9911796707
Advanced Search 
TMI Blog2012 (4) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... d be concluded and judgment reserved on 21.3.2012. However, the issues' involved in both the writ petitions being interconnected, both the writ petitions are decided by this common judgment. The facts giving rise to these two writ petitions are as follows: Writ Petition No. 23672/2006: The petitioner appeared in the Income Tax Inspector Examination, 1987 conducted by the Staff Selection Commission as a candidate from Maharashtra Zone. The result of the aforesaid examination was declared on 25.6.1988 and the petitioner topped the said examination. The petitioner was issued appointment letter by the Office of Commissioner of Income Tax, Karnataka, Bangalore appointing him as Income Tax Inspector, Panaji, Goa where he joined as Income Tax Inspector on 13.10.1988. After his joining, petitioner submitted an application dated 28.1.1989 for transfer from Goa to Mumbai, which was rejected on 9.5.1989 on the ground that his request for transfer could be considered only after completion of 3 years of service since the transfer of the petitioner was inter-charge transfer. After completion of 3 years of service, petitioner made an application seeking his transfer to Kanpur Region. By an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit and supplementary rejoinder affidavit has been filed in the first writ petition. Writ Petition No. 56072 of 2010: The petitioner filed O.A. No. 1084/2010, in the Tribunal, Additional Bench Allahabad praying for quashing the gradation list of Income Tax Inspector as on 1.1.2002. Further a direction was sought restraining the respondents from making any further promotion until revised seniority list is published keeping in view, the judgment and order of the Apex Court dated 23.3.2006 in S.L.P. No. 9181-9185-2005. The petitioner before the Tribunal claimed that after the transfer and joining of the petitioner at Kanpur, the gradation list was published by regional office on 1.9.1999 in which the petitioner was placed at Serial No. 140, whereas the private respondent No. 4 Shri Arvind Kumar Trivedi who was also a direct recruit Inspector was placed at Serial No. 142. 2. As noted above, O.A. No. 1421/2001, was filed by Shri Ram Kumar Bhargava before the Tribunal, which was disposed of by the order of Tribunal dated 3.12.2001, directing the respondents to consider the representation of Shri Ram Kumar Bhargava taking into consideration the judgment of the Principal Bench of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to making any promotion. It was further observed that prior to finalisation of the seniority list, no promotion shall be made by the respondents. After the order of the Tribunal dated 4.8.2010, an application was filed on behalf of the Union of India to recall the order of the Tribunal dated 4.8.2010. Applications were also filed by one Chandra Kishore Singh & four others who were not party to the O.A.No. 1084/2010, praying for modification of the judgment and order dated 4.8.2010 to the extent that the respondent Nos. 1 and 2 be permitted to grant promotion to the post of Assistant Commissioner Income Tax for the recruitment year 2009-2010, wherein neither the applicants nor private respondents of the O.A. No. 1084/2010 are to be considered. The private respondents had also filed application for modification of order dated 4.8.2010. After hearing the applicants who had filed the application for recall/modification for recalling the order dated 4.8.2010, Tribunal recalled the order dated 4.8.2010 and also dismissed the aforesaid O.A. with the cost of ₹ 10,000/ - by the judgment and order dated 27.8.2010. Challenging the order dated 27.8.2010, of the Tribunal the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la, learned counsel for the petitioner referring to the supplementary rejoinder-affidavit, also contended that the act of the respondents by posting the petitioner at Karnataka charge was fraud within the meaning of Section 17 of the Contract Act, which is liable to be set-aside. Referring to Sections 10, 17 and 22 of the Limitation Act, it is contended that the claim of the petitioner cannot be said to be barred since it was based upon the fraud of the respondents wherein the period of limitation shall not run. It is further submitted that the O.A. No. 1658/2004, having been filed against the order passed by the Chairman, CBDT dated 19.11.2003, was well within time and the Tribunal erred in rejecting the O.A. No. 1658/2004, as barred by time. 9. Shri Bharatji Agarwal, learned Senior Counsel appearing for the Department refuting the submission of the petitioner contended that the petitioner sought his transfer to Kanpur Zone in pursuance of the order dated 10.12.1991, wherein it was clearly provided that his seniority shall be reckoned from the date when he joins at Kanpur Charge and he shall be placed in the bottom of all working Income Tax Inspectors working on the said date, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed among the Income Tax Inspectors. The changed seniority list was submitted before the Review Departmental Committee (hereinafter called the "DPC") on 18.4.2002, in which the name of the respondent No. 4 was considered on the basis of revised seniority list he was promoted as Income Tax Officer. The seniority list was thus changed in April 2002, whereas in the counter-affidavit filed in this writ petition the seniority list is being claimed as has been circulated on 21.8.2002. 12. The Gujarat High Court in its judgment dated 17.8.2004 in the case of N.R. Parmar (supra) after interpreting the relevant order of the Government of India regulating the determination of the seniority has laid down that the direct recruits are entitled to reckon their seniority from the date of their actual joining and they cannot reckon their date of seniority when the requisition was sent to the recruiting body or from the date when the selection was made. He submits that that Apex Court has passed an order dated 20.3.2006 in S.L.P. (Civil) No(s) 9181-9185/05 directing that the judgment and order of the Gujrat High Court may be implemented, if not already implemented. He has also placed reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Tribunal also erred in observing that the petitioner has no locus standi to file the O.A. It is further submitted that the view of the Tribunal that the present application is barred by principle of res-judicata is also erroneous. He submits that when the earlier application was filed in the Tribunal in the year 2004, rejecting the representation of the petitioner, the seniority list as on 1.1.2002 was neither circulated nor the petitioner was served the copy of the seniority list. He submits that in view of the interpretation as put by the Gujarat High Court and affirmed by the Apex Court, the respondents were under obligation to correct the seniority list of the Income Tax Inspectors including that of the petitioner and in not doing so the respondents have committed error. The Tribunal dismissed the O.A. on erroneous grounds and the petitioner is entitled for the reliefs as claimed above. He submits that it is not the petitioner who has submitted any wrong or misleading facts, but it is the respondents who are throughout concealing the relevant facts and misleading the Court. 15. Shri Bharatji Agarwal, learned Senior Counsel appearing for the Department submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary to first decide the Writ Petition No. 23672 of 2006. We, thus proceed to first consider the issues which have arisen for consideration in the first writ petition as well as second writ petition. The Tribunal by the impugned order dated 10.2.2006, has dismissed the application filed by the petitioner both on merits and on limitation. 18. The issues arising in both these writ petitions have some common threads and decision in the first writ petition shall automatically have effect on the result of the second writ petition. Following are the main issues which have arisen for consideration in these two writ petitions: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ji, Goa. His application to transfer him to Mumbai was rejected on 9.5.1989, observing that the application for inter-charge transfer could be considered only after completion of 3 years. Petitioner again made an application for transfer to Kanpur charge, which was granted by order dated 10.12.1991, in pursuance of which the petitioner joined at Kanpur on 10.1.1992. The gradation list of Income Tax Inspectors of the Kanpur Region was finalised and circulated on 1.9.1999, in which the petitioner was placed at Serial No. 140 and the respondent No. 4 was placed at Serial No. 142 and other private respondents were also shown below the petitioner. The gradation list of Income Tax Inspectors of 1999 was drastically changed in the year 2002 by which the petitioner became junior to the respondent No. 4 and other private respondents. When the petitioner came to know about the such change he thereafter submitted a detail representation dated 10.6.2002. In his representation dated 10.6.2002, petitioner raised several grievances including the grievance that he although topped the examination from the Maharashtra Region he was wrongly appointed in Panaji, Goa, which was under different region i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the gradation list. Some Inspectors (promotees) aggrieved from this act of administration took the shelter of High Court (Annexure XI) (also see Annexure-VIII). It is important to point out here that none of these promoted inspectors were working on the date of my joining at Kanpur and all joined after my joining at Kanpur. This is the most latest harassment out of the chain of harassment done to me right from the initiation of my service in the Income tax department way back from the year 1987. 21. Thus, apart from claiming restoration of his posting of the petitioner as Income Tax Inspector in Maharashtra Region and claiming all benefits of the period of his working prior to 10.1.1992, the petitioner had also claimed for placing him above direct recruit Inspectors who were not working in the department on 10.1.1992. 22. From the materials brought on the record, it is clear that the gradation list dated 1.9.1999 was changed in the year 2002 which was the seniority made effective w.e.f. 1.1.2002. In his representation dated 10.6.2002, petitioner has clearly claimed that gradation list had been clandestinely changed after some direction was given in the case of Sri Ram Bhargav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order to avoid delay it shall be open to the applicant to file a fresh copy of the representation alongwith copy of this order. No order as to costs. 24. After the above order of the Tribunal dated 13.8.2003, the Chairman, CBDT considered the representation of the petitioner dated 10.6.2002 and rejected the same vide his order dated 19.11.2003. The Chairman, CBDT noticed all the three prayers made in the said representation A, B and C and rejected the said representation. By rejection of the representation dated 10.6.2002, the petitioner's challenge to the clandestine change in the gradation list of 2002 also stood rejected. 25. Challenging the said order dated 19.11.2003, petitioner had filed O.A. No. 1658/2004, which has been dismissed by the Tribunal as barred by time. The application was filed by the petitioner under Section 19 of the Central Administrative Tribunal's Act, 1985 (hereinafter called the "Act, 1985"). It is relevant to note the relevant statutory provisions of the Act, 1985 pertaining to limitation for filing an application under Section 19 of the Act, 1985. Sections 19 (1), 20 and 21 of the Act, 1985 which are relevant in the present case ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made; (b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in sub-section (1), where- (a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and (b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment servants require the administrative remedies to be exhausted before the disciplinary orders can be challenged in Court. Section 20(1) of the Administrative Tribunals Act, 1985 provides: 20(1). A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. 16. The Rules relating to disciplinary proceedings do provide for an appeal against the orders of punishment imposed on public servants. Some Rules provide even a second appeal or a revision. The purport of Section 20 of the Administrative Tribunals Act is to give effect to the Disciplinary Rules and the exhaustion of the remedies available thereunder is a condition precedent to maintaining of claims under the Administrative Tribunals Act. Administrative Tribunals have been set up for Government servants of the Centre and several States have already set up such Tribunals under the Act for the employees of the respective States. The law is soon going to get crystallised on the line laid down under Section 20 of the Administrative Tribunals Act. 17. In this background if the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expired. (3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial. 20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle. 21. It is appropriate to notice the provision regarding limitation under Section 21 of the Administrative Tribunals Act. Sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as published on 1.9.1999, was changed in the year 2002 which was complained by the petitioner immediately on 10.6.2002. The representation dated 10.6.2002 regarding grievance of the changed seniority list having been rejected vide order dated 19.11.2003, petitioner's grievance of changed seniority list in the year 2002, was neither a stale claim nor could have been thrown as barred by time. More so, the Tribunal itself in paragraph 11 of the judgment has noticed the judgment of the Apex Court in Dwarka Nath Sharma v. Union of India and others, 1989 Supp (2) SCC 225, wherein the Apex Court observed as under: 11. While the above are the latest cases, in an earlier case, Dwarika Nath Sharma v. Union of India, 1989 Supp (2) SCC 225, of course, the Apex Court has held, "The appellant was entitled to make a representation against the seniority list and rejection of the representation actually would have given him the cause of action. In these circumstances, non-suiting him on the plea of limitation would not at all be justified. 31. The Tribunal in its impugned judgment has relied on several judgments of the Apex Court which needs to be noted. The first judgment relied on by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has approached the Tribunal within a period of one year from rejection of his representation vide order dated 19.11.2003. 32. In Secretary to Government of India and others v. Shivram Mahadu Gaikwad, : 1995 Supp (3) SCC 231, which has been relied by the Tribunal, the employee was employed as Daily Wager (casual labour) being last appointed on 24.3.1986, was discharged from service on 7.10.1986. He filed the O.A. in the Tribunal in the year 1990. In the facts of the above case while holding that the application was barred by limitation the Apex Court observed as under: 2. When we turn to the judgment of the Tribunal we find that there is no mention about the question of limitation even though it stared in the face. It would immediately occur to anyone that since the order of discharge was of 7.10.1986 and the application was filed in 1990, it was clearly barred by limitation unless an application for condoning the delay was made under Section 21(3) of the Administrative Tribunals Act. No such application was in fact made. The said case is clearly distinguishable, since the application was filed after four years and was clearly barred under Section 21 of the Act, 1985. 33. Anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed necessary, may be effected subject to the observance of the following conditions: (a)... (b)... (c)... (d)... (e) The direct recruits coming on transferes will be shown against direct recruitment quota and promotees against the promotion quota. (f) The Service rendered in the old Charge will not be counted in the new charge for the purpose of seniority. He/she will be placed at the bottom of the list of the employees of the concerned Cadre in the new Charge. Seniority in the cadre in the Charge to which person is transferred will start from the day that person reports for duty in that charge. However, he will not rank senior to any official who belongs to a batch selected on merit whose inter-se-seniority is not regulated by date of joining. (g) On transfer, the transferee will forfeit all claims for promotion/ confirmation in the old Charge. He/she will be eligible for promotion /accordance with the seniority allotted to him on transfer. 37. The transfer order of the petitioner dated 10.12.1991, clearly provided that the petitioner shall reckon his seniority from the date when he joined at Kanpur charge and his name shall be placed below all working Inspectors (Permanen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 40. Petitioner's case in the writ petition is that in the year 1989, after joining on 13.10.1988, petitioner immediately made an application for his transfer to Mumbai, which application was rejected stating that the transfer could be considered after completion of 3 years of service. Learned counsel for the petitioner submitted that his case was illegally treated as another charge transferee. Petitioner still was well aware that he was posted in Karnataka Region and not in Maharashtra Region in the year 1989 itself and thereafter he made an application again after three year's completion of service for transfer to Kanpur charge which was allowed and transfer order was issued on 10.12.1991. 41. Petitioner is governed by the terms and conditions of the transfer order dated 10.12.1991, as well as by Board's order dated 14.5.1990. There are two reasons due to which petitioner's aforesaid grievances are not liable to be accepted. Firstly- Petitioner cannot be heard in complaining against the service condition by which he is governed. 42. Shri P.K. Shukla, learned counsel for the petitioner laid much emphasis on the provisions of the Contract Act. He submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 14.5.1990 issued by the Government of India dated, hence no error has been committed by the Chairman, CBDT in rejecting the aforesaid prayers 'A' and 'B' as made in the representation dated 10.6.2002, thus the order of the Chairman-, CBDT dated 19.11.2003 insofar as he does not accept the prayer of the petitioner for restoration of his posting at Maharashtra Region and giving benefit of retrospective promotion as well as denying benefit of his earlier services prior to 10.1.2002 for the purposes of seniority. 46. One more contention of the learned counsel for the petitioner in this context also needs to be considered. One of the claim of the petitioner before the Tribunal was that one Shri Kapil Agarwal who was lower in merit in the Income Tax Inspectors Examination 1987 was transferred to Kanpur Zone before completion of three years and has been treated senior to the petitioner. One of the relief in the representation dated 10.6.2002, was in above regard also. In the order dated 19.11.2003, the Board has considered the aforesaid plea of the petitioner. It was held that relaxation was granted to Shri Kapil Agarwal in transferring him to Kanpur Zone before expiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 3, his request for refixing the seniority (relief sought at (c) above) of ITI has no force. 49. From the facts noticed above, it is clear that the petitioner was to be placed at the bottom of the seniority list of the Inspectors working on the date of joining. The petitioner's grievance raised in his representation dated 10.6.2002, that the seniority list has been clandestinely changed, consequence of which is that he has been made junior to several Inspectors who were not working at the relevant time as Inspectors. The specific grievance raised by the petitioner in paragraph 22 of the representation as quoted above has not been dealt with by the chairman, CBDT and the said grievance has been only cursorily rejected by the order dated 19.11.2003 and the order of the Chairman, CBDT dated 19.11.2003, thus rejecting the prayer 'C' of the representation dated 10.6.2002 is held to be erroneous and unsustainable. 50. Issue Nos. 5, 6 and 7 being interconnected are taken up together. Petitioner's case in the second writ petition is that the gradation list was published on 1.9.1999 in which the petitioner was senior to respondent No. 4 and other private respondents. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1421/2001 had relied on the order of the Principal Bench dated 23.2.2000, which was subsequently set-aside by the Delhi High Court vide order dated 25.9.2002. On the basis of the order of the Tribunal dated 3.12.2001, passed in O.A. No. 1421/2001, the earlier gradation list dated 1.9.1999 was changed. In the changed seniority list although the seniority was given to the promotee Inspectors and intercharge transferee Inspector from the date of joining, but seniority was given to the Direct Recruit Inspectors from the date of sending requisition to the Recruiting Authority. Copy of the seniority list dated 1.1.2002, alongwith the covering letter dated 21.8.2002 of Chief Commissioner of Income Tax has been annexed as Annexure-7 to the Second writ petition. In the changed seniority list as effective from 1.1.2002, the petitioner was pushed below the private respondents. 54. In the changed seniority list, Shri Arvind Kumar Trivedi, respondent No. 4 was placed at Serial No. 326, whereas the petitioner was placed at Serial No. 387 and Shri Ram Kumar Bhargava, was placed at Serial No. 329. The respective position of seniority of the petitioner and the respondent Nos. 4 to 13 were as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following effect: 9. That the contents of para 24 of the writ petition as alleged is not correct and as such not admitted. However it is submitted that the seniority list was made public and circulated vide this office letter F.No. CCIT/KNP/ C&V/1389/2002-03/390 dated 21.8.2002 with the direction to circulate the seniority list through the Commissioners of Income Tax of the Region. It is not practically possible to provide a copy of the seniority list to individual official. It was circulated through CsIT. The position of the petitioner vis-a-vis Shri Arvind Kumar Trivedi in the Seniority List, as on 1.1.2002 mentioned in this para is a matter of record. 58. Petitioner in the rejoinder affidavit to the counter-affidavit filed by the respondent Nos. 2 and 3 has pleaded that the revised seniority list of 2002 was prepared before 10.4.2002. In paragraph 14 of the rejoinder affidavit, the letter dated 10.4.2002 written by the Deputy Commissioner, Income Tax has been filed as Annexure-4 by which Shri Ram Kumar Bhargava, was informed that the seniority in the Inspector cadre has been revised. Following was stated in the letter dated 10.4.2002: To Shri Ram Kumar Bhargava, Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Inspector in this Region, the Gradation List of Inspector has also been revised in terms of the instructions of the Board and DOP&T. Consequently, the inter-se fixation of seniority of it is of this Region has been refixed. Thus, the order of names of eligible candidates as on the particular date has changed. In this regard, it is to mention that the revised eligibility list includes the names of 12 candidates who have been promoted in the earlier years but who should have been considered alongwith the candidates of this DPC. Therefore, in order to fill up the vacancies in the ITO cadre, the panel to, be drawn up would exclude these 12 names and would consider names from further down the list of eligible candidates. Regarding re-fixation of inter-se-seniority in the cadre of ITOs by which the seniority of 12 candidates who have been promoted in earlier years should be refixed, the issue shall be dealt with administratively. 60. It is relevant to note that in the general category the name of Shri Arvind Kumar Trivedi, respondent No. 4 also came up for consideration as per the revised seniority list and he was recommended to be promoted as Income Tax Officer at Serial No. 72. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fected Income Tax Inspectors including the petitioner. The circulation of the seniority list as on 1.1.2002 was made public only vide letter dated 21.8.2002, i.e. subsequent to its having been revised. The changed seniority list as on 1.1.2002 was also given effect to by affecting promotion as Income Tax Officer. The respondent Nos. 4 and 5 and other private respondents who were junior to the petitioner in the gradation list dated 1.9.1999, have been shown as senior to the petitioner in the revised seniority list. 64. The issue Nos. 6 and 7 which are inter-related are being considered together. What is the criteria or the basis for determination of seniority of direct recruits and a direct recruit who has come by inter-charge transfer is the issue for consideration in these writ petitions. The petitioner as noted above, who was a direct recruit was transferred at Kanpur Zone by order dated 10.12.1991, in pursuance of which he joined at Kanpur region on 10.1.1992. The private respondents in the second writ petition being respondent Nos. 4 to 13, were recruited as direct recruit Income Tax Inspectors and posted on different dates as noted above. The private respondent Nos. 4 to 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome cases, where there was short-fall in direct recruitment in two or more consecutive years, this resulted in direct recruits of later years taking seniority over some of the promotees with fairly long years of regular service already to their credit. This matter had also come up for consideration in various Court Cases both before the High Courts and the Supreme Court and in several cases the relevant judgment had brought out the inappropriateness of direct recruits of later years becoming senior to promotees with long years of service. 3. This matter, which was also discussed in the National Council has been engaging the attention of the Government for quite some time and it has been decided that in future, while the principle of rotation of quotas will still be followed for determining the inter-se seniority of direct recruits and promotees, the present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unitended seniority over promotees who are already in position, would be dispensed with. Thus, if adequate number of direct recruits do not become available in any particular year, rotation of quotas for purpose of determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and date of the original communication has been quoted in the margin so that the users may refer to it to understand fully the context in which the order in question was issued. SENIORITY OF DIRECT RECRUITS AND PROMOTEES 2.1 The relative seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendations of the U.P.S.C. or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection. 2.2 Where promotions are made on the basis of selection by a D.P.C., the seniority of such promotees shall be in the order in which they are recommended for such promotion by the Committee. Where promotions are made on the basis of seniority, subject to the rejection of the unfit, the seniority of persons considered fit for promotion at the same time shall be the same as the relative seniority in the lower grade from which they are promoted. Where, however, a person is considered as unfit for promotion and is superseded by a junior such persons shall not, if he is subsequently found suitable and promoted, take seniority in the higher grade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 1987 and that two vacancies intended for direct recruitment remain unfilled during 1986 and they could be filled during 1987, the seniority position of the promotees and direct recruits of these two years will be as under: 1986 1987 1. P1 9. P1 2. D1 10. D1 3. P2 11. P2 4. D2 12. D2 5. P3 13. P3 6. D3 14. D3 7. P4 15. P4 8. P5 16. D4 17. P5 18. D5 19. D6 20. D7 2.4.3 In order to help the appointing authorities in determining the number of vacancies to be filled during a year under each of the methods of recruitment prescribed, a Vacancy Register giving a running account of the vacancies arising and being filled from year to year may be maintained in the proforma enclosed. 2.4.4 With a view to curbing any tendency of under-reporting/ suppressing the vacancies to be notified to the concerned authorities for direct recruitment, it is clarified that promotees will be treated as regular only to the extent to which direct recruitment vacancies are reported to the recruiting authorities on the basis of the quotas prescribed in the relevant recruitment rules. Excess promotees, if any, exceeding the share failing to the promotion quota based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-aside the order of the Tribunal dated 23.2.2000 and remitted the matter back to the Tribunal for reconsideration. Subsequently, the Tribunal vide its order dated 26.4.2003 dismissed the O.A. as withdrawn. (II) One Shri Ram Kumar Bhargava, filed O.A. No. 1421/2001, before the Tribunal, Additional Bench, Allahabad challenging the gradation list dated 1.9.1999, praying that the seniority be determined on the basis of judgment of the principal Bench of the Tribunal dated 23.2.2000 in Sanjeev Mahajan's case. The Tribunal vide its order dated 3.12.2001, directed for redetermination of the seniority in consequence of which the seniority was redetermined with regard to which a communication Was issued to Shri Ram Kumar Bhargava on 10.4.2002 as noted above. (III) The Chief Commissioner, Income Tax, Delhi had issued seniority list on 8.9.2003 by determining seniority of direct recruits, Income Tax Inspectors "From the date of initiation of recruitment process". One Shri C.P.S. Yadav filed O.A. No. 2068/2003 before the Principal Bench Tribunal. The Tribunal set-aside the seniority list vide order dated 22.9.2004, and directed the seniority to be determined on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not be reverted. List after four weeks. (VI) One S.S. Rathore, a promotee filed O.A. No. 207/2005, regarding determination of seniority of Income Tax Inspectors before the Principal Bench Tribunal. By order dated 15.2.2007, the Tribunal directed the Department to revise the seniority list in the light of the Gujarat High Court judgment in Union of India and others v. N.R. Parmar. 69. Against the order of the Tribunal Principal Bench, Writ Petition No. 26772/ 2007 was filed by the Department in the High Court at Allahabad. In the writ petition the issue was raised that the Income Tax Department has not implemented the order of the Gujarat High Court dated 17.8.2004 and order of the Supreme Court dated 20.3.2006. An affidavit was filed by the Department that the judgment of the Gujarat High Court has already been implemented, hence the Department be permitted to withdraw the writ petition. On the basis of the aforesaid affidavit, the writ petition was permitted to be withdrawn by the order of the Court dated 9.8.2007. 70. It is also relevant to note the pleadings in the second writ petition pertaining to criteria or the basis for determining/revising the seniority list of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en seniority of the Recruitment Year 1990-1991 i.e. from the date when recruitment process was initiated. 72. Now reverting back to the relevant criteria as laid down by the Government of India in its orders dated 7.2.1986 and 3.7.1986, it is to be found out as to what is the principle which is deducible from the aforesaid Government Order for reckoning seniority of the direct recruits. The Government Order dated 7.2.1986/ had noted that as per the practice followed at present is that the slots meant for direct recruits or promotees, which could not be filled up, were left vacant, and where direct recruits or promotees became available through later examinations or selections such persons occupied the vacant slots, thereby become senior to persons who were already working in the grade on regular basis. To do away with the advantage situation it was provided that the rotation of the direct recruits and promotees shall take place only to the extent of direct recruits and promotees 'available' in any particular year. In case direct recruits are not available and the vacancies remain unfilled in a particular year, the vacancies are to be carried forward and added in the vacanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for seniority in the year in which a vacancy had arisen but not filled up could not have been entertained. The clear mandate in paragraph 2.4.2 referred hereinabove to the effect that rotation of quotas would take place only to the extent of the available direct recruits and promotees is not susceptible to any other interpretation. 11. However, the argument vehemently canvassed on behalf of the Department and the direct recruits was that the phrase "if adequate number of direct recruits do not become available in any particular year" has to be understood and applied in such a manner that no injustice is caused to the direct recruits whose recruitment process usually takes more than one year as also to ensure that quota rule was not violated by consistent failure to fill up in time the vacancies arising for DRs. It was to meet with such a situation that the Department had issued the advice dated 2.2.2000, according to which, the year of initiation of action for recruitment was relevant for the purpose of reckoning seniority of the DRs. It was vehemently argued that the said advice was meant to strike a balance between the interests and further promotional prospects of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or so-called advice so as to revert to the confusion which was sought to be cleared by the O.M. dated 7.2.1986 and 3.7.1986. 13. There was no dispute about the proposition that seniority of the it is, maintained region-wise, was to be assigned on year-to-year basis and the year for that purpose was the financial year commencing on 1st of April. It was fairly conceded by the learned counsel Mr. Mehta, appearing for the promotees, that within a year for which inter-se seniority was to be assigned among DRs and DPs, rota rule has to be applied to the DRs who are actually appointed in the particular year, disregarding to that extent the actual date of promotion of the promotees which may be earlier during that year. 74. The interpretation put by the Gujarat High Court in the aforesaid judgment clearly rejects the submission of direct recruits that they can reckon their seniority from any earlier date i.e. from the date of actual appointment and the year in which the process was initiated or completed has to be disregarded. 75. Learned counsel for both the parties have referred to and relied on a subsequent order of the Government of India dated 3.3.2008, by which clarification has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of seniority already decided with reference to any other interpretation of the term 'available' as contained in O.M. dated 3.7.1986 need not be re-opened. Paragraph 4 of the order dated 3.3.2008 has to be read to mean that where determination of the seniority has already become final, same shall not be re-opened, but paragraph 4 cannot be read to mean that where determination has been questioned before the Tribunal or Court the same cannot be looked into or decided in accordance with law. Paragraph 4 of the aforesaid Government Order, thus in no manner affect the clarification issued by the Government of India with regard to the determination of the seniority list which is already under consideration in any Court or Tribunal. 78. Now the submission, which has been much pressed by the learned Senior Counsel appearing for the Department as well as by the private respondents is that the judgment of the Gujarat High Court interpreting the orders dated 7.2.1986 and 3.7.1986 were in context of inter-se dispute between the direct recruits and promotees, hence the said interpretation is not applicable or relevant in the present case, since in the present case the inter-se dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of joining". The aforesaid rider protects the seniority of direct recruits who were selected and who belongs to a batch and selected on merit whose, inter-se-seniority is not regulated by the date of joining. As noted above, the seniority of all direct recruits is determined by the order of merit in which they are selected. Thus, the direct recruits joining in a year maintains his seniority according to the order of merit and a person who is above in the merit in a batch shall not be junior to another person in a batch who is below him in the merit, but may have joined earlier in point of time. Thus, any Income Tax Inspector who has joined earlier to the petitioner belonging to a batch shall be senior to the petitioner and all the persons who are above him in order of merit shall also be senior to a transferee irrespective of their date of joining. 81. One more aspect which needs to be noted is that the seniority is determined year-wise and the candidates recruited/selected by direct recruitment or promotion or transfer are to be placed in a particular year and their relative seniority is determined and fixed in a particular year-wise. The petitioner having joined at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy found while considering the issue No. 5 that the seniority list was revised without circulation and without inviting any objection and the petitioner was completely kept in the dark by the respondents while they proceeded to revise the gradation list dated 1.9.1999 pushing down the petitioner in the gradation list, which was done in violation of the principles of natural justice and in violation of the general principles for determining the seniority. 86. We fully agree with the submissions and pleadings of the petitioner that the seniority list was clandestinely changed in the year 2002. We are further of the view that the judgment of the Gujarat High Court in N.R. Parmar's case (supra) is relevant for determination of the inter-se-seniority between the petitioner and the private respondents. It is also relevant to note that the respondents in their pleadings in the first writ petition as well as in the second writ petition have categorically pleaded that the seniority list was revised in the year 2002 which was a subject-matter of determination in the petitioner's earlier Original Application filed in the Tribunal and in the Writ Petition filed by the petitioner in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rotation of quota. (3) The inter charge transferee belonging to direct recruit quota shall be treated to be direct recruit in the particular year when he joins after transfer and shall be treated to be an addition in the direct recruits available in the particular year. (4) The seniority in the cadre of inter charge transferee shall start from the date the person reports for duty in that charge. However, he will not rank senior to any official to a batch selected on merit, whose inter-se seniority is not regulated by the date of joining. 91. Learned counsel appearing for the Department as well as learned counsel appearing for the private respondents submitted that the inter-se seniority of Income Tax Inspectors of the West Zone (U.P.) cannot be revised. Three reasons have been put forward by the learned counsel for the respondents in support of their above submission. 92. The first reason put forward by the learned counsel for the respondents is that the judgment of the Gauhati High Court in N.R. Parmar's case (supra) dated 17.8.2004 is pending before the Apex Court since the Special Leave Petition which has been filed against the said judgment is pending. It has com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inspector in the West Zone. It goes without saying that while determining the seniority of the Income Tax Inspector in the West Zone, the seniority of these officers who were covered by the order of the Apex Court dated 7.9.2009, has not to be disturbed in disobedience of the order of the Apex Court. 96. The third reason which has been advanced by the learned counsel for the respondents is the order of Ministry of Finance dated 22.2.2006, on the subject of filing of Special Leave Petition in the case of N.R. Parmar (supra) regarding fixation of inter-se seniority of the Income Tax Department. It is useful to quote the letter dated 22.2.2006, in extenso. F.No. C-18012/26/2003-V&L Government of India Ministry of Finance Department of Revenue New Delhi, the 22th February, 2006. To All CCIT (Cadre Controlling Authority). Sub : Filing of SLP in the case of Shri N.R. Parmar against SCA No. 3574/04-Fixation of Inter-se seniority of Inspectors of Income Tax Department as per judgment of Gujarat High Court-Holding of DPC to the grade of ITO. Sir, I am directed to say that vide letter F. No. A-12021.2.2004 As VII dated 8.9.2004 addressed to all CCITs (Cadre Controlling Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. Two things which are relevant to be noticed from the aforesaid order is that the earlier letter dated 8.9.2004, addressed to all Cadre Controlling Authority to adhere to the stand taken in the case of Sanjeev Mahjan pertaining to Delhi charge would in future had been withdrawn with immediate effect. 98. As noticed above, in Sanjeev Mahajan's case the stand taken by the Department that the seniority of direct recruit shall be fixed from the date the requisition was send to the selecting body. The Government of India also noticed various interpretations put by the Chief Commissioner of Income Tax of the earlier Government of India's order dated 7.2.1986, on determination of seniority. 99. The Government of India noticed in the judgment of N.R. Parmar's case (supra) of Gujrat High Court that it was the contention of the direct recruits to assign seniority from the date earlier to the date their appointment has been rejected. Reliance has been placed by the learned counsel for the respondents on the following part of the order: The matter has been re-examined in the Board and it has been decided that the seniority of direct recruits and promotee Inspectors would c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be made by the respondents" and also to afford an adequate opportunity of hearing to the respondents by way of counter-affidavit, so that justice may be done otherwise the applicants/ respondents will suffer irreparable loss and injury". (II) Application No. 3285/2010 was filed by respondent Nos. 4,6,7,9,11 and 12 making following prayers: "It is, therefore, Most Respectfully prayed that this Hon'ble Court be pleased to modify its order dated 4.8.2010 passed by Hon'ble Justice S.C. Sharma Member (J) and Hon'ble Mr. D.C. Lakha Member (A) in the above noted Original Application to the extent that while deciding the representation of the applicant in the above noted case the applicants respondent Nos. 4, 6, 7, 9, 11 and 12 may also be heard and their representations may also be decided as expeditiously as may be fixed by this Hon'ble Court and the controversy involved in this case may only be confined to the applicant and the respondents 4,6,7,9,11 and 12". (III) Application No. 3272/2010 was filed by Shri Chandra Kishore Singh and four others (who were not arrayed as parties in the O.A.). In the aforesaid application following prayer was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. O.A. No. 1024/2010 is not maintainable. The Tribunal also noticed that the Apex Court has directed for maintaining status quo with regard to seniority. It is useful to quote following observations of the Tribunal made in paragraph 15 of the judgment: The matter of seniority of the applicant is subjudice before the Hon'ble High Court of Allahabad. Moreover, in the related matter, the Hon'ble Apex Court ordered for maintaining the status quo with regard to seniority, and moreover this Tribunal is not the proper forum in order to ensure compliance of the order of the Hon'ble High Court of Gujrat and Hon'ble Apex Court. Considering all the circumstances and facts, as stated above, we are of the opinion that the impugned order dated 4.8.2010 deserves to be set aside, and in the light of the observations made in the body of the Order, it will not be suffice to set-aside the impugned order but rather the O.A. is liable to be dismissed and as the applicant tried to place the misleading facts hence, O.A. is to be dismissed on Special heavy cost. 105. We have already noted the order of the Apex Court dated 7.9.2009, where the order of status quo was passed in Anil Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... va. Neither any seniority list was circulated before changing and revising the seniority list nor any objections were invited from any affected persons including the petitioner before changing the seniority list in the year 2002. In the gradation list dated 6.9.1999, the petitioner was shown senior to the respondent No. 4, 5 and other private respondents whereas in the 2002 seniority list the position has been reversed and the petitioner has been made junior to the above private respondents. The seniority list could not have been changed without circulation and without inviting objections from the affected parties, thus the manner and procedure in which the Cadre Controlling Authority has changed the seniority list in the year 2002 is wholly arbitrary and in violation of the principles of natural justice. 108. As per the stand taken by the respondent Nos. 1 to 3, that the seniority list was circulated on 21.8.2002, the petitioner had raised his objection immediately after 18.4.2002 when the promotion was affected by respondent No. 4 as Income Tax Officer who was junior to the petitioner in the earlier gradation list and the case of the petitioner was not considered. 109. As noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g directions: (1) The order of the Tribunal dated 10.2.2006 is set-aside. (2) The order of the Chairman, CBDT dated 19.11.2003, insofar as it holds that fixation of the seniority of the petitioner as on 1.1.2002 was correct and the petitioner is not entitled for refixation of his seniority is set-aside, the rest of the order dated 19.11.2003 is affirmed. (3) The seniority list of Income Tax Inspectors as on 1.1.2002 insofar as, the petitioner and respondent Nos. 4 to 13 are concerned is set-aside. The respondent Nos. 3 and 4 are directed to redetermine the seniority of Income Tax Inspectors afresh in accordance with the observations made in this judgment. (4) For redetermination of the seniority of Income Tax Inspectors, the respondent No. 3 shall circulate a tentative seniority list giving opportunity to file objection by affected persons including the petitioner and respondent Nos. 4 to 13. The exercise of redetermination of the seniority shall be completed within a period of four months from the date of filing of a certified copy of this judgment before the respondent No. 3. (5) The respondent Nos. 3 and 4 shall take all consequential actions as per re-determination of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
