Central Administrative Tribunal - Kolkata
Mukesh Kumar Thakur vs Income Tax on 20 May, 2022
awe _~ t PSE foayasofsses/2021 --s a 1 ES SORE 1 a vasoyts762001 pore wee CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A. No. 350/1876/2021 Date of Order: 20'S: 22: O.A. No. 350/1865/2021 Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member O.A. No, 350/1876/2021- 1. Mukesh Kr. Thaxur, son of Jaiprakash Thakur, presently residing at 421, Chakgaria, 2nd floor, Police Station Panchasayar, Kolkata-700094. 2. DEEPAK KUMAR, son of Late Mithilesh Kumar Roy residing at Q. No. 6/1, Block-1, Aayakar Niwas, 18 Ultadanga Main Road, Kol-700067. 3. VINAY KUMAR, son of Shri K Thakur residing at Type-III, Ayakar Niwas, Ultadanga Main Road, Kolkata-700067. 4, NILAY KUMAR SINHA, son of Sri Vikas Kumar Sinha residing at The Banyan 'Tree Garden, Roypara Road, Hatiara, Kolkata -- 700157. 5. RAMESH UPADHAYAY son of Shri Bishwanath Upadhvay residing at Godrej Prakriti, Everest 1102, 187, B.T. Road, Kolkata-700115. . 6. CHANDAN KUMAR, of Lt. Ram Awatar Das residing at Madgul Antaraa, F. No.- B- 302, 24 DH Road, Joka, Kolkata-700104. 7. DEEPAK KUMAR, Late Lakshmi Prasad' Verma residing at Flat No. 5F, Block-8, Banyan Tree Garden Rovypara Road, Hatiara, Kolkata 700156. 8. DAMODAR KUMAR GUPTA: son of Late Sitaram Saw residing at Type III, Ayakar Niwas, Ultadanga Main Road, Kolkata- 700067. 0.A./350/1876/2021 0.A./350/1865/2021 9, SAUMABHA ROY son of Shri Subhendu Bikash Roy residing at 216 Green Park, Pramila Niwas, Flat No.-1B, Narendrapur, Kolkata-700107. 10. ANAND KUMAR SANT son of Ram Dular residing at D-406, Sukasa Wood, Dakshin Jagaddal, Kolkata 700151. 11. ASHUTOSH KUMAR son of Shri. Vivekanand Mishra residing at 4 H Rajwada Grand, Kamalgachi, Narendrapur, Kolkata-700103. 12. YASHWANT KUMAR RAI son of Jai Shankar Rai residing at Type-III, Ayakar Niwas, Ultadanga Main Road, Kolkata- 700067. © | 13. AZAD KUMAR son of Late Prahlad Pandit residing at Type-IV, Ayakar Abasan, Shantipally, E.M. Bypass, Kolkata-700107. 14. SATYA WARDHAN son of Ramjee Lal Dass residing at 36, P Majumdar Road, . Kolkata-700078. 15. BIPRASHIS DAS son of Biswapati Da residing at BF 39/1C, 2nd Floor, Baguiati Deshbandhu Nagar, Sahapara, Kolkata 700059. 16. SANTOSH KUMAR SINGH son of Dinesh Kumar Singh residing at Type-IV, Ayakar Abasan, Shantipally, E.M. Bypass, Kolkata 700107. 0.A. No. 350/1865/2021: 1. Rahul Kumar Choudhary, son of Deonath Choudhary, presently residing at . Chakpuchuria Near Ecospace, Post Office Kadampukur, Rajarhat, Newtown, District - North 24 Parganas, Pin 700135. 0.A./350/1876/2021 0.A./350/1865/2021 2. Ankit Kumar, son of Keshar Lal, residing at Mahamayatala, Police Station 700103. Narendrapur, Kolkata 3. Niraj Kumar, son of Shri Rampukar Singh, residing at Q. No.17, 6th Floor, Type-IV, Aayakar Abasan, Shanti Pally, Kolkata-700107. 4, Vikash Kumar, son of Shri Ashok . Kumar Mehta, residing at Natural Heights _ Phase-I, 137, VIP Road, Kolkata-700052. 5. Chiradip Sarkar, son of Shri M.C. Sarkar, residing at Type-III, Ayakar Niwas, Ultadanga Main Road, Kolkata- 700067. 6. Mukesh Chand, son of Late Jagal Lal, residing at 68, Purnadas Road, Kolkata- 700029. 7. Udit Narayan, son of Late Jainarayan Pandey, residing at Type-III, Ayakar Niwas, Ultadanga Main Road, Kolkata- 700067. 8. Anand Ranjan, son of Shri Ajit Kumar, residing at Flat-5A. Realmark Oracle, 460, N.S.C. Bose Road, Kolkata 9. Anish Kumar, son of Late Shri Alakh Kumar Sinha, residing at Diamond City North, Block-32, Flat-€B, 68, Jessore Road, Kolkata . . 10. Partha Pratim Jana, son cf Shri Pranav Kumar Jana, residing at Manihar Apartment, First Flocr, 157/2, Gostotala Kolkata-700084. Road, Garia, 11. Binit Kumar, son of Shri Ram Vijay . Prasad, residing at TypeIV, Ayakar Abasan, Shantipally, E.M. Bypass, Kolkata-700107. 12. Vivek Kumar Ram, son of Shri Ram 0.A./350/1876/2021 0.A./359/1865/2021 Prasad Ram, residing at Flat D, 107, Sucasa Wood Kolkata-700151. 8, Daspara Road, 13. Rajeev, son of Shiwashray Prasad, residing at Type-IV, Ayakar Abasan, Shantipally, E.M. Bypass, Kolkata 700107. 14. Ajay Kumar, son of Shri Dayanand Prasad, residing at Pragati Abasan, . Jagatipota, Kalikapur, 700099. Kolkata 15. Mahendra Kumar Yadav, son of Shri Amrit Prasad Yadav, residing at Type-IV, Ayakar Abasan, Shantipally, E.M. Bypass, Kolkata-700107. 16. Pratap Kumar Mishra, son of Shri Rajendra Kumar Mishra, residing at Flat no.5A, Block-5, Banyan Tree Garden Roypara Road, Hatiara, Kolkata-700156. 17, Sharad Kumar, son of Shri Rama Kant Mishra, residing at Flat No.4A, Realmark Oracle, 460, N.S.C. Bose Road, Kolkata- 700103. 18. Arghaya Mishra, son of Shri Aloke Baran Mishra, residing at Raghurampur, Post Office- Darua, Contai, District-Purba Medinipur, Pin-721401. 19. Abid Ali, son of Abdul Gaffar, residing at 22/1, Kashi Mondal Lane, Belur, Howrah-711202. .. Applicants -Versus 1. Union of India, through the Secretary, Department of Revenue, Ministry of Finance, having office at North Block, New Delhi - 110011. 2. Union of India, through the Secretary, Ministry of Personnel, Public Grievance & Pensions, Department of Personnel and Training, having office at North Block, Cabinet Secretariats, New Delhi-110011. 0.A./350/1876/2021 0.A./350/1865/2021 3. The Central Board of Direct Taxes, Ministry of Finance, Department of Revenue, through the Chairman, having office at North Block, New Delhi -110011. 4, The Principal Commissioner of Income Tax, West Bengal and Sikkim, having office at Aayakar Bhawan, P-7, Chowringhee Square, Kolkata -700069. 5. The Deputy Commissioner of Income Tax, Head Quarters (Pers. & Estt.), having office at Aayakar Bhawan, P-7,_ Chowringhee Square, Kolkata - 700069. 6. SATYABRATA PRAMANIK, Son of Radhika Ranjan Pramanik aged about 49 years, working as Inspector of Income Tax posted in the office of Principal Commissioner of Income Tax(Verification Unit)-1, Aayakar Poorva, 110, Shantipally, Kolkata-700107 and residing at 1594, Madurdaha, Kolkata-700107. 7. BINEET KUMAR GHOSH, Son of Benay Kumar Ghosh, aged about 46 years, working as Inspector of Income Tax posted in the office of Principal Chief Commissioner of Income Tax, West Bengal & Sikkim & Addl.-CIT(Administration), 1st Floor, Aayakar Bhawan, P-7, Chowringhee ° Square, Kolkata-700069 and residing at 68/8, Aurobindo Road, Konnagar, District Hooghly, Pin-712235. 8. MINTU GUHA, Son of Dilip Guha, aged about 48 years, working as Inspector of Income Tax posted in the office of the Commissioner of Income 'Tax(Audit)-2, Kolkata, 4th Floor. Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-700069 and residing at Type-III, Block-II, Q.NO.-7/1, Aayakar Niwas, 18, Ultadanga Main Road, Kolkata-700067. 9. DEBDUTTA GOSWAML Son _ of Debabrata Goswami, aged about 48 years, working as Inspector of Income Tax posted in the office of Deputy Commissioner of Income Tax(Headquarter & Vigilance), . Kolkata, Ist Floor, Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-700069 and residing at 283, B.M. Saha Road, Bank Park, Hindmotor, Hooghly, Pin 712233. cree Respondents p (7) 6 0.A./350/1876/2021 a 0.A./350/1865/2021 For The Applicant(s): Mr. K. Basu, Mr. S. Paul, Mr. R. D. Ghosh; Counsel For The Respondent(s!: Mr. B. B. Chatterjee, Mr. S. Paul, Mr. A. Majumdar, Mr. S. K. Datta, Mr. B. Chatterjee; Counsel ORDER(ORAL) Per: Ms. Bidisha Banerjee, Member (J)
Heard Ld. Counsels for both sides at length.
2. O.A. 350/1876/2021 has been preferred to seek the following relief: | "a) An order be passed directing the Respondent Authorities concerned to forthwith set aside /cancel /withdraw /rescind the circular being F. NO. PCCIT/WB&S/Pers./58/DPC/4E/5/13-14/{inter se Seniority)/Part-11/7951-8052 cated 16.11.2021 and the final seniority list published vide F. NO.
PCCIT/WB&S/Pers./58/DPC/4E/5/13-14/{Inter se Seniority/Part- 4/8156 dated 17.11.2021;
5) An order be passed directing the Respondent Authorities concerned to forthwith grant promotion to the applicant to the post of income Tax Officer as per the seniarity list published on 15.02.2016 following the DoPT circular dated 13.08.2021 as well as the order dated 01.10.2021 of the Hon'ble Tribunal;
¢) An order be passed directing the Respondent Authorities concerned to forthwith set aside /cancel /withdraw /rescind the circular being F. No. A-35015/26/2018-Ad. VI dated 26.20.2021 or the instructions being the circular being F. No. A-35015,/26/2018- Ad.VI. dated 27.05.2019 so far as it attempt toe cancel the advisory issued on 06.06.2014 and also do quash F No. PCCIT/WB&S/Pers./58/DPC/4E/5/13-14/{Inter se Seniority)/Part- 11/7128 dated 27.10.2021 issued by the Dy CIT.Hqrs (Pers & ESH) Kolkata and the tentative seniority list."
O.A. 350/1865/2021 has been preferred to seek the following relief:
"a) An order be passed directing the Respondent Authorities concerned to forthwith set aside /cancel /withdraw /rescind the circular being F. NO. PCCIT/WB&S/Pers./58/DPC/4E/5/13-14/(inter se Seniority)/Part-11/7951-8052 dated 16.11.2021 and the final seniority list and to quash F, NO.
PCCIT/WB8&S/Pers./58/DPC/4E/5/13-14/(Inter se Seniority} Part- lI/7128 dated 27.10.2021 issued by Dy CIT, Hars (Pers & ESH) Kolkata and the tentative seniority list."
b) An order be passed directing the Respondent Authorities concerned to forthwith grant promotion to the applicant to the post of income Tax Officer as per the seniority list published on 15.02.2016 following the DoPT circular dated 13.08.2021 as well as the order dated 01.10.2021 of the Han'ble Tribunal;
7 0.A./350/1876/2021
0.A./350/1865/2021 Since common points of facts and law govern these O.A.s, they are heard together to be. disposed of by this common order. O.A. 350/1876/2021 is delineeted and discussed hereunder.
3. The background:
(1), The Home Ministry issued a Circular dated 22™4 December, 1959 on General Principles for determining Seniority of various categories of persons employed in Central Services. It provided as under:
"the relative seniority of all direct recruits shall be determined by the order of merit in which they are selected for sucn appointment _on_ the recommendations of the U.B.S.C. or other selecting authority, persons appointed as a result of subsequent selection;
Provided chat where persons recruited initially on _a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment, seniority shall follow the order_of confirmation and not the original order of merit.
Promotees:
(1) The relative seniority of persons promoted to the various grades shall be determined in the order of their selection for such promotion;
Provide that where persons promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their promotion, seniority shall follaw the order of confirmation and not the original order of merit."
6. Relative seniority of Direct Recruits and Promotees The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies received for direct recruitment and promotion respectively in the Department."
(2), The DOPT issued its circular dated 07.02.1986 on General Principles for determining Senior:ty of various categories of persons employed in Central Services, in modification of the Circular or the Ministry of Home Affairs dated 2274 December 1959 (supra), it said as under:
" while the principle of rotation of quotas will still be followed for determining the inter-se seniority of direct recruits and promotees, the present practice of | keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position, would be dispensed with. Thus, if adequate number of direct recruits do not become available in any particular year, rotation of quotas for purpose of determining 8 0.A./350/1876/2021
0.A./350/1865/2021 seniority would take piace only to the extent of the available direct recruits and the promotees. In other words, to the extent direct recruits are not available, the promotees will be benched together at the bottom of the seniority list, below the last position upto which it is pessible to determine seniority on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direc: recruitment quota vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year (and to subsequent years where necessary) for taking action for direct recruitment for the total number according to the usual practice. Thereafter, in that year while seniority will be determined setween direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for tha: year, the additional direct recruits selected against the carried forward vacancies cf the previous year would be placed en-bloc below the last promote (or direct recruit as the case may be) in the seniority list based on the rotation of vacancies for that year. The same principle holds good in determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies (as the case may be) in the subsequent years."
(3). Further the DOPT issued an OM Dated 03.07.1986 with consolidated orders on seniority. It provides as under:
"SENIORITY OF DIRECT RECRUITS AND PROMOTEES 2.1 The relative seniority of all direct recruits is determined by the order of merit in whch they are selected for such appointment on_ the recommendations of the U.P.S.C or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection.
2.2 Where premotions are made on the basis of selection by a D.P.C., the seniority of such promotees shall be in the order in which they are recommended for such promotion by the Committee.
XXXXX....
2.3 Where persons recruited or promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated _ at the time of their appointment, seniority shall follow the order of confirmation and not the original order of merit.
2.4.1 The relative seniority of direct recruits and of promotee: shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based_on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules."
(4) Once again the DOPT, consolidating its earlier instructions on Seniority contained in DOPT OM dated 03.07.1986, issued its OM dated 03.03.2008. It reads as under
"2. Para 2.4.1 and 2.4.2 of the O.M. dated 3.7.1986 contains the following provisions: -
2.4.1 The relative seniority of direct_recruits anc of promotees shall be determined accordinc to the rotation of vacancies between direct recruits and promotees, which shall be based on the quota of vacancies reserved for direct recruitment anc promotion respectively in the Recruitment Rules.
9 0.A./350/1876/2021 ©
0.A./350/1865/2021 2.4.2 If adequate number of direct recruits does not become available in any particular vear, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees." ' ..... While the inter-se seniority of direct recruits and promotes is to be fixed on the basis of the rotation of quota of vacancies. the year of availability, both in case of direct recruits as well as the promotees, for the purpose of rotation and fixation of seniority, shall be the actual year of appointment after declaration of results/selection and completion of pre-appointment formalities as prescribed. It is further clarified that when appointments against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the Persons so appointed shall not get seniority of any earlier year."
(5) All along seniority of Direct Recruits (DR in short) was determined by . the order of merit in which they were selected while promotees counted their seniority in the order of their recommendation etc. and inter se seniority between direct recruits (DRs) and Promotees used to be determined on the basis of rotation of quotas, the actual year of appointment after declaration of result etc. For the first time the concept of granting seniority, before a person would be Zorne in a cadre, was introduced witn the pronouncement of the lancmark decision in NR Parmar vs Union of India & Ors (C.A no. 7514-7515/2005) wherein the Hon'ble Apex Court propounded that --
"the available direct recruits and promotees, for assignment cf inter se seniority. would refer to the direct recruits and promotees who are appointed against the vacancies of a particular recruitment year, where the recruitment year shall be the year in which the recruitment process for either of the modes of recruitment (direct recruitment or promotion) for_a vacancy yearis initiated viz. initiation of recruitmert process against _a vacancy year would from the date of sending of requisition for fillimg up of vacancies to the recruiting agency in the case of direct recruits or the date on which a proposal, complete in all respects, is sent to UPSC/Chairman-DPC for convening of DPC to fill up vacancies earmarked for promotion."
Consequently, clarifying the modalities of determination of inter se seniority of direct recruits and promotees in sync with N. R. Parmar (supra), the DOPT explhcitly indicated in its O.M. dated 04.03.2014 the following:
O 10 0.A./350/1876/2021 _
0.A./350/1865/2021 "a) DOPT OM No. 20011/1/2006-Estt.(D) dated 3.3.2008 is treated as non existent/withdrawn ab _nitio;
b) The rotation of quota based on the available direct recruits and promotees appointed against the vacancies of a Recruitment Year, as provided in DOPT O.M. dated 7.2.1986/2.07.1986, would continue to operate for determination of inter se seniority between direct recruits and promotees:
c) The available direct recruits and promotees, for assignment of inter se seniority, would refer to the direct recruits and promotees who are appointed ' against the vacancies of a Recruitment Year;
d) Recruitment Year would be the year of initiating the recruitment process against a vacancy yea';
e) Initiation of recruitment process against a vacancy year would be the date of sending of requisition for filling up of vacancies to the recruiting agency in the case of direct recruits: in the case of promotees the date on which a proposal, complete in all respects, is sent to UPSC/Chairmar-DPC for .
convening of DPC to fill up the vacancies through promotion would be the relevant date.
*) The initiation of recruitment process for any cf the modes viz. direct recruitment or promction would be deemed to be the initiation of recruitment process for the other mode as well;
g) Carry forward of vacancies against direct recruitment or promotion quota would be determined from the appointments made against the first attempt for filling ue of the vacancies for a Recruitment Year;
h) The above principles for determination of inter se seniority of direct recruits and promotees would _be effective from 27.11.2012, the date of Supreme Court Judgment in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar Vs. UOL& Ors.
i)The cases of seniority already settled with reference to the applicable interpretation of the term availability, as contained in DOPT O.M. dated 7.2.86/3.7.86 may not be reopened. .
7. As the conferment of seniority would be against the Recruitment Year in which the recruitmert process is initiated for filling up of the vacancies, it is incumbent _upon all administrative authorities to ensure that the recruitment process is initiated during the vacancy year itself. While requisition for filling up the vacancies for direct recruitment shoulc be sent to the recruiting agency, in all respects, during the vacancy year itself, the timelines specified in the Model Calendar for DPCs contained in DoPT O.M. No.22011/9/98- Estt(D) dated 8.9.98 and the Consolidated Instructions on DPCs contained in O.M. No.22011/S/86-Estt(D) dated April 10, 1889 should be scrupulously adhered to, for filling up the vacancies against promotion quota."
Applicability of its provisions were meticulously examined and upheld by the Hon'ble Delhi High Court in the case of Mrs. Veena Kothavale vs Union of India and Others and Diwakar Singh vs Union of India & Others. In Veena Kothevale, the Hon'ble High Court held that NR .
2 011 0.A./350/1876/2021
0.A./350/1865/2021 -
Parmar judgment would apply prospectively w.e.f. 27.11.2612 This judgment when assailec before the Hon'ble Supreme Court by Diwakar Singh was dismissed by dismissing the SLP by an order dated 16.05.2018.
(6) Next to follow was the CBDT that issued its Circular dated 29.09.2014 on the implementation of the decision of the Hon'ble Supreme Court in the case of NR Parmar asking to give it a retrospective ezfect.
An FAQ was released or. "will the seniority of the Direct Recruit reckon from the year of vacancy or the year in which the intimation has been sent to SSC or the year in which the exam was conducted or the year of selection" and, "From which date would the implementation of the Supreme Court decision be made applicable'. It was directed "that exercise of implementation of N. R. Parmar judgement and conducting of review DPCs may be completed latest by 24h November, 2014."
(7) CBDT issued one more Advisory Circular dated 07.11.2014 regarding implementation of the decision of N.R. Parmar.
(8) A further Advisory of CPDT on implementation of NR Parmar, dated 16.01.2015, was issued further reiterating retrospective effect to be given to the judgment.
(9) CBDT issued yet another Circular on implementation of NR Parmar dated 27.05.2019 whereky earlier Advisory were withdrawn vide para 3
(ii) of that Circular with an instruction to undo the action taken in the light of the said Advisories giving retrospective effect. Circular issued after the judgement of Veena Kothavale and dismissal of SLP. It was clarified therein that the N R Parmar would apply prospectively, as under:
"In the light of order dated 22.01.2018 of Hon'ble High Court of Delhi and DOP&T's OM dated 04.03.2014, the Department reviewed the 12 0.4./350/1876/2021
0.A./350/1865/2021 4
e) implementation of N.R. Parmar order of Hon'ble Supreme Court of India in consultation with Department of Personnel and Training and Department of Legal Allairs and the Competent Authority has decided as under:
(i) That the advisories, issued by the O/o DGIT (HRD). vide letters No. HRD/CM/220/14/2013-14/4275 dated 29.09.2014. No. HRD/CM/220/1442013-14/6672 No dated 07.11.2014 and No. HRD/CM/220/14/2013-14/7912 dated 16.01.2015 for implementation if N.R. Parmar judgement and for conducting review DPCs of all the DPC conducted till 27.11.2012, are withdrawn ab initio:
(ii) That the N.R. Parmar case judgment of Hon'ble Supreme Court of India shall_be implemented in the Department _in_ the respective grades prospectively i.e.. w.e.f. 27.11.2012 as has been implemented in the various Ministries/Departments of the Government of India in terms of DoP&T's OM No. 20011/1/2012-Est (D) dated 04.03.2014. The cases of senionty already settled with reference to the applicable interpretation of the term availability, as contained in DoF&T OM dated 7.2.86/3.7.86 shall not be reopened. The regions are required to undo the actions taken by them in the light of advisories dated 29.09.2014. 07.11.2014 and 16.01.2015, issued by the 0/0 DGIT (HRD) and restore the security position of the respective officers in the © respective grade that a maintained before N. R. Parmar order
(iii) That as the DoP&T has withdrawn its OM dated 03.03.2008, only the DPCs that have been conducted between 2008 & 27.11.2012, if any, by giving effect to DoP&T's OM dated 03.03.2008 in the feeder grade needs to be reviewed. Regional Seniority lists of ITOs so prepared after nullifying the effect, if any, of DoP&T OM dated 03.03.2008 and after implementation of N.R. Parmar with effect from 27 11 2012, shall be forwarded to the Board for inclusion in the final All India Inter-se Seniority List of ITOs (As on 01.01.2012) that was circulated by the CBDT, vide ietter dated 01.C9.2015.
(v) That All India Inter-se Seniority List (ASL) of "Os, 2017, circulated vide CBDT's letter dated 05.02.2018. containing the names of ITEN fron the year 2000-01 to 2012-13 and also the draft All India Inter-se Seniorty List (AIISL) of ITOs containing the names of ITOs prior to the vacancy year 2000-01 circulated vide CBDT's letter dated 03.12.2018. are hereby cancelled and 'withdrawn ab initio. That the All India Inter-se Seniority List (AISL) of ITOS (as on 01.01.2012) circulated by the CBDT, vide letter dated 01.09.2015, which did not have any effect of N.R. Parmar order of Hon'ble Supreme . Court of India and of DOP&T''s OM dated 03.03.2008, is a valid and legal All India Inter-se Seniority List of ITOS,
4. All the Pr.CCITS (CCAS) are, therefore, requested to take necessary action in this regard and submit a compliance report to the Board, at the earliest."
(10) On 19.11.19 Hor'ble Apex Court rendered another landmark judgment in Meghachandra Singh & Ors, which overruled the NR.
Parmar (supra). Hon'ble Apex Court held:-
A. OMs dated February 7, 1986 and July 3, 1986 were not properly ' constructed in N R Parmar.
oO 13 0.A./350/1876/2021
0.A./350/1865/2021 B. The said two OMs had made it clear that the seniority of the direct , recruitment be declared only from the date of appointment and not from the date of initiation of recruitment process.
C. The person who might respond to_an_ advertisement cannot have any service-related rights and hence, they have no rignt to have their seniority counted from the date of advertisement.
Thus, the decision in N. R. Parmar was overruled. However, it was made it clear that the decision would not affect she inter se seniority already based or N. R. Parmar and the same would be protected.
The decision in K Meghachandra Singh wou:d apply prospectively except the seniority would be fixed under the relevant rule from the date of vacancy/from the date of advertisement. Most importantly, an inevitable conclusion was arrived at, that, since the judgment rendered by the Supreme Court in N. R. Parmar was applied prospectively (in Manipur from 1/1/2018 and in other states includ:ng West Bengal) the direct recruits cannot claim that their seniority shculd be reckoned from the date of initiation of recruitment proceedings and not from the date of actual appointment.
(11) CBDT issued a circular dated 27.05.2019 specifying as under:-
3. In the light of order dated 22.01.2018 of Hon'ble High Court of Delhi and DOP&T's OM dated 04.03.2014, the Department reviewed the implementation of NR. Parmar order of Hon'ble Supreme Court of India in consultation with Department of Personnel and Training and Department of Legal Affairs and the Competent Authority has decided as under
(i) That the advisories, issued by the 0% DOIT (HRD), vide letters No HRD/CM/220/14/2013-14/4275 HRD/CM/220/1442013-14/6672 dated and No HRD/CM/220/14/2013-14/7912 dated 16.01.2015 for implementation t N.R. Parmar judgement and for conducting review DPCs of all the DPC.
conducted till 27.11.2012, are withdrawn ab initio.
(ii) That the N.R. Parmar case judgment of Hon'ble Supreme Court of India shall be imp emented in the Department in the respective griles prospectively .e.. wef. 27.11.2012 as has been implemented in the various Ministries/Departments of the Government of India in terms of DoP&T's OM No. 20011/4/2012-Estt.(D) dated 04.03.2014. The cases of seniority already settled with reference to the applicable interpretation of the term availability, as contained in DoP&T OM dated 7.2.863.7.86 shall not be reopened. The regions are required to undo the actions taken by them in the light of advisories dated 29.09.2014. 07.11.2014 and 16.01.2015, issued by the Oro DGIT (HRD) and restore the seniority position of the respective officers in the respective g-ade the s maintained before N. R. Parmar order.
: on 14 0.A./350/1876/2021
-- 0.A./350/1865/2021
(iii) That as tre DoP&T has withdrawn its OM dated 03.03.2008, only the | DPCs that have been conducted between 2008 & 27.11.2012, if any, by giving effect te DoP&T''s OM dated 03.03.2008 in the feeder grade needs to be reviewed. Regional Seniority lists of TOS so prepared, after nullifying the effect, if any, of DoP&T OM dated 03.03.2008 and after implementation of N.R. Parmar with effect from 27 11 2012. shall be forwarded to the Board for inclusion in tne final All India Inter-se Seniority List of ITOS (As on 01.01.2012) that was circulated by the CBDT, vide letter dated 01.09.2015.
(iv) That (All India Irter-se Seniority List (AIISL.) of ITOs, 2017, circulated vide CBDT's letter dated 05.02.2018. containing names of ITDs from the year 2000-01 to 2012-13 and also the draft All India Inter-se Seniority List (AIISL) of ITOs containing the names of ITOS prior to the vacancy year 2000-01 circulated vide CBDT's letter dated 03.12.2018. are hereby cancelled and withdrawn ab nitio. That the All India Inter-se Seniority List (AIISL) of ITOs (as on 01.01.2012) circulated by the CBDT, vide letter dated 01.09.2015, which did not have any effect of N R Parmar order of Hon'ble Supreme Court of India and of DOP&Ts OM dated 03.03.2008, is a valid and legal All India Inter-se Seniority List of ITOs.
4. All tre Pr. CCITs (CCAs) are, therefore, requested to take necessary action in this regard and submit a compliance report to the Board, at the earliest."
(12) O.A 1580/2019 was preferred before this Tribunal by a batch of litigants to seek a direction upon the authorities to act in accordance with the CBDT Circular dated 27.05.2019 (supra). This Tribunal directed as follows:
"the respondent authorities to recast the seniority at the earliest in accordance with the circular dated 27.05.2019 before issuing any promotion order_and to review the promotion ordered on €2.07.2019 in terms of para 6 of the said promotion order, for it has been issued after the circular dated 27.05.2019 but without recasting the seniority in terms of the circular dated 27.05.2019."
(18) The DOPT issued its OM dated 13.08.2021 regarding implementation of the judgement of the Hon'ble Supreme Court in the case of Meghachandra Singh & Ors. It clarified as under: {emphasis supplied} hes teenee eens the available direct _recruits and promotes, for assignment_of_inter se seniority would refer to the direct recruits and promotes who are appointed against the vacancies of a particular recruitment _year where the recruitment year shall be the year in which the recruitment process for either o* the modes of recruitment (direct recruitment or promotion) for a particular year is initiated viz. initiation of recruitment process against a vacancy year would mean the date of sending of requisition for filling up of vacancies to the recruiting agency in the case of direct recruits or the date on which a proposal, complete in all respects, is sent to UPSC/Chairman-DPC for convening of DPC to fill up vacancies earmarked for promotion.
XX XX XX xX XXXX = XX XX 6(i) 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 determining vacancies to be fillec by the respective quotas in ran C} 15 0.A./350/1876/2021
0.A./350/1865/2021 a recruitment year. The term "recruitment year' shall mean the year in which the vacancy arises. However, inter se seniority between direct recruits and cromotees, who are appointed against the vacancies of respective quota, would be reckoned with reference to the year in which they are appointed ie. year in which they are borne in the cadre or formal appointment order is issued.
(ii) The terms 'recruitment' and appointment' have to be read harmoniously and the determination of seniority for recruitees would depend on their actual appointment and not the initiction of recruitment process itself. It thus follows that the seniority of direct recruits and promotees henceforth stands delinked from the vacancy/year_of vacancy.
(iii) The source of legitinacy of determination of seniority would be with reference to the date of joining of a person against a vacancy, irrespective of the fact that it may have arisen in the previous year(s) and not being a carried forward vacancy of any quota.
(iv) If adequate number of direct recruits (or promotees) do not become available.
"rotation of quotas" for the purpose of determining seniority would stop after the available direct recruits and promotees are assigned their_slots on joining in a particular year.
(v) The term "available", both in the case of direct recruits as well as promotees.
for the purpose of rotation and fixation of seniority shall_ be the actual year of appointment after declaration of results/selection and completion of pre-agpointment formalities as prescribed.
(vi) Thus, appointees who join in the concerned recruitment year and those who join in subsequent year(s), would figure in the seniority list of the respective years of their being appointed. To that extent it may not be necessary to go into the question of quota meant for direct recruits and promotees to find out as to the year in which the vacancy arose against which the recruitment is made.
7. Based on the above, it has been decided to modify the instructions relating to determinatior of inter se seniority between _promotees and direct recruits as under:
(i) DoPT's OM No 2001 1/1/2012-Estt (D) dated 4.3.2014, issued in pursuance of Order dated 27.11.2012 in.N.R. Parmar case, is treated as non-estawithdrawn w.e.f. 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. 20011/1/2012-
Estt.(D) dated 4.3.2014, shall not be disturbed, i.e old cases are not to be "eopened.
(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 qoverned 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 made before 19.11.2019 and remaining on or after 19.11.2019, the inter se seniority of direct recruits and promotees, 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 has been initiated by the administrative Department/Cadre Authority before 19.11.2019, but where all appointments, subsequent to the initiation of Recruitment process, could be made only on or after 19.11.2019 e. date of order of Apex Court the inter se seniority of direct recruits and promotes shall be determined in the following manner-
16 0.A./350/1876/2021
0.A./350/1865/2021 as >
(a) The rotation of quota based on the percentage of vacancies aliocated to direct recruitment and promotion in the notified recruitment rules/service' rules, shall continue to operate for determination of vacancies to b2 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. the 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/pand 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 particular year. The term 'available direct recruits or promotees' appearing in these OMs dated 72.1986/3.7.1986, 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 pre-appointment 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 cf determining inter se seniority, would stop after the available direct recruits and promotes are assigned their slots on their appointment/oining in that year.
(f) If no direct recruit is available in a particular year, available promotees would be bunched together in accordance with their position in the panel approved for promotion. Similarly, if no promotze is available in that year, available direct -ecruits would be bunched together, as per thei- position obtained in the selection process. ~
(g) In case, where direct recruits or promotes, 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 prcvisions shall come into effect from. 19.11.2019 onwards."
(14) Further the CBDT issued its Circular dated 26.10.2021 regarding implementation of DOPT Instructions dated 13.08.2021.
' an 17 0.A./350/1876/2021 7 0.A./350/1865/2021 (15) In a recent judgement of Inter se seniority of direct recruits and promotees, the Hon'ble Supreme Court, in the case of B. S. Murthy & Others which is also a Three Judges' Bench decision, at para 62 (iv) (a) &
(b), where it was examining the correctness of a decision of CAT, concluded as under:
"(i) The O.M dated: 07.02.1986 was prospective;
(ii) Pre- 07.02.1986 inter-se seniority was to be regulated in accordance with 1959 OM;
(iii) There was no break-down of the quota rule: The 1959 O.M. was to be followed.
(iv) Cases of those who officiating as Inspectors prior to 01.03.1986 but regularised after that date had to be individually decided after determining the nature of officiation, nature of the post, (to which officiation related) and the provisions of OM of 1959 and could not be generalised.
(v) Pre 01.03.1986 cases where the selection process for d:rect recruitment- but where appointment was made after that date were covered by the OM dated:
7.2.1986.
7. Based on these findings, one 1993 final list was quashed; the department was directed to prepare another list, afresh. To comply with the order, a special cell headed by the Superintendent of Central Excise was formed. A new final seniority list (dated 15.10.1997-hereafter "1997 list") was issued based on recommendations of the special cell; it was declared as final on 1.1.1992.
XXXXXXX
(iv)(a) The date of appointment of direct recruits the date for counting seniority- it is not from the date of receipt of the dossiers from the recruiting authorities or the date of recommendation. Resultantly seniority of direct recruits appointed after 01.03.86 has to be revised only from the date of their respective appointments but not earlier te 01.03.1986 as was done in the impugned seniority list,
(b) Direct recruits of 1992 could be given seniority only in that year but not earlier, or in 1991 as was erroneously done in the impugned seniority list;
(v) The seniority of five applicants in O.A.NO. 156/86 originally fixed in terms of the order, had to be restored and could not be altered.
(vi) Those premoted ad hoc basis in any year in the vacancies available to them were eligible for seniority from the date of their continuous officiation, if-they were promoted within their eligible quota of that year under the Recruitment Rules;
(vii) Those promoted in 1983 against 17 posts diverted from Shillong, were entitled to seniority in terms of 1959 O.M:
(viii) Of 137 promotees regularised on 27.10.1988, seniority of those applicants regularised under the earlier order in 1985 has to be fixed prior to 1,3.1986, on the said earlier date of their regularisation in 1985:
(ix) Seniority of promotees functioning in temporary posts not forming part of the cadre, is to be fixed from the date of promotion/ appointment.
18 0.A./350/1876/2021
0.A./350/1865/2021 {Emphasis Supplied} 4, In the aforesaid backdrop, the grievance of the present applicants needs to be considered threadbare. Their grievance, in a nutshell, would be as under:-
The applicants in O.A. 1865/2021 and 1876/2021 are the Inspectors of Income Tax directly recruited in the Department of Income Tax during the vacancy year 2009-10, thus, before N. R. Parmar was pronounced. During their recruitment, the DOPT OM dated 03.03.2008 was in force and their initial seniority was fixed as per DOPT OM Dated 03.03.2008. Their seniority was recast in 2016 by wrongly applying N. R. Parmar and again modified in 2021 by applying K. Meghachandra decision. They have prayed for an order allowing them to retain their seniority as accorded in 2016.
On 27.11.2012, a principle was laid down by Hon'ble Supreme Court in Union of India and Ors. -vs- N. R. Parmar [(2012) 18 SCC 204] and Ors, which directed that the year of vacancy shall be the determining factor to decide seniority. Accordingly, the Hon'ble Supreme Court directed seniority to be recast on the basis of the judgment.
The question that arose at such time was whether the petitioners will get the benefit cf the Judgement of N R Parmar dated 27.11.2012 from their year of | vacancy since they were borne in the cadre only subsequently. In reply and ' to justify that the petitioners would be entitled to the benefits in terms of the Judgement of N R Parmar, it is asserted by the applicants as under = The Direct Recruited Inspectors of SSC batch 2005, 2006, 2008 & 2010 approached this Tribunal for implementation of the said judgement. This Tribunal in O.A. 350/429 of 2013, vide its order dated 07.10.2013 directed the respondents zo recast the seniority list based on N.R. Parmar t ' .
o o>
--
19 0.A./350/1876/2021
0.A./350/1865/2021 judgement case since 2005 onwards. Subsequent to the N R Parmar judgment, DOP&T issued an O.M. on 04.03.2614 for all Central Government Services. Further the CBDT, issued various advisories on 06.06.2014, 29.09.2014, 07.11.2014 and 16.01.2015 for implementation of the decision of NR Parmar case. Clause 6(i) of OM dated 4.3.2014 clarified that seniority already settled on the basis of OM dated 07.02.1986 and 03.07.1986 may not be reopened, but the initial seniority of the applicants was fixed based on DOPT OM dated 3.3.2008, which was treated as Void-
ab-initio. The respondent authorities, upon implementation of the Hon'ble Supreme Court's judgement in NR Parmar's case and in pursuance of DOP&T's O.M. dated 04.93.2014, after disposing of all objections raised through various representations received after publication of a tentative list, with the approval o- the PCCIT, WB and Sikkim, issued its final seniority list dated 15.02.2016. The present batch of applicants seek directions to retain their seniority determined vide seniority list dated 15.02.2016. The said seniority list was finalized on the basis of principles laid down in DOPT O.M. dated 07.02.1986 & 03.07.1986 read with 04.03.2014 and by following guideline. The said circular dated 15.02.2016 along with the Final Seniority List so published, treating year of vacancy' as a definition of the term 'Availability for determining seniority was prepared on the principles laid down in N.R. Parmar.
In the meantime, on 19.11.2019 the Hon'ble Supreme Court rendered another judgment in K. Meghachandra Singh and Ors. v. Ningam Siro and Ors. overruling its earlier judgment in N.R. Parmar and Ors., however, with a specification in paragraph 40 of the said decision that the same will not affect inter-se seniority already fixed based on N.R. Parmar judgment. It further specified that the rules laid down in K. 20 0.A./350/1876/2021
0.A./350/1865/2021 Meghachandra Singh judgment shall have prospective effect. The PCCIT vide its OM dated 09.04.2021 said that in view of the instructions dated 27.05.2019 read with K. Meghachandra Singh judgment, seniority for the year 2016 based on N. R. Parmar judgment would be taken as the seniority for the intervening period upto 27.11.2012. Since the petitioners.
'have been recruited in the vacancy years 2009-10 and 2010-11, the seniority list dated 15.02.2016 will hold good and be final for them.
5. Per contra, the private respondents would allege that, as the Pr. CCIT circulated a seriority list of the cadre of Income Tax Inspector for the financial years 2003-04 to 2012-13 in the region West Bengal and Sikkim, it is apparent that the said circular of the seniority list was prepared on an interpretation of DOPT O.M. dated March 4, 2014 and in accordance with the CBDT Instruction dated March 13, 2014 and CBDT guidelines dated September 29, 2014, November 7, 2014 and January 16, 2015.
Further, on October 27, 2021 the Pr. CCIT circulated the tentative seniority list in the cadre of ITI, Office Superintendent, Senior Tax Assistant and Tax Assistant upto Vacancy Year 2012-2013 in the region of West Bengal and Sikkim. It has been provided therein that for the period prior to November 27, 2012, the term availability in DoPT OMs dated February 7, 1986 and July 3, 1986 would be taken as year of appointment.
Further, on November 17, 2021 the final seniority list was circulated whereby reasons had been assigned for confirming the tentative seniority list.
21 0.A./350/1876/2021
0.A./350/1865/2021 In N. R. Parmar, the Hon'ble Supreme Court held that the vacancy year would be the relevant year for determining inter-se seniority/seniority of direct recruits. By the circular dated March4 2014, DoPT issued instructions for implementing the directions given by the Supreme Court in N. R. Parmar. The said instructions explicitly provide that it would be made applicable with effect from November 27 20 12, that is the date of the judgmert rendered in the case of N. R. Parmar. Hence, for the period commencing from November 27 2012 and ending On November 18, 2019, the expression "available" sed in OMs dated February 7%, 1986 and July 3'4, 1986 and inter-se seniority would be determined with | reference to vacancy year. However, since the instructions contained in OM dated March 4 2014 were given effect from November 27 2012, the term "available" and inter-se seniority for any period prior to November 27 2012 would have to be determined with reference to actual year of appointment. Hence the protection given in K. Meghachandra Singh is not available to the applicarts. Further, that the Circular/Seniority List dated February 15, 2016 was based on erroneous interpretation of the circular dated March 4, 2013. The circular was based on three advisories dated September 29, 2014, November 7, 2014 and January 16, 2016, all of such advisories were withdrawn. Therefore, once the basis of the OM dated February 15, 2016 stood removed, no effect could be given to the OM dated May 27, 2019. That, the CBDT issued the | circular dated May 27, 2019 having regard to the law laid down by the Division Bench of the Delhi High Court in Veena Kothavale whereby it was held that N.R. Parmar judgment should be implemented with effect from November 27, 2012. This Tribunal in its order dated November 21, 2019 made it absolute clear that while granting prom-ztion the respondent 22 0.A./350/1876/2021
0.A./350/1865/2021 department should strictly adhere to the instructions contained in the OM dated May 27, 2019.
They would further allege that much emphasis has been supplied on -- behalf of the twe applicants that the seniority list dated February 15, 2016 issued by the Pr. CCIT is final and the said seniority list cannot, therefore, be disturbed. A reference is made to the following main relief(s) prayed for in OA 422/2021:
l "To pass an order directing the Respondents No. I, 3 and 4 to _ grant promotion to the applicants in terms of the seniority dist published & circulated vide F. No. 4/6/2014 18/Sentority ITV/16862 dated 15.02.2016 by the respondent 20.4;
IT. To pass an order directing the respondent authorities, while dealing with the case of the applicants, or for dealing with the cases between 03.03.2008 and 27.11.2012 (the date of passing the judgment in N.R. Parmar's case, to consider/follow/abide/ by OM dated 07.02.1986 and 03.07.1986;
II. To pass an order directing that the Office Circular dated 27th May, 2019 . be set aside/not given _ effect to/eancelled/rescinded/quashed, since the same 1s contrary to the para 40 of the judgment of the Three Judges bench of the Supreme Court in K. Meghachandra Singh & Ors. V. Ningam Siro, wherein the seniority."
But, this Tribunal did not grant any relief in terms of the prayers made in the said OA. It was only pleased to direct the authorities to dispose of the objection of the applicants in OA1530/2019 and finalize the seniority strictly in terms of the DOPT OM dated August 13, 2021 and take necessary steps to grant to all the applicants their subsequent promotions to the next higher pos: for which admittedly 45 vacancies mentioned in OM dated 9.4.2021 had got raised to 59 in the meantime. That, the principle of res judicata would apply to the proceedings initiated before this Tribunal in view of the decision in Central Marine Fisheries Research Institute v. A Kanakkam, (2009) 17 SCC 258 (pr.16) and, any relief claimed in a petition/plaint, which is not expressly granted by the 23 0.A./350/1876/2021
0.A./350/1865/2021 decree/judgment/order, would be deemed to have been repealed, as, admittedly, the applicants did not succeed in their challenge as to the validity of OM dated May 27, 2019. In other words, the principles provided for in Explanaticn V to Section 11 CPC would be applicable to © proceedings in this Tribunal. That, the second prayer in the present OA being similar to first prayer in the earlier OA, could not be granted.
Further, it is asserted that the sheet anchor of the case of the applicants is the Seniority List dated February 15, 2016, as if the said list is final and binding. However, once this Tribunal did not grant relief in terms of prayer (1) in O.A.No.422 of 2021, no finality could be attached to the said Seniority List as this Tribunal clearly directed for consideration of the objection raised by the interested parties. Having regard to the orders dated November 21, 2019 and October 1, 2021 passed by. this Hon'ble Tribunal in O.A.No.350/1530/2019 and O.A.No.350/219/2020 with
0.A.No.350/422/2021, it is apparent that the inter se Seniority List of the direct recruits and promotees has to be fixed in terms of the circular dated August 13, 2021, April 3, 2014 and May 27, 2019. The circular dated April 3, 2014 issued pursuant to the judgment rendered in N.R. Parmar would be treated as withdrawn from November 11, 2019, i.e. the date on which the Supreme Court delivered the judgment in the case of K. Meghachandra Singh (supra). However, for the period commencing from November 27, 2019 and ending on November 18, 2019, the instructions contained in Circular dated March 4, 2019 would have to be followed. That, in the earlier round of litigation, the applicants themselves had prayed that their cases be governed within the period commencing from March 3, 2008 and ending on November 27, 2012 would be considered in terms of OMs dated February 7, 1986 and July 3, 1986. Neither the . ry 24 0.A./350/1876/2021 se 0.A./350/1865/2021 circular dated February 7, 1986 nor the follow up circular dated July 3, 1986 provided that the seniority should be counted with reference to the vacancy/recruitment year, rather on a careful reading of the said circulars, it would be apparent that the said circulars provided that the seniority should be, with reference to the appointment year, Le. with reference to the date of actual appointment and actual entry into the service. Paragraph 7(ii) of the Circular dated August 13, 2021 is not at all applicable to the case of the applicants as neither the inter-se seniority nor the right to be considered for promotion was settled in favour of the applicants as per the circular dated February 15, 2016.
6. The official respondents would submit as under:
(1) DoP&T, OM dated 07.02.1986/03.07.1986, stipulated the guidelines for determination of inter-se seniority. The year of seniority as st:pulated by 1986 DoP&T OM was interpreted by the N.R. Parmar judgment in 2012 to mean the "year of initiation of recruitment process" and not the "year of appointment."
(2) DOP&T interpreted the N. R. Parmar judgment and came out with OM dated 04-03 2014 which clearly stated that the principles emanating from N R Parmar judgment would be applicable post 27.11.2012 (the date of Parmar judgment).
(3) CBDT in its own wisdom came out with advisories dated 29.09.2014, 07.11.2014 & 16.01.2015 stating that the implementation of Parmar judgment should be from 1986.
(4) In the year 2016, the Pr. Chief Commissioner of Income Tax, West Bengal & Sikkim, office Kolkata, prepared a "LS 25 0.A./350/1876/2021 uO 0.A,/350/1865/2021 seniority list based on the above noted CBDT advisories, interpreting the DoP&T OM dated 04-03-2014, to give the seniority to direct recruit officials in the earlier years prior to 2012.
(5) In the year 2019, the CBDT, realizing its error and after consultation with DoP&T and Department of Legal Affairs, came cut with an instruction dated 27.05.2019 withdrawing ab initio the previous advisories issued in the year 2014 and 2015 which had given retrospective seniority aunisty, Zovalstrag o WY iy on ie % based on Parmar judgment for the perioc prior to 2012. The fat
4) IW NAISE CBDT further directed all the offices to undo the actions taken in the light of those advisories.
(6) The N.R. Parmar judgment of 2012 was overruled in K. ° Meghachandra Singh judgment in 2019 by the Hon'ble Supreme Court by holding that the "year of appointment" is to be taken as the year of seniority. It was also observed in Hon'ble Apex Court that the seniority determined as per NR Parmar judgment protected and the order dated 19.11.2019 will be prospective in operation meaning after 19-11-2019.
(7) In effect, N.R. Parmar judgment will be applicable for the.
period between 2012 and 2019.
(8) In the K. Meghachandra Singh judgment, the Hon'ble Apex Court categorically held that the two OMs of 1986 had made it clear that seniority of direct recruits declared only from the date of appointment and not from the date of initiation of _ recruitment process. Meghachandra Singh judgment held that 26 0.A./350/1876/2021 ; 0.A./350/1865/2021 the N. R. Parmar judgment was wrong but observed that the seniority based on the Parmar judgment was protected.
(9) The DOPT again came out with another OM dated 13.08.2021 on the issue of inter se seniority and subsequently the CBDT interpreted the DOPT OM through its instructions dated 26.10.2021 and held that the direction given for withdrawing the advisories of 2014 & 2015 and undoing the action taken on the basis of such advisories of 2014 & 2015 and undoing the action taken on the basis of such advisories was correct (para -- 1 & 4 of the CBDT instruction dated 26.10.2021) (10) It is the contention of the Direct Recruit inspectors that the seniority prepared in the year 2016 is final and as per K. Meghachandra judgment, the same is required to be protected as it was based on Parmar judgment.
(11) The above contention of Direct Recruit inspectors conveniently ignoring the fact that the said seniority of 2016 was based on interpretation given by advisors of the CBDT © which were found to be perverse and withdrawn later on in 2019.
(12) It is the contention of the department that what is protected by K. Meghachandra Singh judgment is the seniority based on DoP&T OM dated 04.03.2014 and not on any perverse interpretation as given in the CBDT advisories of 2014 & 2015, which erroneously extended the applicability of N. R. Parmar judgment to a period prior to 2012.
27 0.A./350/1876/2021 , 0.A./350/1865/2021 That, in view of the above facts, the seniority list of 15.02.2016 does not enjoy the protection granted by Hon'ble Apex Court in K. Meghachandra Singh judgment..
Further, they would provide the following:
"Two scenarios for giving promotion:
Departmental Seniority list:-
G) Ifthe Department is allowed to give promotion as per the current seniority list which is the subject matter of the O.A.s filed before the Hon'ble Tribunal, then. 95 inspectors will be promoted (including a few ad-hoc promotions to be regularized during the. year). The number of Direct recruit and Promotee Inspectors is as under:
Direct Recruits - 16 Promctees - 79 Common list of Inspectors:
(ii) There are 45 inspectors who are common in both the seniority lists, i.e. seniority list of 15.02.2016 and 17.11.2021. Regardless of the outcome of the present O.A.s pending before the Hon'ble Tribunal, .
they would have as it is been promoted irrespective of the method of determination of seniority. If the department is advised to promcte these inspectors who figure in both the seniority lists, then 30 Promotees and 15 Direct Recruits will be promoted. And 50 number of vacancies would remain thereafter which would be filled up depending upon the outcome of the present OAs. Out of the 45 inspectors appearing common in both the lists, number of Direct Recruits and Promotees is as under:
Direct Recruits - 15 Promctees - 30 "
7. The vival contentions were noted. The present batch of. applicants have been inducted/recruited in the Income Tax Department through Combined Graduate Level Examination, 2010, conducted by the Staff Selection Commission, during the vacancy year 2009-2010. The post of Income Tax Inspector is the feeder post to Income Tax Officer (TO in short) and the vacancy in ITO post is filled by promotees and direct Lo CN 28 0.A./350/1876/2021 0.4./350/1865/2021 > recruits. In the present two cases, the subject matter of challenge is the final Seniority List issued by the authority concerned vide Circular dated 17.11.2021.
On 21.02.2022 this Tribunal sought for some clarifications which is as under:
"(i) DoP&T to file an affidavit to disclose the reason why Sanjay Kumar and Rahul Kumar Choudhary, who figure at SI. No. 89 and 90, when considered were placed in the final seniorty list at Sl No. 553 and 662 respectively.
(ii) Responden:s shall clarify whether the incumbents between SI.No. 554 to 661, who had been inducted in 2011 against 2009-10 vacancies, have been assigned seniority in 2015 in terms 2f rules and circulars, and
(iii) Whether the said seniority has been protected in terms of DoP&T circular dated 13-08-2021.
(iv) Let the affidavit be filed within a period of 15 days."
In compliance thereto, the Pr. CCIT has clarified as under:
ffxtracted with supplied emphasis for clarity}
(i) "Sri Sanjay Kumar was promoted to the grade of Inspector in the Recruitment Year (R.Y.) 2010-11 and was assigned the seniority position against SI. No. 89 of RY. 2010-11, vide this office circular F. No. 4E/6/2014-
15/Seniority/ITI/16862 dated 15.02.2016 (Copy enclosed and marked as Annexure X-1), in pursuance of the CBDT advisories dated 29.09.2014, 07.11.2014 and 16.01.2015 read with the DoPT OM. dated 04.03.2014.
(ii) Sri Rahul Kumar Choudhary, who joined this Department as Direct Recruit Inspector on 26.12.2011, was initially assigned seniority 652 (Copies of relevant pages of the Register showing the seniority position is enclosed as Annexure X-2) with reference to the R.Y. 2011-12 on the basis of available interpretation of DoP&T O.M. dated 07.02.1986/03.07.1986, as his joining in this Department was made before 27.11.2012, e., date of Hon'ble Supreme Court judgment in N.R. Parmar case. It is worth mentioning here that at that point of time, DoP&T O.M dated 04.03.2014 as well as CBDT advisories dated 29.09.2014, 07.11.2014 and 16.01.2015 were not in existence.
(iti) In pursuance of N R Parmar's judgment dated 27.11.2012, the recasting of the seniority of Shi Rahul Kumar Choudhary along with other direct recruit as well as promotee Inspectors was made on 15.02.2016 by unsettling the seniority list which was already maintained in the office register prior to N.R. Parmar's judgment. The said recasting of the seniority list was made in compliance of CBDT advisories 19.09.2014, 07.11.2014 and 16.01.2015 read with DoP&T O.M dated 04.03.2014.
(iv) Consequent upon such recasting of seniority, Shri Rahul Kumar Choudhary was assigned the seniority position against SI. No. 90 of R.Y. 2010-11, vide this office circular F. No. 4E/6/2014 15/SeniorityT1/16862 dated 15.02.2016. in pursuance of the CBDT advisories dated 29.09.2014, 07.11.2014 and 16.01.2015 read with DoPT O.M. dated 04.03.2014,
(v) Thus, it can be seen that Shri Rahul Kumar Choudhary, who was initially allotted seniority position of 652 of R.Y. 2011-12 on the basis of his year of appointment, in accordance with the available interpretation of DoPT OMS dated 07.02.1986/03.07.1986, subsequently got his seniority re-allotted to 29 0.A./350/1876/2021
0.A./350/1865/2021 position 90 in pursuance of CBDT advisories dated 29.09.2014. 07.11.2014 & 16.01.2015 reac with DoPT OM dated 04.03.2014.
(vi) It is pertinent to clarify that the seniority position of Shri Sanjay Kumar and Shri Rahul Kumar Choudhary were-523 and 652 respectively prior to 15.02.2016, as per the Register maintained in this office. However, as a result of recasting of seniority on 15.02.2016, their respective seniority positions were altered to 89 and 90 of 2010-11 after 15.02.2016..
(vii) | A comparative picture of the seniority positions of inspectors which was maintained prior tc N. R. Parmar's judgment, i.e., as per Gradation list dated 01.09.2013 and as per the modified gradation list dated 17.11.2021 (Copy enclosed and marked as Annexure X-3). it may be seen that the inter se seniority between the employees remained same before the implementation of NR Parmar's Judgment and after the implementation of the DOPT O.M. dated 13.08.2021 as per the list available in Annexure... of the O.A.
(viii) | Accordingly, in the final seniority list published on 47.11.2021, seniority position of Sri Rahul Kumar Choudhary was revised and the seniority was assigned against R Y 2011-12 in respect of his actual year of appointment and he was placed at SL No. 662, whereas Shri Saniay Kumar was assiqned seniority against RY 2010-11 (as he was promotec in R.Y. 2010-11) and placed at SI. No. 533 (not 553) being a promotee Inspector pertaining to the Recruitment Year 2010-11 when he got promoted.
The comparative seniority positions in respect of direct recruits/ promotee inspectors, mentioned in SI. No. £54 to 661 of the Circular dated 17.1 1.2021, vis-4-vis their respective seniority positions shown in the Circular dated 15.02.20°6 are given in Annexure X-4. It may be mentioned that Shri Rahul Kumar Choudhary and other direct recruit inspectors appearing in SI. No. 554 to 661 were selected through CGLE-2010 and the said CGLE 2010 was conducted in respect of Vacancy Years 2009-10 & 2010 11.
It can be observed from the table in Annexure X-2 that all direct recruits have been placed in both the lists in a uniform manner and the gap between direct recruits in both the list is identical, The only change is made with respect to interpolation of direct recruits with promotees of different Vacancy Years. Such change is the consequence of CBDT advisories dated 29.09 2014, 07.11.2014 & 16.01.2015 read with DoPT OM dated 04.03.2014.
It is apparent from the above table that the names of the employees mentioned in sl. No. 554 to 661 of the seniority list published on 17.11.2021 were never placed only against vacancy year 2009-10 in the seniority list published on 15.02.2016, but instead, those names appear against different vacancy years from 2007-08 to 2012-13. In these cases also, the principles laid down in DoPT O.M. dated 13.08.2021 have been followed. The positions of the direct recruits/ premotees mentioned in SI. No. 554 to 661 have been changed accordingly.
The (DOPT O.M. dated 12.08.2021 protects the seniority ist prepared strictly in terms of DoPT OM dated 04.03.2014 [which stipulates at para-5(h) that principles emerging out of N.R. Parmar judgment wouid be effective from 27.11.2012]. However, since the seniority list of 15.02.2916 was prepared by reviewing seniority in all cadres from V.V. 1986-87, without strictly following the DoPT OM dated 04.03.2014, the said seniority list of 15.02.2016 is not protected by DecPT OM dated 13.08.2021."
8. In view of the clarifications, we have noted that both the applicants joined the Income Tax Department before N. R. Parmar decision was rendered, yet they were assigned seniority in terms of N. R. Parmar.
9. A summation and summarization of discernible and germane facts would be as under:
39 0.A./350/1876/2021
0.A./350/1865/2021
(i) The applicants joined the Income Tax department before 27.11.2022, i.e., the date of effect of N R Parmar judgment.
Gi) Their seniority was originally determined in terms of DOPT OM dated 07.02.1986/03.07.1986, on the basis of "year of appointment", since at the material time the said instructions of 1986 held the field.
(ii) N R Parmar decision was rendered on 27.11.2012 in terms of which the seniority of inductees post 27.11.2012 had to be assigned in terms of "recruitment year" and not the "year of appointment". Applicants did not fall under the said category for they were pre-2012 inductees.
(iv) In 2014-15 CBDT wrongly advised and got extended the benefit of the decision of N R Parmar retrospectively even to pre 27.11.2012 inductees, due to which the seniority of the applicants was recast in 2016 on the basis cf their year of recruitment'year of initiation of | recruitment process vide seniority list of 2016. Eventually, they earned seniority above the applicants;
(v) Later on, with the pronouncement in K. Meghachandra Singh on 19.11.2019, that,
(a) the seniority of pre inductees of N R Parmar would be decided in terms of DOPT OM dated 07.02. 1986/03.07.1986,
(b) those between 27.12.2012 (dt. of N R Parmar) and 19.11.2019 (dt. of K Meghachandra Singh) would be governed by N R Parmar (i.e. with reference to year of initiation cf recruitment process) and,
(c) those after 19.11.2019, in terms of K. Meghachandra Singh's decision.
The present applicants inarguably and irrefutably belonged to | the category (a), but they were wrongly assigned seniority as applicable to 31 0.A./350/1876/2021
0.A./350/1865/2021 the category (b), as such, in compliance of the decision in Medha Kothavale(supra) etc. and DOPT instruction dated 03.08.2021, they were accorded modified seniority vide seniority list published on 17.11.2021.
(vi) The CBDT had committed grotesque errors while issuing its advisories/instructions/clarification of 29.09.2014, 07.11.2014 and 16.01.2015 that were clearly in conflict with the N. R. Parmar judgment . and it is almost trite, axiomatic and settled law that a clarification cannot be in conflict with the instrument sought to be clarified. Such clarification could not have withstood the scrutiny of law being legally unsustainable. The advisories were rightly withdrawn as bonafide errors can always be correctec.
(vii) The applicants were wrongly assigned seniority in 2016 in terms of erroneous. advisories of CBDT of 2014-15 which, when withdrawn, the benefits (seniority) in terms of such circular had to be nullified.
(viii) The applicants seek protection of seniority granted to them in 2016, albeit wrongly, but such seniority being wrongly accorded cannot be allowed to perpetuate with full knowledge of the fact that the applicants did not deserve such assignment of seniority. Once the authorities have rectified their mistake, the beneficiaries of such mistake cannot be allowed to reap benefits of the mistake any further.
(ix) The applicants never challenged the withdrawal of such CBDT circulars of 2014-15, that formed the basis of their wrongful assignment of seniority, accorded in 2016. They abstained from challenging the DoPT circular of 13.08.2021 in terms of which unsettling oa hey ne) O.A/350/1876/2021 we O.A,/350/ 1865/2024 we of previous seniority of 2016 became inevitable, inescapable. They are thus estopped from claiming otherwise,
(x) The seemingly inexorable march towards unsettling the ilegally assigned seniority of 2016 in 2021, by way of CBDT circulars of 24.09.2019, DoPT cireular of 15.08.2021 followed by 26.10.3021 was not prevented at the right epportune, Furthermore, the applicants have, in the earlier rounds (O.A. 422/2021 ete), happily allowed their seniority of 2016 to be modified and reeast in 2021 in terme of the instructions post BR.
_ Meghachandra judgment. They never raised any hue and cry over the me a 7 + te fs ; en vay egg . .
is issue. They sought not to challenge the order of this Tribunal in the as garkier rounds whereby and whereunder theix so called settled seniority of 8016 was permitted to be unsettled. Having allowed their semority to be unsettled, they are estopped by their eonduct to protest such an act of unsettling the previous seniority, The seniority. Het of 17.11.2081 prepared in terms of K. Meghachandra (supra) thus deserves to he implementert.
Nevertheless, such applicants who deserve appropriate placement, and, have been assigned correct seniority in terms of DePT OM dated 13.08.2021 would reap benefits of such newly assigned seniority and be prometed further within 4 weeks, along with other deserving persons.
10. Accordingly, with these directions, the G.A.s stand disposed of, Ne Coste.
SAN, (Nandita Chatterjee) . (Bidisha Banerjee} Member (4) Member @) Ul