Central Administrative Tribunal - Delhi
Sh. Gaurav Singh vs Union Of India Through on 12 May, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1854/2013
MA-1043/2014
Reserved on : 16.04.2014.
Pronounced on :12.05.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
1. Sh. Gaurav Singh,
S/o Sh. Shankar Singh,
R/o 15, Narmada Apartments,
Sector-4, Vaishali, Ghaziabad,UP.
2. Ms. Ashima Pujara,
C/o Sh. B.K. Mehta,
R/o 681, Vikas Kunj,
Vikas Puri, New Delhi-18.
3. Sh. Roshan Kumar Gupta,
S/o Sh. Kuber Das,
R/o 43, Income Tax Colony,
Pitampura, Delhi.
4. Sh. Rajeev Kumar,
S/o Sh. Jagdish Chander,
R/o 60, Income Tax Colony,
Pitam Pura, Delhi.
5. Sh. Suman Kumar Jha,
S/o Sh. Bedanand Jha,
R/o 84, Income Tax Colony,
Pitam Pura, Delhi.
6. Sh. Umesh Kumar,
S/o Sh. Balbir Singh,
R/o 2022, Gali Barafwali,
Kinari Bazar, Chandni Chowk,
Delhi-06.
7. Sh. Shailender Singh,
S/o Sh. Yashpal Singh,
R/o 25, Narmada Apartments,
Sector-4, Vaishali, Ghaziabad,
UP. . Applicants
(through Sh. A.K. Behera, Advocate)
Versus
1. Union of India through
The Secretary,
Ministry of Finance,
Department of Revenue,
Govt. of India, New Delhi-1.
2. Central Board of Direct Taxes(CBDT),
North Block, New Delhi-1,
Through the Chairperson, CBDT.
3. The Chief Commissioner of Income Tax(CCA),
C.R. Building, IP Estate,
New Delhi-2.
4. Arun Kumar,
S/o late Sh. S.N. Uniyal
O/o Chief Commissioner of Income Tax,
C.R. Building, I.P. Estate,
New Delhi-110002.
5. Hari Kishan Sharma
S/o Late Shri J.R. Sharma
O/o Chief Commissioner of Income Tax,
C.R. Building, I.P. Estate,
New Delhi-110002.
6. Krishan Kumar Kakkar
S/o Sh. S.L. Kakkar
O/o Chief Commissioner of Income Tax,
C.R. Building, I.P. Estate,
New Delhi-110002.
7. Rajeev Kumar
S/o Sh. Rajendra Prasad,
O/o Chief Commissioner of Income Tax,
C.R. Building, I.P. Estate,
New Delhi-110002.
8. Uma Shankar
S/o late Shri Babu Ram,
O/o Chief Commissioner of Income Tax,
C.R. Building, I.P. Estate,
New Delhi-110002.
9. Harish Kumar Grover,
s/o late Shri P.C. Grover,
R/o KU-36, Pitampura,
Delhi-34.
10. Sh. Rakesh Kumar Sung,
s/o Sh. Bhola Nath Sung,
R/o 58/35, 2nd Floor, Ashok Nagar,
(Tilak Nagar), New Delhi-110018.
Respondents
(Through : Shri R.N. Singh, counsel for official respondents and
Shri Ajesh Luthra, counsel for private respondents)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicants of this O.A. are directly recruited Income Tax Inspectors of Delhi Region. According to them, they had all applied for the post of Income Tax Inspector in response to an advertisement dated 23.07.2005 issued by Staff Selection Commission (SSC). The preliminary examination was held on 13.11.2005 followed by the main examination in the year 2006. Subsequently, interviews were held in 2007. All the applicants qualified in the said examination and the final result was declared by the SSC in 2008 after which their dossiers were forwarded, the character and antecedents of the applicants were verified and they were also asked to undergo medical examination. Finally, they joined their posts on different dates in the year 2008-09.
2. Prior to their joining, Gujarat High Court in the case of UOI & Ors. Vs. N.R. Parmar & Ors. (Special Civil Appeal No. 3574 of 2004) had delivered a judgment on 17.08.2004 in which it was held that the seniority of direct recruit Income Tax Inspectors was to be determined on the basis of their actual appointment. This judgment was challenged before the Honble Supreme Court by both direct recruit Income Tax Inspectors as well as UOI by means of SLPs. The Honble Supreme Court granted special leave in all these SLPs which were challenged in Civil Appeal Nos. 7514-7515 of 2005 and connected CAs in the case of UOI & Ors. N.R. Parmar & Ors.
3. On 20.03.2006 the Honble Supreme Court passed the following interim order:-
Learned Additional Solicitor General states that in terms of the observations made by this Court in its order dated 17.2.2006, an application for transfer of the Writ Petition pending before the Rajasthan High Court, Jodhpur Bench shall be filed within four weeks.
In the meantime the judgment and order passed by the Gujarat High Court may be implemented, if not already implemented, subject to the result of these special leave petitions. However, those who have already been promoted, shall not be reverted. Thus, the Honble Supreme Court permitted the respondents to implement the judgment of Honble Gujarat High Court subject to final outcome of the Civil Appeals subject to the condition that those who have already been promoted shall not be reverted.
4. In pursuance of these interims directions of the Honble Supreme Court, the official respondents herein issued a seniority list dated 26.04.2010. This seniority list was prepared in accordance with the judgment of Honble Gujarat High Court and was subject to the final outcome of the Civil Appeals pending before Honble Supreme Court.
5. On 27.11.2012 the Honble Supreme Court has decided the Civil Appeals. The order of the Honble Supreme Court is available at pages 60 to 84 of the paper-book. The operative part of the judgment reads as follows:-
33. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraphs 20 and 21 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued by the SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as confirmed by the rival parties,is common in all matters being collectively disposed of. In all these cases the advertised vacancies were filled up in the original/first examination/selection conducted for the same. None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried forward vacancies, or vacancies which came to be filled up by a "later" examination/selection process. The facts only reveal, that the examination and the selection process of direct recruits could not be completed withinthe recruitment year itself. For this, the modification/amendment in the manner of determining the inter-se seniority between the direct recruits and promotees, carried out through the OM dated 7.2.1986, and the compilation of the instructions pertaining to seniority in the OM dated 3.7.1986, leave no room for any doubt, that the "rotation of quotas" principle, would be fully applicable to the direct recruits in the present controversy. The direct recruits herein will therefore have to be interspaced with promotees of the same recruitment year.
34. In view of the above, the Civil Appeals, the Transferred Case, as well as, the Transfer Case (filed by the direct recruits and the Union of India) are hereby allowed. The claim of the promotees, that the direct recruit Income Tax Inspectors, in the instant case should be assigned seniority with reference to the date of their actual appointment in the Income Tax Department is declined. Review Application filed by the promotee Income Tax Inspectors has also been dismissed by the Honble Supreme Court.
6. Following this judgment, the applicants made several representations to the respondents to recast the seniority list dated 26.04.2010 in accordance with the aforesaid judgment of the Honble Supreme Court. However, they did not receive any reply. On 23.05.2012 the respondents initiated the process of holding DPC for promotion to the next higher level of Income Tax Officers by calling for vigilance clearance of those officers who were in the eligibility list for promotion. The eligibility admittedly was determined on the basis of seniority list dated 26.04.2010. Thus, the contention of the applicants is that the official respondents proposed to make promotions on the basis of seniority list dated 26.04.2010 which was only an interim list pending decision of the Honble Supreme Court in the Civil Appeals under consideration before them and which has now become non est following the judgment of Honble Supreme Court in the case of N.R. Parmar (supra). Hence, they have filed this O.A. before us seeking the following reliefs:-
(A) By an appropriate Order or Direction the respondents be directed to prepare/recast the seniority list dated 26.04.2010 as per the judgment dated 27.11.2012 of the Apex Court in the case of N R Parmar before effecting any further promotion to the post Income Tax Officers. Further, the seniority list of Inspectors under the covering letter dated 26.04.2010 be declared as defunct and inoperative immediately on the pronouncement of the judgement of the Honble Apex Court on 27.11.2012.
(B) By an appropriate Order or Direction the respondents be directed to recast/modify the seniority list dated 26.04.2010 as per the judgment dated 27.11.2012 of the Apex Court in the case of N.R. Parmar within a time frame and place the applicants at the appropriate place in that seniority list with all consequential benefits.
(C) That respondents be directed to conduct Review DPCs based on the said recast seniority list of Inspectors within a specified time frame.
(D) The action of the respondents in issuing the letter dated 23.05.2013 based on the now defunct seniority list dated 26.04.2013 be declared as null and void and be quashed with all its consequences.
(E) Any other order or direction, which this Honble Tribunal deems fit and proper in the facts and circumstances of the case, may kindly be passed in favour of the applicant.
(F) Cost of the present case may be awarded in favour of the applicants.
7. When this O.A. was admitted by this Tribunal on 30.05.2013 the following interim directions were given:-
In the meantime respondents are directed not to hold any DPC for further promotion to the posts of Income Tax Officer on the basis of impugned seniority list dated 26.04.2010 till the next date of hearing. At the time of filing this O.A. the applicants had impleaded only three official respondents. However, on 28.07.2013 some promotee Income Tax Inspectors filed MA-1928/2013 for impleadment in this O.A. This was allowed and these MA applicants were arrayed as respondents No. 4 to 8 in this O.A. These private respondents simultaneously moved another MA-1927/2013 for vacation of stay order dated 30.05.2013. All the parties were heard at length and this M.A. was dismissed as being devoid of merit. Thus, interim directions given by us on 30.05.2013 have continued since then.
8. Arguing on behalf of the applicants learned counsel Sh. A.K. Behera stated that the position has not changed between 12.09.2013 on which date the MA of private respondents for vacation of stay was dismissed and today all the parties have advanced the same arguments as were advanced at the time of vacation of stay. Thus, there is no justifiable ground to change the view already taken by this Tribunal and this O.A. deserves to be allowed with a direction to the official respondents to finalize the seniority list in accordance with the judgment of Honble Supreme Court in the case of N.R. Parmar (supra) and hold DPC only thereafter.
9. Learned counsel further argued that the official respondents have not given any reason as to why they could not finalize this seniority list in accordance with the Honble Supreme Courts judgment despite more than one year and five months having been elapsed since then. Other regions such as Nagpur has already done so and have made promotions on the basis of recast seniority list. Certain other regions such as Kanpur, Ahmedabad, Chhatisgarh and Bhopal are in the process of recasting the seniority list and have invited objections from all concerned on a draft list. Thus, there is no justifiable reason for Delhi Region to be lagging behind. Official respondents cannot be allowed to take advantage of their lethargy and inaction.
10. Learned counsel also argued that similar OAs were filed in different Benches of this Tribunal and in some of them final judgments have already been delivered. Thus, the Chandigarh Bench of this Tribunal in OA-784-CH-2013 (Rakesh Garg & Ors. Vs. UOI & Ors.) has pronounced judgment on 18.09.2013. This reads as follows:-
the OA is disposed of with a direction to the respondent No.1 & 2 to comply with the directions given by Honble Apex Court in NR Parmars case (supra) and prepare the seniority of Inspectors of North West Region on the basis of principles laid down therein and thereafter consider the case of the eligible persons falling within the zone of consideration for promotion to the post of Income Tax Officer. This exercise be carried out within a period of one month from the date of receipt of copy of this order. Similarly, the Bombay Bench of this Tribunal on 01.08.2013 in OA Nos. 233 and 234 of 2013 (Abhijeet Sharma & Ors. Vs. UOI & Ors.) has pronounced judgment. This reads as follows:-
22. The respondents have not been able to give any satisfactory explanation as to why the judgement of the Apex Court could not be implemented so far even though nine months have elapsed. In any view of the matter, we have no hesitation to hold that the respondents are not entitled to hold the DPC and make any promotion on the basis of the existing seniority list. Ordered accordingly. Annexure A-1 is quashed.
23. Before we part with the case we deem it appropriate to alert the respondents that the judgement in Parmar is the law of the land as on today and it has to be necessarily implemented without any further delay. Similar judgments have also been passed by Ahmedabad Bench in OA-128/2013, OA-129/2013 and OA-145/2013 on 19.09.2013, Calcutta Bench of this Tribunal in OA-429/2013 (Ashutosh Kumar & 38 Ors. Vs. UOI & Ors.) has given the same decision. Thus, learned counsel argued that the present O.A. deserves to be allowed.
11. Official respondents have filed their counter-affidavit on 25.10.2013. They have also filed an additional affidavit on 09.04.2014 which has also been taken on record. Arguing on behalf of official respondents, learned counsel Sh. R.N. Singh stated that the applicants of this O.A. joined on the following dates:-
S.No. Name of the official Date of joining
1. Gaurav Singh 1.12.2008
2. Ashima Pujara 1.12.2008 D/o Sh. B.K. Mehta
3. Roshan Kumar Gupta 26.12.2008
4. Rajeev Kumar 14.11.2008
5. Suman Kumar Jha 1.10.2008
6. Umesh Kumar 20.11.2008
7. Shailender Singh 2.10.2008 The applicants are claiming benefits of the judgment of the Honble Supreme Court in the case of N.R. Parmar(supra). However, findings, judgment and directions in N.R. Parmars case were based on its own facts wherein the Honble Supreme Court observed that not only the requisition but also the advertisement for direct recruitment was issued by SSC in the recruitment year in which direct recruits vacancies had arisen. The facts of the present case are not similar for the following reasons:-
Facts of NR Parmars case Facts of Applicants case 71 The vacancies were of the same year and not the carry forward/back log vacancies.
72 They were reported to the SSC during the same year.
73 They were advertised during the year.
74 Exam was conducted during the year.
75 Due to delay candidates could join in the year 1995. 76 The vacancies against which 2008 batch is appointed (i.e. the applicants batch) were not the vacancies of the year 2005. Part of the vacancies were released by the Screening Committee in the month of November 2006. On 14.11.2006 vide letter dated A-12021/17/2006-AD.VII Conveyed clearing up 24 vacancies of Inspectors for filling up which were of 2002-03 to 2005-2006} while abolishing 43 vacancies (copy of letter enclosed as annexure R-2). Further vide letter dated 27.11.2006 CBDT has released newly sanctioned post of 199 inspectors out of 1/3rd i.e. 66 plus additional chain 9 vacancies on account of promotion to ITO were reported to CBDT vide letter Dated 13.2.2007 (Annexure R-3) 71 Only five vacancies were advertised by SSC in the advertisement given for CGLE Main Exam. These five vacancies were not of Delhi Region. The Vacancies of Delhi Region came into existence in November 2006 and the same were either back log vacancies/newly created vacancies, which came into existence after the conduct of CGLE 2005 preliminary and Main exam.
72 Since the release of backlog vacancies as also the newly sanctioned vacancies came into existence and intimated to SSC much later i.e. November 2006/January 2007 whereas the Advertisement for the CGEL Exam for 2005-06 prelim appeared on 13.11.2005 and Main in 2006 and Interview in 2007. Therefore, under no stretch of imagination it can be said that initiation started on the date of notification of advertisement when the vacancies have not even arisen.
73 CGLE exam is for all the cadres and not for Inspectors of Income-tax alone whereas the exam of 1993-94 which the Honble Supreme Court referred in the NR Parmars case was for Inspectors alone.
Since the facts of N.R. Parmars case were entirely different, that judgment does not help the claim of the applicants herein.
11.1 Learned counsel further stated that while there should be no dispute about implementation of Honble Supreme Courts judgment in the case of N.R. Parmar (supra), DOP&T vide its O.M. No. 28027/9/Estt.(A) dated 01.05.2000 has laid down that whenever there is any court order against the Government of India Instructions on certain matters, the Administrative Ministry should consult the Department of Legal Affairs and DoP&T on the question of filing an appeal against such an order and no such order shall be implemented without first referring the matter to these departments. Accordingly, CCIT, Delhi had made a reference to CBDT vide his letter dated 22/24.05.2013 with regard to implementation of this judgment. CBDT vide its letter dated 10.06.2013 has informed that this matter has been referred to DoP&T and Law Ministry. Thereafter, there has been protracted correspondence between DoP&T and CBDT.
11.2 Through their additional affidavit, the official respondents have informed that DoP&T vide its O.M. No. 20011/1/2012-Estt.(D) dated 04.03.2014 has now issued necessary guidelines regarding inter-se seniority of direct recruits and promotees in terms of the above referred O.M. of DoP&T. Thus, learned counsel for the official respondents argued that the department is now in the process of implementing the judgment of Honble Surpeme Court.
11.3 Sh. R.N. Singh, learned counsel argued that this is likely to take some time. In the meanwhile, the department is suffering because this Tribunal has restrained them from making further promotion to the post of Income Tax Inspectors on the basis of impugned seniority list dated 26.04.2010. Learned counsel stated that it will be in the interest of administrative exigencies as also in the interest of various direct recruits as well as promotee Inspectors if the official respondents herein were allowed to fill up the post of Income Tax Officers subject to the outcome of the present O.A. and also the implementation of the O.M. dated 04.03.2014 referred to above. Learned counsel further stated that there was acute shortage of man power in the department which was adversely affecting the revenue collection. He stated that 36 posts of Income Tax Officers of the year 2013-14 could not be filled due to interim orders of this Tribunal. Further, as a result of restructuring of the department, 270 additional posts of Income Tax Inspectors have been created in Delhi charge. A large number of posts of Income Tax Officers were also likely to fall vacant as a result of promotion of Income Tax Officers to the grade of ACIT. Moreover, some additional vacancies were likely to arise in the year 2014-15 due to retirement of ITOs. Thus, a large number of vacancies were available and therefore if DPC is allowed to be held based on 2010 seniority list all the seven applicants of the present O.A. will also get covered and will be promoted provide they are otherwise fit and eligible. He reiterated that the interim orders of this Tribunal were adversely affecting the collection of revenue. He pleaded that the official respondents be allowed to convene the DPC.
12. Arguing for private respondents Sh. Ajesh Luthra stated that respondents were promotees to the post of Income Tax Inspectors in the years 2006, 2007 and 2008 and have got themselves impleaded in this O.A. to bring the full facts of the case to the notice of this Court. Sh. Luthra, learned counsel stated that the factual situation prevailing in this case was quite distinct from that of N.R. Parmars case and that judgment is not applicable in the case of applicants herein. For this purpose the matter requires to be gone into in details to understand the intricacies involved. Learned counsel further stated that it is a settled legal proposition that where facts are different, the judgment does not have a precedential value. One additional fact can change the entire course. A judgment applicable only in the same factual matrix as laid down by the Honble Supreme Court in the case of Bharat Petroleum Corporation Ltd. and Anr. Vs. N.R. Vairamani & Ors., JT 2004(8)SC 171. In the instant case, it was incumbent upon the applicants to prove that the factual position prevalent in their case was the same as was prevalent in the case of N.R. Parmar (supra) i.e to say that the applicants who were direct recruits and appointees of the year 2008-09 were similarly situated to the applicants of N.R. Parmars case which were of the year 1993-94. Merely by being direct recruits of the same department does not advance their cause. The Honble Supreme Court while delivering judgment in N.R. Parmars case quashed the O.M. dated 03.03.2008 of DoP&T as being contrary to the O.M. of 1996 and held in para-33 of their judgment as follows:-
Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraphs 20 and 21 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued by the SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as confirmed by the rival parties,is common in all matters being collectively disposed of. In all these cases the advertised vacancies were filled up in the original/first examination/selection conducted for the same. None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried forward vacancies, or vacancies which came to be filled up by a "later" examination/selection process. The facts only reveal, that the examination and the selection process of direct recruits could not be completed withinthe recruitment year itself. For this, the modification/amendment in the manner of determining the inter-se seniority between the direct recruits and promotees, carried out through the OM dated 7.2.1986, and the compilation of the instructions pertaining to seniority in the OM dated 3.7.1986, leave no room for any doubt, that the "rotation of quotas" principle, would be fully applicable to the direct recruits in the present controversy. The direct recruits herein will therefore have to be interspaced with promotees of the same recruitment year. A perusal of this judgment would reveal that the entire discussion is based on the factual situation where the vacancies sought to be filled by both modes i.e. direct recruitment and promotion related to the same recruitment year and the vacancies falling in direct recruitment quota were also notified in the same year, were requisitioned to SSC and notified for the same recruitment year. However, in the present case, the applicants have no where pleaded that their appointment which took place in the year 2008 from the selection process of CGLE 2005 has been made against notified vacancies for direct recruitment quota for the recruitment year 2005-06. On the contrary, the respondents on the basis of documents received from the Government under the RTI have shown that the vacancies on which the applicants came to be appointed do not pertain to the vacancy year 2005-06. This is further confirmed by the counter-affidavit of the official respondents. It is noteworthy that in the advertisement issued by SSC for CGLE 2005 no number of vacancies for the post of Income Tax Inspectors was notified and it was mentioned therein that the firm number of vacancies will be determined in due course. For this purpose, Sh. Ajesh Luthra, learned counsel drew our attention to a copy of the advertisement available at page-289 of the paper-book. Further, he stated that the advertisement for the main examination was issued subsequently and is available at page-290 of the paper-book. This shows that only 05 vacancies had been notified to be filled by CGLE 2005. Thus, at best only 05 vacancies can be said to have notified and requisition for the direct recruitment quota for the recruitment year 2005 and notified. However, instead of filling only 05 vacancies all over India Government filled 817 vacancies from CGLE 2005. These facts reveal that barring 05 all other vacancies were future vacancies. Thus, these applicants may not have a claim of interspacing them by way of rota quota as laid down in N.R. Parmarks judgment because seniority list of Income Tax Inspectors is not drawn at all India level rather it is drawn at regional level. It is now impossible to know as to who came to be appointed on 05 notified vacancies belonging to the year 2005-06. Thus, the applicants do not have any lawful claim of assignment of seniority on the basis of N.R. Parmars judgment. Moreover, filling up of vacancies over and above the advertised vacancies has been held to be illegal and nullity in various judgments such as (i) 1976(1)SLR 383; (ii) (2010) 2 SCC 637. Sh. Luthra, learned counsel stated that while private respondents were not challenging the appointments of the applicants, they submit that no consequential benefit of seniority can be given to them. The respondents counsel placed reliance on the following judgments:-
i. D.K. Mitra & Ors. Vs. UOI & Ors., 1985(Supp)SCC 243.
ii. Direct Recruits Engineers Association, 1990 SCC (L&S) 399.
Sh. Luthra, learned counsel further argued that in B.S. Mathurs case (JT 2008(11)SC 173) finding it difficult to assign seniority on rota quota basis Honble Supreme Court said that neither the seniority rule embodied in service rules nor the 1986 O.M. of Government of India are applicable and concluded to the effect that seniority is to be assigned from the date of entry into the cadre.
12.1 Sh. Luthra, learned counsel further submitted that the applicants were also in regular service of various other establishments prior to their entry in this cadre. They were thus seeking counting for the purpose of seniority of Income Tax Inspectors period in which they were in service in other departments. Sh. Luthra further drew our attention to the judgment of Honble Allahabad High Court in the case of Rajeev Mohan (Writ A No. 23673/2006) decided on 13.04.2012 which has been affirmed by the Honble Supreme Court in SLP (Civil) No. 17306-17307/2012 decided on 11.03.2014. In this judgment the following has been held:-
xxxxxx Direct recruits thus can reckon their seniority when they take the vacancy meant for them under the rotation and the seniority amongst the direct recruits selected by one recruitment is on the basis of order of merit. Thus, direct recruits who are recruited on the basis of one selection shall take their seniority in order of merit irrespective of their date of joining, but the seniority can be reckoned for direct recruit in the year when they are actually available for appointment. The Government orders dated 07/2/1986 and 03/7/1986 do not provide that the direct recruits can reckon their seniority from the date when the process of recruitment was initiated or the date when the selection was held, rather the seniority is reckoned after appointment as per the quota meant for them.
Xxxxxxx From the aforesaid discussion, it is clear that the seniority of private respondents as direct recruits have been give from a date earlier to their appointment as direct recruits which was impermissible. The direct recruits can reckon their seniority in the year in which they have joined as direct recruits. The direct recruits cannot reckon their seniority from the year in which recruitment process begins or in the year when recruitment was completed. Government orders dated 07/2/1986 and 03/7/1986 clearly provide that the direct recruits shall reckon their seniority in the year in which they were appointed. Inter-charge transferee shall also reckon his seniority in the year in which he joined on transfer and is to be placed on the bottom of all Income Tax Inspectors working on the relevant date.
Xxxxxxxx From the above discussion, following principle emerge for determination of seniority between the direct recruits and inter-charge transferee (under direct recruit quota).
The seniority of direct recruits can neither be reckoned from the date of sending requisition to the recruiting body nor can the seniority be reckoned from the date of selection.
The seniority of direct recruits shall be reckoned from the date when they are available for appointment in any particular year in their quota as per the rotation of quota.
The inter charge transferee belonging to direct recruit quota shall be treated to be direct recruit in the particular year when he joins after transfer and shall be treated to be an addition in the direct recruits available in the particular year.
The seniority in the cadre of inter charge transferee shall start from the date the person reports for duty in that charge. However, he will not rank seniority to any official to a batch selected on merit, whose inter-se seniority is not regulated by the date of joining. On the basis of above Sh. Luthra argued that the claim of the applicants for assignment of seniority w.e.f. 2005-06 falls flat. He further argued that orders of out lying Benches of this Tribunal relied upon the applicants were delivered because these facts had not been brought to their notice. Thus, keeping in view the distinct facts of this case this O.A. deserves to be dismissed.
13. During arguments both Sh. R.N. Singh and Sh. Ajesh Luthra, learned counsel had also submitted that this Tribunal is not the executing Court for Honble Supreme Courts judgment. Thus, the prayer of the applicants in this O.A. that Honble Supreme Court judgment in the case of N.R. Parmar (supra) be implemented has no meaning. In fact, as stated by the official respondents in their reply, they are in the process of complying with this judgment in any case. The respondents were simply seeking vacation of the in terim order of this Tribunal so that the respondents can go ahead with promotions on the basis of 2010 seniority list subject to the implementation of N.R. Parmars judgment.
14. We have heard the parties and have perused the material on record. In this case the parties were also permitted to file their written arguments. Accordingly, written arguments have been filed by the applicants as well as private respondents. They have been taken on record.
14.1 It is seen that none of the parties has taken the stand that the seniority list is not be recast following the judgment of Honble Supreme Court in the case of N.R. Parmar (supra). Offical respondents have stated that they are in the process of recasting the seniority list based on the aforesaid judgment. The private respondents have also stated that they are conscious of the legal position that once there is a judgment of the Honble Supreme Court it has to be implemented and all Courts are to act in aid of Honble Supreme Court by virtue of Article 141 of the Constitution of India and therefore cannot have a view different than the view of the Honble Supreme Court. Thus, all parties agreed that the seniority list has to be ultimately recast in accordance with the directions given by the Honble Supreme Court in N.R. Parmars case. The only question is that pending recast of the seniority list, can the respondents be allowed to operate 2010 list in the interregnum subject to making whatever correction in the promotion list that may become necessary as a result of recasting of seniority list. In this regard, the official respondents have taken the stand that implementation of Parmars judgment will take time and since revenue collection is suffering on account of various posts of Income Tax Inspectors remaining unfilled, they may be allowed to make promotions on the basis of 2010 list in the meanwhile. The private respondents, on the other hand, have taken the view that the applicants may not derive much benefit from Parmars judgment and in fact may not actually be covered by the same. Thus, they have no locus standi to ask for implementation of this judgment.
14.2 In our opinion, at this stage, it is not for this Court to see as to what benefit would accrue to the applicants by recasting of the seniority list. This issue is pre-mature and not yet ripe for judicial review as the official respondents have yet to implement the judgment of Honble Supreme Court in N.R. Parmars case. As and when such implementation is done the private respondents will be at liberty to challenge any undue benefit given to anyone.
14.3 In this regard, we are inclined to agree with the applicants when they have stated that the position has not changed much between 12.09.2013 when interim order was confirmed by us and now. While confirming the interim order, we had observed as follows:-
18. In our considered view, the aforesaid decision of the Respondents to go ahead with the promotion of the Income Tax Inspectors as Income Tax Officers based on the earlier seniority list which is in violation of the principle laid down by the Apex Court in N.R. Parmars case (supra) is nothing short of blatant violation of law and, therefore, it cannot be permitted. Their submission that their action to go ahead with the promotion as aforesaid is subject to the implementation of the Supreme Courts judgment dated 27.11.2012 in N.R. Parmars case is also absolutely misplaced. One can understand that when a seniority list is under challenge and if the Court has not stayed it or the Court itself has permitted to operate it, the same can be operated subject to the outcome of the petition which is pending. In this case also, the Apex Court has earlier allowed the Respondents to go ahead with the promotion of Income Tax Inspectors to the post of Income Tax Officers based on the judgment of the Gujrat High Court on provisional basis till the case of N.R. Parmar was decided. But once the Supreme Court has pronounced its final judgment in the said case and held that the judgment of the Gujrat High Court is bad in law, no process for promotion can be initiated in violation of the directions contained therein. Therefore, it is quite illogical and irrational to say that they are going ahead with the promotion based on the principle which has been declined by the Apex Court again stating that it is subject to the implementation of the very same judgment. The respondents are duty bound to ensure that the law laid down by the Apex Court is implemented in its letter and spirit and it is not violated. It is for the same reason that this Tribunal, on the initial day of hearing of this case itself has restrained the Respondents from holding any DPC based on the impugned seniority list dated 26.04.2010. It is a well settled position that once the relief sought by the party in a petition has been granted by the Apex Court, its compliance is warranted from the date by the party against whom it is passed or from the date he acquires knowledge of the said order unless it has been modified or varied by the said Court. In the case of the orders of other courts, the compliance is warranted in similar matters unless they are modified in review or stayed by the appropriate higher courts We reiterate that the Honble Supreme Court had permitted seniority list to be prepared as per directions of Honble Gujarat High Court judgment only during pendency of the SLPs. Once the Honble Supreme Court has pronounced its final judgments in the said case and held that the Honble Gujarat High Court judgment was bad in law no promotion can be made in violation of these directions. The respondents are duty bound to implement the directions of the Honble Supreme Court in its letter and spirit and for this reason holding DPC based on the 26.04.2010 seniority list cannot be permitted.
14.4 Both the official respondents and private respondents had argued that this Tribunal cannot act as an executing Court for the Honble Supreme Court and since the Honble Supreme Court itself has not laid down any time schedule for implementation of their judgment, this Tribunal should also not do so. In our opinion, this argument cannot be accepted. The relief asked for by the applicants is that the respondents be directed to recast seniority on the basis of Honble Supreme Court judgment and make promotion only thereafter. If we do not allow this relief and permit promotions to be made on the basis of 2010 seniority list, we would be acting contrary to the directions of the Honble Supreme Court. As stated above by private respondents themselves, it is the duty of every Court to act in aid of the judgment of Honble Supreme Court rather than giving any directions to the contrary.
14.5 Learned counsel for the applicants has drawn our attention to two judgments of Co-ordinate Benches of this Tribunal who have allowed similar OAs. In this regard judgment of Chandigarh Bench and Bombay Bench of this Tribunal have been reproduced in earlier part of this judgment. Reference has also been made to judgments of Ahmedabad Bench as well as Calcutta Bench. We have no hesitation in holding that those judgments will also apply in this case as well. As far as the argument of the official respondents that public interest and revenue collection are suffering on account of many Income Tax Officers posts remaining vacant due to directions of this Court, we find that this position has come about because the official respondents themselves have delayed implementing the judgment of the Honble Supreme Court. Thus, the official respondents are themselves to blame for this situation. Moreover, as brought out by the applicants several regions have already implemented this judgment or are in the process of doing so. There is no reason why Delhi Region should also not do so quickly.
15. On the basis of above analysis, we allow this O.A. and direct the respondents to recast the seniority in accordance with the judgment of the Honble Supreme Court in the case of N.R. Parmar (supra) and hold the DPC for making promotions to the post of Income Tax Officers only thereafter. This should be done as early as possible preferably within six months from the date of receipt of certified copy of this order. We also direct that the respondents conduct review DPCs thereafter that may become necessary as a result of recast of seniority list expeditiously. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/