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2012 (12) TMI 872 - SC - Indian LawsSeniority between Income Tax Inspectors of the Income Tax Department - Direct recruits v/s promotees - Held that - The OM dated 3.3.2008 is in the nature of a clarification , to the earlier consolidated instructions on seniority, contained in the OM dated 3.7.1986. The term available used OM dated 3.7.1986 has been clarified to mean, both in case of direct recruits as well as promotees, for the purpose of fixation of seniority, would be the actual year of appointment ...after the declaration of the result/selection, i.e., after the conclusion of the selection process, and after the ...completion of the pre-appointment formalities... (medical fitness, police verification, etc.). When appointments are made against unfilled vacancies in subsequent year(s), the persons appointed would not get seniority with reference to the year in which the vacancy arose, or the year in which the recruitment process was initiated, or the year in which the selection process was conducted whereas as per the OM dated 3.3.2008, when appointments are made against unfilled vacancies in subsequent year(s), the persons appointed would get seniority of the year in which they are appointed on substantive basis . OM dated 3.3.2008, would only apply prospectively - Held that - The OM dated 3.3.2008 is in the nature of a clarification . Essentially, a clarification does not introduce anything new, to the already existing position. A clarification, only explains the true purport of an existing instrument. Therefore it is not possible to accept that the OM dated 3.3.2008, would only apply prospectively. The OM dated 3.3.2008 which is only a clarification of the earlier OM dated 3.7.1986, would relate back to the original instrument, namely, the OM dated 3.7.1986. Would the OM dated 3.3.2008 supersede the earlier OMs dated 7.2.1986 and/or 3.7.1986? And, would the OMs dated 7.2.1986 and 3.7.1986 negate the OM dated 3.3.2008, to the extent that the same is repugnant to the earlier OMs (dated 7.2.1986 and 3.7.1986)? - Held that - The OM dated 7.2.1986 is in the nature of an amendment/modification. The Department of Personnel and Training consciously amended the earlier OM dated 22.11.1959, by the later OM dated 7.2.1986. The said amendment was consciously carried out, with the object of remedying the inappropriateness of direct recruits of later years becoming senior to promotees with long years of service. It is not the case of any of the parties that the OM dated 7.2.1986, has ever been amended or modified . It is therefore imperative to conclude, that the OM dated 7.2.1986 is binding for the determination of the issues expressed therein, and that, the same has the force of law. The OM dated 3.7.1986 is in the nature of consolidatory instruction, whereby, all earlier instructions issued from time to time were compiled together. It is relevant to notice, that there is a marginal note against paragraph 2.4.2 in the OM dated 3.7.1986. Therefore, paragraph 2.4.2 must be deemed to have been recorded in the consolidating OM, on the basis of the OM dated 7.2.1986. For all intents and purposes the OM dated 3.3.2008 is with reference to the OM dated 7.2.1986. It is for this reason, that while debating the exact purport of the OM dated 3.3.2008, it has been our endeavour to examine the same, with reference to the earlier OMs dated 7.2.1986 and 3.7.1986, which were inter alia consolidated in the OM dated 3.3.2008. A comparison of the conclusions recorded with reference to the OM dated 7.2.1986 and OM dated 3.7.1986 on the one hand, as against OM dated 3.3.2008 on the other, would lead to inevitable conclusion, that the OM dated 3.3.2008 clearly propounds, a manner of determining inter se seniority between direct recruits and promotees, by a method which is indisputably in conflict with the OMs dated 7.2.1986 and 3.7.1986. Of course, it was possible for the Department of Personnel and Training to amend or modify the earlier office memoranda, in the same manner as the OM dated 7.2.1986 had modified/amended the earlier OM dated 22.11.1959. A perusal of the OM dated 3.3.2008, however reveals, that it was not the intention of the Department of Personnel and Training to alter the manner of determining inter se seniority between promotees and direct recruits, as had been expressed in the OMs dated 7.2.1986 and 3.7.1986. The intention was only to clarify the earlier OM dated 3.7.1986 (which would implicitly include the OM dated 7.2.1986). The OM dated 3.3.2008 has clearly breached the parameters and the ingredients of a clarification . Therefore, for all intents and purposes the OM dated 3.3.2008, must be deemed to be non est to the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. Having so concluded, it is natural to record, that as the position presently stands, the OMs dated 7.2.1986 and 3.7.1986 would have an overriding effect over the OM dated 3.3.2008 (to the extent of conflict between them). And the OM dated 3.3.2008 has to be ignored/omitted to the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986 & is not relevant for the determination of the present controversy. Seniority for direct recruits could not be determined with reference to a date preceding the date of their recruitment. The seniority rule applied in Jagdish Ch. Patnaik s case 1998 (4) TMI 498 - SUPREME COURT that seniority would be determined with reference to the date of recruitment, date of first appointment. One finds attracted to the observations recorded in Jagdish Ch. Patnaik s case wherein it was observed, when the language used in the statute is unambiguous and on a plain grammatical meaning being given to the words in the statute, the end result is neither arbitrary, nor irrational nor contrary to the object of the statute, then it is the duty of the court to give effect to the words used in the statute because the words declare the intention of the law making authority best . Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 it is to be 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 within the 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 - 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.
Issues Involved:
1. Determination of inter se seniority between direct recruits and promotees in the Income Tax Department. 2. Validity and interpretation of various office memoranda issued by the Department of Personnel and Training (DoPT). 3. Impact of administrative delays on the seniority of direct recruits. 4. Applicability of the OM dated 3.3.2008 and its effect on earlier OMs dated 7.2.1986 and 3.7.1986. 5. Judicial precedents on seniority determination. Detailed Analysis: 1. Determination of Inter Se Seniority: The primary issue in the dispute is the determination of inter se seniority between direct recruits and promotees in the Income Tax Department. The controversy centers on whether the seniority of direct recruits should be based on the date of their actual appointment or the date of initiation of the recruitment process. 2. Validity and Interpretation of Various Office Memoranda: The judgment examines the interpretation of several office memoranda issued by the DoPT, particularly the OMs dated 7.2.1986, 3.7.1986, and 3.3.2008. The OM dated 7.2.1986 modified the earlier OM dated 22.11.1959 by addressing the issue of unfilled vacancies and their impact on seniority. The OM dated 3.7.1986 consolidated the principles laid down in earlier instructions. The OM dated 3.3.2008 sought to clarify the term "available" used in the OM dated 3.7.1986. 3. Impact of Administrative Delays: The judgment emphasizes that administrative delays should not deprive direct recruits of their due seniority. It is clarified that if the recruitment process is initiated within the recruitment year, the selected candidates should be assigned seniority with reference to that year, despite any delays in the completion of the recruitment process. 4. Applicability of the OM Dated 3.3.2008: The OM dated 3.3.2008, which clarifies the term "available" to mean the actual year of appointment, is examined in detail. The judgment concludes that this OM cannot override the earlier OMs dated 7.2.1986 and 3.7.1986, as it is merely a clarification and not an amendment. The OM dated 3.3.2008 is deemed non-est to the extent it conflicts with the earlier OMs. 5. Judicial Precedents: The judgment references several judicial precedents, including Jagdish Ch. Patnaik v. State of Orissa, Suraj Prakash Gupta v. State of J&K, and Pawan Pratap Singh v. Reevan Singh. However, it concludes that these cases are not directly applicable to the present controversy due to differences in the seniority rules and factual contexts. Conclusion: The judgment allows the appeals filed by the direct recruits and the Union of India, concluding that the direct recruits should be assigned seniority based on the "rotation of quotas" principle, interspaced with promotees of the same recruitment year. The claim of the promotees that direct recruits should be assigned seniority based on their actual date of appointment is declined.
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