Central Administrative Tribunal - Delhi
Amit Kunar Chattopadhyay vs Union Of India Through The Secretary on 25 August, 2011
Central Administrative Tribunal
Principal Bench
OA No.1132/2011
With
OA No.1133/2011
OA No.1232/2011
OA No.1325/2011
New Delhi this the 25th day of August, 2011.
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. M.L. Chauhan, Member (J)
Honble Mr. Ramesh Chandra Panda, Member (A)
OA-1132/2011
Amit Kunar Chattopadhyay
S/o Late Ananga Mohan Chatterjee
O/o The Chief Commissioner of Income Tax,
C.R. Building, 5, Main Road,
Ranchi-834001. -Applicant
Versus
1. Union of India Through the Secretary,
Department of Revenue, Ministry of Finance,
Govt. of India, New Delhi.
2. The Director General of Income Tax(Systems),
Directorate of Income Tax(Systems) ARA Centre,
Ground Floor, E-2,
Jhandewalan Extension, New Delhi.
3. The Chairman Central Board of Direct Taxes,
North Block,
New Delhi.
4. Sri Rakesh Bhushan
5. Sri V. Uma
6. Sri V. Palanivel
7. Sr V.S.S. Chari
8. Sri Mahesh Chandra Kumar
9. Sri Pradipta Kumar Kar
10. Sri Somesubhra Gupta
11. Sri Rajnish Kumar
12. Sri R.S. Rana
13. Sri Chitra N. Ravi Kumar
14. Sri Pravin Kumar
15. Sri Amita Sharma all respondent No.4 to 15,
Assistant Director through Additional Director
of Income Tax (Hqrs.)
Admn. ARA Centre, Ground Floor,
E-2, Jhandewalan Extension,
New Delhi. -Respondents
OA-1133/2011
T.K. Haridas Kumar,
S/o Late Sri T.R. Kesava Panicker,
aged45 years, Assistant Director (Systems)
O/o Commissioner of Income Tax (Computer Operations),
C.R. Building, I.S. Press Road, Kochi 682 018,
Residing at Pranavam, Perumanoor P.O., Clint Road,
Thevara, Kochi-682 015. -Applicant
--Versus-
1. Union of India, represented by the Secretary
to the Govt. of India, Department of Revenue,
Ministry of Finance, New Delhi.
2. Central Board of Direct Taxes,
represented by its Chairman,
New Delhi.
3. Director General of Income Tax (Systems),
Directorate of Income Tax (Systems),
ARA Centre, Ground Floor,
E-2, Jhandewalan Extension, New Delhi.
4. Chief Commissioner of Income Tax, CR Buildings,
Kochi-682 018.
5. Rakesh Bhushan, Assistant Director (Systems),
Through the 3rd respondent.
6. V.Uma, Assistant Director (Systems),
Through the 3rd respondent.
7. V.Palanivel, Assistant Director (Systems),
Through the 3rd respondent.
8. V.S.S. Chari, Assistant Director (Systems),
Through the 3rd respondent.
9. Mahesh Chandra Kumar, Assistant Director (Systems),
Through the 3rd respondent.
10. Pradipta Kumar Kar, Assistant Director (Systems),
Through the 3rd respondent.
11. Somesubhra Gupta, Assistant Director (Systems),
Through the 3rd respondent.
12. Rajnish Kumar, Assistant Director (Systems),
Through the 3rd respondent.
13. R.S.Rana, Assistant Director (Systems),
Through the 3rd respondent.
14. Chitra N.Ravikumar, Assistant Director (Systems),
Through the 3rd respondent.
15. Praveen Punj, Assistant Director (Systems),
Through the 3rd respondent.
16. Amita Sharma, Assistant Director (Systems),
Through the 3rd respondent.
17. N. Sivaraman, Assistant Director (Systems),
Through the 3rd respondent.
Address for service
(All process and other notices to the applicant may be served on their counsel M/s M.R. Hariraj, P.A. Kumaran, and Vinitha Hariraj Adovates, M.R. Rajendran Nair & Associates, Samatha Law Chambers, Power House Extn. Road, Kochi-682 018, and those to the respondents may be served on their respective addresses shown above.)
OA-1232/2011
Shri S. Renganathan
Residing at Type IV/18
Income Tax Officers Flats
Tirath Kunj
16, Queens Garden
Pune 411001
-Versus-
1. Union of India
Through The Secretary,
Ministry of Finance
Department of Revenue,
North Block,
New Delhi 110 001
2. The Chairman
Central Board of Direct Taxes
North Block, New Delhi-110001.
3. The Director General of Income Tax (Systems)
Directorate of Income Tax (Systems)
ARA Centre, Ground Floor E2,
Jhandewalan Extension,
New Delhi 110 055.
4. The Commissioner of Income Tax
(Computer Operations)
Computer Centre, Aayakar Bhawan,
12, Sadhu Vaswani Road,
Pune 411 011
5. Smt. V Uma
Assistant Director (Systems)
O/o Commissioner of Income Tax
(Computer Operations)
Nungambakkam
Chennai-600034.
6. Shri V. Palnivel
Assistant Director (Systems)
Office of DGIT (Training)
National Academy of Direct Taxes
Chhindwara Road
Nagpur 440029. -Respondents
OA 1325/2011
Sadhan Kumar Kundu,
Son of Sri Ramendra Nath Kundu,
Residing at 51, Bank Plot, P.O. Dhakuria,
Kolkata -700031,
Working as Assistant Director (Systems)
under the administrative authority
of Chief Commissioner of Income Tax,
Kolkata-I, Aayakar Bhawan,
P-7, Chowringhee Square,
Kolkata-700069. -Applicant
-Versus-
1. Union of India
Through The Secretary,
Ministry of Finance
Department of Revenue,
North Block,
New Delhi 110 001
2. The Chairman
Central Board of Direct Taxes
North Block, New Delhi-110001.
3. The Director General of Income Tax (Systems)
Directorate of Income Tax (Systems)
ARA Centre, Ground Floor E2,
Jhandewalan Extension,
New Delhi 110 055.
4. The Commissioner of Income Tax (Computer Operations)
Computer Centre, Aayakar Bhawan,
12, Sadhu Vaswani Road,
Pune 411 011
5. Smt. V Uma
Assistant Director (Systems)
O/o Commissioner of Income Tax (Computer Operations)
Nungambakkam
Chennai 600034
6. Shri V. Palnivel
Assistant Director (Systems)
Office of DGIT (Training)
National Academy of Direct Taxes
Chhindwara Road
Nagpur 440029. -Respondents
Memo of Appearances:
Shri R.N. Majumdar with Shri K. Gireesh Kumar, Shri Manoj V. George and Shri Alex Joseph, Advocates for applicants in OA No.1132/2011 and OA No.1133/2011.
Shri Manoj V. George and Shri Gireesh Kumar and Shri Alex Joseph, Advocates for applicants in OA No.1232/2011 and OA-1325/2011.
Shri R.N. Singh, Advocate for official respondents.
Shri A.K. Behera, Advocate for private respondents No.5-9.
O R D E R
Mr. M.L. Chauhan, Member (J):
Pursuant to the reference by a Circuit Bench of this Tribunal at Ranchi vide its order dated 16.07.2009, a Full Bench was constituted to consider the correctness of the decision in OA No.2516/2000 & other OAs S.R. Gautam & Others v. Union of India & Others, decided on 19.04.2001, which judgment was rendered without impleading direct recruits as respondents. While referring the matter to the Full Bench, what weighed the mind of the Bench, was regarding counting of service on deputation in feeder grade before absorption in the department, which issue was decided by the Principal Bench in the case of S.R. Gautam (supra), and also regarding grant of retrospective promotion and seniority to the applicants in OA-2516/2000 and private respondents in this OA, over and above the applicants in the cadre of Assistant Director (Systems), which is against the decision of the Honble Supreme Court in the case of State of Uttranchal v. Dinesh Kumar Sharma [2007 (1) SCC 687], as further clarified by the DoP&T in its clarificatory Office Memorandum No.20011/1/2006-Estt.(D) dated 3.3.2008.
2. It may be stated that subsequently PT-326/2010 was filed for transferring the matter from Patna Bench to the Principal Bench, which was allowed and on receipt of the record of OA-183/2008 the same was registered as OA-1132/2011. Similarly, OAs filed before the Ernakulam Bench, Mumbai Bench and Kolkata Bench were transferred to this Bench and registered as OA Nos.1231/2011, 1232/2011 and 1325/2011. Since reference before us deals with the question whether retrospective promotions and seniority granted to the private respondents in the case of Assistant Director (Systems), pursuant to the judgment of S.R. Gautam (supra) needs to be interfered with or in other words this Tribunal has correctly decided the issue of seniority and promotion in the said case, these cases are being decided by the common judgment. It may be stated here that for the purpose of deciding the aforesaid reference we are referring to the pleadings made in OA-1133/2011 T.K. Haridas Kumar v. Union of India & Others.
3. First of all, let us consider the issue regarding the correctness of the judgment rendered by this Tribunal in the case of S.R. Gautam (supra). It may be stated that the main issue, which arose for consideration of the Principal Bench in the case of S.R. Gautam (supra) was whether the service rendered by the applicants from the date of initial deputation to the date of absorption should be treated as qualifying service for the purpose of promotion to the grade of Assistant Director (Systems). It is not in dispute that the applicants in S.R. Gautam (supra) joined the services of the respondents way back in the years from 1988 to 1991 and the grievance raised by them in the said OA was that the service rendered by them from the date of their initial deputation till their subsequent absorption be treated as regular service. Since the said issue mainly relates between the applicants in that OA and the official respondents, as such the persons who were recruited as Assistant Director (Systems) on direct recruit basis were not impleaded as party respondents. Be that as it may, this Tribunal after considering the decision of the Apex Court in the case of K. Madhavan & Another v. Union of India & Others, [(1987) 4 SCC 566] allowed the OA holding that the appointment of the applicants to the post of Programme Assistant/Console Operator on deputation basis will have to be considered as appointment on regular basis. The Tribunal after noticing column 12 of the Recruitment Rules of 1989 for the post of Assistant Director (Systems) which provides eligibility criteria for promotion from the feeder categories of Programme Assistant/Console Operator with 5 years regular service in the grade, on transfer on deputation (including short-term contract) allowed the OA in the following terms:
ii) Declare that the service rendered by the applicants as Programme Assistant/Console Operator from the date of their initial deputation to the date of their absorption is regular service for the purpose of being considered for promotion as Programmer, Group A/Assistant Director System;
iii) Direct the respondents to consider the applicants for promotion as Programmer Group A/Assistant Director, System from the due date and to promote them as such from the said date, if found fit by the DPC/review DPC with all consequential benefits.
4. A copy of the judgment of this Tribunal in OA-2156/2000 has been placed on record as Annexure A-8. Thus, as can be seen from the portion quoted above, it is evident that this Tribunal not only directed the respondents to count the service rendered by the applicants as Programme Assistant/Console Operator from the date of their initial deputation to the date of their absorption as regular service for the purpose of being considered for promotion as Programmer Group A/Assistant Director (Systems) but also directed the respondents to hold review DPC and in case applicants are found fit for promotion by the DPC/review DPC to the said post, they be granted promotion from due date with all consequential benefits.
5. Pursuant to the directions given by this Tribunal in OA-2156/2000, private respondents in the present OAs were granted promotion on regular basis from the back date, i.e., w.e.f, 1.08.1993 to 26.07.1996 and they were also shown senior to the applicants vide seniority list of Assistant Director as on 1.4.2008, circulated vide letter dated 5.11.2008 (Annexure A-16) whereas the applicants who were direct recruits and appointed in the year 1997 were shown junior to the private respondents.
6. The contentions raised by the applicants in these OAs that the judgment rendered by this Tribunal in the case of S.R. Gautam (supra) is not a good law and needs to be overruled are the same which were raised by the applicants in OA-2412/2002, Jayanta Barua & others v. Union of India & others, decided on 21.09.2006, who had filed the OA on the grounds that the private respondents No.5-9 in that OA, who were junior to them have stolen a march over them in the matter of promotion to the next higher post of Assistant Director System pursuant to the order passed by this Tribunal dated 19.04.2001 in OA-2516/2000, in which they were not arrayed as parties. The contention raised by the applicants in the said OA has been noticed at para-21 of the judgment, which thus reads:
21. The contention of the applicants in this OA may be summarized as under:-
(i) The order of promotion of the private respondents No.5 to 9 to the post of Programmer from retrospective effect is based on erroneous interpretation of the Tribunals order in S.R. Gautam and Others Vs. Union of India in OA No.2516/2000.
(ii) The applicants were necessary party but were not impleaded in the said case.
(iii) The appointment of private respondents to the post of Programmer/Assistant Director is bad in law.
(iv) The order in S.R. Gautams case (Supra) did not require the official respondents to promote the private respondents Nos.5-9 superseding the applicants.
(v) The Tribunal overlooked the effect of Statutory Rules of 1990, 1995 and of 2001 while decidng SR Gautams case (Supra).
(vi) The Tribunal had also overlooked that the respondents Nos.5 to 9 were appointed on deputation basis in 1988; they sought absorption and regularization on the post of PA/COs which was not granted PA/COs Recruitment Rules were promulgated in 1990; UPSC raised objection to their appointment on 14.9.1995 Recruitemnt Rules for DPA Grade A and DPA Grade B were notified under Article 309 of the Constitution of India; respondents Nos.5-9 were absorbed on the post of DPA Grade A on the basis of 1995 Rules which they had accepted so cannot turn back and alleged that Rules were non-est for want of publication in the Gazette; they were first promoted to the post of DPA Grade B on ad hoc basis in 1997/1998 and on regular basis in 2000 so they cannot challenge Rules 1995 and; their case suffered from delay and laches.
7. This Tribunal after considering the aforesaid contentions raised by the applicants therein in paras 34-36 has given the following reasoning in order to dismiss the claim of the applicants, which thus reads:
34. Even otherwise, there seems to be no good reason for this Bench to take a view different from what has been taken by a Co-ordinate Bench in the OA filed by respondent Nos.5 to 9 and to hold that the benefit granted to the respondent Nos.5 to 9 in implementation of the order of the Tribunal is not in accordance with law.
35. In view of the above discussion, further relief claimed by the applicants do not warrant consideration. The private respondent Nos. 5-9 were promoted to the post of Programmer Group A from a retrospective effect of 1993, under the Rules of 1989. The post of Programmer was re-designated as Assistant Director (Systems) much after that. The Rules of Assistant Director came into force in 2001. On promotion to the post of Programmer Group A, respondent Nos. 5 to 9 would automatically become the Assistant Director (Systems) on change of designation of their post. There is no flaw in their promotion to the post of Programmer Group A/Assistant Director (Systems).
36. In these circumstances, no review DPC could be called for reconsideration of the promotion of the respondent No.5 to 9 to the higher post of Assistant Director (Systems), it has not been stated that the official respondents have denied this right of consideration to the applicants for promotion as per the Recruitment Rules of Assistant Director (Systems) of 2001. Not only that in para-22 of the judgment the Tribunal has observed as under:
The applicants in the present OA were completely stranger to the claim of the applicants made in the OA by private respondents. They cannot question correctness or otherwise of the order on legal and factual grounds. The order had attained finality and it has already been implemented by the official respondents. The applicants, who came on the establishment of the Directorate of Income Tax (Systems) much after the period i.e. 1993 to 1996 were neither the necessary or proper party to the proceedings which were filed by the respondent Nos.5 to 9 in respect of the applicants which pertained to the period prior to their appointment.
8. At this stage, it may also be noticed that prior to issuance of the impugned seniority list dated 5.11.2008 the Department has also issued seniority list on 31.12.1996 as on 1.12.1996. The said seniority list was circulated vide covering letter dated 17.01.2003. Since the applicants have not joined the service of the department on that date their names were not included in the seniority list. The said seniority list dated 31.12.1996 was challenged before this Tribunal by Devindra Kumar and others by filing OA-1941/2003. The challenge made in the said OA was that respondents No.3, 4 and 5, who had been given notional promotion with retrospective effect, had joined the department in a lower post of Programme Assistant/Console Operator on deputation basis and they were subsequently absorbed as Data Processing Assistant (DPA) on 14.09.1995. It was further averred that their names in the list of Group A above the applicants, who have joined earlier to them in the year 1994, was illegal. The Tribunal dismissed the said OA vide order dated 5.2.2004 by holding that the private respondents therein have been rightly given promotion and placed in the posts of Programmer Group A/Assistant Director. It may also be stated here that the contentions, which have been raised by the applicants in these OAs, were also raised in the OA filed by Shri Devindra Kumar and others. It may further be noticed here that the applicants in OA-1941/2003, i.e., Devindra Kumar and others were appointed as Assistant Director by way of direct recruitment in the year 1994, whereas the present applicants were appointed as Assistant Director in the year 1997 and after those applicants.
9. At this stage, it may also be relevant to notice that the cadre of DPA was restructured in the year 1995 and draft Recruitment and Promotion Rules were circulated on 14.09.1995, superseding the earlier Directorate of Income Tax System Programme Assistant/Console Operator Recruitment Rules, 1990, but the said rules were never notified and the private respondents and the applicants in OA-2516/2000, i.e., S.R. Guatuam (supra) continued to be governed by the Recruitment Rules of 1990. In other words, they belong to the cadre of Programme Assistant/Console Operator, which was a feeder cadre for promotion to the post of Assistant Director (Systems) in terms of the Directorate of Income Tax (Systems), Deputy Director/Computer Manager/Assistant Director/System Analyst and Programmer Recruitment Rules, 1989. It may also be relevant to mention here that the Recruitment Rules of 1989 were superseded by the new Rules promulgated on 27.07.2001 and before that date, applicants in the case of S.R. Gautam (supra) had already obtained favorable judgement for their promotion to the post of Assistant Director (Systems) by holding a review DPC from due date with all consequential benefits.
10. Thus, from the facts as stated above, it is evident that the judgment of this Tribunal in the case of S.R. Gautam (supra) as well as granting notional promotion and seniority to those applicants were subject matter of litigation before this Tribunal and this Tribunal has consistently held the correctness of the order passed by this Tribunal in the case of S.R. Gautam (supra) i.e., in OA-2516/2000 and consequently promotion and seniority granted to those applicants in terms of the said judgment by dismissing OA-2412/2002 filed by Jayanta Barua & others (supra) and also OA No.1941/2003 filed by Devindra Kumar and others, who like the applicants were direct recruits and had joined the posts of Assistant Director (Systems) in the year 1994, i.e., much before the induction of the present applicants in the cadre of Assistant Director in the year 1997 onwards. This Tribunal has further held in the case of OA-925/2002 in the case of Dal Chand and others v. Union of India, where the challenge was made to Date Entry Operators Grade A and Grade B on the ground that the Rules of 1995 have not been published and the same cannot be formed basis for further promotion. The Tribunal allowed the OA filed by the applicants therein holding that the record produced by the respondents have not indicated that these Rules were published.
11. That apart, the judgment rendered by this Tribunal in the case of S.R. Gautam (supra) was challenged by the department by filing Writ Petition (Civil) No.2023/2002 before the High Court of Delhi. The said Writ Petition was dismissed by the High Court vide order dated 04.04.2002. At this stage, it will be useful to quote the relevant portion of the judgment, which thus reads:
A presumption in law arises that a person can be posted on deputation only on an equivalent or a higher post. In the absence of any pleadings by the petitioner herein either before the Tribunal or in the Writ Petition, in our opinion the contention as raised by the learned counsel for the petitioner cannot be permitted to be raised.
12. Thus, in view of the consistent finding given by this Tribunal in the aforesaid case, as also the judgement rendered by this Tribunal in the case of S.R. Gautam (supra) and also the categorical finding that the respondents before the High Court and applicants in the OA there is a presumption in law that they were posted on deputation only on an equivalent post or higher post, it is not legally permissible for us to say that the law laid down by this Tribunal in S.R. Gautam (supra) is not a correct law, more particularly when the applicants have failed to show that the judgment rendered by this Tribunal in the case of S.R. Gautam (supra) was rendered contrary to any statutory provision of law. As already stated above, applicants in OA-2516/2000, i.e., S.R. Gautam and others were holding the post of Programme Assistant/Console Operator on deputation basis and they were entitled for promotion to the post of Assistant Director (Systems) in terms of the recruitment rules of 1989, which were in vogue at the relevant timed. It is also borne out from the material placed on record that the Rules of 1995 regarding restructuring of the cadre of the DPA various grades, including Grade A and B had never came into force. As such, we are of the view that the case of S.R. Gautam (supra) was correctly decided by this Tribunal.
13. Now, let us advert to another issue raised in the reference order as to whether the promotion and seniority could have been assigned to the applicants in the cadre of Assistant Director (Systems) from retrospective effect, in the light of the judgment in the case of Dinesh Kumar Sharma (supra) as clarified by the DoP&T OM dated 03.03.2008.
14. At the outset, it may be stated here that the ratio as laid down by the Apex Court in the case of Dinesh Kumar Sharma (supra) is not applicable in the facts and circumstances of this case. That was a case where the judgment was rendered by the Apex Court in the context of the Uttar Pradesh Agriculture Group B Service Rules, 1995. That apart, judgment in the case of Dinesh Kumar Sharma (supra) was considered and distinguished by the Apex Court in its subsequent judgement in the case of Balwant Singh Narwal & Ors. v. State of Haryana & Ors., JT 2008 (7) SC 540. That was a case where the Union Public Service Commission issued advertisement, inviting applications for 18 posts of temporary Principal in the Higher Secondary School. However, the Commission declared merit list of 30 selected candidates. A non-selected candidate filed Writ Petition, opposing selection of 30 candidates on the ground that when only 18 posts were notified, it was not permissible for the Commission to recommend names of 30 persons. It may be stated that only 16 candidates were appointed. The Apex Court subsequently held that all the 30 names recommended are entitled to appointment. They were also assigned notional seniority from the date when 16 persons were appointed on 02.06.1994. The matter was challenged by persons who were subsequently selected pursuant to the advertisement in the year 1993, stating therein that the seniority of the respondents before the Apex Court should be reckoned from the date of their actual appointment on 26.05.2000 and not from 02.06.1994. It was in this context that the Apex Court held that the appointment of the respondents before them was delayed due to the litigation, which was beyond their control and had it not been for that they would have been appointed on 02.06.1994 with other candidates from the same merit list. Hence State Government was justified in giving them notional seniority by placing them above appellants. At this stage, it will be useful to quote paras 7&8 of the judgment in Balwant Singh Narwal (supra), which thus read:
7. The said decision is challenged by the appellants reiterating the contentions urged before the High Court. Reliance was also placed on the decisions of this Court in the State of Madhya Pradesh vs. Prem Prakash - 1994 (1) SCC 432; Dr. Chander Prakash vs. State of UP - 2002 (10) SCC 710 and State of Uttaranchal vs. Dinesh Kumar Sharma - 2007 (1) SCC 687, and other cases which lay down the general proposition that selection by Public Service Commission is merely recommendatory and does not imply automatic appointment and that the appointing authorities should not give notional seniority without valid reason, from a retrospective date, which would affect the seniority of those who have already entered service.
8. There is no dispute about these general principles. But the question here is in regard to seniority of the respondents 4 to 16 selected on 1.10.1993 against certain vacancies of 1992-93 who were not appointed due to litigation, and those who were selected against subsequent vacancies. All others from the same merit list declared on 1.10.1993 were appointed on 2.6.1994. Considering a similar situation, this Court, in Surender Narayan vs. State of Bihar - 1998 (5) SCC 246, held that candidates who were selected against earlier vacancies but who could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently, will have to be placed above those who were appointed against subsequent vacancies.
15. As already stated above, the judgment rendered by this Tribunal in the case of S.R. Gautam (supra) whereby notional seniority and promotion had been given to the applicants therein from retrospective date, cannot be interfered with, as applicants were wrongly deprived of promotions from due date by not counting their service rendered by them on deputation till their absorption in the department. Had the service rendered by the applicants been counted for the purpose of eligibility for promotion to the post of Assistant Director (Systems), they would have been promoted from the due date(s) when they had completed 5 years of service in the feeder category. Thus, they were denied promotion from due date contrary to the mandate of the Apex Court in the case of K. Madhavan (supra) and this Tribunal in the case of S.R. Gautam (supra), after taking into consideration the judgment of the Apex Court, granted benefit to the applicants therein from retrospective date. Thus, in terms of the law laid down by the Apex Court in the case of Balwant Singh Narwal (supra) they are entitled to promotion and seniority from back date.
16. Similarly, applicants cannot also take any assistance from the judgment of the Apex Court in the case of Pawan Pratap Singh and others v. Reevan Singh and others, (2011) 3 SCC 267. As can be seen from para-4 of the judgment, Rule 22 of Appointment, Probation, Confirmation and Seniority Rules, 1980 provides as to how the seniority has to be regulated. The said rule stipulates that seniority in any category of post in the service shall be determined from the date of substantive appointment. It was in this context the judgment was rendered by the Apex Court that the effective date of selection has to be understood in the context of service rules under which appointment is made. It may mean the date on which the process of selection starts with the issuance of the advertisement or the factum of preparation of the select list, as the case may be. The Apex Court has also held that 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. Even the Apex Court in the case of Pawan Pratap Singh (supra) has held that notional seniority can also be granted from the backdate if there are some valid reasons. As already stated above, according to us, there are valid reasons for granting the promotion and seniority to the applicants from backdate, as already noticed above.
17. The matter can also be looked into from another angle. The issue regarding grant of promotion and seniority from retrospective date was under challenge before this Tribunal in the case of Devindra Kumar and others (OA No.1941/2003) were the direct recruitees to the posts of Assistant Director (Systems) appointed in the year 1994, have challenged promotion and seniority given to the applicants and others pursuant to the judgment rendered by this Tribunal in OA- S.R. Gautam (supra). The said OA had been dismissed. In case, we allow the OA filed by the applicants by holding that seniority cannot be given even ignoring the judgment of the High Court, which has affirmed the judgment rendered by this Tribunal in the case of S.R. Gautam (supra), the effect of such decision would be that the applicants who were inducted in the cadre of Assistant Director (Systems) in the year 1997 onwards will be senior to applicants in OA-1941/2003, who were inducted in the cadre of Assistant Director (Systems) in the year 1994. This would mean the direct recruit juniors will become seniors to the admitted seniors. This is one of the reasons why the judgment rendered by this Tribunal in the case of S.R. Gautam (supra) is to be held as good law.
18. Although we have answered the reference in terms of the observations made above, but according to us, there was no necessity to make the reference in the light of the judgment rendered by the High Court of Delhi in Writ Petition No.2023/2002 whereby the judgment in the case of S.R. Gautam (supra) has been affirmed and applicants have not shown any violation of statutory rules, which necessitates us to take a contrary view and also in the light of the judgment of the Apex Court in the case of Balwant Singh Narwal (supra), as the judgement in the case of Dinesh Kumar Sharma (supra) was considered and distinguished by the Apex Court in the case of Balwant Singh Narwal (supra). Since the points raised in these OAs have already been decided by this Tribunal in the case of Jayanta Barua & others (OA-2412/2002) (supra) and Devindra Kumar and others (OA No.1941/2003) (supra), we are of the view that the present OAs are also required to be dismissed, in the light of the reasoning given in the aforesaid cases.
(Dr. Ramesh Chandra Panda) (M.L. Chauhan) (V.K. Bali) Member (A) Member (J) Chairman San.