Central Administrative Tribunal - Delhi
All India Income Tax Scheduled ... vs Union Of India (Uoi) And Ors. on 11 September, 1998
JUDGMENT S.P. Biswas, Member (A)
1. The applicant before us is a duly registered and recognised "All India Income Tax SC/ST Employees Welfare Federation" and is aggrieved by order dated 19.12.96 by which respondents have refused to accept federation's request to correct/ alter/modify the existing seniority lists of various cadres of the "Indian Revenue Service" officers in terms of the law laid down by the Hon'ble Supreme Court in the case of P.S. Ghalaut v. State of Haryana and Ors. decided on 3.8.95, AIR 1996 SC 351. The applicants would also allege that the Government of India instructions under OMs dated 24.5.74 and 6.2.89 touching upon fixation of seniority for those like applicants herein are ultra vires since those instructions therein are contrary to the law laid down by the Apex Court in the case of Ghalaut (supra).
2. It is the case of the applicant that the relative seniority in the case of directly recruited Income Tax Officers is governed under Rule 9 of Indian Revenue Service Rules, 1988, Rule 9 stipulates the following :--
"(iii) the relative seniority among the promotees and the direct recruits shall be in the ratio of 1:1 and the same shall be so determined and regulated in accordance with a roster maintained for the purpose which shall follow the following sequence, namely :--
(a) Promotee;
(b) Direct Recruit;
(c) Promotee;
(d) Direct Recruit and so on"
Based on the above mentioned rule, the respondents are required to finalise the seniority list of the cadre as well as reservation policies based on Article 16(4) of the Constitution and strictly following the judgment of the Hon'ble Supreme Court in Ghalaut's case. In short, the respondents are not maintaining seniority lists in accordance with the reservation policy based on roster point system as per the law laid down by the Hon'ble Supreme Court in Ghalaut's case. Based on the principles enunciated in yet another case in Superintending Engineer, Public Health, U.T. Chandigarh and Ors. v. Kuldeep Singh and Ors., JT 1997(2) SC 508, the applicant would also argue that the respondents are only a trustee of the society and is required to implement Constitutional policy under Articles 16(4), 16(4-A), 15(4), 335 and other directive principles. Maintenance of the roster of reservation is the duty of public servant. Failure to perform such Constitutional duties by the concerned officials should attract severe punitive actions. It is the case of the applicants that prior to the Ghalaut'!! case, all the reserved category candidates coming out successfully in a selection were bunched at bottom of the list, even though some of them had secured even a better merit positions compared to general candidates. However, after the judgment in the case of Ghalaut, the whole scenario has changed and the seniority is required to be determined on the basis of the roster position.
3. Applicant would further claim that the law laid down in Ghalaut s case will have retrospective effect since there is no mention of its applicability as in the case of R.K. Sabarwal's case (R.K. Sabarwal v. State of Punjab), JT 1995(2) SC 351. To add strength to his contention, the learned Counsel drew our attention to the President of India's speech on 15.8.98 on the occasion of closing function of Golden Jubilee of India's Independence. The portion of that speech relevant for our purpose is extracted below:
"In our society of multiple deprivations and discriminations, the Scheduled Castes, the Scheduled Tribes and large sections of the Backward Classes are the most deprived, oppressed, and marginalized. Indeed, the acid test of any social reform or economic progress in India is whether it has made a positive difference to the lot to the members of these classes."
4. The respondents have taken preliminary objection against the claims made by the applicant. It has been submitted that seniority in the IRS cadre is governed by Rules 8 & 9 of I.R.S. Recruitment Rules, 1988 and as such if their seniority is to be disturbed, all the effected persons should have been made parties to the O.A. There has not been done. It has been further contended that under Rule 4(5)(b) of Central Administrative Tribunal (Procedure) Rules, an Association can file an O.A. provided an affected person joins as an applicant. Shri K.D. Ranjan was recruited in 1978 in the IRS Cadre and as such cannot seek refixation of seniority at this belated stage. Since his seniority was fixed as Deputy Commissioner if Income Tax on the basis of select list issued in terms of Rule 7(4) of the IRS Rules and the said seniority as Dupty Commissioner has been determined in terms of Rule 10 of the rules and since these rules have not been challenged. Shri K.D. Ranjan has no locus standi to file this O.A. as he is not an affected person.
5. The respondents would further argue that Ghalaut's case interprets Haryana Medical Education Service Rules (HMES for short) and has not applicability to IRS rules. That apart, the roster based seniority cannot be held legally valid. This is because the seniority list which is a compilation of various select lists determining the seniority position which has been followed and acted upon for a number of cases cannot be redrawn from its inception. That apart, certain rights which have already accrued upon senior persons cannot be divested by showing these persons junior in the seniority list to the SC/ST candidates without making those persons parties in the original application. In fact, the applicants have not even challenged those seniority list nor they have assailed the IRS Rules governing, the present procedure/practice in matters of seniority fixation.
6. As per the respondents, provisions under Sub-sections (i), (ii) & (iii) for Rule 9 indicate in detail as to how the seniority of persons appointed to the grade of Assistant Commissioner of Income Tax (Junior Scale-i.e., lowest rank in Group-A service) shall be determined. In short, the relative seniority among the promotees and the direct recruits shall be in the ratio of 1:1 and the same shall be determined and regulated in accordance with the roster maintained for the purpose which shall follow the following sequences, namely:-
(a) Promotee;
(b) Direct Recruit;
(c) Promotee;
(d) Direct Recruit and so on It will be observed from the above mentioned rules that seniority among the direct recruits inter-se is to be determined in the order of merit in which they were selected for such appointment by the Commission. Rule 10 of IRs Rules determine the seniority of the members of the service above the level of junior scale. For officers of the grade of Senior Scale, Junior Administrative Grade and Senior Administrative Grade etc., the seniority is to be determined in the order of their position in the respective select list for promotion to such grades and those promoted on the basis of an earlier selection shall rank senior to those promoted on the basis of a subsequent selection. As no select list has been challenged in this original application, the same is not maintainable.
7. The issue that falls for determination is a shorter one and this relates to whether the principles enunciated by the Apex Court in para 4 of Ghalaut's case would govern fixation of seniority in the different cadres of IRS Officers with retrospective effect?
8. Before we examine the legality of the applicants claim, we shall do well to reproduce below the exact portion of the judgment of Ghalaut's case that has been relied upon heavily by the applicants.
"The question is whether the first candidate will be put in the quota allotted to the Scheduled Castes in the roster. Having been selected as a general candidate, though he is more meritorious than the second and third candidates, he will not get the placement in the roster, reserved for Scheduled Castes i.e., No. 1 and 6 points. Consequently candidates Nos. 2 and 3 will get the placement at No. 1 and 6 and the first candidate will get the placement in the order of merit alongwith the general candidates according to the order of merit maintained by the Selection Committee or the Public Service Commission. He cannot complain that having been selected in the merit, he must be placed in the placement reserved for Scheduled Castes at Point No 1 in the roster. Equally, though general candidate is more meritorious in order of merit prepared by the Public Service Commission or the Selection Committee, when the appointments are made and the vacancies are filled up according to the roster, necessarily and inevitably the reserved candidates though less meritorious in the order of merit maintained by the Public Service Commission would occupy the respective places assigned in the roster. Thereby they steal a march over some of the general candidates and get seniority over the general candidates. This scheme is, therefore, constitutional, valid and is not arbitrary."
9. The fate of the present case, therefore, hinges on the interpretation of the law/ratio laid down by the Apex Court in Ghalaut's case.
10. In Ghalaut's case, the Apex Court was confronted with the question of appellant's (Ghalaut) contention therein that since the order of merit given by the Selection Committee and the letter of appointment did indicate that the appellant was high up in the order of merit to Dr. Nitya Anand, he was senior to the latter. While maintaining inter se seniority by wrong interpretation Dr. Nitya Anand was made senior to the appellant which is contrary to second proviso to Rule 13 of HMES Rules, 1965. In other words, the Apex Court in that case was only interpreting the applicability of HMES Rules in the background of facts and circumstances of that case. It was a case where seniority of the Lectures in HMES service was to be determined as per the rules stipulated under Rule 13 of HMES Rules, 1965. The said Rule reads as under:-
"Seniority inter se of members of the Service, shall be determined by the length of continuous service on any post in the service.
Provided that where there are different categories in the service, the seniority shall be determined separately for each category.
Provided further that in the case of two or more members appointed by direct recruitment, the order of merit determined by the Commission shall not be disturbed in fixing the seniority."
The High Court of Haryana held that second proviso to Rule 13 was inapplicable when vacancies are filled up as per roster and appointments are made thereunder. The views taken by the High Court was upheld by the Hon'ble Supreme Court and the appellants claim of superior seniority, though higher on merit, was dismissed because to Rule 13 of HMES Rules, 1965.
11. In the case of HMES Rules, if any vacancy arises as per roster which is earmarked for a SC candidate, appointment has to be offered to that reserve category candidate though he may be down below in the select list. If the next vacancy, which is to go to a general candidate, arises after a gap of time, the general candidate will be appointed subsequently. In view of Rule 13 of HMES Rules, the SC candidate has to be treated as senior because the length of continuous service in his case will be more than the general candidate. This specific rule cannot be contravened to give seniority to a general candidate. Here, the second proviso to Rule 13 is not applicable since the appointments are being made one by one. It was in the light of the above position that the Apex Court in the case of Ghalaut held that High Court was right in holding that the second proviso to Rule 13 is inapplicable in the facts and circumstances of the HMES Rules and that the High Court was also right in its finding that when the appointments were made to fill up the vacancies in the order of roster, the order of merit prepared by the Selection Committee gets changed. Thus, the ratio laid down in the case of Ghalaut is applicable only to the cases where the rule position is identical to that of HMES Rules. It may be mentioned here that in the IRS Rules there is no provision, as in HMES Rules, for fixation of seniority on the basis of continuous length of service. In the case of IRS Rules, the seniority among the direct recruits inter se is to be determined only by the order of merit in which they were selected for such appointments by U.P.S.C. We find some force in the contention of learned Counsel for the respondents in that the Rules 9, 10 & 16 of IRS Rules, 1988 have not been challenged by applicant and, on the contrary, those Rules have been upheld in a catena of decisions of the Apex Court in the case of Bishan Sarup Gupta etc. etc. v. U.O.I. and Ors. etc. etc., 1975(1) SCR 104. Kamal Kanti Dutta and Ors. v. U.O.I. and Ors., 1980(3) SCR 811. In Ghalaut's case, the Hon'ble Supreme Court did not consider the instructions of the Government of India in respect of reservations as also in the matter of fixation of seniority in the case of direct recruits. In fact, none of the important three circulars including that of the two impugned ones dated 24.5.74 and 6.2.89 were examined. Ghalaut's case has no applicability to the reservation policy of the Government of India in the matter of fixation of seniority between the S.C. and general candidate in an organisation where the applicants are working. We would like to add here that judgments/orders of Courts/Tribunals have to be first seen in the background of facts and circumstances of that very case only. There is no automatic applicability of a judgment in other areas. Domestic legal provisions cannot be ignored. We shall do well to remember the necessary "caution" we are required to abide by as indicated in the case of U. O.I. v. Major R.N. Mathur, 1997(2) SLJ 22 (SC) wherein their Lordships held that one set of rules applicable to a particular group of officers, cannot, be applied to other services dehors the regulations provided therein.
12. The controversy raised herein is no more Res Integra in the light of the decision of the Hon'ble Supreme Court in the case of Ajit Singh Januja and Ors. v. State of Punjab and Ors., AIR 1996 SC 1189. In para 12 of the said order it has been held that in Ghalaut's case roster was being applied in respect of post reserved under the relevant rules, which were being filled up by process of direct recruitment. Thus, that case related to the process of direct recruitment to the initial cadre of service on the basis of principle of reservation and roster. That judgment has no bearing so far as the present case is concerned where the rules provide different criteria for fixation of seniority. Because of specific provisions in IRS Rules, the merit list prepared for candidates by process of direct recruitment cannot be disturbed for placement of candidates belonging to reserved category.
13. In the light of the discussions aforesaid, the O.A. has no merit and is accordingly dismissed. No costs.