship then was] and statement made by learned Counsel appearing for the Income Tax Department before a Division Bench of this Court in SCA No.7465 of 2014, which is recorded in the order dated 17.06.2014 that entire seniority of Income Tax Officers (ITOs) will have to be considered by Central Board of Direct Taxes looking to the proposal and other requirements which will take some more time and the Court expected that such seniority list may be finalized as far as possible by 15.10.2014 and the petition came to be disposed of.
2.1 Later on, Civil Application (for direction) No.6862 of 2016 in MCA No.1150 of 2016 in SCA No.7465 of 2014 was preferred by the writ petitioner of SCA No.7465 of 2014 on the ground that discriminatory treatment was meted out to the applicant and similarly situated persons in the State of Gujarat despite there being a clear order from the Apex Court in their favour (Union of India Vs. N.R.Parmar (supra)). An affidavit was submitted on behalf of the Department and status quo order was passed and the Court directing that status quo as on date, viz. 10.10.2016 to continue qua promotions from the cadre of ITOs to Assistant Commissioner of Income Tax (ACITs) and the case was adjourned on 15.11.2016.
2.2 Meanwhile, Original Application No.31 of 2017 Page 2 of 14 HC-NIC Page 2 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER was preferred by one of the aggrieved ITOs before the Central Administrative Tribunal, Ahmedabad Bench raising grievance against initiation of the process for promotion to the post of ACIT on the basis of seniority list dated 01.09.2015 being contrary to the judgment in the case of Union of India Vs. N.R.Parmar (supra). However, in view of pendency of Civil Application (for direction) No.6862 of 2016 in MCA No.1150 of 2016 in SCA No.7465 of 2014 before the High Court, the Tribunal thought it fit not to deal with the prayer of the applicant in the OA subject to the order that may be passed by the High Court in the above pending matters, reserving liberty to the applicant to approach the Tribunal as and when circumstances warrant. The above order passed by the Tribunal on 28.02.2017 in OA No.31 of 2017 is under challenge before this Court in this writ petition, in which emphasis is led on non-compliance of the declared law on determination of seniority qua direct recruits viz-a-viz promotees based on rotation of quota principles and specific questions answered by the Apex Court in the above decision (Union of India Vs. N.R.Parmar (supra)) about what should be the process date on which direct recruits can be considered for seniority viz-a-viz promotees.
2.3 In spite of decision rendered by the Apex Court Page 3 of 14 HC-NIC Page 3 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER on 27.11.2012 and more than 4 years and 4 months have passed, yet the respondents have not finalized all India seniority list of ITOs as directed and accordingly, reliefs are claimed in this petition to restrain the respondents from operating tentative provisional seniority list of ITOs for promotion to the posts of ACITs on ad hoc basis.
2.4 On 03.03.2017, this Court issued notice making it returnable on 22.03.2017, whereby the respondents were restrained from taking further steps pursuant to the communications dated 22.12.2016 and 14.02.2017 to prepare the panel for the vacancies of the year 2016-17 for promotion to the posts of ACITs. It is pertinent to note that MCA (for contempt) No.1150 of 2016 filed in SCA No.7465 of 2014, came to be decided on 14.03.2017 by which certain paras of additional affidavit dated 27.01.2017 filed therein by the respondent Department came to be reproduced and relying on that, interim relief granted in that application came to be vacated. 2.5 On the strength of above order dated 14.03.2017 passed in contempt proceedings, Civil Application (for vacating interim relief) No.4296 of 2017 is filed by the respondent Department in which it is stated that time is taken to finalize the seniority list of ITOs based on conclusions and directions in the judgment in the case of Page 4 of 14 HC-NIC Page 4 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER Union of India Vs. N.R.Parmar (supra), since in the case of Rajiv Mohan, it appears that, contrary judgment was given than in the case of Union of India Vs. N.R.Parmar (supra) and the Principal CCIT, UP (West) sought clarification regarding the manner in which the seniority is to be re-cast and after processing file and seeking opinion of Department of Legal Affairs, it was decided finally that there would not be violation of any judgment in the case of Union of India Vs. N.R.Parmar (supra) and accordingly, time is consumed, but now as more than 200 posts are vacant in the cadre of ACITs for the vacancy year 2016-17, Department may be permitted to fill up such vacancies by granting promotions to eligible ITOs whose names are reflected in provisional seniority list for the list of seniority prepared in the year 2015. It is also submitted that in case if the Court is not inclined to vacate interim relief as prayed for, it can be modified by keeping posts in question vacant for aggrieved writ petitioners, otherwise not only administration but public interest would also suffer.
3. Learned Counsel for the Department has re- emphasized certain paras in the affidavit in reply dated 31.03.2017 filed on behalf of respondent Nos.1, 2 and 3 and submitted that whenever an incumbent is found eligible and directions were given by the Tribunal, ad Page 5 of 14 HC-NIC Page 5 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER hoc promotion is issued to the cadre of ACIT for the vacancy year 2015-16 and all possible efforts are made to comply with directions issued in the case of Union of India Vs. N.R.Parmar (supra) by the Apex Court, but it is not possible now to state before this Court about specific time limit within which such seniority list of ITOs will be prepared.
4. Learned Counsel appearing for newly joined respondent No.5 - one of the affected officers also contended that though he is eligible to be considered for promotion to the post of ACIT, by virtue of operation of interim relief granted by this Court on 03.03.2017, the Department is unable to undertake further exercise and therefore, the case of respondent No.5 deserves to be considered accordingly. The arguments canvassed by learned Counsel for the Department are adopted for the purpose of prayer to vacate the interim relief. Further, learned Counsel for respondent No.5 has taken us through the judgment in the case of Union of India Vs. N.R.Parmar (supra) and submitted that conclusions and directions were reached in the above decision based on the questions fell for consideration before the Apex Court and our attention is drawn to questions that fell into consideration and answers given by the Apex Court. Accordingly, it is submitted that delay, if any, on the Page 6 of 14 HC-NIC Page 6 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER part of the Department is because of administrative reasons which shall not come in the way of respondent No.5, who is otherwise eligible and in zone of consideration for promotion to the post of ACIT.
5. Having heard learned counsel for the parties, it is necessary to refer to para 15 of the above judgment, which reads as under:
15. Some direct recruits again approached the CAT, Principal Bench by filing Original Application no.2307 of 1999 (Sanjeev Mahajan & Ors. vs. Union of India & Ors.) alleging, that while drawing the seniority list dated 8.2.1999, the Department of Income Tax had not applied the "quota" and "rota" principle. On 23.2.2000, the CAT, Principal Bench disposed of OA no.2307 of 1999, and other connected original applications (Krishan Kanahiya & Ors.
vs. Union of India, OA No.676 of 1999; H.P.S Kharab & Ors. vs. Union of India & Ors., OA no.387 of 1999; Muneesh Rajani & Ors. vs. Union of India & Ors., OA no.964 of 1999) by a common order. In paragraph 7 of its order the CAT, Principal Bench, narrated the issues which came up for its determination as under:
"7. The short question which is posed for our consideration is as to what is the precise date on which direct recruits can be considered for seniority vis-à vis the promotees. Whether it is (i) the date on which the vacancies have Page 7 of 14 HC-NIC Page 7 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER arisen; (ii) the date when the same have been notified by the department by sending requisitions to the Staff Selection Commission; (iii) the date on which selection by the Commission is made; (iv) the date when the selection is reported to the department; or (v) the date on which the direct recruit actually assumes office."
5.1 The answers given by the Apex Court to the above so recorded in the judgment read as under:-
"28. The following conclusions have been drawn by us from the O.M. Dated 3.7.1986:-
28.1 If adequate number of direct recruits (or promotees) do not become available in any particular year, "rotation of quotas" for the purpose of determining seniority, would stop after the available direct recruits and promotees are assigned their slots for the concerned recruitment year.
28.2 To the extent direct recruits were not available for the concerned recruitment year, the promotees would be bunched together at the bottom of the seniority list, below the last position upto which it was possible to determine seniority, on the basis of rotation of quotas. And vice versa.
28.3 The unfilled direct recruitment quota vacancies for a recruitment year, would be carried forward to the corresponding direct recruitment vacancies of the next year (and to Page 8 of 14 HC-NIC Page 8 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER subsequent years, where necessary). And vice versa. In this behalf, it is necessary to understand two distinct phrases used in the OM dated 3.7.1986. Firstly, the phrase "in that year" which connotes the recruitment year for which specific vacancies are earmarked.
And secondly, the phrase "in the subsequent year", which connotes carried forward vacancies, filled in addition to, vacancies earmarked for a subsequent recruitment year. 28.4 The additional direct recruits selected, against the carried forward vacancies of the previous year, would be placed en-bloc below the last promotee. And vice versa.
40. The following conclusions, in our view, can be drawn from the OM dated 3.3.2008:
40.1 The OM dated 3.3.2008 is in the nature of a "clarification", to the earlier consolidated instructions on seniority, contained in the OM dated 3.7.1986 (referred to and analysed, in paragraph 21 above).
40.2 The term "available" used in para 2.4.2 in the OM dated 3.7.1986 has been "clarified" to mean, both in case of direct recruits as well as promotees, for the purpose of fixation of seniority, would be the actual year of appointment "...after the declaration of the result/selection, i.e., after the conclusion of the selection process, and after the "completion of the pre-appointment formalities..." (medical fitness, police verification, etc.).Page 9 of 14
HC-NIC Page 9 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER 40.3 As per the OM dated 3.7.1986, when appointments are made against unfilled vacancies in subsequent year(s), the persons appointed would "not" get seniority with reference to the year in which the vacancy arose, or the year in which the recruitment process was initiated, or the year in which the selection process was conducted.
40.4 As per the OM dated 3.3.2008, when appointments are made against unfilled vacancies in subsequent year(s), the persons appointed would get seniority of the year in which they are appointed "on substantive basis".
5.2 Then, the Apex Court examined the effect of OM dated 03.03.2008 on the subject of inter se seniority between direct recruits and promotee by raising the following questions:
43.1 Would the OM dated 3.3.2008 supersede the earlier OMs dated 7.2.1986 and/or 3.7.1986?
43.2 And, would the OMs dated 7.2.1986 and 3.7.1986 negate the OM dated 3.3.2008, to the extent that the same is repugnant to the earlier Oms (dated 7.2.1986 and 3.7.1986)?"
5.3 By undertaking the exercise in detail about subjects of both the Oms dated 07.02.1986 and 03.07.1986 vis-a-vis OM dated 03.03.2008 in para 52 held as under:Page 10 of 14
HC-NIC Page 10 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER "52. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraphs 20 and 21 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued by the SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as confirmed by the rival parties, is common in all matters being collectively disposed of. In all these cases the advertised vacancies were filled up in the original/first examination/selection conducted for the same.
None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried forward vacancies, or vacancies which came to be filled up by a "later"
examination/selection process. The facts only reveal, that the examination and the selection process of direct recruits could not be completed within the recruitment year itself. For this, the modification/amendment in the manner of determining the inter-se seniority between the direct recruits and promotees, carried out through the OM dated 7.2.1986, and the compilation of the instructions pertaining to seniority in the OM dated 3.7.1986, leave no room for any doubt, that the "rotation of quotas" principle, would be fully applicable to the direct recruits in the present controversy. The direct recruits herein will therefore have to be interspaced with promotees of the same recruitment year.
Thus, the issue involved in these writ Page 11 of 14 HC-NIC Page 11 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER
petitions is no more res integra and already concluded by the Apex Court in the above decision.
6. In the context of the above issue raised before us by the petitioner for redressal his grievance about non-compliance of conclusions and directions issued in the case of Union of India Vs. N.R.Parmar (supra), undisputed fact remains that though 4 years and 4 moths have passed, yet no final, common all India level seniority list of ITOs is prepared. The excuse on the part of the Department about administrative constraints which have come in their way and seeking opinion of the Department of Legal Affairs about the situation which had arisen after decision in the case of Rajiv Mohan being contrary to the judgment in the case of Union of India Vs. N.R.Parmar (supra) and clarification sought in this regard by the Principal CCIT, UP (West), according to us prima facie would not only be misconceived but meritless inasmuch as, the decision rendered in the case of Rajiv Mohan was qua grievance raised by an individual, which had no apparent conflict with the law laid down by Their Lordships in the case of Union of India Vs. N.R.Parmar (supra). Baring vague assertions about delay based on above case in the application for vacating interim relief, no other ground appears. The Department has tried to take shelter under duties to be performed for collection of taxes, a sovereign function, to which we Page 12 of 14 HC-NIC Page 12 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER are not unmindful. However, at various stages and forums, grievance of the eligible officers like the petitioner remains unanswered and statements were made before this Court to complete the exercise as early as possible.
7. Even the last affidavit which was filed on 27.01.2017 before this Court in contempt proceedings also, reveals expected time to be taken of not more than 2 months for preparing draft of All India inter-se seniority list of Income Tax Officers by interpolating all the seniority list of ITOs and then to be published on the website of the Department. Such ad hocism on the part of the Income Tax Department in the appointment of important post of ACIT de hors the directions issued in the case of Union of India Vs. N.R.Parmar (supra) and cannot be permitted even on the ground of administrative exigencies unless final seniority list of ITOs based on all India seniority is completed within time bound schedule. Even today, while passing this order, we have asked learned Counsel for the Department to seek instructions and state whether within specific time limit, it is possible for the concerned authority to prepare finally all India list of ITOs. However, she is unable to make any such statement.
8. Accordingly, we find no reason either to vacate Page 13 of 14 HC-NIC Page 13 of 14 Created On Mon Aug 14 03:56:13 IST 2017 C/SCA/4720/2017 ORDER or modify the interim relief granted on 03.03.2017 and considering overall facts and circumstances of the case, we find that writ petition deserves to be admitted.
9. Hence, RULE returnable on 05.05.2017. I.R. to continue till final disposal of the writ petition.
10. In view of the aforesaid order, Civil Application (for vacating interim relief) No.4296 of 2017 is disposed of.
(ANANT S.DAVE, J.) (A.Y. KOGJE, J.) SHITOLE Page 14 of 14 HC-NIC Page 14 of 14 Created On Mon Aug 14 03:56:13 IST 2017