Central Administrative Tribunal - Delhi
Mukesh Kumar vs Central Board Of Indirect Taxes A& ... on 2 May, 2024
1 OA No. 939/2023 & Batch
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 939/2023
With
CP No.34/2023
MA No.250/2024
MA No.251/2024
MA No.252/2024
MA No.2514/2024
Along with
OA No.1037/2023
OA No.1293/2023
OA No.3731/2022
Order reserved on: 15.04.2024
Order pronounced on: 02.05.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
OA No. 939/2023
1. Mukesh Kumar
Age-42 years
S/o Sh. Satish Kuma Garg
R/o H.No. 212, Sharda Niketan,
Pitampura, Delhi - 110034
2. Narendra Kumar Bharti
Son of Shri Rajendra Das
Aged about 39 years
Resident of H.No.67717, Govindpuri
Kalka Ji, New Delhi - 19
3. Manoj Kumar Yadav
Son of Sh. Ishwar Singh Yadav
Aged about 38 years
Resident of Village-Purther, P.O. Aminagar Sarai
Distt.- Baghpat, Uttar Pradesh
4. Ajeet Pratap Rao,
Son of Virendra Rao
Aged about 38 years
Resident of Qtr No. 506, Type-II, NH-1,
Faridabad
2 OA No. 939/2023 & Batch
5. Ms. Mannu Singh,
Aged 40 years,
D/o Randhir Singh
Address - WZ 316, St No17,
Shiv Nagar, New Delhi 110058
6. Radhe Shyam
Son of Sh. Lal Mahendra Sharma
Aged about 38 years
Resident of 91812, Street No. 28,
'B' Block, Sant Nagar,
Burari, Delhi - 110084
7. Shiv Prakash Tiwari
Son of Sh. Ram Naresh Tiwari
Aged about 34 years
Resident of M1/14, 1st Floor,
Sector - 83, Faridabad
8. Ravi Kumar
Son of Shri Trillok chand
Aged about 42 years
Resident of 113, block m-1, Govt. Flats,
Dev Nagar, Karol Bagh
New Delhi -110005
9. Ram Murat Patel
Son of Shri. R.K. Patel
Aged about 37 years
Resident of 506, MM-1, Sector-4,
Vaishali, Ghaziabad,
Uttar Pradesh - 201010
10. Sushil Kumar Mainwal
Son of Sh. Raj Kumar
Aged about 42 years
Resident of H.N.333/3,
F-Type, Andrews Ganj
New Delhi
11. Anand Kumar Singh,
Son of Sh. Om Prakash Singh
Aged about 33 years
Resident of Qtr No. 841,
2nd Floor, Pushp Vihar
Sector-5, Saket,
New Delhi
3 OA No. 939/2023 & Batch
12. Dev Shankar Singh
Son of Sh. Bheem Bahadur Singh Thapa,
Aged about 45 years
Resident of L-2/123A, LIG, DDA Flats,
Kalkaji, New Delhi - 110019
13. Anil Datt Pal,
Aged about 44 years
Son of Late Shri Ram Naresh Pal,
Resident of SF-2, Plot No. 7, Kh No.480-481,
Shakti Enclave, Burari - 110084
14. Shilpi Kumar
Son of Late Shri Jitendra Bhushan Pradhan
Aged about 44 years
Resident of G 1206, Corona Optus,
Sector 37 C, Gurugram
15. Aashish Tomar
Aged about 37 years
Son of Late Sh. Purushottam Prakash
Resident of F.No.181, Rosewood Apartment,
Sector - 13 A, Dwarka,
New Delhi - 110075
....Applicants
(By Advocate: Mr. Ajesh Luthra, Ms. Sriparna Chatterjee)
Versus
1. Union of India
Through Secretary
Ministry of Finance,
North Block, New Delhi - 110001
2. The Central Board of Indirect Taxes & Customs,
Through its Chairman
North Block, New Delhi - 110001
3. The Principal Commissioner
(Cadre Controlling Authority)
Delhi GST Zone,
C.R. Building, I.P. Estate,
New Delhi- 110002
4. Shri Ravi Kumar, son of Shri Satbir Singh, Aged around
32 years, resident of 1837, Sector 23
Sonipat, Haryana,
4 OA No. 939/2023 & Batch
posted in the office Delhi East CR building,
ITO New Delhi as Inspector
(S. No.1001 in the impugned Seniority list
dated 07.10.2022)
5. Shri Poojan, Son of Shri Vinod Kumar,
aged around 31 years, resident of VPO Jakholi, Dist.
Sonipat, Haryana, posted in the office ICD Patpargranj,
Delhi-110096 as Inspector
(S. No.1024 in the impugned Seniority list
dated 07.10.2022)
6. Shri Rahul Jain, son of Shri Sunil Jain, age around 33
years, resident of 97-98, Pocket-26, Sector-24, Rohini,
Delhi, posted in the office New Courier Terminal, ACC
Export, New Delhi as Inspector
(S. No.1042 in the impugned Seniority list
dated 07.10.2022)
7. Shri Ashu Jamdagni, son of Shri Mohinder Singh, age
around 30 years, resident of 103L, Model Town, Sonipat,
Haryana, posted in the office ICD Patparganj, Patparganj
Delhi-110096 as Inspector.
(S. No.1124 in the impugned Seniority list
dated 07.10.2022)
8. Shri Akshay Ahlawat, son of Shri Sahdev Ahlawat, age
around 30 years, resident of H. No.727, Village-Bhainsi,
Khatauli, Muzaffarnagar, Uttar Pradesh, posted in the
office Room No.4, Ground Floor, AE Branch,/Sector-32,
Gurugram-122001 as Inspector.
(S. No.1203 in the impugned Seniority list
dated 07.10.2022)
9. Shri Prince Porwal, son of Shri Ram Babu Porwal, age
around 30 years, resident of 504, T-9, zen spire
apartments, Ramprastha Greens, Vaishali, Ghaziabad,
U.P.-201010, posted in the office Room No.4, Ground
Floor, AE Branch,/Sector 32 Gurugram-122001 as
Inspector.
(S. No.1254 in the impugned Seniority list
dated 07.10.2022)
10. Shri Sahil Yadav, son of Shri Vishram Singh, age around
30 years, resident of D-501, Civitech Stadia, Sector 79,
Noida, posted in the office Room No. 38, North Block,
CBIC, New Delhi as Inspector.
(S. No.1301 in the impugned Seniority list
dated 07.10.2022).
5 OA No. 939/2023 & Batch
11. Shri Munna Kumar, son of Shri Umakant Yadav, age
around 30 years, resident of E-909, Rajnagar Residency,
Rajnagar Ext., Ghaziabad-201017, posted in the office
GST Bhawan, Sector-25, Panchkula, Haryana as
Inspector
(S. No.1326 in the impugned Seniority list dated
07.10.2022)
12. Shri Ranjeet Kumar, son of Shri Chet Ram, age around
40 years, resident of 11/171, Pandey Ganj, Lucknow-
226018, posted in the office GST Bhawan, Sector 25,
Panchkula-134116 as Inspector.
(S. No.1399 in the impugned Seniority list
dated 07.10.2022)
13. Shri Sahdev, son of Shri Ishwar Singh, age around 31
years, resident of LambiGali, Pana-8, VPO.-Titoli, Distt.-
Rohtak, Haryana-124001, posted in the office Room
No.170, Ist Floor, C.R. Building, I.P. Estate, New Delhi-
110002 as Inspector
(S. No.1430 in the impugned Seniority list
dated 07.10.2022)
14. Subhash Chand Tiwari son of Shri Ram Rang Tiwari,
R/o F-355, Gali No. 6, Ganga vihar Delhi-94
15. Mahavir PD Meena, S/O shri Krishan Meena,
R/o Rzb- 42, Dabri extention New Delhi-45
16. Amrendra Kumar Ojha, S/O Rajinder Ojha,
R/o 8/17 Palm Road, Shipra Sun City, Phase-2,
Indirapuram, GZB, UP
17. Arun Kumar Yadav, S/o Sh. Rajveer Singh,
R/o Flat No. 320, Gaur Heights, Sector-4, Vaishali,
Ghaziabad-201010
18. Satyam Yadav, S/o Shri Amrit Lal Yadav,
R/o Flat no.6, plot no. 298, Vaishali sector 4,
Ghaziabad -201010
19. Subhkaran Singhm, S/o Late Jamadar Singh,
R/o 379 C, sector 1, Vaishali, Ghaziabad 201010
20. Shashi Kumar Keshri, S/o Gopal Prasad Keshri,
R/o Pushp Vihar, Sector -1, 100/6,
New Delhi - 110017.
6 OA No. 939/2023 & Batch
21. Rakesh Kumar, S/o- Krishna Prasad,
R/o D/125, HIG Aprt., Pocket-c, Sector-015,
Noida-201305
22. Sanjeet Kumar Singh, S/o Sh. Ravindra Singh,
R/o - Flat No. 601, T2, Puri Pratham, Sector 84,
Faridabad, PIN - 121004
23. Yohgendra Singh Rawat,
s/o Late Shri Dhan Singh Rawat,
R/o- Village Baruwala, P.O. Badowala, Via - Doiwala,
District - Dehradun, Uttarakhand-248140
24. Balwant Singh, S/o Bhagat Singh, L-134,
Gali No.33, Sadat Pur Extension,
near Delhi Police Training Camp, New Delhi 110090
25. Naveen Kumar Singh, S/o Late Nitya Nand Singh,
R/o T.F-1 plot No.382, Vaishali Sector- 4,
Ghaziabad- 201010
26. Rajeev Ranjan , S/o Sh Lalan Prasad,
R/o 1208, Gaur Ganga 1, sector-4, Vaishali,
Ghaziabad 201010
27. Manesh Kumar Kanojia, S/o Late Sh. Radhey Shyam,
R/o- DB-46/E, 3rd Floor, Hari Nagar, Maya Enclave,
New Delhi-110064.
28. Vinod S/o Brim Singh,
R/o 1/156 Gali No.1 Ramesh market village garhi
New Delhi 110065
29. Dholya Ram Meena, S/o Sh.Mange Lal Meena,
R/o Qtr 1208, type 4 NH 4 Faridabad
30. Shailendra Kumar Jha , S/o Nand Mohan Jha 235,
Omaxe City, Sector 8, Sonipat
31. Jai Prakash Meena, S/o Janak Lal Meena,
Res- 200/8, sector 3, Vaishali, Ghaziabad, UP
32. Yogesh Kumar, S/o sh. Laxman Singh,
R/o Sector-5, Poket B-8, 124 Ground Floor,
Rohini Delhi 85
33. Sanjeev Kumar Singh S/o Late Ravindra Prasad Singh,
R/o 1205, Verona Tower, Mahagun Moderne,
Sec-78, Noida, UP
7 OA No. 939/2023 & Batch
34. Sushil Kumar S/o Sh. Nanak Chand,
R/o Quarter No -188, Type-2 Sector-2 Sadiq Nagar,
New Delhi-110049
35. Daya Shanker Tripathi, S/o Sh. Uma Shanker Tripathi,
R/o plot no 533 (2 nd floor), sector 4 Vaishali,
Ghaziabad -201010
36. Binod Kumar, S/o Late Rajendra Prasad Yadav,
R/o T-9/1505, Zen Spire, Ramprastha Greens, Vaishali,
Ghaziabad (U.P.)-201010.
37. Vijendra Singh Meena S/o Sh. Gulya Ram Meena,
R/o Flat No.-52, Netaji Subhash Apartment,
Sector-13, Dwarka-110078
38. Shankar Lal, S/o Late Chandrika Prasad,
R/o 1268, Valencia Tower, Mahagun Moderne,
Sec-78, Noida, UP
39. Chandrashekhar Prasad, S/o Shri Ghanshyam Prasad,
Flat No-402, Shipra Tower, Sector-4, Vaishali,
UP-201010
40. Neel Kanth Pinaki S/o Shri Braj Mani Prasad,
F-56, second floor, sector 40, Noida, UP- 201303
41. Sandeep Negi S/o Sh. A. S. Negi
R/o 3/7, Sector-1, Pushp Vihar, New Delhi-110 017
42. Rajeev Kothari S/o Sh. S. L. Kothari,
House No 568 Group 1 DDA Flats Hastal Vikas Puri
New Delhi, Pin - 110059
43. Hariom Sah S/o Sh. Prabhu Sah,
R/o Flat no. TF-2, 200/8, Sector-3A, Vaishali,
Ghaziabad.
44. Santosh Kumar Meena S/o Sh. Ram Prasad Meena,
RZF-7, Gali No 4, Mahavir Enclave, Palam,
New Delhi-110045
45. Sachin Diwan S/o Sh. Vinay kumar Diwan,
R/o C-809 Vikas Puri, New Delhi-110018
46. Rajesh Sharma S/o sh. S N. Sharma
211 Krishna Apartment, Sector 9 Plot No 13 Dwarka,
New Delhi 110075
8 OA No. 939/2023 & Batch
47. Sarvottam Kumar, S/o- Sh. Shivlochan Jha,
R/o Piyush Heights, Flat no. H-815, Sector-89,
Faridabad.
48. Sanjeet Kumar Bachchan, S/o- Sh. Bachendra Prasad,
R/o Plot No. 157/ 4th floor, Amolik Residency,
Sector 86, Neharpar, Amolik Chowk, Faridabad,
Pin- 121002 (Haryana)
49. Jangkholun Baite S/o, Jamkhosei Baite
302, D3/50, Gali-8, Mahavir Enclave, New Delhi-45
50. Manish Singh S/O Shri Ram Autar Singh,
R/o P616 Piyush Heights Sector 89 Faridabad-121002
51. Ashish Bisht S/o Surender Singh Bisht,
R/o B-70, Pocket 7, Kendriya Vihar, Sector-82,
Noida
52. Dinesh Prasad S/o Jatai Roy,
R/o 121/6, Sector-1, Pushp Vihar,
New Delhi-110017
53. Ashok Kumar Meena S/o Sh. Kanwar Singh Meena,
R/o V & P.O -Raghunathpura, Distt. Jaipur,
Rajasthan-303107
54. Rajiv Kumar Jha S/O Arun Kumar Jha,
R/o SF-2 Plot no.-200/8, Sector 3A Vaishali,
Gzb, UP
... Respondents
(By Advocate: Mr. A K Behera, Mr. Ankur Chhiber and Mr.
Nikunj Arora for R. No. 13, Mr. Ravi Prakash, Mr. Taha Yasin,
Mr. Yatharth Shukla and Mr. Astu Khandelwal for UoI, Mr.
Sanjeev Yadav in OA No. 1037/2023)
OA No.1037/2023
1. Arvind Kumar,
son of Shri Bhagwan Singh
about 41 years,
resident of F-347, Gali No.23,
Sadh Nagar-II,
Palam Colony, New Delhi-110045.
9 OA No. 939/2023 & Batch
2. Anand Amit,
Son of Late Shri Lala Rajendra Prasad,
Aged about 45 years,
Resident of FF-20, Vardan Apartment-I,
Abhay Kand-3, Indirapuram,
Ghaziabad, UP-201014.
....Applicants
(By Advocate: Mr. Ajesh Luthra, Ms. Sriparna Chatterjee)
Versus
1. Union of India
Through Secretary,
Ministry of Finance,
North Block, New Delhi - 110001
2. The Central Board of Indirect Taxes & Customs,
Through its Chairman,
North Block, New Delhi - 110001
3. The Principal Commissioner
(Cadre Controlling Authority)
Delhi CGST & Customs Zone,
C.R. Building, I.P. Estate,
New Delhi - 110002
... Respondents
(By Advocate: Mr. A K Behera, Mr. Ankur Chhiber and Mr.
Nikunj Arora for R. No. 13, Mr. Ravi Prakash, Mr. Taha Yasin,
Mr. Yatharth Shukla and Mr. Astu Khandelwal for UoI, Mr.
Sanjeev Yadav in OA No. 1037/2023)
OA No.1293/2023
1. Amar Nath Prasad, Son of Shri Dinanath Prasad, Aged
about 47 years,
Resident of Flat No.71-B, L-2 Block, DDA Flats, Kalkaji,
New Delhi - 19
2. Gajendra Singh, Son of Late Sh. Bishan Pal Singh, Aged
about 43 years, Resident of H.No.15, Nasirpur, Behing
DDPS School, Ghaziabad- 201001, U.P.
....Applicants
(By Advocate: Mr. Ajesh Luthra, Ms. Sriparna Chatterjee)
10 OA No. 939/2023 & Batch
Versus
4. Union of India
Through Secretary,
Ministry of Finance,
North Block, New Delhi - 110001
5. The Central Board of Indirect Taxes & Customs,
Through its Chairman,
North Block, New Delhi - 110001
6. The Principal Commissioner
(Cadre Controlling Authority)
Delhi CGST & Customs Zone,
C.R. Building, I.P. Estate,
New Delhi - 110002
7. Ministry of Personnel, Public Grievances & pensions
Through Secretary,
Department of Personnel & Training,
North Block, New Delhi - 110001
... Respondents
(By Advocate: Mr. A K Behera, Mr. Ankur Chhiber and Mr.
Nikunj Arora for R. No. 13, Mr. Ravi Prakash, Mr. Taha Yasin,
Mr. Yatharth Shukla and Mr. Astu Khandelwal for UoI, Mr.
Sanjeev Yadav in OA No. 1037/2023)
OA No.3731/2022
1. Neha Gupta D/o - Ct. Sh. A.K. Gupta
Aged about 35 yrs (D.O.B.- 02.04.1987)
R/o House No.-379, Sector 8, Faridabad- 121006,
Haryana
Date and place of joining the department (Chennai Zone)
21/03/2013
Date of Joining Delhi Zone- 19.10.2015
Present place of posting- NACIN FBD (On Loan from
CCA),
Group-B, Inspector.
2. Pankaj Berwal
Aged about 35 years
S/o Sh. D.R. Berwal
R/o House No. 2126, Sector -2, Huda Palwal,
Haryana-121102
11 OA No. 939/2023 & Batch
Date and Place of joining the department:
(Vadodara Zone) -31.12.2012.
Date of joining Delhi Zone- 09.11.2015
Present place of posting- NCT, Commissionerate Delhi -
110037
Group B, Inspector.
3. Harish Kumar
Age- 37 yrs. (DOB 03.03.1985)
S/o Sh. Padam Kumar
R/o H.No.37, Abmedkar Colongy, Alipur, Delhi -
110036.
Date & Place of joining in the Department- 16.11.2012
(Chennai zone)
Date of joining in Delhi Zone- 19.10.2015
Present place of posting- Sonipat Division (CGST Rohtak
Commissionerate)
Inspector, Group-B
....Applicants
(By Advocate: Mr. Ajesh Luthra, Ms. Sriparna Chatterjee)
Versus
1. Union of India
Through Secretary
Ministry of Finance,
North Block, New Delhi - 110001
2. The Central Board of Indirect Taxes & Customs,
Through its Chairman
North Block, New Delhi - 110001
3. The Principal Commissioner
(Cadre Controlling Authority)
Delhi GST Zone,
C.R. Building, I.P. Estate,
New Delhi - 110002
... Respondents
(By Advocate: Mr. A K Behera, Mr. Ankur Chhiber and Mr.
Nikunj Arora for R. No. 13, Mr. Ravi Prakash, Mr. Taha Yasin,
Mr. Yatharth Shukla and Mr. Astu Khandelwal for UoI, Mr.
Sanjeev Yadav in OA No. 1037/2023)
12 OA No. 939/2023 & Batch
ORDER
By Hon'ble Manish Garg, Member (J)
1. As facts and question of law are identical, with the consent of all parties, these OAs/CP/MAs were taken up for hearing together. We, therefore, proceed to dispose them off through this common order.
2. The issue in all these OAs pertains to inter-se seniority of various categories of inspectors working in CGST and the Customs, Delhi Zone. The first group belong to inspectors, who joined Delhi Zone on their request by seeking Inter- Commissionerate Transfer (ICT) from other zone. In short, this group can be termed as ICT group. The second group is the inspectors borne in Delhi Zone and are promotes. The third group is the directly recruited inspectors in the Delhi Zone.
2.1 In respect of the ICTs of O.A. No.1037 of 2023, it is asserted that they were applicants in O.A. No.2955 of 2019 which attained finality upto the level of Hon'ble Supreme Court, yet the applicants herein, who are governed by the judgment of this Tribunal as well as the Hon'ble High Court, have not been placed in the seniority list dated 07.10.2022. In respect of the said applicants, the Hon'ble High Court in WPC No.11170 of 2021, when approached by agitating the closure 13 OA No. 939/2023 & Batch of contempt petition against O.A. No.2955 of 2019, granted liberty to challenge the same in original jurisdiction. The Applicants in the above O.A.s are as under:
2.2 O.A. No.939 of 2023 titled as Mukesh Kumar & Ors.
Vs. Union of India & Ors.
Sl. Name of the Whether Date of Date of promotion and
No. Applicants Promotee joining joining
or ICT CBIC
1. Mukesh Kumar Promotee 2010 Promoted on 15.03.2016
Joined on 01.04.2016
2. Narender Promotee 2010 Promoted on 15.03.2016
Kumar Bharti Joined on 01.04.2016
3. Manoj Kumar Promotee 2010 Promoted on 15.03.2016
Yadav Joined on 01.04.2016
4. Ajit Pratap Rao Promotee 2010 Promoted on 15.03.2016
Joined on 01.04.2016
5. Manu Singh Promotee 2011 Promoted on 15.03.2016
Joined on 01.04.2016
6. Radhey Shaym Promotee 2010 Promoted on 15.03.2016
Joined on 01.04.2016
7. Shiv Prakash Promotee 2009 Promoted on 15.03.2016
Tiwari Joined on 01.04.2016
8. Ravi Kumar Promotee 2009 Promoted on 15.03.2016
Joined on 01.04.2016
9. Ram Murat Promotee 2010 Promoted on 15.03.2016
Patel Joined on 01.04.2016
10. Sushil Kumar Promotee 2011 Promoted on 15.03.2016
Mainwal Joined on 01.04.2016
11. Anand Kumar Promotee 2010 Promoted on 15.03.2016
Singh Joined on 01.04.2016
12. Dev Shankar Promotee 1995 as Promoted on 15.03.2016
Singh Sepoy Joined on 01.04.2016
13. Anil Datt Pal Promotee 2010 Promoted on 15.03.2016
Joined on 01.04.2016
14. Shilpi Kumar ICT (Inter 1997 as Joined Delhi Zone on
Commission- LDC 23.10.2015
erate Transfer)
15. Ashish Tomar ICT (Inter 2012 Joined Delhi Zone on
Commission- 30.10.2015
erate Transfer)
2.3 O.A. No.1293 of 2023 titled as Amar Nath Prasad & Ors. Vs. Union of India & Ors.
Sl. Name of Whether Appointed Date Joined the Delhi Zone
No. the Promotee through of on
Applicant or ICT joining
1. Amar Nath Promotee Tax 2010 Promoted on 15.03.2016
Prasad Assistant Joined on 01.05.2016
Exam 2008
2. Gajendra Promotee Tax 2009 Promoted on 15.03.2016
Singh Assistant Joined on 01.05.2016
14 OA No. 939/2023 & Batch
Exam 2007
The Applicant No.1 to 13 in O.A. No.939 of 2023 as well as the Applicants in O.A. No.1293 of 2023 had earlier challenged the seniority list dated 15.03.2018 in O.A. No.3705 of 2019. The Hon'ble Tribunal after hearing the said O.A. had directed the grievances of the Applicants as contained in their representation to be decided by a reasonable and speaking order. The respondent passed the order dated 18.05.2022 which has been challenged in the O.A. No.1293 of 2023. 2.4 O.A. No.1037 of 2023 titled as Arvind Kumar & Anr. Vs. UOI & Ors.
Sl. Name of Whether Appointed Date of Joined the Delhi No. the Promotee or ICT through joining Zone on Applicant
1. Arvind ICT (Inter CGLE January Joined the Delhi Kumar Commissionerate 2010 2012 Zone 11.05.2015 Transfer)
2. Anand ICT (Inter CGLE June Joined the Delhi Amit Commissionerate 2008 2011 Zone 13.05.2015 Transfer) The Applicants in O.A. No.1037 of 2023 are ICTs who had earlier filed O.A. No.2599 of 2019 along with others. 2.5 O.A. No.3731/2022 of 2023 titled as Neha Gupta and Others Vs. M/O Finance and Others The private respondents in OA No.939 are all direct recruits. The relevant dates in respect of the applicants are as under:-
S. No. Name Date of joining the Date of joining department (Zone) Delhi Zone
1. Neha 21.03.2013 19.10.2015 Gupta (Chennai)
2. Pankaj 31.12.2012 09.11.2015 Berwal (Vadodara)
3. Harish 16.11.2012 19.10.2015 Kumar (Chennai) The placement of the applicant in the Seniority List is as under:-15 OA No. 939/2023 & Batch
S.No. Name S.No. in Draft List S.No. in Final upto 27.9.2018 issued on (AnnexureA/9) 04.12.2023 1. Neha Gupta 1055 746 2. Pankaj Berwal 1044 765 3. Harish Kumar 1077 744 The break-up of Seniority List dated 04.12.2023 is given as under:-
S.No. Numbers in Seniority Remarks List
1. 1 to 103 Seniority not disputed
2. 104 to 179 They are 2014 promotees.
Seniority not disputed.
3. 279 to 712 Direct Recruits of SSC CGLE 2014, who joined much after the applicants in the year 2016
4. 713 to 723 2015 Promotees and Direct Recruits of CGLE 2015. Direct Recruits of CGLE 2015 joined in the year 2017. Promotees had joined in Dec.2015.
5. 724 to 771 ICT's who joined Delhi Zone in April 2015 to Jan.
2016.
6. 772 to 816 2016 Promotees and Direct Recruit of CGLE 2016. DRs of 2016 joined in Nov. and Dec. 2018.
The Establishment Order dated 01.10.2015 vide which the ICT transfer of the applicants (placed at S.No.15,26,53 in the said list) was made to Delhi Zone, specifically indicates as under:-
"The transfer will be placed below all officers appointed regularly to that post/grade on the date of his/her appointment on transfer basis in terms of para 3.5 of DOP&T's O.M dated 03.07.1986 and other elated Instructions..."
3. SUBMISSIONS ON BEHALF OF APPLICANTS :-
3.1 The applicants have a common cause of action as they are aggrieved by the modified final seniority list dated 16 OA No. 939/2023 & Batch 07.10.2022, pertaining to seniority of inspectors as on 31.03.2015. In the said seniority list, the applicants have not been considered and placed appropriately, whereas the private respondents of CGLE 2014, who had joined on 29.04.2016 have been included in the said list. The applicants have been working since 2015 (ICTs) and 01.04.2016 (Promotees) in the Delhi Zone. Seniority has been accorded to the private respondents, i.e. CGLE-2014 batch, from a date much prior to their date of joining when they were not even borne in the cadre. Such placement of the CGLE 2014 batch by excluding the present applicants is the core issue to be considered herein.
3.2 It is submitted that the issue of the principle of seniority in respect of private respondents/CGLE-2014 batch and the Inter Commissionerate Transfers (ICTs) has already attained finality by the order of Principal Bench of this Tribunal in O.A. No.2955 of 2019 (Amit Kumar Vs. UOI), as upheld by the Hon'ble High Court in Yash Rattan Vs. UOI, WP (C) No.3576/2021 decided on 09.04.2021. The case has since attained finality on dismissal of Special Leave to Appeal No.11046/2022 by the Hon'ble Supreme Court vide Judgment/Order dated 12.07.2022. This principle was also reiterated by the Hon'ble Supreme Court in K.Meghachandra Singh & Ors. vs. Ningam Siro & Ors., 2020 (5) SCC 689.
However, the judgments that have propounded the aforesaid 17 OA No. 939/2023 & Batch principle declining retrospective seniority are referred as under:
(i) Direct recruits class-II Vs. State of Maharashtra & Ors.
[1990 (2) SSC 715]
(ii) A. Janaradhana Vs. UOI [AIR 1983 SC 769]
(iii) Pawan Pratap Singh Vs. Reevan Singh [ 2011 (3) SCC 267]
(iv) P. Sudhakar Rao Vs. Govinda Rao [2013 (8) SCC 693]
(v) K. Meghachandra Singh & Ors. Vs. Ningam Siro & Ors., (2020) 5 SCC 689.
3.3 Following the principle as laid down by the Hon'ble Supreme Court, this Tribunal has passed several judgments in the following cases:
(i) Raj Kumar Guleria Vs. M/o External Affairs, O.A. No.237 of 2021
(ii) Dilprit Singh Nagi Vs. M/o Defence- O.A. No.1236 of 2021
(iii) Shanti Mahendran - O.A. No.1324 of 2022
(iv) Varun- O.A. No.1870 of 2022
(v) Hari Rajesh Kumar Vs. ESIC- O.A. No.2666 of 2022
(vi) Ashwani Kumar Anand Vs M/o Finance- O.A. No. 991 of 2022
(vii) Sandeep Rai Vs. UOI- O.A. No.1656 of 2022.18 OA No. 939/2023 & Batch
3.4 An objection was raised upon application of the judgment of K. Meghachandra (supra) on the ground that in a subsequent judgment i.e. Hariharan & Ors. Vs. Harsh Vardhan Singh Rao & Ors. [2022 SCC Online SC 1717], the Hon'ble Apex Court had taken a view that the judgment of K. Meghachandra (supra) has not considered certain aspects and its earlier judgments, hence, Hon'ble Supreme Court laid down certain questions that are needed to be decided by a larger bench of 5 judges.
3.5 Prior to the judgment of K. Meghachandra (supra), the Hon'ble Supreme Court in Union of India & Ors. vs. N.R. Parmar & Ors.[(2012) 13 SCC 340] held the field which was overruled by the former. However, in the facts of the present case, the impugned seniority list could not have been governed by the judgment of N.R. Parmar (supra), as the pre- requisite of application of N.R. Parmar (supra) as laid down in para 32, were the vacancies year, date of advertisement and date of requisition being in the same year. In the present case, the vacancies were of 2014-2015, the requisition year was 2015-2016 and the date of the advertisement was 2013- 2014.
3.6 Subsequent to the judgment of the Hariharan (supra), the Hon'ble Apex Court decided Civil Appeal No.1838 of 2018 titled Sushil Pandey & Another Vs. State of U.P. through 19 OA No. 939/2023 & Batch Principal Secretary again upheld the principle "birth in the cadre first would automatically accord the seniority over and above those who are appointed at a later date". From the above it is clear and distinct that irrespective of the judgment of K. Meghachandra (supra) being referred to a larger bench, the Hon'ble Apex Court has not disturbed the basic principle of service jurisprudence, i.e. the claim of the applicants herein.
3.7 The grievance of the official respondents with regard to the application of the Rota Quota was answered by the Hon'ble Supreme Court in K. Meghachandra (supra) by holding in Para No.45 that in order to fix seniority by roster points, the date, when a person is recruited, cannot be ignored.
3.8 The impugned seniority list of 07.10.2022 as on 31.03.2015, reflected absolute arbitrariness because on one hand the list of 07.10.2022 did not consider the seniority as on the date of the list, whereas on the other hand, persons who joined much later than 31.03.2015 through CGLE 2014 were accorded seniority in the said list in gross violation of the settled principle of law. The applicants who joined in 2015, 2016 prior to the joining of the private respondents were conveniently excluded.
20 OA No. 939/2023 & Batch3.9 The list dated 07.10.2022 was followed by a subsequent seniority list dated 04.12.2023 which was issued to defeat the stay order prevailing against holding of DPC on the basis of seniority list dated 07.10.2022. The list dated 04.12.2023 is identical to the list dated 07.10.2022 in terms of placement of the CGLE-2014 batch direct recruits over and above the promotees and ICTs who joined much before the private respondent (CGLE-2014). This Tribunal, appreciating the impropriety of the official respondents intending to hold a DPC ignoring the settled position of law as held in several judgments and reiterated in K. Meghachandra (supra), restrained the official respondents from holding DPC on the basis of the list dated 04.12.2023.
3.10 Learned counsel for applicants further draw our attention to an order passed in OA No. 1293/2023 titled Amar Nath Prasad Vs Revenue, relevant part thereof reads as under:-
"..............The applicants were promoted to the posts of Inspector vide Establishment Order No. 61/2016 (Annexure- A/1) in accordance with the relevant recruitment rules dated 29.11.2002 (Annexure-A/2). The applicants are aggrieved as the direct recruit inspectors who qualified CGLE 2014 have been considered and included in the draft and tentative seniority list of Inspector of GST Delhi Zone and the applicants have been excluded from the said list although the relevant DPC was held for the posts of Inspector on 15.03.2016 and direct recruit Inspectors of CGLE 2014 Batch qualified the physical test much after the applicants joined as Inspector on 01.04.2016. It is contended on behalf of the applicants that the said tentative seniority list was prepared as per the law laid down by the Hon'ble Apex Court in the case of Union of India and others Vs. N. R. Parmar, reported in (2012) 13 SCC
340. However, before the tentative seniority list could be 21 OA No. 939/2023 & Batch finalized by the respondent nos. 1 to 4, the Hon'ble Supreme Court has overruled its judgment in N. R. Parmar (supra) in the case of K. Meghachandraa Singh (supra). As per the DOP&T OM dated 7.2.1986, a year of availability is the vacancy year in which a candidate of particular batch of selected direct recruitment or an officer of a particular batch of promotes joins the post/service."
3.11 Learned counsel for the applicants relies upon Paras 32 and 33 of the order/judgment in the case of N. R. Parmar (supra) and the order/judgment dated 09.04.2021 passed by the Hon'ble Delhi High Court in W.P. (C) No. 3576/2021 titled Yash Rattan & Ors. Vs. Union of India which has also been upheld by the Hon'ble High Court and thereafter by the Hon'ble Apex Court wherein it is contended that few of the applicants in Yash Rattan (supra) are also parties to the present OA and the issue has already attained finality and cannot be re-opened. 3.12 Learned counsel for the applicants would further rely on Page 110 of paper book of OA No. 3731/2022 titled Neha Gupta & Ors. Vs. M/o Finance & Ors, which reads as under:-
"2. The above Inter-Commissionerate Transfer will be effected from the date when the above officers report for duty in Central Excise, Delhi Zone and abide by all the terms and conditions as laid down in CBEC's, New Delhi letter dated 27.10.2011 as quoted above, such as:
The transferee will be placed below all officers appointed regularly to that post/grade on the date of his/her appointment on transfer basis in terms of para 3.5 of DOP&T's OM dated 03.07.1986 and other related instructions. In other words, such a transferee will be junior to those regularly appointed officers prior to his/her transfer. However, such transferred officer will retain his/her eligibility of 22 OA No. 939/2023 & Batch the Parent Commissionerate for his/her promotion to the next higher grade, etc. On transfer, the above officers will not be considered for promotion in the old Commissionerate.
The above officers will not be entitled to any joining time and transfer travelling allowance.
The above officers are liable to be transferred/posted anywhere within the jurisdiction of Central Excise, Customs and Service Tax, Delhi Zone.
Before the above officers are actually relieved, an upto-date vigilance clearance certificate/integrity certificate in respect of them may be sent to this office."
3.13 Learned counsel for the applicants also relies upon the Paras 5, 6, 7, 8 and 9 of the judgment/order dated 13.10.2020 passed by a coordinate bench of this Tribunal in OA No. 2955/2019 titled Amit Kumar & Ors. Vs. Union of India & Ors, which read as under:
"5. The facts of this case are borne out by the record and there is no controversy whatever. The applicants were recruited in the year 2011 in various zones. All of them came to Delhi zone on request, in the year 2014. After the applicants joined the Delhi Commissionerate in the year 2014, there was a substantial restructure of the department, resulting in steep increase in the number of posts of Inspectors in Delhi zone. The selections for the posts so added, took place in the year 2015/2016 and the selected candidates joined on various dates in the year 2016. The candidates who were selected and appointed in the year 2016 were placed above the applicants.
6. One just cannot understand as to how the Inspectors appointed in the year 2016 can be placed above those who were appointed in the year 2011 and came on transfer, to Delhi zone in the year 2014. Assuming that the vacancies are deemed to have been arisen in the year 2014, the occasion to apply the judgement of Hon'ble Supreme Court in N.R.Parmar case would arise only in the context of fixation of the inter se 23 OA No. 939/2023 & Batch seniority between the promotes on the one hand and the direct recruits on the other hand. The applicants are direct recruits of a particular recruitment year. On transfer to Delhi zone, the applicants have no doubt have to take the seniority after the direct recruit Inspectors of in the year 2014 by operation of the principle that whoever comes on transfer to other zone must have take the last place in the seniority in the zone, to which he comes on transfer. The distinction between a direct recruit on the one hand and the promotee on the other hand, hardly becomes relevant in such cases. The applicants remain as direct recruits and the judgement in N.R.Parmar's case would have no impact upon them.
7. Once an officer comes on transfer to different zone, he would no doubt take the bottom place in the seniority. However, once he is assigned a place, anybody who comes to be appointed in that zone after such transfer has necessarily to take place in the seniority, after him. There was absolutely no basis or justification to place the Inspectors who were appointed in the year 2016, above the applicants in the Delhi zone.
8. Even where the principle laid down by the Hon'ble Supreme Court in N.R.Parmar's case is made applicable, the situation has undergone substantial change with the judgement of the Hon'ble Supreme Court in Meghachandra's case. While declaring the judgement in N.R.Parmar's case does not represent the correct legal position, their Lordships proceeded to add that no person can have any place or claim vis-a-vis any post, before his actual appointment. Viewed from any angle, the seniority list, in so far as it has placed the Inspectors who are appointed subsequent to the date of joining of the applicants in the Delhi zone cannot be countenanced.
9. Hence the OA is allowed and seniority list dated 15.03.2018 to the extent it has placed the Inspectors who are appointed and joined the Delhi zone subsequent to the date of transfer of the applicants to that zone is set aside."
4. SUBMISSIONS ON BEHALF OF OFFICIAL RESPONDENTS :-
4.1 On the other hand, learned counsel for official respondents vehemently opposed the contention of the applicants and contended that some of the applicants in Amit Kumar's case i.e. OA No. 2955/2019 who had not joined the 24 OA No. 939/2023 & Batch Delhi Zone upto crucial date, i.e. 11.02.2015, were not given seniority above the direct recruits of the 2014 batch and that the final modified seniority list dated 07.10.2022 of Inspectors so prepared has already been accepted by the Hon'ble High Court of Delhi. He states that this is the reason why the matter of Inspectors who are similarly placed as applicants No. 14 and 15 of OA-939/2023 have been rejected while publishing the said modified seniority list dated 07.10.2022.
Further, he states that applicant Nos. 1 to13 of this OA were promoted as Inspectors w.e.f. 01.04.2016, while the applicant Nos. 14 and 15 have joined Delhi Zone on ICT ground on 23.10.2015 from Lucknow Zone and on 31.10.2015 from Vadodara Zone, respectively. Since, they have joined after 11.02.2015, Amit Kumar's case (supra) is not applicable to the applicants. He would further argue that the judgment of the Hon'ble High Court in Yash Ratan (supra) clearly states that the matter of seniority of promoted Inspectors and direct recruits is not the subject matter and hence need not be examined at all, and therefore the benefit of extension of Amit Kumar's case (supra) does not arise to these promotees/ICT officers. The operative portion of the same is reproduced as under:-
"Therefore, in our view CAT has correctly applied the dicta in K. Meghachandra Sing (supra) case in the present case and has proceeded to quash the seniority list to the extent it placed the petitioners above the private respondents. The fact that the CAT decision would impact the inter se 25 OA No. 939/2023 & Batch seniority between the promotees and direct recruits (petitioners), is not the subject matter of the present petition, and therefore, need not be examined. It is also an admitted position that in the present case requisitions for the appointment of the petitioners were sent to SSC the recruiting authority on 11th February, 2015, after the private respondents had already joined the Delhi Commissionerate. Therefore, even in terms of the OM dated 4th March, 2014, the petitioners cannot be placed above the private respondents."
4.2 Coming to the question of fixation of applicants' pay as per K. Meghachandra (supra), wherein the date of seniority is to be decided on the basis of date of joining, he would state that the judgment itself clearly states that it is to be applied prospectively w.e.f. 19.11.2019 and the same has further been clarified vide the DoPT OM dated 18.08.2021, issued vide F.No. A 23024/01/2007 - AdIIIA, which clearly states that all those who joined before November 2019, have to be governed by N R Parmar's Case (supra). He further states that no promotion has taken place from December 2018 till the year 2022 because of the stay granted in OA No. 3705/2019 and that more than 300 vacancies are lying vacant for the last few years because of it. He further states that the Department is trying to fill these vacancies on the updated seniority list dated 07.10.2022 and it is affecting the officers who have legitimate claim for promotion since the year 2019.
4.3 Learned counsel for the official respondents would argue that the case of the applicants is based upon the judgment of 26 OA No. 939/2023 & Batch the Hon'ble Supreme Court in the case of K. Meghachandra (supra), but the same case was considered by the Hon'ble Supreme Court and a detailed order was passed in Hariharan (supra),wherein it is prima facie held that the judgment in K. Megha Chandra (supra) cannot be made applicable to the Central Govt. employees as the same was passed in the context of Manipur Government Employees and in the cases in which separate quota has been prescribed for different sources of recruitment and the case was then referred to a larger bench. He would further point out that in a very similar case, on 08.03.2023 in OA No. 396/2021, the CAT Ernakulam Bench has taken the view that the parties should wait till the final outcome of the case referred to the larger bench of the Hon'ble Supreme Court. The relevant paras from the aforesaid order of the Tribunal have been reproduced below:-
"18. After the detailed hearing of the present OAs and after the OAs' were taken for orders, the Supreme Court by its judgment in Hariharan v. HarshVardhan Singh Rao & Ors. in SLP No. 16161 of 2018 considered the impact of Meghachandra Singh's case on N.R. Parmar's case. After an elaborate consideration of the legal issues involved, the Supreme Court concluded that Meghachandra Singh's case was per incurium in so far as the binding decision of the Constitution Bench in Mervyn Coutindo & Ors. v. Collector of Customs, Bombay & Ors. [(1966) 3 SCR 600] and another binding decision of a co-ordinate bench in M. Subba Reddy & Anr. v. A.P. State Road Transport Corporation & Ors. [(2004) 6 SCC 729] were not noticed. It was held that even assuming that Meghachandra Singh's case was correctly decided, paragraph 39 of the decision showed that the decision in N.R. Parmar's case has been prospectively overruled by observing that the decision will not affect the 27 OA No. 939/2023 & Batch inter se seniority already fixed on the basis of N.R. Parmar's case and the same was protected. It was also held that the decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/date of advertisement. It was held that whether the decision in Meghachandra Singh's case can be said to be binding precedent in the light of Mervyn Coutindo's case and M. Subba Reddy's case need to be considered by a larger bench of the Supreme Court. Accordingly, the matter was ordered to be placed before the Hon'ble Chief Justice for appropriate decision.
19. Necessarily, the entire question as to whether N.R. Parmar's case (supra) or Meghachandra Singh's case (supra) hold the field is a matter to be considered and settled by a larger bench of the Hon'ble Supreme Court.
However, even in Meghachandra Singh's case the seniority list which were finalized in accordance with N.R. Parmar's case were saved by Megahchandra Singh's case. It was contented by the learned counsel for the contesting respondents/the direct recruits as well as by the learned SCGSC and the Senior Panel Counsel that the seniority list in the present case was finalized in the light of the decision in N.R. Parmar's case. Even though this Tribunal in OA No. 143 of 2019 had directed that seniority should be reckoned in the light of Meghachandra Singh's case, virtually in the light of the prospective overruling, the impact of applying Meghachandra Singh's case would have been ordinarily to give effect to N.R. Parmar's case, subject to seniority being fixed under the relevant Rules. Accordingly, whether N.R. Parmar's case would hold the field or it stood reversed by Meghachandra Singh's case is now to be finalized by a larger bench of the Supreme Court. In the light of Hariharan's (supra) decision, the learned counsel for the contesting respondents/direct recruits and the learned SCGSC and SPC pleaded for affirming the seniority list, subject to the outcome of the Supreme Court.
22. Though the learned counsel for the applicants strenuously advanced the above contention, we feel that this question is directly linked with the question as to whether Meghachandra Singh's case would hold the field. Only if it is held that Meghachandra has been correctly decided, the question of applying the decision in Meghachandra Singh's case (supra) prospectively or retrospectively would arise. Hence, till the reference is answered, we feel that any decision on the question as to implication of "except to where seniority is to be fixed" will only be pre-empting the issue, which is the subject matter referred to a larger bench of the Supreme Court. It is for the Supreme Court now to decide whether Meghachandra Singh's case would hold the field. If the Supreme Court sustains Meghachandra Singh's case, whether it would 28 OA No. 939/2023 & Batch sustain it prospectively or retrospectively is a matter still to be settled. Necessarily, till then N.R. Parmar should govern the field. Hence, the question as now posed by the learned counsel for the applicants is not liable to be considered at this stage. Further, the 2nd prayer in OA No. 396 of 2021 and the tenor of pleadings in the OAs' indicate that the seniority list was prepared in terms of N.R. Parmar's decision.
23. In the light of the above legal position, we feel that parties will have to await final determination on the reference order made by the Hon'ble Supreme Court in Hariharan's case (supra). However, regarding the moulding of reliefs the learned SCGSC and the learned Senior Counsel and other counsel for the contesting respondents invited our attention to the operative portion of the judgment in Hariharan's case (supra). By the above judgment the interim stay granted as against the final list which was approved was vacated, subject to the outcome of the appeal or reference as the case may be. It was clarified that the seniority of the promotees and direct recruits who may be appointed thereafter will be subject to the final outcome of the decision of the appeal or the decision in reference, as the case may be."
3.4 He also questions the reliance of the applicants on the case of Amit Bansal (supra) as the same is not in rem and does not lay down any law to be followed in subsequent cases where quota rota rule is prescribed. He states that the judgment in the case of Amit Bansal (supra) and consequent order of the Hon'ble High Court and the Supreme Court in the facts and circumstances of the present case are to be held as in personam as the vital aspects of the quota rota and fixation of seniority based upon the said rules have not been examined. He would argue that the seniority list dated 07.10.2022 is in accordance with the quota rota principle and the private respondents who were appointed in the recruitment year 2014 have been assigned seniority accordingly, whereas, the applicants who have been assigned 29 OA No. 939/2023 & Batch seniority according to their promotion and ICT against the vacancy year 2015/16, have been accorded seniority in the seniority list dated 21.02.2023. The official respondents have also filed their written submissions, thereby reiterating their above stand.
5. SUBMISSIONS ON BEHALF OF PRIVATE RESPONDENTS :-
5.1 The private respondents no.4 to 13, represented through Mr. A.K. Behera, learned senior counsel, have also filed their written submissions, denying the claim of the applicants. It is submitted that a detailed written submission had been filed on 10.04.2024 when the respondent no. 4 to 13 were given the opportunity to address this Tribunal. It is submitted that 'dicta' in the case of Hariharan (supra) has been followed by several Coordinate Benches of this Tribunal as well as the present Bench. Further, the judgments cited by the applicants cannot be followed because of the following specific reasons:-
i. Ankit Khandelwal Vs UOI of the High Court of Judicature for Rajasthan Bench at Jaipur decided on 25/04/2022 was before the 'dicta' in the case of Hariharan (supra) came on 14.12.2022 and thus cannot be given precedence over the 'dicta' in Hariharan (supra).30 OA No. 939/2023 & Batch
ii. All other judgments cited by the applicants of this Tribunal as well as some other High Courts have not taken into consideration the 'dicta' in the case of Hariharan (supra). Obviously, the said judgment has been delivered without the benefit of 'dicta' in the case of Hariharan (supra) and thereafter the said judgment cannot be given precedence over the 'dicta' in Hariharan (supra).
iii. As regards judgment dated 09.02.2023 in OA No. 1656/2022: Sandeep Rai & Ors Vs UOI, the same pertains to a case where the seniority list was drawn for the first time in the year 2021 which is clearly mentioned in page no. 20 of the judgment. In the said case, the effect of Hariharan judgment though referred to has not been examined whereas in the 3 cases given above, two coordinate Benches and the present Bench has examined the impact of Hariharan and have held that seniority list based on N R Parmar (supra) has to be followed subject to reference in Hariharan's case (supra).The argument of the learned counsel for the applicants that the judgment of the Hon'ble Supreme Court in Hariharan (supra) is "not a dicta" is untenable in law. The judgment of Hon'ble Supreme Court in Hariharan (supra) is a detailed and reasoned judgment taking into consideration the past 31 OA No. 939/2023 & Batch 'dictas'of both in the case of N R Parmar (supra) and K. Meghachandra (supra) and by a detailed reasoning has arrived at a new 'dicta' and have referred the matter to a larger Bench. When a judgment is delivered by a detailed reasoning by the Hon'ble Apex Court, by no stretch of imagination, the same can be described as not laying down any 'dicta'. Such an argument would be superfluous and without backing of any law. Further such an argument if accepted, would convert a detailed judgment of Hon'ble Supreme Court into a piece of paper. Thus, the said argument of the learned counsel of the applicant is liable to be rejected.
5.2 Non impleadment of any party likely to be affected in all other OAs [OA No. 1037/2023: Arvind Kumar & Anr. Vs. UOI, OA No. 1293/2023: Amarnath & Ors. Vs. UOI & Ors. and OA No. 3731/2022: Neha Gupta & Ors. Vs. UOI & Ors.] is fatal to the said OAs:-
i. Submission of the learned counsel for the applicants based on A Janardhana Vs UOI: (1983) 3 SCC 601 that no affected party needs to be impleaded, is misplaced. In A. Janardhana which was relied upon was a case where a policy decision of fixation of seniority was challenged and no relief seeking 32 OA No. 939/2023 & Batch placement of seniority above any person had been prayed for. However, in the instant case, the relief in para 8(a) at pg. no. 21 of OA in clear and categorical terms prays for placement above Sr. no. 1001 in impugned seniority list. Thus, the 'dicta' in the case of A Janardhana will not be applicable. On the other hand, 3 judgments cited namely (2011) 6 SCC 570: J S Yadav Vs State of UP & Anr,(2008) 12 SCC 558:
Suresh Vs Yeotmal District Central Cooperative Bank Ltd and (2012) 7 SCC 610: Vijay Kumar Kaul Vs UOI clearly applies to any challenge to seniority seeking placement is not maintainable in absence of affected parties being impleaded.
ii. The argument of applicants that the private respondents have got themselves impleaded in one OA and they should have got impleaded in other OAs is misplaced as the onus of impleading affected party is on the applicants and not on the persons likely to be affected.
5.3 In view of the above, it is submitted that the OA is liable to be dismissed being devoid of any merit.
6. In rejoinder to the above arguments, learned counsel for the applicants would state the principles of law laid down in the judgments of Amit Kumar (supra) and K. Meghachandra (supra) to be applied in their case while according them 33 OA No. 939/2023 & Batch correct seniority position in the impugned seniority list dated 07.10.2022. He further submits that the Judgment of K Meghachandra (supra) has taken into consideration the fixation of seniority on the basis of rota quota and it was held that the basic principle of service law that no one can be accorded seniority from a date prior to his being borne in the cadre, cannot be ignored while applying the system of quota.
7. We heard the learned counsel for the parties and perused the pleadings on record and also the written submissions submitted by the respective parties along with case laws relied upon by them.
8. The real point of controversy in present OA(s) are as follows:-
8.1 As to what would be the date of determination of seniority list visa- vis ICT/Promotees vs. Direct Recruits, Whether date of appointment or joining or any date under Rules?
8.2 Whether the official respondents were correct is applying the ratio of N R Parmer in preparation of seniorty list dated 7.10.2022 as on 31.3.2015 and /or decision of K Megha Chandra ought to have been applied?
8.3 What would be impact of reference made to Larger Bench by the Hon'ble Apex Court in Hari Haran's case?34 OA No. 939/2023 & Batch
9. Analysis:
9.1 In Chennai Customs Appraising Officers ... vs. Union of India & Ors., 2008 (7) SCC 278, it was held as under:-
"The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date."
38. As the ratio fixed for recruitment from different sources was not fixed, strict adherence to the principles enunciated therein was not possible to implement the same in a case of this nature. Similarly, no quota rule having been fixed, the question of breaking down thereof shall not apply. "39. Therefore, promotions may have to be continued whether on an ad hoc basis or otherwise so as to enable the Department to function effectively and efficiently. The promotees may continue in their service but when a question arises in regard to determination of seniority, the statutory rules must be given effect to."
(emphasis supplied) 9.2 ICT Vs. Direct Recruits Vs. Promotee(s) 9.2.1 The Customs Department (Group "C") Recruitment Rules, 1979 were modified vide Central Excise and Land Customs Department Inspector (Group "C" posts) Recruitment Rules, 2002 (Rules of 2002) vide notification dated 29.11.2002, wherein vide Rule 4(1) it was provided that each Commissionerate shall have its own separate cadre 35 OA No. 939/2023 & Batch unless otherwise directed by the Central Board of Excise and Customs. Despite there being a separate cadre in respect of each Commissionerate, sub-Rule (2) of Rule 4 of the Rules of 2002 provided:
"(2) Notwithstanding anything contained in sub-
rule (1), the jurisdictional Chief Commissioner of Central Excise may, if he considers to be necessary or expedient in the public interest so to do and subject to such conditions as he may determine having regard to the circumstances of the case and for reasons to be recorded in writing, order any post in the Commissionerate of Central Excise to be filled by absorption of persons holding the same or comparable posts but belonging to the cadre of another Commissionerate of Directorate under the Central Board of Excise and Customs." (emphasis supplied) Thus, Inter-Commissionerate Transfers were facilitated by Sub-Rule (2), even though each Commissionerate constituted a separate cadre. The submission of the petitioners is that Inter-Commissionerate Transfers were not necessarily governed by the Rules of 2002, and there were circulars issued for that purpose, including the circular/ letter dated 27.10.2011. The circular/ letter dated 27.10.2011, inter alia, provided, in supersession of the earlier circulars and communications, as follows:
36 OA No. 939/2023 & Batch
"2. On consideration of all aspects in the matter of ICT, it has been decided by the Board now to lift the ban on ICT with immediate effect. Accordingly, any willing Group 'B', 'C' employee and the erstwhile Group `D" employee may apply for transfer from the jurisdiction of one Cadre Controlling Authority (CCA) to another CCA subject to availability of vacancy and on the following terms & conditions:
(i) The concerned two Cadre Controlling Authorities should agree to the transfer.
(ii) The transferee will be placed below all officers appointed regularly to that post/grade on the date of his/her appointment on transfer basis in terms of Para 3.5 of DOP&T's O.M. dated 03.07.1986. In other words, such a transferee will be junior to those regularly appointed officers prior to his/her transfer."
However, such transferred officer will retain his/her eligibility of the parent Commissionerate for his/her promotion to the next higher grade, etc.
(iii) On transfer he/she will not be considered for promotion in the old Commissionerate.
(iv) He/she will not be entitled to any joining time and transfer traveling allowance;
(v) Under no circumstances, request for ICT should be entertained till the officer appointed in a particular Commissionerate /post completes the prescribed probation period.
(vi) The seniority of the officers who were allowed ICT earlier by the various Cadre Controlling 37 OA No. 939/2023 & Batch Authorities on the basis of Board's letters F.No.A.22015/19/2006-Ad.III.A dated 27.03.2009; F.No, A. 22015/11/2008-Ad .III.A dated 29.07.2009 and F.No. A.22015/15/2010- Ad.III.A dated 09.02.2011 shall be fixed as per the present instructions.
(vii) Officers who are presently working on deputation basis from their parent Commissionerate to any other Commissionerate/ Directorate and are willing to avail of the ICT in future will have to revert back to their parent Commissionerates first and apply afresh for ICT. The officers who have been continuously on deputation and have been absorbed on ICT during the interim period from 19.02.2004 (i.e. the date from which the ban became effective) till date, their seniority will be fixed from the date of their joining on deputation in the transferred Zone/Commissionerate.
(viii) A written undertaking (in the enclosed format) to abide by the requisite terms and conditions will be obtained from the officers before the transfers are actually effected.
(ix) All pending Court Cases where seniority protection/ICT has been challenged may be handled appropriately in terms of these instructions and necessary compliance furnished to the Board in due course."
9.2.3 The applicants' claim that they made their respective applications for ICTs prior to coming into force of the Rules of 2016. Those applications were not decided. The respondents issued the Rules of 2016, wherein Rule 5 reads as follows:
"5. Special provision. - Each Cadre Controlling Authority (CCA) shall have its own separate cadre, 38 OA No. 939/2023 & Batch unless otherwise directed by the Central Board of Excise and Customs."
9.2.4 The Rules of 2002 were replaced by the Rules of 2016, which deleted Rule 4(2) of the pre-existing Rules of 2002 and retained, in substance, Rule 4(1) of Rule 2002 in the form of Rule 5 under the Rules of 2016. The respondents issued Rules of 2016, wherein, Rule 5 reads as follows:
"5. Special provision. - Each Cadre Controlling Authority (CCA) shall have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs."
9.2.5 The aforesaid Rules were not brought to judicial notice of the Hon'ble High Court. Implication of Rule 5 of 2016 also have a bearing to the facts of the present case, wherein, as a special provision it is contemplated that each cadre controlling authority shall have its "own seperate cadre". Even the stand of official respondents is that the impugned final modified seniority list is in compliance of the decision by the Hon'ble High Court in various Writ Petitions as well as followed N.R. Parmar (supra) in terms of Rule 2002 (since pertains to seniority list as on 31.03.2015). It has been highlighted that the issue of Promotees Vs. Direct recruits finally came to be settled by the dismissal of SLP against Order(s) judgments dated 09.04.2022 and 07.09.2022. The 39 OA No. 939/2023 & Batch decisions are sought to be implemented by the respondents by way of Impugned final seniority list dated 07.10.2022. 9.2.6 Interestingly, in case of Rohit Jain & Ors. vs. Union Of India And Ors. decided on 19 August, 2019, Hon'le High Court repelled contention of the petitioner's (therein) who had preferred the writ petition to assail the order dated 01.05.2019 passed by this Tribunal in O.A. Nos. 3932/2018 & 3933/2018. The petitioner also assailed the circular dated 20.09.2018 issued by the Central Board of Indirect Taxes and Customs, Department of Revenue, Ministry of Finance, Government of India, wherein the respondents have taken the stand that under the Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner), Group "B" Posts Recruitment Rules, 2016 (Rules of 2016), there is no provision for recruitment by absorption and, accordingly, no Inter-Commissionerate Transfer application can be considered after coming into force of the Rules of 2016. The respondents have also stated in the impugned communication, that the office orders for Inter- Commissionerate Transfer in the Grade of Inspectors, issued on or after 26.12.2016 (i.e. from the date of enactment of Recruitment Rules of 2016), will be non-est and, accordingly, any officer who has joined another zone in pursuance of such order shall be treated as a deemed case on loan basis w.e.f. 40 OA No. 939/2023 & Batch 26.12.2016 till 31.03.2019. Thereafter, they shall stand relieved and be reverted to their parent zones. The Hon'ble High Court observed as under:-
"23. Since the Rules of 2002 were replaced by the Rules of 2016, which deleted Rule 4(2) of the pre-existing Rules of 2002 and retained, in substance, Rule 4(1) in the form of Rule 5 under the Rules of 2016, Inter-Commissionerate Transfers post the bringing into force of Rules of 2016, could not be made. Thus, reliance placed by the petitioners on the circular/ letter dated 27.10.2011 - which was issued when Rule 4(2) of the Rules of 2002 held sway, is completely misplaced. The said circular/ letter - which is an executive instruction, cannot be given effect to, in view of the material change brought about by the Rules of 2016, as taken note of hereinabove since the said circular/ letter goes contrary to the Statutory Rule contained in Rule 5 of the Rules of 2016.
24. Reliance placed on Y.V. Rangaiah (supra) is misplaced in the present context. A perusal of the said decision would show that the Rules statutorily prescribed yearly preparation of panel for promotion. It was in the aforesaid background that the Supreme Court held that the promotion to a vacancy which arose prior to the bringing into force of the amended Rules, had to be filled by application of the unamended Rules. The decision in Y.V. Rangaiah (supra) is an exception to the general Rule that the candidates have to meet the eligibility norm as prevailing when their case is considered for promotion. The same principle cannot be invoked in the facts of the present case. There is no executive instruction, much less, Rule brought to our notice by learned counsel for the petitioners, which requires the respondents to deal with the applications made by the officers for Inter- Commissionerate Transfers in a time bound manner. In fact, even the letter dated 27.10.2011 squarely provided that the concerned two Cadre Controlling Authorities should agree to the transfer. There was no vested right in any employee or officer to demand Inter-Commissionerate Transfer, as a matter of right. Thus, there was no obligation on the part of the respondents to consider and deal with the petitioners applications for Inter- Commissionerate Transfers in any specified length of time, or before the Rules of 2016 came into force.
25. The submission that Rule 4(2) did not deal with the aspect of Inter- Commissionerate Transfers, and that it only dealt with the aspect of absorption of a person belonging to one cadre of the Commissionerate into the cadre of another Commissionerate, is also completely meritless. Absorption of an officer belonging to one cadre of the Commissionerate, into another cadre of the 41 OA No. 939/2023 & Batch Comissionerate is nothing but transfer, since it is permanent and upon such absorption, the officer does not retain a lien in his parent cadre of the Commissionerate. This is what makes absorption upon transfer distinct from deputation simplicitor."
10. It is not in dispute that present cases, whether under RR's of 2002 or 2016, there is prescribed quota for purpose of filling of vacancies amongst Direct Recruit Vs. Promotee. However, there are no rules for fixing up inter-se-seniority amongst them. Over a long period of time due to pendency of various court litigations, the inter-se-seniority could not be finalized. Till now it is yet to see the light of the day. We do not wish to dwell upon in detail on the fate of said litigations. We broadly classify the cases in two categories i.e. Pre- N.R. Parmar and Post- K. Meghachandra.
10.1 In Pran Krishna Goswami & Ors vs State Of West Bengal And Ors. 1985 SCC (L&S) 857, it was observed by the Hon'ble Apex Court as under:-
"While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of Arts. 14 and 16.'' To the same effect in A. Janardhana v. Union of India, [1983] 3 SCC 601 D. A. Desai, J. Observed:
".. In other words, after having rendered service in a post included in the service, he is hanging outside the service, without finding a berth in service, whereas direct recruits of 1976 have found their place and berth in the service. This is the situation that stares into one's face while interpreting the quota-rota rule and its impact on the service of an 42 OA No. 939/2023 & Batch individual. But avoiding any humanitarian approach to the problem, we shall strictly go by the relevant Rules and precedents and the impact of the Rules on the members of the service and determine whether the impugned seniority list is valid or not. But, having done that we do propose to examine and expose an extremely undesirable, unjust and inequitable situation emerging in service, jurisprudence from the precedents namely, that a person already rendering service as a promotee has to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service. A time has come to recast service jurisprudence on more just and equitable foundation by examining all precedents on the subject to retrieve this situation." These cases were quoted with approval by Chandrachud,CJ. and one of us (Pathak, J.) in O.P. Singla v. Union of India. In that case as a result of the application of Rules 16 and 17 of the Delhi Higher Judicial Service Rules, the quota and rota' Rule ceased to apply and the question arose what was the criterion to be adopted to determine the seniority between 'direct recruits' and 'promotees'. Chandrachud, CJ. and Pathak, J. Observed:
Since the rule of 'quota and rota' ceases to apply when appointments are made under Rr. 16 and 17, the seniority of direct recruits and prormotees appointed under those Rules must be determined according to the dates on which direct recruits were appointed to their respective posts and the dates from which the promotees have been officiating continuously either in temporary posts created in the ser vice or in substantive vacancies to which they were appointed in a temporary capacity, G..S. Lamba & Ors. v. Union of India,(2) there was a break. down of the 'quoto-rota' Rule as it had not been followed. The problem was how seniority to be determined between direct recruits and promotees. D.A. Desai, 1. with whom Khalid, J. agreed after noticing the decisions in B.S. Gupta v. Union of Indiu(3). A.K. Subrarnana v. Union of India.P.S. Mahal v. Union of India, Janardhana v. Union of India, O.P. Singla v. Union of India (Supra) observed .
"In the absence of any other valid principle of senio- rity it is well-established that the continuous officiation in the cadre, grade or service will provide a valid principle of seniority.43 OA No. 939/2023 & Batch
The seniority lists having not been prepared on this principle are liable to be quashed and set aside."
10.2 In the case of Pawan Pratap Singh and others vs. Reevan Singh and others,(2011) 3 SCC 267, the Hon'ble Apex Court observed as under:-
"45. From the above, the legal position with regard to determination of seniority in service can be summarised as follows:
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory of rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."
10.3 A Civil Appeal Nos. 8324-8327 OF 2022 [Arising out of Special Leave Petition (Civil) Nos. 30734- 30737 of 2014] Amit Singh Vs. Ravindra Nath Pandey decided on 44 OA No. 939/2023 & Batch 11.11.2022 by the Hon'ble Apex Court is a clincher to the issue in hand, It was held that in case of inter-se-seniority between the direct recruits and promotees,the seniority list shall be prepared by applying the rota system to direct recruits and promotees appointed in one recruitment year and not otherwise when the recruitment process took a long time and did not end within the said recruitment year. The Hon'ble Apex Court observed as under:-
"22. A bench of three learned Judges of this Court in the case of P. Sudhakar Rao and others vs. U. Govinda Rao (2013) 8 SCC 693 and othershas approved the law as laid down by this Court in the case of Pawan Pratap Singh and others (supra).
23. It is thus clear that the inter se seniority between the promotees and the direct recruits will have to be determined in accordance with the 1992 Rules. The 1992 Rules fix the quota of 67% for direct recruits and 33% for promotees. A "year of recruitment" has been defined to be a period of twelve months, commencing from the first day of July of the calendar year and as such, in the present case, the year of recruitment would be from 1st of July of 1997 to 30th of June 1998.
24. Admittedly, the direct recruits were appointed on 18th August, 1997, whereas the promotees were appointed on 16th December, 1997, i.e. both were appointed in the selection/recruitment year 1997-98. In view of sub-rule (2) of Rule 19 of the 1992 Rules, where the appointment of both the direct recruits and of the promotees were to be made in the same year of recruitment, regular appointments should not have been made unless selections were made from both the sources and a combined list was prepared in accordance with Rule 18 of the 1992 Rules. In view of sub-rule (3) of Rule 19 of the 1992 Rules, since the appointments in the same selection/recruitment year were made both by direct recruitment and by promotion, the names were required to be arranged in accordance with the cyclic order referred to in Rule 18 of the 1992 Rules. In view of Rule 18 of the 1992 Rules, a combined select list has to be prepared by taking the names of candidates from the relevant list, as per the quota for the direct recruits. In other words, the first name in the list was required to be that of a promotee.45 OA No. 939/2023 & Batch
25. A combined seniority list was initially prepared in accordance with the said provisions of the 1992 Rules on 18th September 2003. However, it had been erroneously changed on 29th July, 2005, thereby giving undue benefits to the direct recruits over the promotees. Such a list was in contravention of the provisions of Rules 18 and 19 of the 1992 Rules. When the 1992 Rules specifically emphasized that, where in any year of recruitment, appointments were to be made both by direct recruitment and by promotion, regular appointments could not have been made unless selections were made from both the sources and a combined list was to be prepared in accordance with Rule 18 of the 1992 Rules, the seniority list dated 29th July 2005, which provided a higher seniority to the direct recruits, is, for the aforesaid reasons, not sustainable in law.
26. Insofar as the judgment of this Court in the case of Uttaranchal Forest Rangers' Assn. (Direct Recruit) and others (supra) is concerned, the same would not be applicable to the facts of the present case. In the said case, the promotees, who were promoted in 1991, claimed seniority over the direct recruits who were substantively appointed at a prior point of time in 1990. In any case, the 1992 Rules did not fall for consideration in the said case.
27. As already discussed herein above, we are of the considered view that, in view of Rules 18 and 19 of the 1992 Rules, the seniority list dated 29th July 2005, impugned before the High Court, is not sustainable in law.
28. In the result, we find no merit in the present appeals. The appeals deserve to be dismissed and, as such, are dismissed."
10.4 In K. Meghachandra (supra), N R Parmar (supra) was overruled by the Hon'ble Apex Court, observing as under:-
"38. When we carefully read the judgment in N. R. Parmar (Supra), it appears to us that the referred OMs (dated 07.02.1986 and 03.07.1986) were not properly construed in the judgment. Contrary to the eventual finding, the said two OMs had made it clear that seniority of the direct recruits be declared only from the date of appointment and not from the date of initiation of recruitment process. But surprisingly, the judgment while referring to the illustration given in the OM in fact overlooks the effect of the said illustration. According to us, the illustration extracted in the N.R. Parmar (Supra) itself, makes it clear that the vacancies which were intended for direct recruitment in a particular year (1986) which were filled in the next year (1987) could be taken into consideration only in the subsequent year's seniority list but not in the seniority list of 1986. In fact, this was indicated in the two OMs dated 07.02.1986 and 03.07.1986 and that is why the 46 OA No. 939/2023 & Batch Government issued the subsequent OM on 03.03.2008 by way of clarification of the two earlier OMs.
39. At this stage, we must also emphasize that the Court in N. R. Parmar (Supra) need not have observed that the selected candidate cannot be blamed for administrative delay and the gap between initiation of process and appointment. Such observation is fallacious in as much as none can be identified as being a selected candidate on the date when the process of recruitment had commenced. On that day, a body of persons aspiring to be appointed to the vacancy intended for direct recruits was not in existence. The persons who might respond to an advertisement cannot have any service-related rights, not to talk of right to have their seniority counted from the date of the advertisement. In other words, only on completion of the process, the applicant morphs into a selected candidate and, therefore, unnecessary observation was made in N. R. Parmar (Supra) to the effect that the selected candidate cannot be blamed for the administrative delay. In the same context, we may usefully refer to the ratio in vs. Shankarsan Dash Vs. Union of India4, where it was held even upon empanelment, an appointee does not acquire any right."
10.5 Later on that is in Hariharan (supra), the Hon'ble Apex Court has referred the issue of inter-se-seniority observing as under:-
"In the facts of the case, there is no dispute that as far as the posts of Income Tax Inspectors are concerned, the principle of rota and quota or rotation of quota will apply. The posts of Income Tax Inspectors are being filled in by direct recruits and promotees in the proportion already fixed. Therefore, a roster will apply where the points will be for direct recruits and promotees as per the proportion fixed.
22. We have, therefore, no manner of doubt that till the year 2018, in relation to the recruitment and vacancies to the posts of Income Tax Inspectors, the financial year was being treated as the recruitment year or vacancy year.
Thus, on facts, it can be concluded that the process of recruiting direct recruits to 35 posts of Income Tax Inspectors of the vacancy/recruitment year 2009-10 commenced in the same year 2009-10.
The argument made before us is that the decision in the case of K. Meghachandra2 will have to be ignored on the 47 OA No. 939/2023 & Batch ground that it is per incuriam as the attention of the Bench which decided the case was not invited to the binding decisions of the Constitution Bench in the case of Mervyn Coutindo3 and a Coordinate Bench in the case of M. Subba Reddy6. Prima facie, we find substance in the argument that the attention of the Bench which decided the case of K. Meghachandra2 was not invited to the aforesaid binding precedents. Therefore, we are of the view that the appropriate course of action will be to refer the question to a larger Bench. We are dealing with a case where the 'rotation of quota' or rota and quota system is being followed. If the promotees are recruited in the relevant recruitment year, but the process of recruitment of the direct recruits which commenced in the same recruitment year could not be completed in the same year, the direct recruits appointed subsequently will have to be interspaced between the promotees of the same recruitment year. In such a case, it cannot be said that direct recruits were not available during the recruitment year. Their appointment could not be made during the same year, though the process of appointment commenced in the same year. But, if the process of recruitment of the direct recruits is completed in the same recruitment year but an adequate number of candidates could not be selected, the shortfall should be carried forward to the next recruitment year. In such cases, the candidates who are selected against shortfall vacancies will have to be bunched below the promotees of the earlier years. Unless such a procedure is followed, the rotation of quota system will be defeated.
31. Coming to the facts of the case, though process of recruitment of direct recruits to the post of Income Tax Inspectors commenced in the recruitment year 2009-10, the same could not be completed in the same recruitment year. This is not a case where an adequate number of direct recruits could not be recruited even though the recruitment was done in the recruitment year itself. In this case, those who were eligible for direct recruitment were deprived of the opportunity as the process of recruitment could not be completed during the same recruitment year 2009-10 due to no fault on their part. The documents annexed to the counter affidavit show that the segregation of vacancies for 2009-10 and 2010-
11 has been properly made.
32. In any event, the decision in the case of K. Meghachandra2 has a prospective operation. The seniority list of 7th September 2016 was made in terms of the decision in the case of N. R. Parmar1. Hence, the same could not have been altered on 13th February 2018 ,when the said decision was in force.
33. Thus, our conclusion can be summarised as under: 48 OA No. 939/2023 & Batch
The decision in the case of K. Meghachandrarequires reconsideration by a larger Bench in view of the fact that the binding decision of a Constitution Bench in the case of Mervyn Coutindo3 and another binding decision of a Coordinate Bench in the case of M. Subba Reddywere not placed for consideration before the Bench which decided the case of K. Meghachandra ; Even assuming that the case of K. Meghachandra was correctly decided, paragraph 39 of the decision shows that the decision in the case of N.R. Parmar has been prospectively overruled by observing that the decision will not affect the inter-se- seniority already fixed on the basis of the case of N.R. Parmar and the same was protected. It is also held that the decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy / the date of advertisement. In this case, as on the date when the case of N.R. Parmar was decided, there was no rule which required that the inter- se-seniority of direct recruits and promotees to the post of Income Tax Inspectors should be fixed from the date on which a person is born in the cadre. In the facts of the case, the seniority list was correctly published on 7th September 2016 in terms of the decision in the case of N.R. Parmar by interspacing those direct recruits who were eligible in the recruitment year 2009-10 and were appointed against the vacancies of the said year with 53 promotees who were promoted vide DPC dated 29th June 2009. The seniority list was later on modified on 13th February 2018 without giving an opportunity of being heard to the affected direct recruits.
34. At this stage, we may note here the factual aspects stated in the affidavit dated 12th October 2022 filed by Shri Anurag Chandra, Deputy Commissioner of Income Tax in the Office of the Principal Chief Commissioner of Income Tax, Gujarat. The affidavit refers to the interim order dated 13th July 2018 in the Civil Appeal arising out of S.L.P. (C) No.16161 of 2018, by which status quo as of that date with respect to the posts held, was ordered to be maintained. The affidavit notes that as a result of the interim order, the promotion to the cadre of Income Tax Officers from the cadre of Income Tax Inspectors could not take place. As a result, 33.33% of posts in the cadre of Income Tax Officers are vacant as the same cannot be filled in. As noted earlier, the decision in the case of K.Meghachandra applies prospectively i.e. from 19th November 2019. Prima facie, the seniority fixed based on the decision in the case of N.R. Parmar has to be given effect. Therefore, while we are recommending a reference to a larger Bench, interim relief will have to be vacated and seniority will have to be fixed on the basis of the impugned judgment, subject to the final outcome of the appeal or the decision of the larger Bench, as the case may be.
35. Hence, we pass the following order:
49 OA No. 939/2023 & Batch
i. We are of the considered view that the following questions need to be decided by a larger Bench of five Hon'ble Judges:
a.Whether the decision in the case of K. Meghachandracan be said to be a binding precedent in the light of the law laid down by the Constitution Bench in the case of Mervyn Coutindo and the law laid down by a Coordinate Bench in the case of M. Subba Reddy?
b.In absence of specific statutory rules to the contrary, when the 'rotation of quota' rule is applicable, whether the seniority of direct recruits who were recruited in the recruitment process which commenced in the relevant recruitment year but ended thereafter, can be fixed by following 'rotation of quota' by interspacing them with the direct recruits of the same recruitment year who were promoted earlier during the same year?
ii. We direct the Registry to place this petition before Hon'ble the Chief Justice of India for appropriate orders.
iii. The interim relief granted on 13th July 2018 stands vacated. Effect shall be given to the impugned judgment subject to the final outcome of this appeal or reference, as the case may be. We also clarify that the seniority of promotees and direct recruits who may be appointed hereafter will be subject to the final outcome of the decision of this appeal or the decision in reference, as the case may be. Accordingly, concerned persons shall be informed in writing by the Income Tax Department.
36. In the Civil Appeal arising out of Special Leave Petition (C) Diary No.12422 of 2022, the challenge is to the judgment and order dated 6th February 2018 passed by the High Court of Judicature at Patna which follows the decision in the case of N.R. Parmar1 dealing with the issue of appointment of Income Tax Inspectors pertaining to the recruitment year 2009-10. This appeal be heard along with the main appeal."
10.6 In Ashok Ram Parhad and others vs. State of Maharashtra and Others, 2023 SCC OnLine SC 265, the Apex Court explained that in service jurisprudence, the Service Rules are liable to prevail. There can be Government Resolutions being in consonance with or expounding the Rules, but they cannot be in conflict with the same. The 50 OA No. 939/2023 & Batch Government Resolutions issued by the Administrative Department cannot have the status of a statutory rule although such resolutions may have their own effect. In para 52 it was held as under:
"52. The principle of determination of inter se seniority amongst direct recruits &promote officers that emerge from the aforesaid discussion of Rules and Notifications makes it clear that for the purpose of fixation of inter se seniority, the date to be reckoned for the direct recruits is "the date of appointment". (Ref: Jagmohan Vishwakarma And Ors. vs Union Of India And Ors. in WP No. 13176/2019 decided on 31 July, 2023, Hon'ble High Court of Delhi)."
10.7 Thus, the seniority cannot be given on retrospective basis when an employee has not even borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.
110. APPLYING RATIO OF VARIOUS DECISIONS TO FACTS OF THE CASE:-
11.1 The relevant extracts of the dates/events which would be decisive in determining the submissions raised by the respective counsels are broadly as follows :-
Sr Date of Case Title "Dicta" No. Decision 03.07.1986 OM issued by the For determining DOPT, UOI inter-se seniority between direct recruits and promotees, it would be done as per rotation of quota to the extent of number of 51 OA No. 939/2023 & Batch vacancies for direct recruits and promotees. as determined according to the quota for that year and the additional direct recruits/promotees selected against the carried forward vacancies of the previous year, to be placed en-bloc below the last promotee/direct recruit, as the case may be, in the seniority list. All the existing instructions on seniority 3.3.2008 G.M. No. Subsequently. vide 20011/l/2006- G.M. No. Estt.(D) issued by 20011/l/2006- DOPT/UOI Estt.(D) dated 3.3.2008. the tenii 'available' as provided in OMs dated 7.2.1986/3.7.1986 was sought to be clarified, wherein it was clarified that the actual year of appointment, both in the case of direct recruits and promotees, would be reckoned as the year of availability for the purpose of rotation and fixation of inter se seniority 52 OA No. 939/2023 & Batch 27.11.2012 Civil Appeal No. defining the 7514-7515/2005 in recruitment year to the case of N.R. be the year of Parmar v/s Union initiating the of India & Others recruitment process against the vacancy year and that the rotation of quota, would continue to operate for determination of inter-se seniority between direct recruits and promotees. 04.03.2014 OM issued by DOPT N R. Parmar (Supra) was delivered, the Union of India issued the Office Memorandum on defining the recruitment year to be the year of initiating the recruitment process against the vacancy year and that the rotation of quota, would continue to operate for determination of inter-se seniority between direct recruits and promotees. 21.12.2017 O M issued by OM dated DOPT 04.03.2014 prospectively with effect from 01.01.2018 53 OA No. 939/2023 & Batch 6th Civil Appeal arising Civil Appeal arising February out of Special Leave out of Special 2018 Petition (C) Diary Leave Petition (C) No.12422 of 2022 Diary No.12422 of 2022, the challenge is to the judgment and order dated 6th February 2018 passed by the High Court of Judicature at Patna which follows the decision in the case of N.R. Parmar 15.3.2018 Impugned Seniority List as on list issued by the 31.3.2015 based respondent on N.R. Parmar 13th July CIVIL APPEAL NO. interim relief 2018 OF 2022 (Arising granted out of Special Leave Petition (C) No.16161 of 2018) -'Hariharan & Ors. v. Harsh Vardhan Singh Rao & Ors 19.11.2019 Judgement of the N R Parmer over- Hon'ble Supreme rulled. Court of India in Civil Appeal No. 8833-8835 of 2019 of K. Meghachandra Singh & Ors. Vs Ningam Siro & Ors 13th OM issued by DOPT Judgement of the August, /UOI Hon'ble Supreme 2021 Court of India in Civil Appeal No. 8833-8835 of 2019 of K. Meghachandra Singh & Ors. Vs Ningam Siro & Ors -- revised instructions relating to seniority of direct recruits and promotces and inter-se seniority 54 OA No. 939/2023 & Batch thereof-- rcg. 18.8.2021 OM issued by Ratio of
Ministry of Finance K.Meghachandra to to follow OM dated be followed 13.8.2021 13.10.2020 Judgement in OA OA preferred by No. 2958/2020 Promotee Vs Direct Recruits.
9.4.2021 Judgment by the dismissal of WP
Hon'ble High Court preferred by
in WP (c) No. against the
3576/2021 Judgement in OA
7.9.2022 Judgment by the dismissal of WP
Hon'ble High Court preferred by Direct
in WP (c) No. Recruits against
11170/2021 the Judgement
dated 13.12.2020
in OA No.
2958/2020
20.5.2022 SLP dismissal of SLP
No.009519/2022 preferred by pvt
respondents
against decision of
Hon'ble High Court
12.7.2022 SLP dismissal of SLP
No.0110046/2022 preferred by official
respondents
against decision of
Hon'ble High Court
7.10.2022 Impugned Modified Reg:
Final Senority List implementation of issued by the decision of Hon'ble respondent as on High Court by 31.3.2015 respondents upon dismissal of SLP(s).
14.12.2022 CIVIL APPEAL NO. interim relief
OF 2022 (Arising granted on 13th
out of Special July 2018 stands
Leave Petition (C) vacated.
No.16161 of 2018) "Effect shall be
-'Hariharan & Ors. given to the
v. Harsh Vardhan impugned
Singh Rao & Ors judgment subject
to the final
outcome of this
appeal or
reference, as the
55 OA No. 939/2023 & Batch
case may be."
8th, March, Contempt Petition Contempt Petition
2023 No. No. 17 of 2021 is
180/00017/2021 in closed reserving
Original Application the right of the
No. petitioner to move
180/00143/2019 & again, if required,
Original Application subject to outcome
No. of OP (CAT) 106 of
180/00396/2021 2020. OA No. 396
Original Application of 2021 and OA
No. No. 441 of 2021.
180/00441/2021
passed by CENTRAL the interim order
ADMINISTRATIVE granted in OA
TRIBUNAL, No.441/2021 on
ERNAKULAM 20.09.2021 will
BENCH, stand vacated with
ERNAKULAM a direction to the
respondents
Income Tax
officials to convene
the DPC to further
proceed with the
list prepared in the
light of the
decision of this
Tribunal in OA No.
143 of 2019.
11.2 We would like to draw reference to relevant extracts of the Notification which formed the basis of Impugned Modified Seniority list dated 7.10.2022 ( upto 31.3.2015 ) and another Seniority list upto 31.3.2019, vide Notification dated 13.8.2021 in terms of para 7 following instructions were issued based on the above, where it has been decided to modify the instructions relating to determination of inter-se-
seniority between promotees and direct recruits as under: 56 OA No. 939/2023 & Batch
(i) DoPT's O.M. No. 20011/l/2012-Estt.(D) dated 4.3.2014.
issued in pursuance of Order dated 27.11.2012 in N.R. Parmar case. is treated as non-est/withdrawn well 19.11.2019.
(ii) As the Order dated 19.11.2019 is prospective, cases of inter xc seniority of direct recruits and proniotees. already decided in terms of O.M. No. 2001 l/l/2012-Estt.(D) dated 4.3.2014, shall not be disturbed. i.e. old cases are not to be reopened.
(iii) In case of direct recruits and promotees appointed/joined during the period between 27.11.2012 and 18.11.2019 and in which case in/er xc seniority could not be finalised by 18.11.2019, shall also be governed by the provisions of O.Ms. dated 7.2.1986/3.7.1986 read with OM dated 4.3.2014, unless where a different formulation/manner of determination of seniority has been decided by any Tribunal or Court.
(iv) For cases where the recruitment process has been initiated by the administrative Department/Cadre Authority before 19.11.2019 and where some appointments have been niade before 19.11.2019 and remaining on or after 19.11.2019, the inter xc seniority of direct recruits and promotces. shall also be governed by the provisions of O.Ms. dated 7.2.1986/3.7.1986 read with OM dated 4.3.2014 to ensure equal treatment of such appointees.
(v) For recruitments initiated on or after 19.11.2019 as well as for future recruitments, in addition to cases where the recruitment process has been initiated by the administrative Department! Cadre Authority before 19.11.2019, but where alt appointments, subsequent to the initiation of recruitment process. could be made only on or after 19.11.2019 i.e. date of order of Apex Court, the inter se seniority of direct recruits and promotes shall be determined in the following manner-
(a) The rotation of quota based on the percentage of vacancies allocated to direct recruitment and promotion in the notified recruitment rules/service rules, shall continue to operate for determination of vacancics to he filled by the respective quotas in a recruitment year.
(b) Determination of inter-se seniority between direct recruits and promotees, who are appointed against the vacancies of respective quota. would, however, be reckoned with reference to the year in which they are appointed i.e. year in which they are borne in the cadre or formal appointment order is issued. In case. where the recruitment year is the same as the year of appointment. the appointees shall be given seniority of that year.
(c) Where in case of promotees or direct recruits. the year of appointment is the next year or any year subsequent to the recruitment year. the seniority of such promotees and direct recruits would be determined with reference to the year of their actual joining/appointment to the post. since they were not able to join in the said recruitment year in which the vacancy arose. Thus, they would get seniority of the year in which they actually join i.e. year in which formal appointment order is issued or they are borne in the service/cadre and that they shall not get seniority of any 57 OA No. 939/2023 & Batch earlier year (viz. year of Vacancy/panel or year in which recruitment process is initiated).
(d) In terms of OMs dated 7.2.1986/3.7.1986, rotation between proniotees and direct recruits for the purpose of determination of inter-se seniority, would be undertaken only to the extent of available direct recruits and proniotees in a particular year. The term 'available direct recruits or promotees' appearing in these OMs dated 7.2.1986/3.7.1986, for the purpose of rotation of quota in fixation of inter-se seniority, shall mean the actual number of direct recruits and promotees appointed during the year after declaration of results/selection and completion of 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 of determining inter- se seniority, would stop after the available direct recruits and promotes are assigned their slots on their appointment/joining in that year.
(f) If no direct recruit is available in a particular year. available promotees would he bunched together in accordance with their position in the panel approved for promotion. Similarly. if no promotee is available in that year. available direct recruits would be bunched together, as per their position obtained in the selection process.
(g) In case, where direct recruits or promotees. as the case may be, belonging to two more selections/panel approved for promotion. join in the same year, then those who have been appointed/joined as a result of earlier selection/panel would be placed senior in the seniority list to those been appointed/joined as a result of a subsequent selection/panel.
(h) Instructions contained in OMs dated 7.2.1986 and 3.7.1986, stand modified to the extent indicated in above paragraphs.
8. These provisions shall conic into effect from 19.11.2019 onwards."
11.3 The impact of various decision(s) and pending litgation(s) following questions are being addressed to factual martix of the case:-
a) Whether the impugned seniority lists dated 15.3.2018 and 07.10.2022 as well as 04.12.2023 ( already interim 58 OA No. 939/2023 & Batch order(s) dated 22.12.2023 have been passed in OA No.4156/2023 has been prepared on the basis of NR Parmar?
Ans. Yes. The official respondents have made a significant statement during the hearing that seniority lists dated 15.03.2018 and dated 07.10.2022 as well as 04.12.2023 on the basis of NR Parmar. No explanation or basis is coming forth from official respondents as to how the official respondents are following N R Parmar after 19.11.2019, when the impugned list were under litigation till 12.07.2022.
b) Decision in the case of K.Meghachandra applies prospectively i.e. from 19th November 2019? Ans. No dispute to the same. However, it is not in dispute that list dated 15.03.2015 was upto 31.03.2015. The said list was never finalised as same was under litigation. The said list was again modified vide impugned modified final seniority list dated 07.10.2022 which was also up-to 31.03.2015. Thus, there is fallacy in the arguments of official respondents that in factual martix of present case even when the list was not finalized, the OM dated 18.08.2021 had followed the prospective application of K.Meghachandra. i.e. from 19th November 2019. This is also apparent from the fact that even after decision in K.Meghachandra, the respondents have followed N R Parmar's case in preparation of seniority list dated 04.12.2023 as on 31.03.2019.
59 OA No. 939/2023 & Batch
c) In absence of specific statutory rules to the contrary, when the 'rotation of quota' rule is applicable? Ans. Ratio of K.Meghachandra has to be followed after 19.11.2019. Impugned seniority list has been prepared post 19.11.2019 contrary to OM dated 13.08.2021 and OM dated 18.08.2021.
d) Whether the seniority of direct recruits who were recruited in the recruitment process which commenced in the relevant recruitment year but ended thereafter, can be fixed by following 'rotation of quota' by interspacing them with the direct recruits of the same recruitment year who were promoted earlier during the same year?
Ans. There is nothing on record to show that the recruitment of direct recruits and promotees/ICTs is for the same recruitment year. As discussed herein above, all the parties would have been appointed after 31.03.2015. The inter spacing has to be done from the date of issuance of appointment of order(s) of respective individuals. The issue has been explained in OM dated 13.08.2021 and has to be dealt with said OM dated 13.08.2021 and OM dated 18.08.2021.
11.4 The official respondents as well as private respondents have sought aid and shelter to the order dated 08.03.2023 passed in Contempt Petition No. 180/00017/2021 in Original 60 OA No. 939/2023 & Batch Application No. 180/00143/2019 & Original Application No. 180/00396/2021 Original Application No. 180/00441/2021 passed by Ernakulam Bench of this Tribunal. We may highlight that applicants in OA No. 143 of 2019 were few Income Tax Inspectors who were directly recruited by notification in 2014. They participated in the written examination in 2014, placed in the rank list and allotted Kerala region by appointment order issued in the year November/December, 2015. When steps were initiated for finalising the seniority, the applicants approached this Tribunal claiming that their seniority should be reckoned from 2013. The allegation in the above OA was that the respondent Income Tax Department, Kerala region was not finalizing the seniority list in tune with the decision of the Supreme Court in N.R. Parmar (supra). Respondent department contended that only a draft list has been published and it would be finalized after considering all objections. They undertook that the decision in N.R. Parmar's case (supra) would be carefully followed. When the matter was taken up for final hearing, the Tribunal was informed that N.R. Parmar's decision stood overruled by the decision of the Supreme Court in K. Meghachandra (supra). Consequently, by Order dated 10.01.2020 the Tribunal disposed of the OA by directing respondent Income Tax Department to finalize the seniority list following the ratio in 61 OA No. 939/2023 & Batch K.Meghachandra(supra) and directed to finalize the draft seniority list as per Rule within 60 days and thereafter to give effect to promotion by convening the DPC.
11.5 The plain and ordinary meaning of word "Dicta" in "Latin" phraseology is for "remark," a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be cited in legal argument, it does not have the full force of a precedent (previous court decisions or interpretations) since the comment was not part of the legal basis for judgment. The standard counter argument is: "it is only dictum (or dicta)." 11.6 In Career Institute Educational Society Vs. Om Shree Thakurji Educational Society in Petition for Special Leave to Appeal (C) Nos. 7455-7456/2023 decided on 24.3.2023, the Hon'ble Apex Court observed as under:-
"The distinction between obiter dicta and ratio decidendi in a judgment, as a proposition of law, has been examined by several judgments of this Court, but we would like to refer to two, namely, State of Gujarat & Ors. vs. Utility Users' Welfare Association & Ors.(2018) 6 SCC 21 and Jayant Verma & Ors. vs. Union of India & Ors.(2018) 4 SCC 743 .
The first judgment in State of Gujarat (supra) applies, what is called, "the inversion test" to identify what is ratio decidendi in a judgment. To test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e. to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, 62 OA No. 939/2023 & Batch then it cannot be regarded as the ratio decidendi of the case.
In Jayant Verma (supra), this Court has referred to an earlier decision of this Court in Dalbir Singh & Ors. vs. State of Punjab1(1979) 3 SCC 745 to state that it is not the findings of material facts, direct and inferential, but the statements of the principles of law applicable to the legal problems disclosed by the facts, which is the vital element in the decision and operates as a precedent, albeit operates as res judicata. Even the conclusion does not operate as a precedent. Thus, it is not everything said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judge's decision binding as a legal precedent is the principle upon which the case is decided and, for this reason, it is important to analyse a decision and isolate from it the obiter dicta.
Applying these principles, we dismissed the special leave petitions."
11.7 The ratio of order passed in Contempt jurisdiction as well as on interim order cannot bind this Tribunal in original jurisdiction in original application(s) which are being finally adjudicated upon. The scope of power under Contempt operates in narrow compass and can be exercised within the limited sphere of adjudication as the case is not determined on merits but on the aspect of the order in contempt has not been complied with in true letter and spirit or that the acts of contemnor(s) are willful or deliberate one. Further, it is important to note in original jurisdiction, the powers exercised by the Courts or Tribunal are very wide to adjudicate upon the real lis between the parties i.e. conclusive and final determination of the issues thereto. 63 OA No. 939/2023 & Batch Thus, scope of both the jurisdiction cannot be equated with each other.
11.8 Taking aid of the Order passed by the Coordinate Bench of this Tribunal cannot come to rescue of the respondents in as much as actual effect of decision as per chronology of events highlighted above, would clearly goes to show that in Hariharan (supra), the Hon'ble Apex Court has observed that interim relief granted on 13th July 2018 stands vacated ( which was in favour of direct recruits), "effect shall be given to the impugned judgment i.e. (K.Meghachandra) subject to the final outcome of this appeal or reference, as the case may be". The official respondents cannot surpass or to give a go by to OM dated 13.08.2021 and 18.08.2021 merely on the basis of the fact that K.Meghachandra (supra) applies prospectively i.e. from 19th November 2019. The purport of OM dated 13.08.2021 and 18.08.2021 has to be applied and seen while applying K.Meghachandra (supra) as a whole. Applying the ratio of K.Meghachandra (supra) in piecemeal would render ratio of N.R.Parmar (supra) meaningless and redundant to applicant(s) herein who are appointed and borne in cadre of Delhi Zone between 31.03.2015 and 19.11.2019 as such they were not inter-spaced and not assigned any seniority.
64 OA No. 939/2023 & Batch11.9 We also refer herein that in Hariharan (supra) in para 7, the Hon'ble Apex Court had noticed that "a status quo order was passed noticing the fact that on 13th July 2018, notice was issued in the Special Leave Petition no.16161 of 2018 which is the subject matter of the present Civil Appeal and by an interim order, the status quo as of that date was ordered to be maintained. The appellants who were respondents in the writ petition before the High Court, are the promotees who were promoted vide DPC dated 29th June 2009."
Now, the said status quo order in favour of direct recruits has been vacated in Hariharan (supra) of course with a rider that subject to the final outcome of the appeal or reference.
11.10 The official respondents for reasons best known to them did not choose to follow the ratio/directions in K.Meghachandra (supra) even in the list dated 07.10.2022 and thereafter, in list of 04.12.2023 rather followed the dictum of N.R.Parmar's case (supra) (which stands over ruled as of now).
11.11 We find that the ratio of K.Meghachandra (supra) has neither been set aside nor there has been stay on the operation of the same. At this stage, the promotion cannot be curtailed which would lead to administrative difficulties. A 65 OA No. 939/2023 & Batch reference of case to larger Bench by itself is not a ground to deny the claim of the applicants, which definitely is subject to the final outcome of the appeal or reference pending before the Hon'ble Apex Court in Hariharan's case (supra). The respondents have been overshadowed and swayed by the observations made in Hariharan's case (supra). The official respondents cannot take plea of the observations made in Hariharan's case (supra) and finalize a list on an overruled decision in N.R.Parmar's case (supra) to further create a confusion which is of their own actions. We also reiterate the observations made in K.Meghachandra (supra) "in as much as none can be identified as being a selected candidate on the date when the process of recruitment had commenced. On that day, a body of persons aspiring to be appointed to the vacancy intended for direct recruits was not in existence. The persons who might respond to an advertisement cannot have any service-related rights, what to talk of right to have their seniority counted from the date of the advertisement. In other words, only on completion of the process, the applicant morphs into a selected candidate". ( emphasis added). 11.12 In light of above, it makes abundantly clear that the ratio in K.Meghachandra (supra) decision ought to have been followed in terms of OM dated 13.08.2021 and 18.08.2021. 66 OA No. 939/2023 & Batch 11.13 In para 35 of the recent decision Union Territory Of Ladakhvs Jammu And Kashmir National Conference in Civil Appeal No. 5707/2023 decided on 6 September, 2023, the Hon'ble Apex Court has stressed upon as under :-
"35. We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a 5-Judge Bench in National Insurance Company Limited v Pranay Sethi, (2017) 16 SCC 6805.The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before it."
11.14 In so far as other contentions raised by the respondents for delay and laches, non-impleadment of parties, earlier round of ligitations /withdrawal of cases as well as failure to make representations by the few or all the applicants before approaching the courts stands repelled/rejected as this Hon'ble Apex Court in the recent case of Mukul Kumar Tyagi and Ors. vs. The State of Uttar Pradesh and Ors., (2020) 1 SCALE 151, Shri Ashok Bhushan, J., laid emphasis that when there is a long list of 67 OA No. 939/2023 & Batch candidates against whom the case is proceeded, then it becomes unnecessary and irrelevant to implead each and every candidate. If some of the candidates are impleaded then they will be said to be representing the interest of rest of the candidates as well. The relevant portion of paragraph 75 from the judgment is reproduced below:
"75. The present is a case where the writ petitioners had not raised any challenge to a particular qualification of any individual candidate rather their challenge was that without scrutiny large number of candidates, who were claiming qualification equivalent to CCC certificate have been included without there being any scrutiny and without they fulfil the qualification. The case of the writ petitioners was that the computer certificate issued by the private organisations and unregistered societies, who neither were recognised by the State Government or Central Government or by any statutory body could not issue any certificate. We may further notice that Division Bench also noticed the above argument of non- impleadment of all the selected candidates in the writ petition but Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity."
"It was not disclosed as to how the seniority list has been prepared by treating the three separate lists independently on their merits but not as a result of combined merit of the three lists. It was only in 2010 that the appellants came to know of the fallacy and soon thereafter they challenged the seniority list of 2010. Even if, they did not challenge the seniority list of 2006, 2010, seniority list could always be revisited, reviewed and prepared afresh, if the same was quashed. The appellants could not have been at any loss even if they had not challenged the 2006 seniority list.
( Ref: "CIVIL APPEAL NO(s). 5966 OF 2021 (arising out of SLP (Civil) No(s). 5435 of 2020) AJAY KUMAR SHUKLA AND OTHERS VERSUS ARVIND RAI AND OTHERS.
decided on 08.12.2021."68 OA No. 939/2023 & Batch
12. CONCLUSION:
12.1 In view of the above analysis and discussion(s), we dispose of all OA(s) by directing official respondent(s) to re-
draw and finalize the seniority list within 60 days in terms of K.Meghachandra (supra) which ought to have been followed in terms of OM dated 13.08.2021 and 18.08.2021, thereafter only, to give effect to promotion by convening the DPC with a rider that same shall be subject to the final outcome of the appeal or reference in Hariharan (supra). CP No.34/2023 12.2 In view of the above direction, the CP also stands closed. Notices are discharged.
12.3 All pending Miscellaneous Applications, if any, shall also stand disposed off accordingly. No order as to costs.
(Chhabilendra Roul) (Manish Garg) Member (A) Member (J) 'SD'