TMI Blog2017 (8) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... decision. (3) However, during the aforesaid two months it will be open for the department to grant ad hoc promotion on the post of ACIT in the meantime and till revised seniority list in the cadre of ITO is finalized, by operating the draft revised seniority list and thereby to consider the case of the respective petitioners for promotion to the post of ACIT on ad hoc basis, as was done in the case of applicant of Shri Jatashanker Meena. (4) In any case, the aforesaid exercise shall be completed and the revised seniority list in the cadre of ITO be finalized within a period of two months from today as stated above, and immediately, thereafter case of the respective petitioners be considered for promotion to the post of ACIT forthwith. - Special Civil Application No. 4720, 5712, 5719, 5841, 5944, 5945, 5990, 6460, 6488, 6832 of 2017 - - - Dated:- 28-7-2017 - M. R. Shah And B. N. Karia, JJ. M. L. Shah, Hardik V Vora, For the Petitioner Mr C B Upadhyaya, Advocate, Mrs Mauna M Bhatt, For the Respondent JUDGMENT ( Per : Honourable Mr. Justice M. R. Shah ) 1.0. As common question of law and facts arise in this group of petitions, all these petitions are de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment was not revising the seniority list in the cadre of ITO as per the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) and on the other hand the department continued to operate the seniority list preN R Parmar (supra) decision and were filling up the post in the cadre of ACIT by way of promotion on ad hoc basis and therefore, some of the petitioners approached the learned Central Administrative Tribunal by way of OA No.145 of 2013. That the learned Tribunal vide final judgment and order dated 19.09.2013 disposed of the said OA and issued the following directions; 1. The respondents shall in accordance with the Parmar decision finalise the new seniority list after considering the 150 objections within a period of one month. 2. The Chief Commissioner shall constitute a committee of five senior officers to look into the objections on a day to day basis and give a report to the CC within one week of such entrustment CC shall ensure that they are free for this purpose. 3. This Committee shall consider the date of appointment as pointed out by Mr.Rao, so that the Supreme Courts order cannot be manipulated in any manner. 4. At the end o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 in OA No.145 of 2013 making grievance that respondents have willfully disobeyed the order passed by learned Tribunal dated 19.09.2013 in OA No.145 of 2013. That the learned Tribunal dismissed the said CP. That being aggrieved and dissatisfied with the order passed by the learned Tribunal dated 29.04.2014 in CP No.45 of 2013 in OA No. 145 of 2013 one of the applicant preferred Special Civil Application No.7465 of 2014 before this Court. After taking note of the submission made by the learned counsel for the Department that entire seniority list will have to be considered by the CBDT and looking to the proposal and other requirement which will take some more time, by order dated 17.06.2014, the Division Bench of this Court disposed of the aforesaid Special Civil Application No.7465 of 2014 by observing that it is expected that such seniority list may be finalized as far as possible by 15.10.2014. 3.4. Despite the above order passed by the Division Bench of this Court, the Department neither complied with earlier order passed by the Tribunal in OA No. 145 of 2013 nor even complied with the order passed by the Division Bench of this Court in SCA No. 7465 of 2014 and no steps were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, would surely not be permitted to be perpetuated. Hence, we are of the prima facie view that when the counsel for the respondent nos.1 and 2 has sought time to overcome the technical objection of no affidavit on behalf of the respondent no.1, despite the time being granted, we fail to understand as to why there was no affidavit from the Chairperson of the C.B.D.T. respondent no.1. Learned counsel for the respondent nos.1 and 2 submitted that the affidavit, which is filed at page 55 dated 20.09.2016, is along with due authority from the Chairperson of C.B.D.T. and hence though the same is in order, in case if it is required to be treated as no affidavit so far as respondent no.1 is concerned, let there be one more date and adjournment so that the technical objection could be overcome. When the Court is inclined to accept the request for adjournment so as to enable the counsel for the respondents to complete the formality of pleadings, it would be in the fitness of thing that the statement ought to have been continued. However, when the counsel has pleaded her inability to continue with the statement, this Court is of the view that the adjournment shall not in any man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again approached the learned Central Administrative Tribunal making the grievance against the respondent as to the inaction on the part of the respondent in initiating the process of permission to the post of ACIT on the basis of the seniority list bearing no. 23012/4/2012Ad. VI dated 1.9.2015. However, the learned Tribunal did not entertain the said OA in view of the order passed by the Division Bench of this Court in Miscellaneous Civil Application No. 1150 of 2016, by which, the Division Bench passed order of status quo with respect to the post of ACIT. Hence, respective petitioners have preferred present Special Civil Applications. While issuing the notice in the present proceedings, the Division Bench passed the following the order: 1. Draft amendment granted. To be carried out forthwith. 2. Heard Shri M.S.Trivedi, learned advocate for the petitioner. 3. Notice returnable on 22nd March 2017. Having regard to the facts and circumstances and order dated 10.10.2016 passed in Civil Application (for direction) No.6862 of 2016 in Misc. Civil Application No.1150 of 2016 in Special Civil Application No.7465 of 2014 and order dated 28.2.2017 passed in Original Applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt expected that such seniority list may be finalized as far as possible by 15.10.2014 and the petition came to be disposed of. 2.1 Later on, Civil Application (for direction) No.6862 of 2016 in MCA No.1150 of 2016 in SCA No.7465 of 2014 was preferred by the writ petitioner of SCA No.7465 of 2014 on the ground that discriminatory treatment was meted out to the applicant and similarly situated persons in the State of Gujarat despite there being a clear order from the Apex Court in their favour (Union of India Vs. N.R.Parmar (supra)). An affidavit was submitted on behalf of the Department and status quo order was passed and the Court directing that status quo as on date, viz. 10.10.2016 to continue qua promotions from the cadre of ITOs to Assistant Commissioner of Income Tax (ACITs) and the case was adjourned on 15.11.2016. 2.2 Meanwhile, Original Application No.31 of 2017 was preferred by one of the aggrieved ITOs before the Central Administrative Tribunal, Ahmedabad Bench raising grievance against initiation of the process for promotion to the post of ACIT on the basis of seniority list dated 01.09.2015 being contrary to the judgment in the case of Union of India Vs. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Rajiv Mohan, it appears that, contrary judgment was given than in the case of Union of India Vs. N.R.Parmar (supra) and the Principal CCIT, UP (West) sought clarification regarding the manner in which the seniority is to be recast and after processing file and seeking opinion of Department of Legal Affairs, it was decided finally that there would not be violation of any judgment in the case of Union of India Vs. N.R.Parmar (supra) and accordingly, time is consumed, but now as more than 200 posts are vacant in the cadre of ACITs for the vacancy year 201617, Department may be permitted to fill up such vacancies by granting promotions to eligible ITOs whose names are reflected in provisional seniority list for the list of seniority prepared in the year 2015. It is also submitted that in case if the Court is not inclined to vacate interim relief as prayed for, it can be modified by keeping posts in question vacant for aggrieved writ petitioners, otherwise not only administration but public interest would also suffer. 3. Learned Counsel for the Department has reemphasized certain paras in the affidavit in reply dated 31.03.2017 filed on behalf of respondent Nos.1, 2 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a common order. In paragraph 7 of its order the CAT, Principal Bench, narrated the issues which came up for its determination as under: 7. The short question which is posed for our consideration is as to what is the precise date on which direct recruits can be considered for seniority vis? vis the promotees. Whether it is (i) the date on which the vacancies have arisen; (ii) the date when the same have been notified by the department by sending requisitions to the Staff Selection Commission; (iii) the date on which selection by the Commission is made; (iv) the date when the selection is reported to the department; or (v) the date on which the direct recruit actually assumes office. 5.1 The answers given by the Apex Court to the above so recorded in the judgment read as under: 28. The following conclusions have been drawn by us from the O.M. Dated 3.7.1986: 28.1 If adequate number of direct recruits (or promotees) do not become available in any particular year, rotation of quotas for the purpose of determining seniority, would stop after the available direct recruits and promotees are assigned their slots for the concerned recruitment year. 28.2 To the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pex Court examined the effect of OM dated 03.03.2008 on the subject of inter se seniority between direct recruits and promotee by raising the following questions: 43.1 Would the OM dated 3.3.2008 supersede the earlier OMs dated 7.2.1986 and/or 3.7.1986? 43.2 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)? 5.3 By undertaking the exercise in detail about subjects of both the Oms dated 07.02.1986 and 03.07.1986 visavis OM dated 03.03.2008 in para 52 held as under: 52. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraphs 20 and 21 hereinabove), we are 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 Insp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red and statements were made before this Court to complete the exercise as early as possible. 7. Even the last affidavit which was filed on 27.01.2017 before this Court in contempt proceedings also, reveals expected time to be taken of not more than 2 months for preparing draft of All India interse seniority list of Income Tax Officers by interpolating all the seniority list of ITOs and then to be published on the website of the Department. Such ad hocism on the part of the Income Tax Department in the appointment of important post of ACIT de hors the directions issued in the case of Union of India Vs. N.R.Parmar (supra) and cannot be permitted even on the ground of administrative exigencies unless final seniority list of ITOs based on all India seniority is completed within time bound schedule. Even today, while passing this order, we have asked learned Counsel for the Department to seek instructions and state whether within specific time limit, it is possible for the concerned authority to prepare finally all India list of ITOs. However, she is unable to make any such statement. 8. Accordingly, we find no reason either to vacate or modify the interim relief granted on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, the department has continued to give promotion to the post of ACIT on ad hoc basis by operating the seniority list preN. R. Parmar (supra) decision. 5.2. It is submitted by Ms. Shah, learned counsel for the respective petitioners that not revising the seniority list in the cadre of ITO as per the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) and granting promotion on ad hoc basis by operating the seniority list prepared PreN. R. Parmar (supra) decision, the valuable rights of the petitioners are affected. It is submitted that department has granted promotion on ad hoc basis in the cadre of ACIT who are junior to the petitioners and thereby petitioners are vitally affected. 5.3. Ms. Shah, learned counsel for the respective petitioners has submitted that in the case of petitioner of Special Civil Application No.4720 of 2017 i.e. Mukeshkumar Solanki if the revised seniority list is prepared as per the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) and in fact as per the draft revised seniority list, he would be at serial no. 3058 in draft seniority list of ITO and one Sher Singh would be at serial no. 3074. It is su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication No.1150 of 2016 before the Division Bench while disposing of the Miscellaneous Civil Application, Division Bench granted time to the department to complete entire process and revise seniority list in the cadre of ITO as per the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) on or before 27.07.2017. It is submitted that despite the above, at present draft seniority list at the stage of objection. It is submitted that only in the month of May 2017, the department published the draft revised seniority list in the cadre of ITO and invited the objections within 15 days. It is submitted that therefore, either there is a gross inaction on the part of the department and / or there is deliberate attempt on the part of department for whatsoever reasons not to revise the seniority list which the department is bound to revise as per the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra). 5.7. It is vehemently submitted by Ms. Shah, learned counsel for the respective petitioners that respective petitioners have legitimate expectations of their cases being considered to the next higher promotional post. It is also legitimately ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are required to be dealt with and considered while finalizing the revised seniority list. It is submitted that therefore, the delay if any on the part of the department in not finalizing the revised seniority list, cannot be said to be deliberate and / or willful and with a mala fide intention. 6.1. Ms. Bhatt, learned counsel for department has requested to grant some more time to the department to prepare and publish final revised seniority list in the cadre of ITO and thereafter to operate the revised seniority list. 6.2. It is submitted by Ms. Bhatt, learned counsel for the department that in the meantime looking to the number of vacant post in the cadre of ACIT the public interest would suffer and therefore, the department may be permitted to fill up the post of ACIT by promotion on ad hoc basis by permitting the department to operate the seniority list which at present is in existence i.e. preN R Parmar (supra) decision. It is submitted that granting stay against the filling up the post of ACIT would be against the public interest. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Prabhjot Singh Mand and ors vs. Bhagwati Singh an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification at all at least from 201314. There is total inaction on the part of the department either deliberately and / or willfully and / or for some other reasons, but the fact remains that for number of years no steps are taken to revise the seniority list in the cadre of ITO. At this stage, it is required to be noted that earlier the learned Central Administrative Tribunal in OA No. 145 of 2013 in its order dated 19.09.2013 issued the directions directing the department to revise the seniority list. However, for considerable long time, the department failed to comply with the said direction. The directions issued by the learned Tribunal vide order dated 19.09.2013 in OA No. 145 of 2013 are reproduced herein above. Therefore, the original applicant of OA No.145 of 2013 preferred Contempt Petition, however the learned Tribunal dismissed the contempt petition, against which, said applicant preferred Special Civil Application No.7465 of 2014. It was submitted on behalf of the department that entire seniority list will have to be considered by the CBDT and looking to the other requirement to be followed, which will take some more time and therefore, vide order dated 17.06.2014, the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantive post in lower cadre has a legitimate expectation for promotion and to be considered for promotion in accordance with the Rules. It is further observed by the Hon'ble Supreme Court in the said decision that preparation of selection list in accordance with the appointment by promotion Regulations is a precondition which requires to be prepared every year. It was held to be a mandatory duty. It is further observed that it subserves the object of the Rules and affords an equal opportunity to promotee officers to reach higher echelons of the service. It would inculcate dedicated service assiduously discharging the duties with integrity, honesty, exhibiting ability, straight forwardness with missionary zeal of self confidence. It is further observed that failure to prepare the list and accord chances of promotion would inhibit efficacy in service and generate dishonesty and manipulation. 7.3. In the case of the Union of India and Another vs. Hemraj Singh Chauhan and ors reported in (2010) 4 SCC 290, it is observed and held by the Hon'ble Supreme Court that right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly considered when it is due for such consideration and the delay has made them ineligible for such consideration. Not only that indemnify granting of promotion to the post of ACIT on ad hoc basis to some of the juniors has resulted into discriminatory treatment which is violative of Article 14 of the Constitution of India. Considering the draft revised seniority list, it appears that those who would juniors in the seniority list if prepared on the basis of the decision of the Hon'ble Supreme Court in the case of N.R. Parmar (supra), some of them are already promoted as ACIT on ad hoc basis. The Department is bound to perform its duty diligently, by not revising the seniority list in the cadre of IT, which the Department is bound to revise as per the decision of the Hon'ble Supreme Court in the case of N.R. Parmar (supra), the same can be termed as even arbitrary and even mala fide 8.0. At this stage, it is required to be noted that even after 2014 years the UPSC also refused to call DPC till seniority list in the cadre of ITO has been revised as per the decision of the Hon'ble Supreme Court in the case of N.R. Parmar (supra). 9.0. Now so far as the request made o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d facts and circumstances, the learned Tribunal has refused to grant any relief as prayed in the OA's, which ought to have been considered by the learned Tribunal on merits. As the learned advocates for the respective parties have made elaborate submissions on merits, instead of remanding the matter to the learned Tribunal we ourselves have considered the matter on merits, more particularly, in light of the earlier orders passed by the Division Bench of this Court, which are referred to herein above, 11. In view of the above and for the reasons stated above, all these petitions are allowed / disposed of with the following directions: (1). That the Department to finalize the revised seniority list in the cadre of ITO within a period of 8 weeks from today without fail. The Department to complete the entire process of finalization of revised seniority list in the cadre of ITO within the period of two months from today, without fail and submit the compliance report before this Court in the present proceedings just on completion of above two months. (2). As already ordered earlier till the revised seniority list in the cadre of ITO as per the decision of the Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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