Central Administrative Tribunal - Mumbai
Vinod Kumar Kanaujiya vs M/O Finance on 28 March, 2024
H OA NO I2019
ORIGINAL APPLICATION No.715/20159
Sate this . "the & day of March, 2024
K <F
CORAM: Ms. Harvinder Kaur Oberoi, Member ()
ed
Mr. Shri Krishna, Member (4)
Vinod Kumar Kanaujiya
Son of Shri Gangaram Kanaullya Date of birth: 01.04.1984
Age: 35 years - 06 months,
Working as : Multi Tasking Staff (Group "C" Post}
in the office of Additional Commissioner of Income
Yax- Range-11(1), Room No.220/260-C,
Aayakar Bhavan, Churchgate, Mumbai 400020,
Residing at: Janshakt! Nagar, Maipa Hill No.2,
Pump House, MIDC, Andheri (East),
Mumbai 400 093. State of Maharashtra.
Mahendra Dindayal Thete,
Son of Dindayal Yadoran Thete, Date of birth: 01.07.1986,
Age 32 years O03 months, working as : Multi Tasking Staff
(Group °C" Past) in the office of Joint Commissioner
of income Tax ~29(1)}, Kautilya Bhawan, Income Tax Office
BKC Bandra, Mumbai 400051.
Residing at: 21/204, ist Floor, Ekta Vihar Sector-26,
CBD Belapur, Navi Mumbai 400 614.
State of Maharashtra.
Ashutosh Pandey, Son of Auclhesh Pandey,
Date of birth: 25.10.1993, Ags 26 years,
Working as : Multi Tasking Staff (Group "C" Post}
inthe office of ASK-28, 3rd Floor, Tower No.6,
¥RSCCL Bullding, Vashi, 400 703.
Residing at: 1717/45, Ground Moor, G5 Calony,
Sector-7, §.M. Road, Antop hill, Mumbai 400037,
State of Maharashtra,
1M
2 Od NoF1§2019
Chandra Shekhar Kumar, Son of Dhananjay Mathto,
Date of birth :15.02.1989, Age: 30 years O8 months
Working as :-Multi Tasking Staff (Group "C" Post)
in the office of CIT (DR), ITAT, A- Bench,
Old CGO Building, Prathishtha Bhavan,
Churchgate, Mumbai 400020.
Residing at: 604, 6th Floor, M.N. Shaswat Park-2,
Badiapur (West), Badlapur, District - Thane 421704.
State of Maharashtra,
Sanjeev Kumar Sinha, Son of Binoy Prasad,
Date of birth: 11.08.1989, Age 30 years 02 months,
Working as: Multi-tasking Staff (Group "C" Post)
in the office of Addl. CIT-4(1), Room No.678,
Aayakar Bhavan, Murnbai 400020,
Residing at: 202, 2nd Floor, Shashwat Park-2,
Building No.5, Near Deepali Park, Badlapur (West),
District: Thane, Pin Code: 421204,
State of Maharashtra.
Rahul Shankar Bhagat, Son of Shankar Bhagat,
Date of birth: 22.10.1984, Age: 35 years,
Working as: Multi Tasking Staff in the office of CIT{A}-46,
Mittal Court, Nariman Point, Mumbai 400020. -
Residing at : 401/02, Manohar Vikas Residency,
Badlapur, Taluka: Ambernath, District Thane,
Pin code : 421503, State of Maharashtra.
Snehdip Dharamdaas Shelke,
Son of Dharamdas Gopalrao Shelke,
Date of birth: 10.06.1979, age 40 years 04 months,
Working as: Multi Tasking Staff
in the office of Aayakar Bhavan, CCIT-9,
Room No.359, Maharshi Karve Road,
Churchgate- 400030.
Residing at : 5021/8, 5th Floor, Prabhakar Heights,
Badlapur, Past and Taluka: Arbernath,
District: Thane, pin code -421 503,
State of Maharashtra.
a
OA No 1019
bora
Parmeshwar Narayan Devde,
Son of Narayan Sahebrao Devde, Date of birth: 25.05.1990,
Age 29 years 05 months, working as : Multt Tasking Staff
in the office of CIT(A}-29, 4TH Floor, Earnest House,
Nariman Point, Mumbai 400021,
Residing at 148, Room No.5458, 2nd Flea,
CGHS Cafony, Anton Hil, Sion, Mumba! 400037,
State of Maharashira. .
Sengram Pralhadraa Munde
Son of Pralhadrao Dyandey Munde,
Date of birth: 01.03.1988, Age: 31 years O07 months,
Working as: Mult! Tasking Staff Group "C" Post
in the office of Principal CT 4(HO)} Room No.679,
Aayakar Bhavan, Churchgate, Mumbai 400020.
Residing at: 104, Ist Floor, Bhakti Park, Shastri Nagar,
Vasind (East), Shahapur Taluka,
District: Thane, Pin Code: 427501.
State of Maharashtra.
Dhaval Sudam Chaudhari, Son of Sudam Chaudhari
Date of birth 14.11.1988 Age: 30 years 11 months,
Working as: Mult! Tasking Staff (Group "C" Past}
in the office of Joint CTI 28(3}, Vashi, 3rd Floor, -
Tower No.6, Vashi Rallway Station Building,
Vashi Nav] Mumbai ~ 400708.
Residing at: 304, 3rd Foor, Divine Quest,
Uhwe Node, Plot No.47, Sector-21, Panvel,
District : Raigad, Pin Code 4410 206,
State of Maharashtra.
Nitesh Haribhau Boluwar,
Son of Haribhu Markhand! Boluwar
Date of birth: 10.09.1986, Age 33 years O1 month
Working as: Multi Tasking Staff (Group "C" Past}
in the office of CIT Gudicial} Room No.371{C),
Aayakar Bhavan, Churchgate, Mumbai 400020.
Residing at: Rukmini Shashkar Apartment,
Naigaon (East), District: Thane, Pin code: 401208,
oY Rend ' = & t ron en te hac
State of Maharashtra.
13,
14,
16,
4 OA No, Ti5/2
FB
Rajendra Hanamant kumbhar,
son of Hanamant Kisan Kurnbhar, Date of birth: 25.06.1987
Age 32 years O4 months, Working as: Multi Tasking Staff
(Group "C" Past) in the office of Principal CIT-33-
Mumbai, Kautilya Bhavan, BKC, Bandra (East),
Mumbal 400051. Residing at: Room No.1650,
3rd Floor, CGS Colony, Sector7, Anton Hil,
Mumbai 400037. State of Maharashtra.
Md. Ibarar Alam, Son of Md. Tasauvar Al,
Date of birth: 12.02.1993, Age: 26 years 08 months,
Working as: Multi Tasking Staff (Group "C" Post}
in the office of: Addl. CIT- 29(1), Kautilya Bhavan,
BKC, Bandra {East}, Mumbai 400051.
Residing at: 601, Bldg No.7, Shaswat Park,
Near Deepali Park, Badlapur (west),
Taluka Valavil, District: Thane, Pin Code : 421204,
State of Maharashtra.
Sarojkumar Noharsingh Alaniya,
Noharsing Fulsing Alaniya - 26.07.1985,
Age: 30 years 03 months, Working as: Multi Tasking
Staff (Group °C" Past) in the office of Principal
Cammissioner of Income Tax-31, Mumbai. .
Residing at: 217, 2nd Floor, CGHS Colony,
Antop hill, Kane Nagar, Sector-1,
Mumbai 400037, State of Maharashtra.
Lalitkumar Jyotiramn Bramhane,
Son of Jyotiram M. Bramhane, Date of birth: 19.08.1985
Age: 34 years 02 months, Working as: Multi Tasking Staff
{Group "C" Post} Joint CIT 27/2), 4th Floor, Vashi Railway
Complex, Vashi. Residing at: 203, Gayatri Sadan
Apartment, hands Colony, Panvel, Taluka
and District: Ralgadh, Pin Code: 410206.
State of Maharashtra.
Sampatrao Hindurao Pawar, Son of Hindurao Pawar,
Date of birth: 21,01,1988 age: 32 years 09 months,
Working as: Multi Tasking Staff (Group "C° Post)
5 OA No? 3/2019
in the office of Chief Commissioner of Incame
Tax (Central-1}) R.No.572, MK. Road,
Aayakar Bhawan, Churchgate, Mumbai 400020,
Residing at: A/201, Ind Floor, Orchid Corner CHS Ltd,
Yeinja Phase-!, Taluka -Panvel, District: Raigad 410208,
State of Maharashtra,
Puja Santosh Khade, Son of Santosh Raridas Khade,
Date of birth: 18.02.1993, Age: 26 years 08 months,
Working as: Multi-Tasking Staff (Group "C" past)
in the office of CITLA)-25, Vashi 400708.
Residing at: Roam No.8, Vasant Smrut! Building,
Juhugeon, Vashi, Mumbal-400703.
State of Maharashtra. eee Applicants
{8y Advocate Shri R.G. Walia)
ond
4.
Lees
Versus
Union of India Through: The Secretary,
Ministry of Finance, Department of Revenue,
Narth Block, New Delhi-1.
Department of Personnel and Training (D.O.B7)
Lok Nayak Bhavan, Khan Market, New Delhi 110 008.
The Principal Chief Commissioner of Income Tax,
3rd Floor, Aayakar Bhavan, MK. Road,
Mumbai ~ 400020. . Respondent
Nos.1 to 3~ Official Respondents.
{8y Advocate Shri Rishi Ashok i/b Shri 8.K. Ashok)
Vishal Vay Barters, Working as Tax Assistant
in the office CCiT-Centrali2}, Room No. 132,
ist Floor, Aayakar Bhavan, Mumbai -400 020.
Chintu Kumar,
Working as: Tax Assistant In: the office of Income Tax.
Kage ~
Ria: Village: DOSlLa tous Po Misva,
g sant Bile Eye co OY
Dist Naweda, Sinan Fin Code: SOs
6 OA No FIS2019
&. Prashik Anil Ramteke,
Working as: Tax Assistant in the office of: Income Tax,
R/a Plot No.442, Yashodhara Nagar,
Kamptee Road, Nagpur - 440 026.
State of Maharashtra.
7. Raju Shankarrao Paidakulwar,
Working as: Tax Assistant in the office of Income Tax,
R/a Near Mahadev Dal MIN, Degaon Road,
Deglooor, District: Nanded, Pin Code: 413717,
Maharashtra.
& Gangeshwar Mishra, Working as : Tax Assistant,
In the office of Income Tax.
R/a Sundar Nagar Colony, Jungle Hakim Nol,
Padri Baraz, Gorakhour
{U.P} 273044.
9. Sajan Kumar Sharma, Working as: Tax Assistant,
in the office of Income Tax,
R/a: At & Post: Harpur, Police Station: Shakund,
District- Bhagalpur, Bihar, Pin: 813198. a Respendents
Nas.4 to 3 ~ Private Respondents in their
representative capacity to be served through R3.)
(By Advocate Shri R.P. Saxena)
ORDER
Per: Ms. Harvinder Oberoi, Member (J)
The present OA has been filed by applicants who are lo in number and are working as Multi Tasking Staff (MTS) in the office of the respondents. Issue in the present OA pertains to their promotion to the post of Tax Assistant.
#.
CF on orate en Ne due. Exe FRx ce aS "Rlaae A mete been® cave bakon onan Recruitment Rules for the post of Tax Assistant provide for 7 Od No? L32019 appointment as TA, 75% by way of Direct Recruitment and 25% by way of promotion. In the present OA, we are concerned with this 25%. The relevant extract of the Recruitment Rules is "TL. Promotion:
Group 'C', viz. Multi-tesking Staff, Lower Division Clerk, notice Server, Record Keeper, Sr. Gestener Operator in Pay Band- 1 with five years' reguiar service in the Grade 'including in the erstwhile Group 'D' having passed 7) matriculation examination oF equivalent and i) having qualified the prescribed Departmental Exantination for data-entry shill for 5000 key depressions per hour"
2. Applicants belong to the 2013 Staff Selection Commission batch and were appointed to the post of MTS. The Recruitment Rules for the Tax Assistant requires the MTS and other Group 'D' staff, from different cadres, to pass the Computer skill test/ Data Entry Test with the speed of 5000 key depressions per hour. Applicants in the present OA submit that in preparing the eligibility list for promotion under 25% quota, CBDT letter dated 13.04.2005 is relevant and was in vogue. The instructions in this letter provided for the eligibility lst amongst the candidates be prepared with respect to date of ne g O4 No.7 15/2019 clearing the data entry test. The candidates were from different cadres such as MTS, LDC, Record Keeper ete.
& On 28.06.2019 (Annex A-?), it was clarified that instruction dated 13.04.9005, had become redundant Burther instructions were issued that all action for promotion to the post of Tax Assistant will be taken as per the Recruttment Rules. The relevant para of the said letter dated 13.04.2005 reads as under:
Messed f sim further directed to say that in preparing eligibility lst for promotion fo the post of Tax Assistant, the Board's letter dated 13.04.2005 cones tito play only when the conditions given in the existing Recruitment Rules are fulfilled. As the above mentioned feeder pasts have different pay levels at present and as the existing Recruitment Rules contain specific eligibility conditions for promotion to the grade of Tax Assistant the para "a common eligibility list in chronological order with reference to passing of the computer siall examination shall be prepared for consideration of the DPC. Inter-se seniority of the candidates recomrmended for promotion as Tex Assistants shall be fixed in order of the select list so prepored by the DPC" in the Board's letter F. Ne. A-
120TS/L/2005-Ad VT dated 13.04.2005, fas hecorne a OA Nar 18/2019 redundant and, hence, superceded. Henceforth, all action for promotion to the post of Tax Assistant will be Iaken as per Recruitment Rules.
a it is contention of the applicants that, very issuance of this letter dated 28.06.2019, is evidence/admission by respondents, that instructions issued by the board vide the letter dated 13.04.2005, were not in conformity with the RR's anymore. Since the 2003 RR's had been amended in 2015.
Therefore, the same were rightly declared redundant.
lowever, in the same letter in response to a query it was stated thats Queries _ Reply 'in) Whether all the candidates, List of eligible candidates for who have earlier led the!promotion to the post of TA: Computer Skill Test are to behas to be prepared in the treated as e for promotion and following manner: | seniors to those, who have ed! (4) Prepare a list of those computer skill test on later date whoa fulhll ALL the irrespective of their seniority. following cancitions aivern in RR:
{a} 5 years regular service in the concerned region in the Grade | (MTS/NS/LDC/ Record Keeper/Sr. Gest. Op.) including Service rendered in the erstwhile Group 'D'.10 O48 No fF f5/2019
b} Having passed Matriculation examination or equivalent.
e} Having qualified the prescribed Department Examination for data entry skill for 5000 key depressions per hour.
(I) After that, arrange the list as per date of passing the date entry skill test (amongst those whose name appears in the list at step J}.
5. On one hand, vide instructions dated 28.06.2019, the earlier instructions dated 13.04.2005 (wherein fhe eligibility lst was being prepared as per date of passing the computer skill test) were made redundant. However, in the same letter in answer to query no.2, the same decision was again taken, that to arrange the list of the eligible candidates as per, date of passing of the Data Entry skill test.
é. Recruitment Rules for post of Tax Assistant requires the MTS and other Group 'D' staff from different cadres to pass the Computer skill test/Data Entry Test with the speed of 5000 LOLITA i OA Naf 13/2019 key depressions per hour. The applicants submit that once the applicants have faced the SSC recruitment examination and have been appointed on the basis of their merit achieved by x eh & . Se ey eee oe or S Bay ren See te etaeeiee Shee Ni wet bey Weer. & oF Tey & Ray SANE vivke fo er Shem TA com PM ter eh ISS OLESY DSSL/ ae od Rey est, WINCH 1S merely qualifying in nature, could not have become the determining factor for their placement in the eligibility lst for next promotion of Tax Assistant. [It is submitted that instructions issued by the Board in the year 2005 were consciously declared to be redundant but mischievously by the same letter the said instructions continued. Objections were raised by many persons from time to ime. In the present case, applicants had raised objection with regard to the eligibility list of 15.05.2018 and 29.05.2018 (Annex A-1}, as the same did not respect inter-se seniority of the eligible MTS. The objections of | the applicants were rejected on 29.05.2018. While rejecting the representations, the respondents placed reliance on letter dated 33.05.2016 (Annex A-5). This letter was issued by the Directorate of Income Tax, (HRD). Although it recognized that the earlier RR's were supercecied by the new RR's of 18.12.2015.
MASSE However, if reiterated that Board instruction dated 15.04.2005 "a eee a % ty rey 12 Oa No? iS/2079 ¥, may be followed.
re Promotion orders on eligibility list were issued on 01.06.2018, 29.06.2018 and 31.05.2019. The same are also under * 3 challenge in the present OA. Later when the Board issued misleading clarification of 28.06.2019 (supra), applicants again sent representations on 29.07.2019 but no reply was received and applicants have thus filed the present OA seeking the following reliefs:
"8a This Hon'ble Tribunal may be pleased to call for the record which led te the passing of the impugned orders dated 29.5.2018 (ie. Al), (heA2), 29.59.2018 15.5.2018 (.e.A3), 01.06.2018, 29.06.2018, 31.05.2019 8595 (1e.Ad), (25.5.2016) G¢AS), and 13.4.2005 (Le.A6) and after going through its proprietary, leoality and constitutional vallidi ty be pleased to quash and set aside the same.
(b) This Hon'ble Tribunal may be pleased to held and declare that the Eligibility List dated 155.2018 and 29.5.2018 are illegal and wrong and accordingly direct fhe Respondents to reissue the same based on the inter-se sertority position of the Eligible Candidates and not on the basis of Date of Passing, the Eligibility Qualifying jake Entry, 'Typing Test.
(e} Tus Non'te Tribunal may be pleased te Order and direct the Respondents to hold a RE VIEW DPC which led io the issuance of the Promotion Order dated 16.2018, 29.6.2018 and 315.2019 and to grant promohon to the "FIT CANDIDATES" as per their ifer-se seniority wef 16.2018, 296.2018 and 13 D4 No.2 32018 aa 15.2019 with all consequential benefits of pay fixation, exiority, arrears of pay, etc. iG i} This Hon'ble Tribunal may y be pleased to hold and declare that the impugned oF ers dated 23.5.2016 and 134.2005 are legal and wrong 'ean ihe sane cannot be made applicable to the DP Sand promotions effected nuder the New Recruitment Rules of Sie 2015 for ihe post of Tax Assistant, (2) This Hon'ble Tribunal may be pleased to hold and declare that in plew of the clarific ation issued by the Board on 28.65.2019 the impugned arders dated 23.5.2016 an 13.44.2005 cannot be applied or made effective to the DPC /promotions effected under the New Recruiiment Rules of the 2015 for the post of Tax Assistant.
() Any other and further orders as this Hort'ble Tribunal nury deent fit, proper and necessary m the facts and cireunisiances of tte case.
{g¢) Costs of this Original Application mat vy b be provided a
8. it has been stated in the OA that the letter dated 18.4.2005 was issued under the old Recruitment Rules of Tax Assis ant, The same could not have been applied or made applicable to the DPC or promotion effected under the New Recruitment Rules of the year 2015 which was issued under proviso to Article 309 of the Constitution of India by the Hon'ble President of India. No approval was taken from the DOPT or UPSC or the Hon'ble President of Incia before applying the Letter dated 18.4.2005 to the DPC and promotions effected under the New Recruitment Rules. Thus, the entire act of the Respondents was without Jurisdiction and Authority. Further It was stated that Recruitment Rules of the year 2015 have been issued by the Hon'ble President of India and thus, any further clarification or letter pertaining to Recruitment to the post of Tax Assistant could have been issued or made applicable (13.4.2005 or 23.5.2016 or 28.05.2019) only after express approval of the Hon'ble President of India.
9. | Further inter-se seniority in the MTS Cadre is determined based on the Merit Position obtained by the candidates in the Selection Examination conducted by the Staff Selection Commission. Since applicants have cleared the Eligibility Test prior to 1.4,.2018 (vacancy year), they could not have been placed lower in the Eligibility List to their juniors who happened to clear the same prior to the Applicants (Seniors).
10. It is submitted that impugned Promotion Orders have only one LDC employee that too under the PHYSICAL HANDICAP QUOTA and thus, there was no need to alier the 13 OA No? 132019 seniority of the Applicants vis-dovis their juniors for the purpose of promotion to the post of Tax Assistant. In the impugned Promotion Orders dated 29.06.2018 and 314.2019, MTS came to be promoted to the post of Tax Assistant. No other Official from any other feeder cadre was available and eligible for promotion at that relevant ume. Ga. [Ik was pointed out that the Gujarat Commissionerate has clearly followed the Board's direction. issued on 28.6.2019 and has not prepared any Eligibility List disturbing the seniority of the eligible candidates based on the so-called date/year of passing of the said Eligibility Test. Counsel submitted that Applicants' serdority im the said Blicibility List dated 15.05.2018 and 29.05.2019 was supressed and they were wrongly placed in the said Eligibility List below their juniors in an illegal and arbitrary manner. The juniors of the Applicants belong to the same batch or subsequent batches of MTS appointed through the Staff Selection Commission. As per the result of the Staff Selection Commission, the Applicants had secured more marks and were thus higher in merit than the said juniors for appointment to the post of "Muiti Tasking Staft"
16 G4 Ne. i Pi ovetl 9 and based on the said Merit Position the Inter-se Seniority was o/ Data determined. However, in a qualifying / eligibility Typing, Entry Test (an eligibility requirement for promotion to the post juniors had passed the said Examination prior to the Applicants. Only on this basis the said juniors came to be legally placed above the Applicants in the Impugned Eligibility List prepared as on 14.2018 and particularly when the Applicants had also by then qualified the said Typing / Data Entry Qualifying Test. Infact, original inter-se snr always remained Intact AND THUS, the IMPUCGNED Eligibility Lists dated 15.05.2018 and 29.05.2018 were totally. arbitrary and illegal.
12. In the present case, the Applicants have passed the sti Eligibility Recruitment Examination in the same year. The juniors have passed their Eligibility Examination on 29.6.2016 and the Applicants passed the same on 23.3.2017. Thus, the Applicant had qualified the said Qualifying/ Eligibility Examination prior to the date 01.04.2018 and within 5 years of their appointment. Here it is alse relevant to note that the date vy G4 NaF 152019 to determine eligibility for the concerned promotion was LA. 2018 t the post of Tax Assistant.
a3. Counter affidavits have been fled to the original application, both by the official respondents anc private respondents. Official respondents have stated that, besides MTS, 1 Lower Division Clerk and 2 Notice Servers were eligible for promotion at the relevant time, however, they were not considered fit for promotion by the Departmental Promotion Committee (DPC). It is admitted that Inter-se seniority of the eligible candidates for promotion to the past of Tax Assistants qwas fixed in terms of Board's letter F. No. A-12018/1/ 2005-Ad. Vi dated 13.04.2005. After New Recruitment Rules of Tax Assistant dated 18.12.2015 were notified, Directorate of Income Tax (HRD) vide their letter dated 23.05.2016 again clarified that while preparing eligibility list for promotion to the post of Tax Assistant, Board's Instruction dated 13.04.2005 has to be followed. As such, the eligibility lists dated 15.05.2018 and 29.05.2018 were prepared with reference to the date/year of passing of the computer skill examination. They have been orepared in compliance to the Instructions laid dawn by the Board. It is stated that DIT (HRDYs clarification vide letter dated 23.05.2016 came after the 2015 Recruitment Rules were notified and it clearly states that Board's Instruction dated TSA SOS he my Bye Seed droga ry sriyiiics ANS -¥ Yothilieay Hat 19.04.2005 has to be followed while preparing the eligibility lst.
With respect to the clarification letter from DIT (HRD) dated 28.06.2019, respondents adinit that Para 3 of this letter says that the Board's letter dated 13.04.2005 has become redundant and hence superseded, and henceforth, all action for promotion to the post of Tax Assistant will be taken as per Recruitment Rules. However, the respondents relied upon the answer to 'some specific queries that were raised by the Gujarat Comunissionerate. Accordingly, as per answer to the queries the impugned action is justified. In view of the above, the Applicants' claim for corrective measures after the clarification _ dated 28.06.2019 also does not stand. Respondents on the issue of the authority of the letter dated 13.0.42005 have stated that, "In this regard, i needs fo he pointed out thal any instructions/directions from CBDT are bi nding on field formations'.
14, The Respondents have proceeded in view of the instructions / directions in force, issued with the approval of the 19 Od No 13/2019 Comrpeten it Authority. Hence, they deny applicant's claim.
15. Private respondents in their reply have raised a preliminary objection. They submit that the Promotion order r af Shri Chinta Mumar (Respondent No. 05) against the vacancy year 2019 (01/01/2019 to $1/12/2019) which cannot be challenged in the present Original Application, being a separate cause of action, Promotion Orders dated 01/06/2018 and 29/06/2018 have been issued against the vacancies for the period from O1/04/2018 ta S1/12/2018. It is pertinent to note that instructions with respect to vacancy year alsa underwent a change earlier it was financial year wise 01.04.2018 to 31.12.2018 (curtailed) and later it was calender year wise Q1.01.2019 to 31.12.2019. On merits they submit that RR's have been supplemented by executive orders dated 23/05/2016 (A-5) the manner of clarifying preparation of a single elletbility list for promotion of candidates to Tax Assistant. The same was not challenged at the relevant time and therefore at this stage challenge is barred by limitation.
16. We have perused the pleadings. documents roy aN 20 O4 No FIS2019 available on record and heard the arguments.
17. Counsel for the applicant at the very outset submitted an order passed by the Board dated 31.05.2023, during pendency of the OA wherein the following decision has tS af SSI OS caer ae QANTAS ONE RSET OE Pet. been taken.
"Dated: 31.05.2023 To.
The PV. CCITT CCAX Delhi The Pe CCIT ( CCA), Mumbai ect.
Sir Madam, Subject: Clarification regarding the Interpretation of the Term 'Seniority" in the feeder cadre (NSMTS/LDC) iwhile considering for promotion to TA-reg. a Ref: Letter PF Na. 4, CCH/GUYABDAH (Pers) Clari, MTS te TA/23-24 dated: 01.05.2023 of Pr. CCIT (CCA) Gujarat. a Kindly refer to the subject cited above.
2. inthis context, it has been observed that there is somte lack of clarity in some field offices iw regions across the country regarding the methodology to be adopted while conducting DPCs for promotion to the cadre of Tax Assistant Ref Lette J of the Pr, CCITXCCA), Gujarat dated:
OLGS 2023 as referred above), Accordingly, We u OA No.715/2 j 2U iv clarification in the matter is being made for the competence of 4 ait as Belem, | based or the extant ae é oe -- mottos tes "Senior fuafor clause as mentioned i Colm 0 i the Schedule to Recorudines EG RES st Rules for the past of Tax Assis tant included in the RRS notified vide GSR Ne. IKE) ort 18.12.2015 provides as under:
wd. Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not skort of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or twa years whichever is lese and have successfully completed their probation period for promotion to the next higher srade along with their juniors who lave already completed such qualifying or eligibility service..."
3. As per Article 309 of the Constitution of india, Recruitment Rules for the post of Tax Assistant notified vide GSR No O9KE) on 184122015 are statutory in nature.
Accordingly, Iam directed te convey that DPC fer promotion to the post of Tax Assistant may be conducted only by following the extant Recruitment Rules for the post of Tax Assistant.
. The earlier clarifications issued by the Board/HRD in the matter such as letters of even number dated 13.04.2005 Usswed bry Ad y CHDY based on the fhen RRs dated 2 OA No? 15/2019 02.09.2003 of Tax Assistant cadre), 23.05.2016, OV0L10.2018 and 28.06.2019 stand withdraw with immediate effect. It is also clarified that any action already taken as per earlier tstructions of the Board/HRD in this regard shall not be altered sa that settled seniority This issues with the approval of the Chairman, CBDT".
18, It was argued that as respondents were receiving representations from many quarters, ultimately, they have taken the decision to withdraw their earlier instructions dated 23.05.2016, 08/04.10.2018 and 28.06.2019, Counsel argued that vide letter dated 28.06.2019 itself the earlier instructions were declared redundant, however due to the mischevious reply to the query in the same letter, some confusion remained which has been ultimately cleared now.
19, On the objection raised by the private respondents with respect to multiple cause of action/ multiple orders of promotion from different vacancy year challenged in one OA, it was stated that the MA 671 /2019 seeking permission to file the QA jointly was allowed on 05.12.2019. No objection was raised 23 O4 No fF 13/2019 same now. It was stated that issue is the same as such the MA was allowed in the interest ef justice to avoid multiple aed o a tigation.
*SF8 oy S243 Bev oy gy sf nN Srey yy aeen .
oh On delay, if was argued that the promotion orcer we SS we dated 31.05.2019, is under challenge and the OA was filed on 17.10.2019 as such there is no delay in fling the OA. 2a. Respondents then argued that, notwithstanding, that the instructions dated 23.05.2016, 03/ O¢ 10.2018 and 28.06.2019 had been withdrawn, recently vide letter dated 31.08.2028, it would not mean - that the relief claimed by applicants could be granted. Since the order dated 31.05.2023, issued by the Board, itself stated that old cases shall not be reopened. Respondents therefore argued that the instructions dated 31.05.2023, are prospective and shall not effect actions | already taken by the respondents. It has been stated in para 4 of the latest Instructions as under:
"4. The earlier clarifications issued by the Board/HRD in the matter such as letters of even nuntber dated 13.04.2005 Gssued by Ad he CEDY based on the then RRs dated paid in 20s and 28, 06.2019 stand wpithdvace eh fhs Ye? - oes with imuediate effect. [tis also clarified that eee ae s Sees ots pre aa ay action already taker as per earlies 24 GA Na? 13/2019 instructions of the Board/HRD in this regard shall not be altered so that settled seniority lists are not disturbed.' ey A, eke PUD pplicants have vehemenily opposed this stand of the respondents. It is submitted that once the board takes the decision that the instructions issued earlier are withdrawn the same shall have to be treated as still born/non-est. He relies CRE Appeal No.27632023 (Arising aut of SELP(CRL) No.43642011 dated 11.09. 2023 3 in this context.
33, In the present case conflict is between the RR's and the instruction issued by board. The judgment relied upon by the applicants is on different set of facts and has no applicability in the present case. Somewhat similar situation as in the present case was before the Apex Court in the case of S, L. Sachdev & Anr. Vs. Union of India & Ors, reported in 198] SCR) 971. The Hon'ble Apex Court has held as under:-
"Apart front fine consideration, we are unable to understand how the Director General could issue any divective which is inconsistent with the Recruihnent Rules af 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution. Those rules do not provide yor the hind of cle nestfication wines is stede by the Director General by his leters to the Heads of tot Bt, Soi
24. Keranidikar, 1989 SCC 25 O4 NaF 15/26 respective Circles of the new organisation. [f may be cnn Heat tne Recruitme sit Rules only provide for a assification on the basis of the length af service in the New ar gINISUTION. Agty directive which BOES beyond if and iperimposes @ new criterion on the Rules will be bad as la cking i if Jurisdiction st, Ne one om issue a direction which, fy substance wed effect, amounts fo an amendment of the Rules made by the President wader Articie 309, That is elementary. We are unable to accept the learned Attorney General's submission that the directive of the Director General is abued af further and better implementation of ihe Recruttrrent Rules. Clearly, if introduces an amendment to the Rules by prescribing one more fest for determining whether ULD.Cs, drawn from the Audit Offices are eligible for promotion to the Selection erade/Head d Clerks Cadre."
that au.
"Executive instructions cannot amend or supersede fhe statutory rules or add something therein, nor the orders be issued in contravention of the statutory rules for the reason that an administrative imetruction is nol 8 statutory Rule ner does it have any force of law; while statutory rules have full force of law provided the same are not in conflict with the provisions of the Act."
In Secretary State of Karnataka and Ors.
Umadent & Ors., AIR 2006 SC 1806 it has been held that "8, The potwer of a Stale as an ¢ employer 18 wore limited than thet of a private employer inasmuch as if is subjected to constifutional ft "anes pha $ sey oe be exercised arbtbrarily (See 4 ee tar Be a. eRe IT :
iotaNons BLS cannot pe fe foe (SUPP) 1 393, also the Apex Court held Ve.26 OA No. 7152019
Basu's Shorter Constitution of India). Article SQ9 of the Constitution gives the Government the power te frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appomnted to public services and posts in connection with the affairs of the Union or arny af the States.
That Article contemplates the drewing up of # procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed fo public posts. Hf is well acknowledged Hat because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appotnbnent etc. If rules heve been made under Article 309 of the Constitution, then the Government con make appouttmenis only in- accordance with the rules."
26. As per the law as discussed above, in any conflict between Instructions and RR's promulgated under Article 309, the scale would weigh in favour of the RR's, Herein alsa although with some delay respondents have arrived at the same conclusion. However, what would be effect of the withdrawn instructions is the issue before us. Respondents are right to the extent that re-opening old cases would lead to disturbance. However, in the present case matter was not settled. Applicants and private respondents are contesting and both parties were aware that the wind could blow either way.
In our opinion, the present case cannot he treated as settled as 27 . G4 No Fis 2019 the lis was pending. In view of the above, the Eligibility List dated 15.5.2018 and 295.2018 are declared illegal. Respondents are directed to re-issue the same, based on the Inter-se seniority of Passing, the Eligibility Qualifying Data Entry / Typing Test. Purther, respondents are directed to hold a REVIEW DPC of the DPC which led to the issuance of the Promotion Order dated OL6.2018, 29.6.2018 and 315.2019, Review DPC to consider grant of promotion to the "FIT CANDIDATES" as per their Inter-se seniority of the re-~drawn eligibility list directed above. The above relief shall How to the applicants with all consequential benefits. This exercise be completed within a period of four months from the date of receipt of certified copy of this order.
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27. The Original Application is disposed of in the aforesaid terms. Pending MAs, if any, stand closed.
28, There shall be no order as to casts.
{Shei Kyigshnap > tHarvitider Kaur Obero ry) Member (A) Member (7) ely, <8