TMI Blog2012 (7) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... wo weeks more time to the affected parties to represent against the said seniority list. A further period of two weeks was allowed to the petitioners to dispose of the representations, if any, and to finalize the seniority list. It was further directed that the finalized seniority list be published and thereafter, the DPC be held in association with the Union Public Service Commission. In the meantime the petitioners were directed not to act upon the promotions already effected by the DPC and to consider the claim of the Promotees to promotion as per the settled final seniority list and it was also directed that if during the interregnum any of the officials have retired and were later on found to be fit for empanelment then the petitioners were to accord them promotions with all the consequences. With these directions the Tribunal had disposed of the original application bearing O.A. No 1052/2010. The petitioners in the said writ petition WP (C) 8018/2010 have prayed for quashing of order dated 2.11.2010 in O.A no. 1052 of 2010 and connected Miscellaneous applications and also sought that the said petitioners be allowed to grant promotion to the grade of Junior Administrative Grad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f JCIT. In the said petition an application being C.M. No. 1006 of 2011 for intervention has been filed by Sh.M.M.S Attri contending that by the time DPC took place, the applicant had superannuated in August, 2010 though he is a promotee Deputy Commissioner promoted on 01.01.2005. He has also sought reiteration of directions of Tribunal in paras 36 and 37 of order dated 2.11.2010. 4. To comprehend the dispute the relevant facts as enumerated in WP (C) 8018 of 2010 titled as Union of India ors Vs Shri Vikas Keraba Suryawanshi Ors are that the respondents are the Direct Recruited Officers of 2002 and 2003 batches of the Indian Revenue Service (Income Tax). The Direct Recruits of 2002 were appointed on or about 20th August, 2002 on the basis of the results of the Civil Services Examination 2001 conducted by the Union Public Service Commission, while the Direct Recruit Officers of 2003 batch were appointed in August, 2003. 5. In the year 2001, the petitioners had created a large number of Group A posts due to a comprehensive Cadre restructuring of the Income Tax Department. While creating these posts it was also decided by the competent authority that all the posts sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he year 2000- 2002. AND WHEREAS Rules 7(2) IRS Rules stipulates that 50% of the vacancies in the grade of Assistant Commissioner of Income Tax shall be filled up by Direct Recruitment on the basis of Civil Services Examination and the remaining vacancies shall be filled up by promotion of Income Tax Officer. However, it has been decided by the competent authority to fill up all these 993 posts by promotion of Income Tax Officers (Group B‟) in relaxation of the existing Indian Revenue Service Rules, 1988. Accordingly it has been decided to relax Rules 7(2) of the said rule, as a one time measure, in terms of the powers conferred on Central Government under Rule 15 of the IRS Rules, 1988 with the approval of Department of Personnel Training and Union Public Service Commission. AND WHEREAS the DOP T and UPSC have conveyed their approval to relax the relevant provisions of the Indian Revenue Service Rule 1988 for diversion of direct recruitment quota vacancies arising in the grade of Assistant Commissioner of Income Tax as a one time measure for filling up all the vacancies in the grade of ACIT by promotion of ITOs. NOW THEREFORE 993 vacancies (484 vacancies for the y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 988 and thus instead of bunching the Promotees of 2001 and 2002 batches, they ought to have continued to be matched with the Direct Recruits of 2002 and 2003 batches respectively as per the 1:1 ratio prescribed under Rule 9(iii). 9. The respondents therefore, approached the Central Administrative Tribunal, Principal Bench, New Delhi by filing an original application bearing O.A. No. 1052/2010 contending inter alia that the petitioners could not carry out promotions in the absence of a seniority list and that the Civil List is not the seniority list as it contains a disclaimer in itself stipulating that it does not purport to be an authentic document for seniority and other particulars of the members of the service . The respondents also alleged that there were many discrepancies evident in the Civil List regarding the seniority of the Direct Recruits vis-a-vis the Promotees. 10. The respondents further referred to another original application being O.A No.524/1998 titled as Prabhakant Ayodhyaprasad Ors v. Union of India wherein relaxation made by order dated 15th November, 1990 in similar circumstances was challenged. As per the respondents even in the case of Prabhakant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and Ors which were declined by the Central Administrative Tribunal, Ahmedabad Bench by a detailed judgment dated 26th February, 2007 with cost of ₹ 1000/- payable by each applicant. 14. Relying on Rule 7(2) of the IRS Rules, 1988 it was contended that it contemplates that 50% of the vacancies in the grade of Assistant Commissioner of Income Tax is to be filled by direct recruitment, while the remaining vacancies (i.e 50%) are to be filled by promotion of the Income Tax Officers (ITOs). The petitioners had asserted that the competent authority with the approval of the Department of Personnel and Training and the UPSC had decided to fill up all the newly created 993 posts, pursuant to the cadre restructuring, by promotions from the feeder grade of Income Tax Officer (Group B), as a one-time relaxation of the existing IRS Rules, 1988. Consequently 993 posts were bifurcated for two years, i.e. 484 vacancies for 2000-2001 and 509 vacancies for the year 2001-2002 and a detailed order No.A-32013/08/2000-Ad.VI dated 31st August, 2001 was passed and thus, it was contended that in the circumstances the reliefs claimed by the respondents were not available to them. 15. A specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment in Prabhakant Ayodhya Prasad (supra), cited above, which may not have laid down the correct law, it would be necessary to place this matter before a Larger Bench for consideration. The Registry will place this before one of us (Honourable Chairman) for constitution of a Larger Bench. 18. However, prior to the Tribunal referring the matter to the Larger Bench by order dated 16th September, 2010, in M.A No.792/2010 and 1323/2010 filed by the respondents, the Tribunal had passed the order dated 7th July, 2010 holding that the ad-hoc promotions made, if any, shall be subject to the outcome of the original application and also directed the petitioners to keep their seniority list ready for the perusal of the Tribunal. 19. After the reference was made to the Larger Bench by the Tribunal another application being M.A No.2410/2010 was filed by the private respondents seeking restraint against the petitioners for staying the meetings of DPC for promotions to the post of JCIT scheduled to be held from 20th to 23rd September, 2010 pending the disposal of the original application. The application was considered by the Tribunal on 20th September, 2010 and at the instance of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been based on the inter-se seniority position of the officers indicated in the Civil List. Therefore, it was urged that the accepted position is that the Civil List is also used as the seniority list and that the disclaimer in the Civil List has only been given as a measure of abundant caution so as to indicate that in case of any dispute, the particulars of the officers given are subject to verification from the original records. The petitioners also contended that even the respondents themselves had been promoted from the post of DCIT to the post of ACIT on the basis of their seniority denoted on the Civil List and thus they are estopped from doubting the operation of the Civil List as the seniority list, which takes into account the rota and quota of the officers in terms of the statutory recruitment rules. The relevant portion of the affidavit dated 18th October, 2010 filed by the petitioner is as under:- iv) That in this connection the official respondents would like to submit that the department has been till now operating the Civil List as the seniority list for the purpose of consideration of the promotion of the IRS(IT) officers from one grade to another. All the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reveals that the number of vacancies in the grade of JCIT are far in excess to the number of officers available for promotion. Consequently, the number of vacancies in the grade of JCIT would still be available even after eligible officers considered by DPC held on 23rd September, 2010 are promoted. With the facts and figures the petitioners contended that none of the respondents‟ promotional rights and prospects would be adversely affected since they have neither completed the eligibility requirement for promotion nor are they within the range for being considered for promotion to the level of JCIT by the DPC which concluded on 23rd September, 2010. 23. The relevant para of affidavit dated 20th October, 2010 giving the vacancy positions in the grade of JCIT (Joint Commissioner of Income Tax) is as under:- 1. That the vacancy position in the grade of JCIT (Joint Commissioner of Income Tax) as on date and the number of officers likely to be promoted consequent to the DPC held on 20th to 23rd September, 2010, as intimated by the CBDT (Central Board of Direct Taxes) is as under: A. Total number of vacancies in the grade of JCIT reported to the DPC for the vacancy yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger Bench did not accept the stand taken by the petitioners on the ground that the Civil List itself contains the disclaimer stating otherwise. 27. It was further observed that even though as per the additional affidavit dated 20th October, 2010 the position of the unfilled vacancies had been clarified and the petitioners had assured that the respondents would be considered as and when they would become eligible, the Larger Bench held that until the issuance of the final seniority list it would be very difficult to foresee and pre-determine the juniority and seniority of the Direct Recruits vis-a-vis the Promotees, since as per Schedule II of the IRS Rules, 1988 if an officer is appointed to any post and Service, all the persons senior to him shall have to be considered irrespective of their eligibility. In this regard the Tribunal also placed reliance on the decision of the Apex Court in Union of India Another v. Hemraj Singh Chauhan Ors., 2010 (3) SCALE 272. 28. The Larger Bench also held that the Civil List is not exclusively a seniority list and that it is merely a directory of officers of different grades with their particulars, including transfers and postings and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons a final seniority list issued. The task of preparing the seniority as per Rule 9 (iii) of the Rules being the prerogative of the departmental authorities, we would not interfere in that arena to substitute our own views. When a duty is cast upon the administrative authorities to act as per the apt methodology and as per the statutory rules, acting contrary to that methodology, would be an exercise de hors the rules and constitute an illegality. 29. Therefore, the Larger Bench by its judgment dated 2nd November, 2010 directed the petitioners to draft a seniority list within two weeks against which the affected parties were allowed to make their representations in case of any grievances and thereafter it was directed that the final seniority list be published. Meanwhile, as per the directions of the Larger Bench, the promotions effected by the DPC held by the petitioners were not to be acted upon and as per the settled seniority list, the claims of the Promotees were to be considered specifically, and those who had retired in the interregnum, if found fit on empanelment, were to be accorded the promotions with all consequences. 30. It is against this order of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Prabhakant (supra) has to be complied with or if it is the principle enumerated in the case of Sanjay Punglia (supra). Since the ratio in both the cases are contrary to each other, the learned ASG contended that there was a need to clarify the same by the Tribunal, as only then could a seniority list have been properly drafted. According to him in the absence of any conclusive finding on the question of whether the law laid down in these two judgments is correct or not, no purpose could conceivably be served by preparing a fresh seniority list, since while preparing the seniority list, the Department would have to follow the law laid down in either of the said two judgments and regardless of which view is adopted, the said seniority list would be challenged. According to him the seniority list can be drawn properly only if the issue referred to the larger Bench of the Tribunal is adjudicated. 33. It is also submitted that the impugned order of the Tribunal is found to be unworkable, since the Larger Bench of the Tribunal failed to detail as to from which year the fresh seniority list has to be drafted and to whom the said seniority list is to be intimated. In light of all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to the learned ASG, the Tribunal erred in placing strong reliance on the disclaimer stipulating that it does not purport to be an authentic document for seniority .... which was the petitioners way of affording a measure of abundant caution and to provide for any corrections in case of any dispute by falling back on the original service records. It is vehemently argued that it was certainly not with the intension of negating the very functionality of the Civil List as the Seniority List. 37. The learned ASG further contended that the Tribunal erred in noting that the petitioner had not taken a specific stand that the Civil List is the Seniority List, while on the contrary the petitioners had submitted the same in the reply to the original application, as well as specifically asserted this stand in detail by way of affidavit dated 18.10.2010 whereupon it was impressed upon the Tribunal that the Civil List is being operated as a Seniority List, however, this was disregarded by the Tribunal on account of its own surmises and conjectures. The learned ASG further contended that the Tribunal placed its reliance on the disclaimer however, it did not properly understand its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. Rather the Direct Recruits of 2000 and 2001 have filed a supporting Writ Petition in this Court challenging the very order of the Tribunal, due to the fact that the extraordinary embargo in giving effect to the results of the promotions held by the DPC has adversely affected the DRs of 2000 and 2001 as well. On the other hand, it is the Direct Recruits of 2002 and 2003, who have challenged the same before the Tribunal, who were neither borne in the cadre at the time of relaxation nor are they even today eligible for being considered for promotion to the post of JCIT. Therefore, the learned ASG contended that the order of the Tribunal has resulted in the complete miscarriage of justice, and hence it deserves to be set aside. 41. Learned ASG also submitted that on the basis of the quota rota system, the vacancies for the year 2000 and 2001, for the Direct Recruits were 24 and 26, respectively. The total number of ACIT posts which were available on account of cadre restructuring and diversion of posts from DR to PR Quota, after Relaxation Order dated 31-08-2001 was 993, and out of these 984 appointments were made on regular basis. While fixing the relative Seniority between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The learned counsel further emphasized that the respondents have no locus to challenge the said promotions since even after the promotions are effected by the petitioners, there would still be around 170 vacancies in the grade of JCIT which would be more than sufficient to absorb all the respondents, whenever they would become eligible for the said promotion. 44. It is further contended that the Tribunal failed to appreciate the fact that the promotions to the grade of JCIT decided by the DPC and announced by the UPSC, could have been allowed at the time, subject to further orders, but instead it was entirely stayed by the Tribunal. As per the learned counsel for the petitioners on account of the impugned order the entire exercise of the DPC pursuant to the cadre-restructuring had been rendered ineffective and consequently it has wrecked complete chaos in the administrative side of the IRS Department. 45. Per Contra the learned senior counsel, Sh. Vijay Hansaria on behalf of the respondents has refuted the pleas of the petitioner, by contending inter alia that the Tribunal had precisely determined the issues pertaining to the original application and had also aptly dealt w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the year 2007. It is also submitted that earlier the petitioners were issuing the Civil List without inviting objections, while on 17th January, 2011 for the first time the draft Civil List has been issued for the purpose of inviting objections, if any against the same. Thus it is argued that even the draft Civil List is contrary to the stand taken during the present writ petition, that the Civil List is the seniority list for all intents and purposes, as even in the letter dated 17th January, 2011 nowhere does it specifically stipulate that it will be treated as a seniority list. In the circumstances, it is impressed upon this Court that the petitioners are misleading the Court by contending that the Civil List is the seniority list. Reliance is also placed on the judgment Vijayadevaraj Urs v. G.V. Rao Ors, 1982 (2) Kar.L.J 97 to buttress the plea that the Civil List published by the Government is not a Seniority List or Gradation List of the officers in any cadre. 49. Learned senior counsel has also drawn attention to the fact that while drawing the seniority list of ITOs a proper procedure was followed inasmuch as a draft seniority list was circulated and published amongs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt with, it is contended that the said rule needs to be complied with and thus instead of bunching the Promotees of 2000 and 2001 below the last Direct Recruits of 2000 and 2001, they ought to be continued to be matched in 1:1 ratio as per Rule 9(iii) with the Direct Recruits of 2002 and 2003 respectively. 53. The learned senior counsel has also expressly refuted the plea of the petitioners that the relaxation of the quota rule would imply an implicit or deemed relaxation of the Rota Rule. According to the learned counsel the relaxation order itself, clearly reveals that there was no opinion given regarding any necessity and expediency given in the said order nor was there any consultation regarding the relaxation of Rule 9(iii) made with the UPSC nor was any express order stipulating that there is relaxation of Rule 9(iii) made at the time. Also as per the learned counsel Rule 7 and Rule 9 of the IRS Rules, 1988 are independent of one another and thus relaxation of one would not automatically imply the relaxation of the other, since in case of relaxation the express and unambiguous provision under Rule 15 prescribes that there has to be an order , for reasons to be recorded i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the respondents has relied on the judgment of the High Court of Gujarat in Prabhakant Ayodhya Prasad (supra). In the said judgment dated 16.8.2001 clear distinction had been made between the relaxation of Rule 7(2) (quota rule) and relaxation of Rule 9(iii) (rota rule). It was also held that the power of relaxation is exercised in light of necessity or expediency, however, the question of giving higher seniority to the person who is appointed in violation of the quota by way of relaxation has no relevance whatsoever with the necessity and expediency of the Department. It is also pointed out that the Union of India had filed an SLP before the Supreme Court against the order dated 16.8.2001 of the High Court of Gujarat. The Supreme Court however, by its order dated 8.2.2002 had dismissed the SLP filed by the Department. Consequently, the learned senior counsel contended that the observations of the High Court of Gujarat, regarding the difference in the relaxation of the Quota Rule and Seniority Rule has attained finality. 57. Further the learned counsel for the respondents has relied on the judgment of B.S. Gupta v. Union of India and Ors. 1973 (3) SCC 1 (1st BS Gupta c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termining the seniority of the officers of the cadre. 59. The learned senior counsel has also relied on the judgment of Union of India v. Sri Somasundaram Vishwanath, AIR 1988 SC 2255 wherein it was observed that if there is a conflict between the executive instruction and the Rules framed under the proviso to Article 309 of the Constitution, the Rules will prevail. Similarly, if there is a conflict in the Rules made under the proviso to Article 309 of the Constitution, and the law, the law will prevail. Further, it was contended that it is a settled principle of law that the statutory rules create enforceable rights which cannot be taken away by issuing executive instructions. 60. In any case the learned senior counsel points out that OM dated 3.7.1986 itself stipulates in para 2.4.4 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 quota prescribed in the relevant recruitment rules. Excess promotees, if any, exceeding the share falling to the promotion quota based on the corresponding figure, notified for direct recruitment would be treated as ad-hoc promotees. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Quota Rule, the Rota Rule was relaxed as well also ought to have been determined and answered by the Tribunal. Whether the new seniority list is to be drawn or the Civil List is to be treated and considered as seniority list, unless these issues and the reference made to the Tribunal is determined, the petitioners ought not to have been directed to first draw the seniority list. 65. At the first instance itself the petitioner has contended that the Larger Bench of the Tribunal had failed to answer the very reference made to it and rather it had gone beyond the scope of reference by directing the petitioners to draft a seniority list. The respondents on the other hand have contended that the reference has been answered in substance by the Tribunal and that the drafting of the seniority list as per the IRS Rules 1988 is the need of the hour, which would be a fair redressal of their grievances. 66. Though the validity of relaxation order dated 31-8-2001 has not been questioned in the present writ petitions, however, its application has led to conflicting judgments because of which reference was made to the Full Bench of the Tribunal. The Tribunal instead of answering the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the petitioners be not acted upon. And as per the settled final seniority list, claims of the Promotees be specifically considered for promotion and those who have retired during the interregrum, if found fit on the empanelment, would be accorded the promotions with all consequences. 69. In the circumstances, whether this Court should decide that the relaxation in quota under Rule 7 (2) of the IRS Rules, 1988 will also relax the rota contemplated under Rule 9 (iii) as well? Both the sides have advanced the arguments in this context. However, whether it will be appropriate for this court to decide the said issue when the Tribunal‟s larger Bench has not addressed it at all. The plea of learned counsel for the direct recruits that in substance the tribunal had answered it cannot be accepted and is not borne out from the reading of the judgment impugned before this court. The question had to be specifically determined i.e whether the `rota will also be relaxed in the circumstances or not. 70. What is the scope of jurisdiction of the Tribunal and to what extent the Order of the Tribunal can be assailed before the High Court in exercise of its powers under Article 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. 71. In the circumstances it will be appropriate for the Tribunal to decide the reference made to its larger bench and not for this Court to decided the question of reference in the first instance in exercise of its jurisdiction under Article 226 of the Constitution of India. In the circumstances the decision of the Tribunal directing the petitioners to prepare the seniority list without deciding the question referred to its larger bench is liable to be set aside as the Tribunal is liable to first decide the reference made to it. 72. The contention of the petitioners that the directions of the Tribunal are completely incapable of implementation cannot be brushed aside for the simple reason that the Tribunal did not even specify from which year the petitioners would have to issue the Seniority List and for which Grades in the Income Tax Department. Merely directing the drafting of the seniority list without enunciating the manner and the principles to be adhered to while doing the same has rendered the entire direction futile. 73. Whether the Civil List is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e particulars of the officers given therein are subject to verification from original records at the time of entry into service/promotions to various grades, service books and other relevant documents. It also indicates that in the case of any discrepancy the officers may bring the same to the notice of the department for rectification. v) That it may be submitted that it is based on these Civil Lists only that the applicants have been promoted to higher levels. Further a perusal of the Civil Lists issued itself would show that the same has been prepared by taking into account the quota and quota of officers in terms of the statutory RRs except in cases where due to exigencies of service, specific relaxations have been taken in terms of the statutory RRs. 75. The Tribunal has also noted that no specific rebuttal to the respondent‟s plea that the Civil List is not the seniority list had been made by the petitioners. This observation of the Tribunal is contrary to record and the pleas and contentions raised on behalf of the petitioners. 76. The Tribunal rejected the Civil List to be the Seniority List on account of the disclaimer contained in para 3 of the Civil List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2010 filed before this Court, the petitioners have also contended that instead of directing the petitioners to draw a fresh seniority list, the Tribunal ought to have evaluated the Civil List in the backdrop of the Rules and Regulation of the IRS and ascertained whether the same had been adhered to or not. In case it was found that the entire Civil List was in transgression of the Rules, only then it would have been appropriate to direct the petitioner to re- draft the Civil List in view of its findings on the interpretations of the Rules. This would have in turn assured that any unnecessary delay would have been avoided and a conclusion could have been arrived at, ending the already contentious litigation on the controversy of Quota Rota between the Direct Recruits and the Promotees. 79. The petitioners had repeatedly asserted before the Tribunal and have contended before this Court that the Civil List itself is the Seniority List of the members of service, grade wise, and takes into consideration the provisions of Rule 9 (iii) of the IRS Rules 1988 relating to rotation of vacancies between the Direct Recruits and the Promotees of a particular year and all the left over offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that it is evident that all the four judgments mentioned above, relied on by the respondents for doubting the operation of the Civil List as the Seniority List, are pertaining to the period of 1967, 1972, 1974 and 1970, which is much before 1981, which was when the first Civil List was drafted. It is further asserted that during the said period of about 7 years i.e. 1965 to 1972, there were at least 4 cases where the list showing the inter-se seniority of officers in the Income-tax Department was challenged. The challenge was adjudicated till the Supreme Court and in 3 out of above 4 cases, the said list showing the seniority was quashed. However, the list showing seniority was confirmed by the Apex Court in 1974 in the case of B.S.Gupta (2nd Case) (supra). Therefore, the Government apparently felt the need for a more transparent system of informing its officers, about their seniority position and therefore from 1981 a consolidated Seniority List for all Class-I grades in the Income Tax Department, in the name and style of Civil List of Officers of IRS (IT)‟ was issued and widely circulated. Thereafter, in consequence thereof the IRS Civil List has been issued re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. However, the petitioners have clarified this aspect by referring to the Schedule II to IRS rules 1988, which clearly prescribes the method of recruitment for DCIT (Senior Scale), as Promotion on the basis of Seniority-cum-fitness and that the Officers in the Junior Scale with not less than 4 years regular service in that Grade is the field of selection and the minimum qualifying service. It has been further asserted that promotions from the grade of ACIT to the grade of DCIT are made on the recommendations of the Selection Committee constituted by the Department and following all the guidelines prescribed for holding DPCs. There is also change of Pay scale/Grade pay of the officers on promotion to DCIT. Merely because the UPSC is not involved in such DPC it would not render the process of granting Senior Scale as not a promotion to DCIT, since all the procedures of promotion laid down by the guidelines, such as Vigilance Clearance, if there is any adverse entry in ACR/APAR or pending Disciplinary Proceedings, etc. are all checked. Thus appointment from ACIT to DCIT is a promotion and that it is based on the seniority denoted in the Civil List as was done in the case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinguish it from a mere directory of members of a service. It is submitted that the present Civil List satisfies the different characteristics as indicated at (i) to (v) above. 90. The learned senior counsel, Sh. Vijay Hansaria has also pointed out that, even during the pendency of the present writ petition, the petitioners have issued on 17th January, 2011 a draft Civil List of the Indian Revenue Services, 2011 as on 1st January, 2011. This Civil List, has been issued after the Civil List of 2006 which was issued in the year 2007. It is also submitted that earlier the petitioners were issuing the Civil List without inviting objections, while on 17th January, 2011 for the first time the draft Civil List has been issued for the purpose of inviting objections, if any against the same. Thus it is contended that even the draft Civil List is contrary to the stand taken during the present writ petition, that the Civil List is the seniority list for all intents and purposes, as even in the letter dated 17th January, 2011 nowhere does it specifically stipulated that it will be treated as a seniority list. However, are per foregoing reasons the Civil List has been established to be the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecommended by the DPC, the results of which were placed in the sealed cover before the Tribunal during the hearing. Even though it was held that the rights of the Promotees who have been empanelled and recommended for promotion in the said DPC would be protected and that if they would be found to be within the zone of consideration and are eligible for promotion after the drafting of the fresh seniority list, then irrespective of their retirement, they would receive all the consequences of such a promotion. 95. The learned counsel for the petitioners have explained painstakingly that 503 vacancies have remained unfilled and the work of the IRS Department has suffered a good deal as a result of restrain granted against promotion. It is also contended that since the respondents have failed to point out any irregularities in the Civil List pertaining to the issue of seniority, there is no reason to not give effect to the recommendation of the DPC which was duly constituted and which has made recommendations on the basis of existing seniority which can be inferred from the list. The petitioners have also assured that no promotee officer junior to the respondents had been considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order had held that the claim of such promotee officers shall be considered after finalization of the seniority list and those who would retire during this interregnum shell, if found fit on empanelment, would be accorded promotions with all consequences. However in the entirety of the facts and circumstances and for the foregoing reasons, there is no justification not to implement the recommendations of the DPC held on 23rd September, 2010. The learned counsel for the direct recruits have not been able to demonstrate successfully that though they were not eligible, since they had not completed the eligibility requirement for promotion nor are they were within the range for being considered for promotion to the level of JCIT by the DPC which concluded on 23rd September, 2010, still they will suffer irreparably in the facts and circumstances. Considering all these factors it will be appropriate to set aside the directions of the Tribunal by the impugned order that the promotion effected by the DPC be not acted upon. The said direction is therefore, set aside. The petitioners shall be entitled to implement the recommendations of the DPC held on 23rd September, 2010, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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