2012 (4) TMI 738 - HC - Indian Laws

2010 (1) TMI 1242 - Tri

Issues Involved:

1. Whether the O.A. No. 1058/2004, filed by the petitioner before the Tribunal, Additional Bench Allahabad has rightly been dismissed by the Tribunal by its judgment and order dated 10.2.2006 as barred by time.
2. Whether the petitioner was entitled for restoration of his posting as Inspector Income Tax in Maharashtra Region w.e.f. his joining in the Department and was entitled for promotion as Income Tax Officer retrospectively.
3. Whether the petitioner was entitled to add his earlier period of working as Income Tax Inspector before his joining at Kanpur for the purposes of seniority and other benefits.
4. Whether the petitioner was entitled to be placed above all the Income Tax Inspectors (Direct Recruits) who were not working in the Department at the time of his joining i.e. 10.1.1992 in Kanpur and the order dated 19.11.2003 of the Chairman, CBDT refusing the above prayer was erroneous.
5. Whether the gradation list as earlier finalised on 1.9.1999, was revised and changed w.e.f. 1.1.2002, after due circulation inviting objections from the affected persons including the petitioner.
6. What is the criteria or the basis for reckoning the seniority by direct recruits Income Tax Inspectors and inter-charge transferee.
7. Whether the petitioner can claim that the respondents were obliged to revise the seniority list of direct recruits Income Tax Inspectors existing w.e.f. 1.1.2002, after the judgment of the Gujarat High Court in N.R. Parmar's case and the order of the Apex Court dated 20.3.2006.
8. Whether the inter-se seniority of Income Tax Inspectors of West Zone cannot be revised due to:
(i) Pendency of Special Leave Petition against the judgment of the Gujarat High Court in Union of India v. N.R. Parmar, dated 17.8.2004.
(ii) Order of the Supreme Court passed in SLP No. 22000-22009, Anil Kumar Sehgal and others v. Smt Anita Vinayak and others, dated 7.9.2009, directing the parties to maintain status quo regarding seniority.
(iii) Order of Government of India dated 22.2.2006, with reference to Special Leave Petition filed by the Department against the judgment of the Gujarat High Court in N.R. Parmar's case.
9. Whether the Tribunal while considering the three applications filed for recall/modification of the order dated 4.8.2010, passed in O.A. No. 1084/2010, was justified in dismissing the aforesaid O.A. itself while allowing the above three applications and recalling the order dated 4.8.2010.
10. To what relief, if any, the petitioner is entitled in both the writ petitions.

Summary:

Issue 1:
The Tribunal erred in dismissing O.A. No. 1058/2004 as barred by time. The representation dated 10.6.2002 was decided by the Chairman, CBDT on 19.11.2003, and the application was filed within the limitation period prescribed u/s 21 of the Act, 1985. The Tribunal did not consider the statutory provisions of Sections 20 and 21 of the Act, 1985.

Issue 2 and 3:
The petitioner, having accepted his transfer order dated 10.12.1991 and joined at Kanpur, cannot now claim benefits of his earlier services. The Board's order dated 14.5.1990 governs such transfers and the petitioner's request for restoration of his posting in Maharashtra and retrospective promotion cannot be considered after more than a decade.

Issue 4:
The petitioner's claim to be placed above all Inspectors not working in the Department at the time of his joining (10.1.1992) was rejected by the Chairman, CBDT, and this rejection was found to be erroneous and unsustainable.

Issue 5:
The gradation list dated 1.9.1999 was revised on or before 10.4.2002 without circulation or inviting objections from affected persons, including the petitioner. The revised seniority list was given effect to before 10.4.2002, making the alleged circulation on 21.8.2002 meaningless.

Issue 6 and 7:
The seniority of direct recruits should be reckoned from the date they are available for appointment, not from the date of sending requisition or selection. The judgment of the Gujarat High Court in N.R. Parmar's case is relevant for determining the inter-se seniority between direct recruits and inter-charge transferee.

Issue 8:
The inter-se seniority of Income Tax Inspectors of West Zone can be revised despite the pending Special Leave Petition and the order of status quo by the Supreme Court, as these do not prohibit the redetermination of seniority.

Issue 9:
The Tribunal should have recalled the order dated 4.8.2010 and ordered a fresh hearing of O.A. No. 1084/2010 instead of dismissing it on merits. The recall of the order dated 4.8.2010 was justified, but the dismissal of the O.A. on merits is unsustainable.

Issue 10:
The order of the Tribunal dated 10.2.2006 is set aside. The seniority list of Income Tax Inspectors as on 1.1.2002 is set aside. The respondent Nos. 3 and 4 are directed to redetermine the seniority of Income Tax Inspectors afresh, circulating a tentative seniority list and inviting objections. The O.A. No. 1084/2010 is disposed of as infructuous.

Reliefs Granted:

1. The order of the Tribunal dated 10.2.2006 is set aside.
2. The order of the Chairman, CBDT dated 19.11.2003 is partly set aside.
3. The seniority list as on 1.1.2002 is set aside.
4. The respondent Nos. 3 and 4 are directed to redetermine the seniority afresh within four months.
5. The order of the Tribunal dated 27.8.2010 is partly set aside, and O.A. No. 1084/2010 is disposed of as infructuous.

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