Gujarat High Court
Harsh Vardhan Singh Rao vs Union Of India Through Secretary, on 11 May, 2018
Author: A.Y. Kogje
Bench: M.R. Shah, A.Y. Kogje
C/SCA/3212/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3212 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any
order made thereunder ?
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HARSH VARDHAN SINGH RAO
Versus
UNION OF INDIA THROUGH SECRETARY,
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Appearance:
MR. HARDIK V VORA(7123) for the PETITIONER(s) No.
1,10,11,12,13,14,15,16,17,18,2,3,4,5,6,7,8,9
GRISHMA R SONI(9517) for the RESPONDENT(s) No.
15,16,17,18,19,20,21,22,23,24,25
MR NIKHIL S KARIEL(2315) for the RESPONDENT(s) No.
10,11,12,13,14,7,8,9
MR RAMNANDAN SINGH(1126) for the RESPONDENT(s) No. 5,6
MRS MAUNA M BHATT(174) for the RESPONDENT(s) No. 1,2,3,4
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 11/05/2018
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for following Page 1 of 41 C/SCA/3212/2018 CAV JUDGMENT reliefs:
"a. A Writ of Certiorari or any other Writ, order or direction in the nature of Certiorari quashing and setting aside the clarification dated 17.01.2018 and consequent modified seniority list dated 13.02.2018;
b. Restoring seniority list dated 7.9.2016 and final with regard to seniority of direct recruited inspectors for Recruitment year 200910;
c. Stay the modified seniority list dated 13.02.2018 and/or stay the conducting of DPC for vacancy year 201718 for Group 'C' posts till final disposal of this petition;
d. Pass any other order(s) as this Hon'ble Court may deem fit and more appropriate in order to grant interim relief to the Petitioner;"
2.0. The facts leading to the present petition in nutshell are as under:
2.1. At the outset, it is required to be noted that the dispute is with respect to interse seniority of the petitioners working as Inspectors (Direct Recruitees) in the Income Tax Department visa vis Inspectors (Promotees) who were promoted from the departmental quota.
2.2. It is required to be noted that as per the relevant Recruitment Page 2 of 41 C/SCA/3212/2018 CAV JUDGMENT Rules prevailing at the relevant time the post of Inspectors in the Income Tax Department were required to be filled in on the basis of the quota from and amongst the direct recruitees as well as departmental promotional quota. As per the procedure to be followed for filling up the post of Inspectors, the Department was required to communicate vacancy of the particular year to the Departmental Promotion Committee (hereinafter referred to as the "DPC") and thereafter the DPC was required to complete the recruitment process by holding the examination. So far as posts which are required to be filled in by way of departmental candidates by way of promotion is concerned, the promotions are required to be given also by the DPC but for the same the DPC was not required to conduct / hold any examination like the direct recruits.
2.3. That the dispute is with respect to recruitment year 200910. That for the Recruitment Year 200910, as per the departmental promotional quota, 53 posts were required to be filled in by the promotion from Ministerial Staff. The DPC completed the recruitment process for filling up the post of Inspectors from Ministerial Staff for the Recruitment Year 200910 on 29.06.2009 and 53 promotees came to be promoted as Inspectors from Ministerial Staff. Therefore, the posts which were required to be filled in by way of promotion came to be filled in by the DPC for Recruitment Year 200910. It appears and it is not in dispute that there were 35 vacancies of the post of Inspectors which were required to be filled in by way of direct Recruit Inspectors for the Recruitment Year 200910 and there were 11 Page 3 of 41 C/SCA/3212/2018 CAV JUDGMENT carry forward Direct Recruit Inspectors communicated to CBDT. It appears that thereafter the CBDT vide letter dated 21.1.2010 notified 482 vacancies through Staff Selection Commission, to be recruited from Combined Graduate Level Examination - CGLE 200910, which included (35 + 11) direct recruit vacancies reported by CCIT (CCA), Gujarat Ahmedabad office. That thereafter, the Staff Selection Commission published advertisement for Combined Graduate Level Examination on 30.01.2010. It appears that thereafter CBDT vide letter dated 29.03.2010 asked from the office of the CCIT (CCA) Direct Recruits quota vacancies in the grade of Inspectors for Recruitment Year 201011 also. That after receiving all the vacancies for the Recruitment Year 201011, from all the charges, CBDT sent the same list on 26.4.2010 (including 28 vacancies of Direct Recruit Inspectors of Gujarat Charge for Recruitment Year 201011 to the division of re deployment (surplus cell) of DOP & T to obtain NOC for onwards submission to the Staff Selection Commission. It appears that thereafter CBDT vide letter dated 30.07.2010 asked from the office of all the CCIT (CCA) direct recruit quota vacancies in the grade of Inspector as on 31.03.2011 for both the Recruitment years viz.
Recruitment Year 200910 and 201011 in addition to Backlog / Shortfall if any in the prescribed proforma. CCIT (CCA), Ahmedabad office vide letter dated 03.08.2010 communicated the vacancy of 74 Direct Recruit Inspectors vacancy to CBDT, which included 35 DR vacancies for Recruitment Year 200910, 28 Direct Recruit vacancies for Recruitment Year 201011 and 11 Direct Recruit Backlog / Shortfall vacancy for Recruitment Year 200910, in response to the CBDT letter dated 30.07.2010. It appears that Page 4 of 41 C/SCA/3212/2018 CAV JUDGMENT thereafter CBDT vide letter dated 27.10.2010 had notified to the Staff Selection Commission, 844 of posts in the cadre of Income Tax Inspectors out of which 72 vacancies were for Ahmedabad charge. That thereafter, Staff Selection Commission held the examination for filling up the post of Income Tax Inspectors for the vacancies for Recruitment Year 200910, 201011 and 201112 and 11 direct recruit Backlog / Shortfall vacancy for Recruitment Year 200910. The Staff Selection Commission declared final results on 7.1.2011 and recommended 822 candidates to the CBDT for appointment to the post of Income Tax Inspectors, out of which 72 candidates were allocated to Ahmedabad Region. That the petitioners herein and the newly added respondent nos. 15 to 25 were also appointed on the post of Income Tax Inspectors as direct recruitees. So far as respondent nos. 5 to 14 herein are concerned, they all are Income Tax Inspectors who as such were promoted to the said post for the vacancies of Recruitment Year 200910.
2.4. That thereafter, the seniority list in the cadre of Inspectors of Gujarat Region was settled vide Seniority list dated 07.09.2016 and the petitioners herein and respondent nos. 15 to 25 were inter spaced with the 53 promotees promoted vide DPC dated 29.06.2009 and all those direct recruit Inspectors were placed into the seniority at par with the promotee Inspectors promoted by DPC dated 29.06.2009 to the extent of vacancies which were notified to the CBDT earlier for Recruitment Year 200910. It appears that the said seniority list was finalized and declared considering the decision of the Hon'ble Supreme Court in the case of Union of India Vs. N.R.Parmar, reported in 2012 (13) SCC, Page 5 of 41 C/SCA/3212/2018 CAV JUDGMENT 340 as well as department OM dated 03.07.1986 /04.03.2014. However, subsequently vide impugned clarificatory circular dated 17.01.2018 of the HRD to the DOPT, EstablishmentD, it is clarified that so far as fixation of interse seniority of CGLE 2010 direct recruits with promotee officers are concerned, they may be interpolated with the promotees of the same Recruitment Year in accordance with the principles contained in department OM dated 03.07.1986/04.03.2014. Thus, by the clarificatory letter dated 17.01.2018 the seniority list in the cadre of Inspectors of Gujarat Region has been modified and all the direct recruitees are placed in 2010 cadre and revised seniority list has been published on 13.03.2018. The clarificatory letter dated 17.01.2018 of the HRD and revised seniority list dated 13.02.2018 are the subject matter of present Special Civil Application. At this stage, it is required to be noted that identical question had arisen before the Patna High Court in Civil Writ Jurisdiction Case No.17935 of 2017 in the case of Parsum Jumar Jha s/o Arbind Kumar Jha and others vs. Union of India and other and after following and considering the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra), vide judgment and order dated 06.02.2018, Patna High Court has allowed the said writ petition and upholding the seniority list dated 29.07.2016 by which seniority was given to the direct recruits of 200910. The Patna High Court has specifically observed that process of recruitment by sending requisition for filling up post for the year 200910 was initiated in the Recruitment Year 200910 and mere delay in conduct of the examination or declaration of results cannot wish away or wipe off the Recruitment Year 2009
10. It is reported that the said judgment and order passed by the Page 6 of 41 C/SCA/3212/2018 CAV JUDGMENT Patna High Court has attained the finality.
2.5. Hence, the petitioners have preferred the present Special Civil Application for the aforesaid reliefs. At this stage, it is required to be noted that in the peculiar facts and circumstances, more particularly, when the Central Administrative Tribunal, Ahmedabad Bench is not available and therefore, the petitioners have directly preferred the present Special Civil Application under Article 226 of the Constitution of India. Therefore, in the peculiar facts and circumstances, more particularly, the question is with respect to the next promotional post, this Court has entertained the present petition. It is required to be noted that as such some of the other Inspectors (direct recruits) had in fact approached the learned Central Administrative Tribunal, Mumbai Bench by way of OA who are also joined now as party respective nos. 15 to 25 who are similarly situated to that of the present petitioners and they are also heard, the learned advocate for the respondent nos. 15 to 25 have stated at the bar that they withdrew the OA and therefore, without prejudice to the rights and contention of the respondent nos. 15 to 25 in the present proceedings, OA No.33 of 2018 stands withdrawn.
3.0. Shri Hardik Vora, learned advocate has appeared on behalf of the petitioners, Ms. Mauna Bhatt, learned advocate has appeared on behalf of the respondent department, Shri Nikhil Kariel, learned advocate has appeared on behalf of the respondent nos. 5 to 14 promotee Inspectors, promoted pursuant to the DPC dated 29.06.2009 and Ms. Soni, learned advocate has appeared on Page 7 of 41 C/SCA/3212/2018 CAV JUDGMENT behalf of the respondent nos. 15 to 25 (who are supporting the petitioners).
4.0. Shri Hardik Vora, learned advocate for the petitioners direct recruits Inspectors has vehemently submitted that the impugned order / communication dated 17.01.2018 on the basis of which now the department has revised the seniority list is absolutely illegal and contrary to the law laid down by the Hon'ble Supreme Court in the case of N R Parmar (supra) as well as OM dated 07.02.1986 and 03.07.1986.
4.1. It is further submitted that the impugned communication / letter dated 17.01.2018 is absolutely on misinterpretation and misreading of the decision of the Hon'ble Supreme Court in the case of N.R. Parmar (supra).
4.2. It is further submitted by Shri Vora, learned advocate for the petitioners that as such the communication / letter dated 17.01.2018 is clarificatory in nature and therefore, cannot supersede the OM dated 07.02.1986 and 03.07.1986.
4.3. It is further submitted by Shri Vora, learned advocate for the petitioners that as such the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) squarely applies to the facts of the case on hand. It is submitted that it is an admitted position that as such 35 vacancies of direct recruits Inspectors had fallen vacant for Recruitment Year 200910 and 11 vacancies were carried forward. It is submitted that in the Recruitment Year 200910 itself Page 8 of 41 C/SCA/3212/2018 CAV JUDGMENT 35 + 11 posts were notified and communicated to the Staff Selection Commission and therefore, as such the aforesaid 35 + 11 posts of Inspectors were required to be filled in by the Staff Selection Commission in the Recruitment Year 200910 itself. It is submitted that however for whatever reasons the Staff Selection Commission did not conduct / hold the examination to fill up the vacancies which had fallen vacant in the Recruitment Year 200910 and which were required to be filled in by direct recruits Inspectors. It is submitted that however thereafter Commission published advertisement for Combined Graduate Level Exam (CGLE) on 30.01.2010. It is submitted that thereafter the Staff Selection Commission held the Combined Graduate Level Examination for the vacancies which had arisen vacancy for Recruitment Year 200910 and 201011 and 72 direct recruits Inspectors were assigned to the Gujarat (including the petitioners herein as well as respondent nos. 15 to 25). It is submitted that therefore, considering the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) and when vacancy of 35 + 11 direct recruits Inspectors were notified and communicated to the CBDT in the Recruitment Year 200910 itself i.e. on 20.11.2009 and even the Staff Selection Commission published advertisement for Combined Graduate Level Exam (CGLE) on 30.01.2010, as per the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) those direct recruits are required to be placed in the seniority list along with promottee who were promoted in the Recruitment Year 200910 and against the vacancies which were notified and communicated to the CBDT vide communication dated 20.11.2009.
Page 9 of 41 C/SCA/3212/2018 CAV JUDGMENT4.4. It is further submitted by Shri Vora, learned advocate for the petitioners that as such the similar OM dated 3.3.2008 was held to be clarificatory in nature and as such which were contrary to the original OM dated 07.02.1986 and 03.07.1986 has been set aside by the Hon'ble Supreme Court in the case of N R Parmar (supra). It is submitted that therefore, the impugned communication / letter dated 17.01.2018 which as such in the form of clarificatory, the same also deserves to be quashed and set aside on the same ground on which the Hon'ble Supreme Court earlier quashed and set aside the OM dated 3.3.2008 in the case of N R Parmar (supra).
4.5. It is further submitted by Shri Vora, learned advocate for the petitioners that even otherwise now apart from the fact that issue involved in the present petition is squarely covered by the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra), even issue involved in the present petition is now not res integra in view of the subsequent decision of the Patna High Court in the case of Parsum Jumar Jha s/o Arbind Kumar Jha (supra).
4.6. It is further submitted by Shri Vora, learned advocate for the petitioners that in the case of N R Parmar (supra), more particularly, in para 33, the Hon'ble Supreme Court has specifically observed and held that the relevant date of recruitment for the purpose of seniority should be considered to be the date on which the Staff Selection Commission was communicated the number of vacancies. It is submitted that in the instant case Staff Selection Commission was communicated the vacancies (35 + 11) which were required to be filled in for Recruitment Year 200910 and Page 10 of 41 C/SCA/3212/2018 CAV JUDGMENT therefore, Recruitment Year for that purpose should be considered as 2009 and accordingly, the petitioners and similarly situated direct recruits need to be interspaced with the promotee Inspectors of the year 200910 to the extent of vacancies notified and communicated to the Staff Selection Commission.
4.7. It is further submitted by Shri Vora, learned advocate for the petitioners that as such earlier seniority list in the cadre of Inspector of Gujarat Region was settled vide Seniority list dated 07.09.2016 and the petitioners and other similarly situated direct interspaced with the 53 promotees promoted vide DPC dated 29.06.2009, which was the correct seniority list as per the earlier OM's as well as decision of the Hon'ble Supreme Court in the case of NR Parmar (supra). It is submitted that as such the said seniority list attained the finality as nothing is on record that anybody thereafter raised objection against the said seniority list. It is submitted that therefore, thereafter the revision and / or modification of the seniority list vide revised seniority list dated 13.02.2018 is absolutely illegal and as such in breach of principles of natural justice and therefore, the same deserves to be quashed and set aside on the aforesaid ground also.
Making above submission and relying upon the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) as well as decision of the Patna High Court in the case of Parsum Jumar Jha s/o Arbind Kumar Jha (supra), it is requested to allow the present petition.
5.0. Ms. Soni, learned advocate for the respondent nos. 15 to 25 Page 11 of 41 C/SCA/3212/2018 CAV JUDGMENT while adopting the submission made by Shri Vora, learned advocate for the petitioner has further submitted that as such the issue involved in the present petition is squarely covered in favour of the petitioner and the respondent no.15 to 25 by the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) as well as decision of the Patna High Court in the case of Parsum Jumar Jha s/o Arbind Kumar Jha (supra). It is further submitted by Ms. Soni, learned advocate for the respondent nos. 15 to 25 that as general principles for determining the seniority of Direct Recruitees in Central Government services are laid down in office memorandum dated 22.12.1959, 07.02,1986, 03.07.1 and 04.03.2014. It is submitted that the Hon'ble Supreme Court in the case of N.R. Parmar (supra) has occasioned to interpret 1958 and 1986 OMs and observed that if the process of recruitment has been initiated during the Recruitment Year (in which the vacancies have arisen) itself, even if the examination for the said recruitment is held in a subsequent year and the result is declared in a year latter and the selected candidates joined in a further later year, the selected candidates will be entitled to be assigned seniority, with reference to the Recruitment Year in which the requisition of vacancies was made to the recruiting authority.
5.1. It is further submitted by Ms. Soni, learned advocate for the respondent nos. 15 to 25 that after considering the previous office memorandum and the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra), the DOPT has again issued OM dated 4.3.2014 and reiterated that recruitment year would be the year of initiating the recruitment process against a vacancy year. It Page 12 of 41 C/SCA/3212/2018 CAV JUDGMENT is submitted that however, merely on the basis of some office note / clarification from DOPT dated 11.12.2017 (which is not forthcoming), CBDT has clarified that Recruitment Year for vacancies of 200910 will be recruitment year 201011 only for the reason that exams was held in 201011, which is contrary to all the OMs of DOPT and decision of the Hon'ble Supreme Court in the case of N R Parmar (supra).
5.2. It is further submitted by Ms. Soni, learned advocate for the respondent nos. 15 to 25 that even otherwise the communication dated 17.01.2018 can be said to be clarificatory in nature and same cannot substitute earlier original office memorandums and by clarificatory circular earlier office memorandum cannot be superseded as held by the Hon'ble Supreme Court in the case of N R Parmar (supra).
5.3. It is submitted that therefore, clarificatory letter dated 17.01.2018 and consequent modified seniority list dated 13.02.2018 be pleased to quash and set aside being contrary to the different Office Memorandum dated 07.02,1986 and 3.7.1986 and also to the decision of the Hon'ble Supreme Court in the case of N.R. Parmar (supra).
6.0. Present petition is vehemently opposed by Ms. Mauna Bhatt, learned counsel for the respondent department. It is submitted that the recruitment and selection to the post of Income Tax Inspectors is governed by the Recruitment Rules, 1986 and the total vacancies are required to be filled in the ratio of 1:3 by direct recruits and Page 13 of 41 C/SCA/3212/2018 CAV JUDGMENT 2:3 by promotion. It is submitted that vide letter dated 20.11.2009, the office of the CCIT (CCA), Ahmedabad notified vacancies of direct recruit Inspectors for Gujarat region for CGLE, 2009. It is submitted that this included 35 direct recruit vacancies for the year 200910 and 11, vacancies which were carried forward vacancies and as CGLE, 2009 could not be conducted in the year 2009, the direct recruit vacancies for the year 200910 were carried forward to the year 201011. It is submitted that on 21.01.2010, the CBDT sent requisition of total 482 direct recruit vacancies for the cadre of Income Tax Inspectors for CGLE, 2009/10. It is submitted that as the CGLE, 2009 was not conducted and CGLE, 2010 included combined vacancies of 200910, the closing date of eligibility was fixed as 02.03.2010.
6.1. It is further submitted by Ms. Mauna Bhatt, learned advocate for the respondent authority that after the Staff Selection Commission recommended direct recruit Inspectors to be appointed, the Department, in compliance with the decision of the Apex Court in the case of N.R.Parmar (supra), interspaced the direct recruits of 2009 with the departmental promotes of the year 2009 for fixing their inter se seniority. Similarly, the direct recruits of the year 2010 were interspaced with the departmental promotes of the year 2010. It is submitted that this was done in accordance with the instructions issued by the Directorate of Income Tax (HRD) dated 03.08.2016. It is submitted by Ms. Bhatt, learned advocate for the respondent authority that while fixing the seniority list in the cadre of IIT, pursuant to the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra), the Page 14 of 41 C/SCA/3212/2018 CAV JUDGMENT respondent authorities had taken financial year i.e. April to 31 st March as vacancy year as well as Recruitment Year.
6.2. It is submitted that as the Central Government received several representations, the matter was referred to the Department of Personnel & Training being the apex body for the Central Government departments. The CBDT sought clarification from the DoPT on account of the situation arose in different set of situations which can be summarized as under:
I.The CGLE2009 could not be taken in the year 2009. Therefore, the vacancies of 2009 and 2010 were combined for the examination to be taken in the year 2010. The SSC conducted the CGLE 2010 (one examination) for both the vacancy years 2009 and 2010.
II.The cutoff date for eligibility was 2.3.2010. Therefore, the candidate who was eligible to appear in the examination 2010 may not be eligible to appear in the year 2009.
III.The SSC published a combined list based on the merits of the candidates.
IV.The CGLE is being taken by independent body i.e. SSC. The candidates appearing for such exams are huge in number (in lakhs). No details are available with the respondents with regard to the candidates who had applied and appeared for CGLE 2010.
Thus, it was impossible to segregate the vacancies of the year 2009 and 2010.
6.3. It is submitted that keeping in view the aforementioned circumstances, DoPT gave clarification. It is submitted that Page 15 of 41 C/SCA/3212/2018 CAV JUDGMENT therefore the clarification of DoPT cannot be said to be contrary to the decision of the Apex Court in the case of N.R.Parmar (supra) as the facts in that case were quite different.
6.4. It is further submitted that the Department has acted as per the instructions received under clarification dated 17.01.2018, which is in consonance with the OM dated 03.07.1986. Therefore, the Department prays for dismissal of the petition on merits. It is additionally prayed that in view of this Court taking decision, pending proceedings before the Central Administrative Tribunal, Ahmedabad Bench in OA No.33 of 2018 may also be terminated and the interim relief granted may be vacated.
7.0. Present petition is vehemently opposed by Shri Nikhil Kariel, learned advocate for the respondent nos. 7 to 14 and Shri R.N. Singh, learned advocate for the respondent nos. 5 and 6.
7.1. Shri Nikhil Kariel, learned advocate for the respondent nos. 7 to 14 has vehemently submitted that in the facts and circumstances of the case the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) which has been heavily relied upon by the petitioners shall not be applicable to the facts of the case on hand.
7.2. It is further submitted by Shri Nikhil Kariel, learned advocate for the respondent nos. 7 to 14 that though there had been requisition of vacancy in the year 2009 by the concerned authority, however, no advertisement was issued with regard to any Combined Graduate Level Examination and no examination was Page 16 of 41 C/SCA/3212/2018 CAV JUDGMENT held in the year 2009. It is submitted that therefore, there is no legal basis for the petitioner to be considered for the vacancies of 2009 especially considering the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra). It is submitted that Hon'ble Supreme Court in the case of N R Parmar (supra) had based the reckoning of Seniority of Direct Recruits on two distinct milestones in the recruitment process being the date of requisition of vacancies and the date of advertisement of examination. It is submitted that the fact that both of the aforesaid milestones must be met is made clear by the fact that the Hon'ble Supreme Court had arrived at the above formula based on equity. As the direct recruits for whom the requisition of vacancies and advertisement are issued in one year, the Recruitment is held in a subsequent following year and the said direct recruits are appointed in a later year. It is submitted that thus to ensure that the direct recruits do not suffer on account of any delay on the part of the administration, hence, such a solution was arrived at. It is submitted that one crucial aspect to be observed therein is that the Hon'ble Supreme Court's decision in the case of N R Parmar (supra) is clear with regard to the finding that the entire aforesaid process must be related to a single Recruitment Year and there is no sign in the aforesaid decision that the Hon'ble Supreme Court intended that the ratio of the aforesaid should be made applicable to cases where even the advertisement of examination is absent in the year to which the petitioner presently clam seniority. It is submitted that therefore, the reliance placed upon the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) by the learned counsel for the petitioners is absolutely misplaced and misguided.
Page 17 of 41 C/SCA/3212/2018 CAV JUDGMENT7.3. It is further submitted that it is required to be noted that the respondent department has established practice wherein vacancy year are reckoned as per financial year and Recruitment Year are reckoned as per the calender year.
7.4. It is further submitted by Shri Nikhil Kariel, learned advocate for the respondent nos. 7 to 14 that earlier communication intimating the vacancy of year 2009 refers to Combined Graduate Level Examination 2009 and thus the same can be said to be for the intended CGLE that did not take place in 2009. It is submitted that however subsequent communication which deals with the vacancy, the same is referred to as Vacancies for 200910. It is submitted that reasons why both 2009 and 2010 are mentioned is on account of the fact that the same were Combined Vacancies of 2 years and in no way can the said communication be said to be intimating of vacancies of solely 2009. It is submitted that thus intimation of vacancies at Annexure B is not for 2009 but rather 2009/ 2010 being combined vacancies.
7.5. Now, so far as the submission on behalf of the petitioner that document at Annexure C (Page 34) was being advertisement for CGLE 2010 was in fact for Vacancies of 2009 as the cut off date is given as 2.3.2010, which falls within the financial year 200910 is concerned, it is submitted that the said document is participated in the CGLE 2010 and hence since it is coming under the realm of recruitment, the said document has to be considered as referring to a Calender year which then would raise serious doubts on the proposition advanced by the petitioners that the advertisement was Page 18 of 41 C/SCA/3212/2018 CAV JUDGMENT in fact in reference to vacancies of 2009 alone.
7.6. It is further submitted by Shri Nikhil Kariel, learned advocate for the respondent nos. 7 to 14 that in the present case as there was no advertisement in the year 2009 for vacancies of 2009 and neither was any exam held in 2009, it cannot be said that the petitioners who are direct recruits can claim any equity under the decision of the Hon'ble Supreme Court as misconceived in N R Parmar case singularly as there was no advertisement in the year 2009.
7.7. It is further submitted by Shri Nikhil Kariel, learned advocate for the respondent nos. 7 to 14 that even otherwise those candidates who in fact were not eligible for the vacancy of 2009 cannot claim the seniority with the promotees who were promoted against the vacancy occurred in 2009.
Making above submissions, it is requested to dismiss the present petition.
8.0. Shri R.N. Singh, learned advocate for the respondent no. 5 and 6 has adopted the submission made by Shri Nikhil Kariel, learned advocate for the respondent nos. 15 to 15.
8.1. It is further submitted by the Singh, learned advocate for the respondent nos. 5 an 6 that if some of the candidates selected from CGLE, 2010 are given seniority in the year 200910 on the basis of relative merit then DoPT's OM dated 22.12.1959 becomes operational wherein there was provision for assigning seniority in Page 19 of 41 C/SCA/3212/2018 CAV JUDGMENT the year in which the vacancies arise. However, this practice has been reformed by the DoPT vide paras2 and 3 of its OM dated 07.02.1986 and para2.4.2 of consolidated OM dated 03.07.1986 and introduced carrying forward of the unfilled vacancies to the subsequent years.
8.2. It is further submitted that if the candidates selected through CGLE, 2010 are awarded seniority of recruitment year 200910, para6 DoPT OM dated 22.11.1959 will become operative and modified OM dated 07.02.1986 and 03.07.1986 become infractuous, which is in contradiction to the decision of the decision of the Apex Court in the case of N.R.Parmar (supra).
8.3. It is further submitted by Shri Singh, learned advocate for the respondent nos. 5 an 6 that out of 72 candidates selected through CGLE, 2010 include 35 carried forward vacancies of recruitment year 200910 and 11 backlog vacancies of earlier years. Hence, the facts are not identical because the Supreme Court's order in the case of N.R.Parmar (supra) dealt with fixation of seniority of regular vacancies and not for carried forward vacancies, which has been specified in para33 of the Supreme Court's order that "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". Therefore, the question of splitting of seniority was not dealt with in the said para. Here the issue is related to fixing of seniority of carry forward vacancies of direct recruit Inspectors, which is discussed in para21 of Supreme Court order read with para2.4.2 Page 20 of 41 C/SCA/3212/2018 CAV JUDGMENT of DoPT OM dated 03.07.1986.
8.4. It is further submitted by Shri Singh, learned advocate for the respondent nos. 5 an 6 that even though as per para23 (a) and
(b) of the decision in the case of N.R.Parmar (supra), the initiation of action for recruitment for recruitment year 200910 was started on 21.01.2010 by sending requisition to Staff Selection Commission for 35 vacancies for recruitment year 200910 and 11 backlog vacancies on 21.01.2010, no recruitment was conducted nor any candidates were selected against the said requisition as the CGLE, 2009 was never conducted by the SSC. Hence, the said selection process cannot be said to be said to be completed and the question of granting seniority for recruitment year 200910 does not arise. Thus, 35 vacancies and 9 backlog vacancies were carried forward as per para2.4.2 of OM dated 03.07.1986. Again combined requisition was sent by CBDT on 30.07.2010 and through CGLE, 2010 72 candidates were recruited including the carried forward vacancies. Thus, the seniority of 72 direct recruit Inspectors selected through CGLE, 2010 is rightly fixed in recruitment year 201011 as per the latest clarification of DoPT dated 11.12.2017 read with para2.4.2 of OM dated 03.07.1986. As mentioned in the letter dated 17.01.2018, communicating clarification dated 11.12.2017 of DoPT (AnnexureL to the petition), regarding fixation of seniority of direct recruit Inspectors selected through CGLE, 2010 in Central Secretariat Division too. It is also mentioned in para4 of the said letter that Staff Selection Commission has furnished a consolidated list of candidates for 2009 and 2010 vacancies on the basis of CGLE, 2010 for which Page 21 of 41 C/SCA/3212/2018 CAV JUDGMENT crucial date for eligibility has been checked as on 02.03.2010. Had CGLE, 2009 been held the cutoff date for checking eligibility for age, etc. would have been different. Hence, it is not possible to segregate two seniority lists for 2009 and 2010 based on rankings obtained in CGLE, 2010.
Making above submissions, it is requested to dismiss the present petition, 9.0. Shri Vora, learned advocate for the petitioner and Ms. Soni, learned advocate for the respondent nos. 15 to 25 havefairly conceded that only those direct recruits who were as such eligible in the year 2009 for the vacancies of year 2009 their seniority is required to be interspaced between the direct recruits who were eligible and the promotees who were promoted against vacancy of 2009.
10. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that by way of present petition the respective petitioner as well as respondent nos. 15 to 25 have as such prayed to quash and set aside the clarification dated 17.01.2018 which as such is in the form of clarificatory in nature, by which, it is observed / clarified that relevant seniority list of all direct recruits shall be determined by the order or merit in which they are selected for such appointment on the recommendations of UPSC or other selecting authority, persons appointed as a result of earlier selection being senior to those appointed as a result of subsequent selection. The petitioners Page 22 of 41 C/SCA/3212/2018 CAV JUDGMENT and respondent nos. 15 to 25 have also prayed to quash and set aside the modified seniority list dated 13.02.2018 which has been subsequently modified on the basis of clarification dated 17.01.2018 and have prayed to restore the seniority list dated 7.9.2016. At the outset, it is required to be noted that earlier, the seniority list dated 7.9.2016 was finalized following the decision of the Hon'ble Supreme Court in the case of N R Parmar (Supra) and those direct recruits who were selected and appointed subsequently in the year 2010 against the vacancies of the year 2009 were directed to be placed in seniority list against the vacancy which had occurred and notified in the year 2009, which as such was absolutely in line with the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra). However, subsequently on the basis of impugned clarification / clarificatory instruction dated 17.01.2018 the aforesaid finalized seniority list dated 7.9.2016 has been modified and all those direct recruits appointed in the year 2010 are placed in seniority list treating them belonging to recruitment year 2010 irrespective of notified vacancy of direct recruits for and in the year 2009.
11. While considering the issue involved in the present petition, few facts are required to be considered and noted, which are as under:
(1). That the post of Income Tax Inspectors are required to be filled in by promotion as well as direct recruits, as per the ratio prescribed for direct recruits and the promotees. (2). That as per the Recruitment Rules with respect to the recruitment year 200910, as per the Departmental Promotional Page 23 of 41 C/SCA/3212/2018 CAV JUDGMENT Quota 53 posts were required to be filled in by the promotion from Ministerial Staff and 35 posts were required to be filled in by direct recruits. That the DPC completed the recruitment process for filling up the post of Inspectors by way of promotion from Ministerial Staff for the Recruitment Year 200910 on 29.06.2009 and 53 promotees came to be promoted as Inspectors from Ministerial Staff. Therefore, all the posts which were required to be filled in by way of promotion came to be filled in by the DPC of Recruitment Year 200910;
(3). That, CCIT (CCA), Ahmedabad office vide communication dated 21.01.2010 communicated the vacancy of 35 direct recruits Inspectors (for recruitment year 200910) and 11 carry forwarded direct recruits Inspectors vacancy to CBDT. (4). That CBDT notified 482 vacancies through Staff Selection Commission, to be recruited from Combined Graduate Level Examination - CGLE 200910 on 21.01.2010, which included (35 + 11) direct recruit vacancies reported by CCIT (CCA), Gujarat Ahmedabad office. The Staff Selection Commission published advertisement for CGLE on 30.01.2010. However, for whatever reasons the post of direct recruits Inspectors for 200910 could not be filled in though the same were notified in the recruitment year 200910 itself. Subsequently, CCIT(CCA), Ahmedabad office vide communication dated 03.08.2010 communicated the vacancy of 74 direct recruits Inspectors' vacancy to CBDT, which included 35 direct recruits vacancies for recruitment year 200910, 28 direct recruits vacancies for recruitment year 201011 and 11 direct recruits, Backlog / Shortfall vacancies for recruitment year 2009 10, in response to CBDT letter dated 30.07.2010;Page 24 of 41 C/SCA/3212/2018 CAV JUDGMENT
(5). That the Staff Selection Commission declared final results of the Combined Examination for the vacancy for recruitment year 200910 and 201011 as well as carry forwarded backlog / shortfall vacancies for recruitment year 200910 and recommended 822 candidates to the CBDT for appointment to the post of Income Tax Inspectors out of which 72 candidates were allocated to Ahmedabad charge.
(6). That all the petitioners and respondent nos. 15 to 25 were interspaced in the seniority list with the 53 promotees promoted vide DPC dated 29.06.2009 considering the vacancy notified in the recruitment year 200910 and their final seniority list came to be published on 7.9.2016.
(7). That thereafter by impugned clarification dated 17.01.2018, the petitioners and the respondent nos. 15 to 25 are placed in 2010 cadre and the earlier seniority list dated 7.9.2016 has been modified and that too without giving any opportunity to the affected persons like petitioners and the respondent nos. 15 to 25.
11.1 At this stage, it is required to be noted that earlier seniority list dated 7.9.2016 was finalized and the petitioners and respondent nos. 15 to 25 were interspaced with the 53 promotees promoted vide DPC dated 29.06.2009 considering the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra).
11.2. Therefore, while considering the issue involved in the present petition visavis facts narrated herein above, the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) which has been heavily relied upon by the learned counsel for the Page 25 of 41 C/SCA/3212/2018 CAV JUDGMENT petitioners as well as learned counsel for the respondent nos. 15 to 25 is required to be considered.
In the case of N R Parmar (supra), the Hon'ble Supreme Court had considered the earlier OM's dated 22.11.1959, 07.02.1986 and 03.07.1986. The reference of the same are required to be considered in detail as under.
12.0. As such identical question case came to be considered by the Hon'ble Supreme Court in the case of N R Parmar (supra). In the case before the Hon'ble Supreme Court, the vacancies for the year 199394 which were identified to be filled up by way of promotion were referred to the DPC, whereas, those identified to be filled up by direct recruitment, were simultaneously referred to the Staff Selection Commission. Based on the recommendation made by the DPC, the promotions were ordered against the promoted vacancy, identified for the year 199394. On the receipt of a requisition pertaining to the post of Income Tax Inspectors from the Income Tax Department, the SSC issued advertisements in May/June, 1993, inviting applications for appointment by way of direct recruitment, against vacancies of Income Tax Inspectors of the year 1993. The SSC held the examination. All those who were successful in written test conducted by the SSC in December 1993, those who were qualified the written examination, were invited for an interview/vivavoce. The SSC declared the results of Inspectors and thereafter all those who were eligible were appointed as Income Tax Inspectors and all of them joined the cadre of Income Tax Inspectors between March and May, 1995. It appears that in the interregnum, some promotee Income Tax Inspectors were Page 26 of 41 C/SCA/3212/2018 CAV JUDGMENT promoted to the next higher post of Income Tax Officer. Certain direct recruits who considered themselves senior to the promoted Income Tax Officers, approached the CAT, Principal Bench, seeking consideration for promotion to the cadre of Income Tax Officers, from the date their juniors were promoted as such. That CAT, Principal Bench set aside the seniority list dated 8.2.1999 by holding as under:
"8. In our judgment, for deciding the aforesaid controversy a reference to the office memorandum of 7.2.1986 may usefully be made. In the earlier O.M. it has inter alia been provided as under:
.....the relative seniority of direct recruits and promotees shall be determined according to rotation of vacancies between the direct recruits and the promotees, which will be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules...... ..........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 the purpose of determining seniority would take place 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 bunched together at the bottom of the seniority list below the last position upto which it is possible to determine seniority, on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct 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 the year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for the year, the additional direct recruits selected against the carried forward vacancies of the Page 27 of 41 C/SCA/3212/2018 CAV JUDGMENT previous year would be placed on en bloc below the last promotee for direct recruit (as the case may be), in the seniority list based on the rotation of vacancies for the year. The same principle holds good for 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.
ILLUSTRATION:
Where the Recruitment Rules provide 50% of the vacancies of grade to be filled by promotion and the remaining 50% by direct recruitment, and assuming there are ten vacancies in the grade arising in each of the years 1986 and 1987 and that two vacancies intended for direct recruitment, remain unfilled during 1986 and they could be filled during 1987. The seniority position of the promotees and direct recruits of these two years will be as under:
1986 1987
1. P1 9. P1
2. D1 10. D1
3. P2 11. P2
4. D2 12. D2
5. P3 13. P3
6. D3 14. D3
7. P4 15. P4
8. P5 16. D4
17. P5
18. D5
19. D6
20. D7
It is not necessary to make a reference to the subsequent office memorandum of 3.7.1986 as the same is nothing but a repetition of the instructions contained in the office memorandum dated 7.2.1986.
9. We have heard the learned counsel appearing for the contending parties at considerable length and we are of the view that as far as inter se seniority is concerned, the same has to be based on the vacancies arising for a particular year. Thereafter, the seniority has to be determined on the basis of rota quota rule which has been illustrated in the aforesaid illustration contained in the O.M. of 7.2.1986. As far as direct recruits are concerned, the crucial date on which they have to be considered will be the date when the Page 28 of 41 C/SCA/3212/2018 CAV JUDGMENT Staff Selection Commission makes the selection of direct recruits. Hence the date of forwarding the dossier of direct recruits by the Commission to the department, date of actual joining or taking over charge by the direct recruit would all be irrelevant. It would be the date on which the Staff Selection Commission makes the selection of the direct recruits that will be the material date for fixing the seniority. This would avoid injustice being done on account of administrative delays, i.e., delay in matter of issue of orders of appointment and posting and of actual taking over of charge. Similar will be the position in regard to promotees. It will be the date on which the promotee is selected for promotion by the departmental promotion committee. Hence the date on which the promotee actually assumes charge of the promotional post similarly will be relevant. The seniority list which is impugned in the present proceedings, it appears, has not followed the instructions which we are not issuing in the present order.
10. In the circumstances, the said seniority list is hereby quashed and set aside. Respondent no.3 is directed to recast the seniority list on the basis of directions contained in this order. The present order will also apply to seniority list of UDCs which is the subject matter of OA No.676/1999.
11. All the OAs stand disposed of on the above lines. There shall, however, be no order as to costs."
12.1. That the matter was carried before the Delhi High Court, the High Court remanded the matter to the CAT, Principal Bench. Ultimately, the matter went to the Hon'ble Supreme Court.
Before the Hon'ble Supreme Court, learned counsel for the rival parties agreed during the course of hearing that the seniority dispute between the promotee and direct recruit Income Tax Inspectors of the Income Tax Department was liable to be determined on the basis of office memoranda dated 7.2.1986 and 3.7.1986, read with the clarificatory office memoranda and office notes. Therefore, the Hon'ble Supreme Court observed that the Page 29 of 41 C/SCA/3212/2018 CAV JUDGMENT dispute between the rival parties is nothing but, the true and correct interpretation of the office memoranda dated 7.2.1986 and 3.7.1986, read with clarificatory office memoranda and office notes. That thereafter, the Hon'ble Supreme Court has considered the OM dated 7.2.1986 as well as 3.7.1986 and while considering the OM dated 7.2.1986, the Hon'ble Supreme Court concluded on the OM dated 7.2.1986 in para 26 to 26.8, is as under:
"26. Since the OM dated 7.2.1986 would primarily constitute the determination of the present controversy, it is considered just and appropriate to render an analysis thereof. The following conclusions are apparent to us, from a close examination of the OM dated 7.2.1986:
26.1.Paragraph 2 of the OM dated 7.2.1986 first records the existing manner of determining inter se seniority between direct recruits and promotees (i.e., as contemplated by the OM dated 22.11.1959), namely, "...the slots meant for direct recruits or promotees, which could not be filled up, were left vacant, and when direct recruits or promotees become available through later examinations or selections, such persons occupied the vacant slots, (and) thereby became senior to persons who were already working in the grade on regular basis. In some cases, where there was shortfall in direct recruitment in two or more consecutive years, this resulted in direct recruits of later years taking seniority over some of the promotees with fairly long years of regular service to their credit....".
The words, "when direct recruits or promotees become available through later examination or selections", clearly connotes, that the situation contemplated is one where, there has been an earlier examination or selection, and is then followed by a "later" examination or selection. It is implicit, that in the earlier examination or selection there was a shortfall, in as much as, the available vacancies for the concerned recruitment year could not all be filled up, whereupon, further examination(s) or selection(s) had to be conducted to make up for the shortfall. In the instant situation, the earlier OM dated 22.11.1959 contemplated/provided, that slots allotted to a prescribed Page 30 of 41 C/SCA/3212/2018 CAV JUDGMENT source of recruitment which remained vacant, would be filled up only from the source for which the vacancy was reserved, irrespective of the fact that a candidate from the source in question became available in the next process of examination or selection, or even thereafter. In other words the "rotation of quotas" principle was given effect to in letter and spirit under the OM dated 22.11.1959, without any scope of relaxation. 26.2. The position expressed in the subparagraph (a) above, was sought to be modified by the OM dated 7.2.1986, by providing in paragraph 3 thereof, that the earlier "...principle of rotation of quotas would still be followed for determining the inter se seniority of direct recruits and promotees..." except when the direct recruit vacancies were being "... filled up by direct recruits of later years...". Read in conjunction with paragraph 2 of the OM dated 7.2.1986, the words "...direct recruits of later years..." must be understood to mean, direct recruits who became available through "later" examination(s) or selection(s). Essentially the "later" examination(s) or selection(s) should be perceived as those conducted to fill up the carried forward vacancies, i.e., vacancies which could not be filled up, when the examination or selection for the concerned recruitment year was originally/ first conducted. This change it was clarified, was made to stop direct recruits of "later" years, from gaining "...unintended seniority over promotees who are already in position...", as High Courts and the Supreme Court had "...brought out the inappropriateness..." thereof. It is therefore apparent, that the OM dated 7.2.1986 partially modified the "rotation of quotas"
principle in the determination of inter se seniority originally expressed in the OM dated 22.11.1959. The OM dated 7.2.1986, provided that the "rota" (rotation of quotas) would be adhered to "...only to the extent of available direct recruits and promotees...", i.e., for promotee and direct recruit vacancies which could be filled up through the original/first process of examination or selection conducted for the recruitment year in which the vacancies had arisen. 26.3. For the vacancies remaining unfilled when the same were originally/first sought to be filled up, the slots available under the "rota" principle under the OM dated 22.11.1959, would be lost to the extent of the shortfall. In other words, the "rotation of quotas" principle would stop operating after, "... the last position upto which it is (was) possible to determine seniority on the basis of rotation of quotas...", for the concerned recruitment year.
26.4. Paragraph 3 of the OM dated 7.2.1986 provided, the manner of assigning seniority to vacancies carried forward on Page 31 of 41 C/SCA/3212/2018 CAV JUDGMENT account of their having remained unfilled in the original/first examination or selection process. The change contemplated in the OM dated 7.2.1986, referred to hereinabove, was made absolutely unambiguous by expressing that, "The unfilled direct quota vacancies would ...be carried forwarded and added to the corresponding direct recruitment vacancies of the next year.....". It is therefore apparent, that seniority of carried forward vacancies would be determined with reference to vacancies of the recruitment year wherein their selection was made, i.e., for which the "later" examination or selection was conducted.
26.5. The OM dated 7.2.1986 formulated the stratagem to be followed, where adequate number of vacancies in a recruitment year could not be filled up, through the examination or selection conducted therefor. The OM provided, "...to the extent direct recruits are not available, the promotees will be bunched together at the bottom of the seniority list, below the last position upto which it is (was) possible to determine the seniority on the basis of rotation of quotas with reference to the actual number of direct recruits who become available...".
26.6. Paragraph 3 of the OM dated 7.2.1986 further postulated, that the modification contemplated therein would be applied prospectively, and that, "...the present practice of keeping vacant slots for being filled up by direct recruits of later years, ...over promotees who are (were) already in position, would be dispensed with...". It is therefore apparent, that the slots assigned to a particular source of recruitment, would be relevant for determining inter se seniority between promotees and direct recruits, to the extent the vacancies could successfully be filled up (and the unfilled slots would be lost) only for vacancies which arose after the OM dated 7.2.1986, came to be issued.
26.7. The illustration provided in paragraph 3 of the OM dated 7.2.1986 fully substantiates the analysis of the OM dated 7.2.1986 recorded in the foregoing subparagraphs. In fact, the conclusions drawn in the foregoing subparagraphs have been drawn, keeping in mind the explanatory illustration narrated in paragraph 3 of the OM dated 7.2.1986. 26.8. In paragraph 6 of the OM dated 7.2.1986 it was asserted, that the general principles for determining seniority in the OM dated 22.11.1959 were being "modified" to the extent expressed (in the OM dated 7.2.1986). The extent of modification contemplated by the OM dated 7.2.1986 has already been delineated in the foregoing subparagraphs. Para 6 therefore leaves no room for any doubt, that the OM dated Page 32 of 41 C/SCA/3212/2018 CAV JUDGMENT 22.11.1959 stood "amended" by the OM dated 7.2.1986 on the issue of determination of inter se seniority between direct recruits and promotees, to the extent mentioned in the preceding subparagraphs. The said amendment was consciously carried out by the Department of Personnel and Training, with the object of remedying the inappropriateness of direct recruits of "later" examination(s) or selection(s) becoming senior to promotees with long years of service, in terms of the OM dated 22.11.1959."
12.2. That thereafter, the Hon'ble Supreme Court has considered the OM dated 03.07.1986 and drawn following conclusions with respect to the OM dated 03.07.1986 in para 28.1 to 28.4, as under:
"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 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 enbloc below the last promotee. And vice versa."
12.3. The Hon'ble Supreme Court has also further observed that Page 33 of 41 C/SCA/3212/2018 CAV JUDGMENT position expressed in the O.Ms. dated 7.2.1986 and 3.7.1986, on the subject of inter se seniority between direct recruits and promotees, was absolutely identical. The Hon'ble Supreme Court has further observed that OM dated 3.7.1986 was only meant to "consolidate" existing governmental instructions, on the subject of seniority. That thereafter, the Hon'ble Supreme Court considered the OM dated 20.12.1999 and analyzed the same in para 34, as under:
"34.1. If the process of recruitment has been initiated during the recruitment year (in which the vacancies have arisen) itself, even if the examination for the said recruitment is held in a subsequent year, and the result is declared in a year later (than the one in which the examination was held), and the selected candidates joined in a further later year (than the one in which the result was declared), the selected candidates will be entitled to be assigned seniority, with reference to the recruitment year (in which the requisition of vacancies was made). The logic and reasoning for the aforesaid conclusion (expressed in the ON dated 2.2.2000) is, if the process of direct recruitment is initiated in the recruitment year itself, the selected candidate(s) cannot be blamed for the administrative delay, in completing the process of selection.
34.2. The words "initiation of action for recruitment", and the words "initiation of recruitment process", were explained to mean, the date of sending the requisition to the recruiting authority."
12.4. However, another OM dated 3.3.2008 which was pressed into service by promotees, also fell for consideration by the Hon'ble Supreme Court. The OM dated 3.3.2008 is required to be reproduced as the same can be said to be paramateria to impugned clarification dated 17.01.2018, which reads as under:
"New Delhi, dated the 3rd March, 2008 Page 34 of 41 C/SCA/3212/2018 CAV JUDGMENT OFFICE MEMORANDUM Subject:Consolidated instructions on seniority contained in DOP&T O.M.No.22011/7/1986Estt. (D)dated 3.7.1986 Clarification regarding The undersigned is directed to refer to this Department's consolidated instructions contained in O.M. No.22011/7/1986Estt.(D) dated 3.7.1986 laying down the principles on determination of seniority of persons appointed to services/posts under the Central Government.
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 and of promotees 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. 2.4.2 If adequate number of direct recruits does not become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of available direct recruits and the promotees.
3. Some references have been received seeking clarifications regarding the term 'available' used in the preceding para of the OM dated 3.7.1986. It is hereby clarified that while the interse seniority of direct recruits and promotees is to be fixed on the basis of the rotation of quota of vacancies, the year of availability, both in the 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 preappointment 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 (viz. year of vacancy/panel or year in which recruitment process is initiated) but should get the seniority of the year in which they are appointed on substantive basis. The Page 35 of 41 C/SCA/3212/2018 CAV JUDGMENT year of availability will be the vacancy year in which a candidate of the particular batch of selected direct recruits or an officer of the particular batch of promotees joins the post/service.
4. Cases of seniority already decided with reference to any other interpretation of the term 'available' as contained in O.M. dated 3.7.1986 need not be reopened.
5. Hindi version will follow.
Sd/ Director (Estt.I)"
12.5. At this stage, it is required to be noted that the said OM dated
3.3.2008 has been held / considered to be in the nature of clarification to the earlier consolidated instructions on seniority, contained in the OM dated 3.7.1986. That thereafter, the Hon'ble Supreme Court has considered the effect of the OM dated 3.3.2008 on the subject of interse seniority between direct recruits and the promotees. While considering the aforesaid, the Hon'ble Supreme Court framed the following question:
"(i). Would the OM dated 3.3.2008 supersede the earlier OMs dated 7.2.1986 and/or 3.7.1986?
(ii). 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)?"
12.6. Thereafter, the Hon'ble Supreme Court has observed and held that a perusal of OM dated 3.3.2008, however reveals, that it was not the intention of the Department of Personnel and Training to alter the manner of determining interse seniority between promotees and direct recruits, as had been expressed in the OMs dated 7.2.1986 and 3.7.1986. The intention was only to "clarify"
Page 36 of 41 C/SCA/3212/2018 CAV JUDGMENTthe earlier OM dated 3.7.1986 (which would implicitly include the OM dated 7.2.1986). It was further observed that OM dated 3.3.2008 has clearly breached the parameters and the ingredients of a "clarification". The Hon'ble Supreme Court has further observed that therefore, for all intents and purposes the OM dated 3.3.2008, must be deemed to be nonest to the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. The Hon'ble Supreme Court has further observed that OMs dated 7.2.1986 and 3.7.1986 would have an overriding effect over the OM dated 3.3.2008 (to the extent of conflict between them).and the OM dated 3.3.2008 has to be ignored/omitted to the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. That thereafter, the Hon'ble Supreme Court concluded in para 52 as under:
"52. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraphs 25 and 29 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 interse 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 Page 37 of 41 C/SCA/3212/2018 CAV JUDGMENT 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."
12.7. Applying law laid down by the Hon'ble Supreme Court in the case of N.R. Parmar (supra) to the facts of the case on hand and by applying OM's dated 07.02,1986 and 03.07.1986, when in the present case 35 + 11 posts meant for direct recruits were notified and sent to the CBDT which were made for the recruitment year 200910 itself and even CBDT notified the 482 vacancies SSC to be recruited for CGLE 200910, which included (35 + 11) direct recruit vacancies reported by CCIT (CCA), Gujarat Ahmedabad office and the same could not be filled in by the department for whatever reasons for which such direct recruits were not at all responsible and all those direct recruits vacancies were filled in, in the subsequent year, we are of the opinion that the decision of the Hon'ble Supreme Court in the case of N R Parmar (Supra) shall be applicable with full force. It is not the case on behalf of the department that all those vacancies which were fallen vacant in the year 200910 could not be filled in because eligible candidates were not available and therefore they were unfilled and they were required to be carry forwarded because of non availability of direct recruits. Therefore, considering the conclusion drawn by the Hon'ble Supreme Court on the OMs dated 07.02,1986, 03.07.1986 and OM dated 2.2.2000, by which, it is observed that, (i) it is not necessary that the direct recruits for vacancies of a particular recruitment year, should join within the recruitment year (during which the vacancies had arisen) itself; (ii) as such, the date of Page 38 of 41 C/SCA/3212/2018 CAV JUDGMENT joining would not be a relevant factor for determining seniority of direct recruits; (iii) it would suffice if action has been initiated for direct recruit vacancies, within the recruitment year in which the vacancies had become available; (iv) if the process of recruitment has been initiated during the recruitment year (in which the vacancies have arisen) itself, even if the examination for the said recruitment is held in a subsequent year, and the result is declared in a year later (than the one in which the examination was held), and the selected candidates join in a further later year (than the one in which the result was declared), the selected candidates will be entitled to be assigned seniority, with reference to the recruitment year (in which the requisition of vacancies was made). The Hon'ble Supreme Court has further observed that if the process of direct recruitment is initiated in the recruitment year itself, the selected candidate(s) cannot be blamed for the administrative delay in completing the process of selection. It is further observed in para 31.2 in the case of N R Parmar (supra) that the delay in administrative action, could not deprive an individual of his due seniority and initiation of action for recruitment within the recruitment year would be sufficient to assign seniority to the concerned appointees in terms of the "rotation of quotas" principle, so as to arrange them with other appointees (from the alternative source), for vacancies of the same recruitment year. Thus, impugned clarification dated 17.01.2018 is absolutely contrary to the law laid down by the Hon'ble Supreme Court in the case of N R Parmar (supra) as well as contrary to the earlier OM's dated 07.02,1986, 03.07.1986 and ON dated 2.2.2000. At this stage, it is required to be noted that similar clarification contained in the OM Page 39 of 41 C/SCA/3212/2018 CAV JUDGMENT dated 03.03.2008 is held to be contrary to the OM's dated 07.02,1986 and 03.07.1986 and it is held that the same is to be ignored / omitted. Despite the above, again present clarification has been issued which is even termed and considered as clarificatory in nature. As held by the Hon'ble Supreme Court in the case of N R Parmar (supra) clarificatory OM cannot substitute the original OM's dated 07.02,1986 and 03.07.1986. Under the circumstances, the impugned clarification dated 17.01.2018 and consequent modified seniority list dated 13.02.2018 cannot be sustained and same deserves to be quashed and set aside and the earlier seniority list dated 07.09.2016 which was absolutely as per the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) is required to be restored, however with a clarification that only those direct recruits who were qualified and / or eligible in the recruitment year 200910 shall be intespaced with 53 promotees promoted vide DPC dated 29.06.2009 in the seniority list.
13.0. At this stage, it is required to be noted that Patna High Court in the case of Parsum Jumar Jha s/o Arbind Kumar Jha (supra) in the similar set of facts and after following the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra), has directed to restore the seniority list dated 29.07.2016 (similar to seniority list dated 07.09.2016 in the present case) where seniority was given to direct recruits of 200910.
14.0. Even otherwise, the modified seniority list dated 13.02.2018, modifying the earlier seniority list dated 07.09.2016 cannot be Page 40 of 41 C/SCA/3212/2018 CAV JUDGMENT sustained and the same deserves to be quashed and set aside on the ground that the same is in breach of principles of natural justice. Earlier, the seniority list dated 07.09.2016, was a finalized seniority list and therefore, the same could not have been modified subsequently and that too, without giving any opportunity to the affected persons like the petitioners and respondents Nos.15 to 25.
15.0. In view of the above and for the reasons stated above, present petition succeeds. The impugned clarification dated 17.01.2018 which as such is in the nature of clarification has to be ignored / omitted to the extent same is in derogation of the earlier OM's dated 07.02,1986 and 03.07.1986. Consequently, the second modified seniority list dated 13.02.2018 is hereby quashed and set aside and seniority list dated 07.09.2016 is hereby ordered to be restored, however with a observations that only those direct recruits who as such were eligible / qualified in the recruitment year 200910 shall have to be interspaced with other 53 promotees who were promoted vide DPC dated 29.06.2009. Rule is made absolute to the aforesaid extent. No costs.
(M.R. SHAH, J) (A.Y. KOGJE, J) KAUSHIK J. RATHOD Page 41 of 41