TMI Blog2012 (4) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, 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 order dated 10.12.1991, passed by the Chief Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Tribunal dated 23.2.2000, passed in O.A. No. 2307/1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved 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 had filed Writ Petition No. 56072/2010, (herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, and he cannot claim any benefit of earlier seniorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 reliance on the order passed by the Tribunal, Principal B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 the Tribunal did not commit any error rejecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 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 for the purposes of seniority and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication 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.e. Karnataka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... led. In 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 ..... l order has 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... States the Conduct Rules for Government 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was preferred or representation was made has 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 Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in the O.A. (II) The earlier gradation list which was 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, whereas in the present case the petitioner 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Controlling Authorities on merits and transfers, where considered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ji, Goa was also wrongly given whereas he ought to have been posted in Maharashtra Region. 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 couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the express terms and conditions of the transfer order dated 10.12.1991 and Board's order dated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sh. Mohan has been rightly fixed in Kanpur region. 5. In the light of the position mentioned in para 4 above 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subsequently, the O.A. No. 2317/1999, was dismissed as withdrawn on 26.4.2003. 53. Shri Ram Kumar Bhargava, in his O.A. dated 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.Sc 1.1.68 25.5.92 25.5.92 1995 D 1990-91 339 347 Shiv Raj Singh Chauhan GN MAMMIBM 15.7.57 11.5.92 11.5.92 1997 D 1990-91 348 350 Surya Kant Mishra GN B.Sc 20.6.63 1.9.92 1.9.92 1995 D 1990-91 351 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner. Following was pleaded in paragraph 24 of the second writ petition 24. That as the seniority list as on 1.1.2002 was never circulated and a copy whereof was not made available to the petitioner as the criteria which was being sought to be adopted for the purposes of assigning seniority was itself illegal, contrary to the service jurispurdence. However, in the said seniority list which was alleged to be issued dated 1.1.2002, the name of the petitioner was placed at serial No. 387 whereas the name of one Shri Arvind Kumar Trivedi who is respondent No. 4 was placed at serial No. 326, making him senior by 61 stares. 57. Counter-affidavit was filed by the respondent Nos. 2 and 3 in which paragraph 24 of the writ petition was replied in paragraph 9 of the counter-affidavit which is to the 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 Regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000-2001 and 2001-2002. After change of the seniority list, a Review Departmental Promotion Committee was held on 18.4.2002. The proceedings of the Review Departmental Promotion Committee indicates that the Review Departmental Promotion Committee in its minute dated 18.4.2002 has noticed that the seniority list of eligible candidates has undergone a change consequent to the order of the Tribunal dated 3.12.2001 in the case of Shri Ram Kumar Bhargava. It is useful to quote para 1.2 of the minutes which has been filed as Annexure 5 to the rejoinder affidavit. 1.2. The seniority list of eligible candidates put up before the original DPC has undergone a change, the reason being that consequent to the order of CAT, Allahabad dated 3.12.2001 in the case of Shri Ram Kumar Bhargava and others v. UOI, in the matter of inter-se-seniority of 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Bhargava's case vide order dated 3.12.2001, has not determined any criteria for fixing the seniority and had only directed to consider the representation of Shri Ram Bhargava. Shri Ram Bhargava was claiming promotion/ seniority as per the judgment of the Principal Bench of the Tribunal dated 23.2.2000, in the case of Sanjeev Mahajan and it is clear that the seniority list was revised as per the aforesaid judgment of the Tribunal. 63. As noticed above, the order of the Tribunal Principal Bench dated 23.2.2000, was subsequently set-aside by the Delhi High Court dated 25.9.2002. In view of the aforesaid conclusion, the issue No. 5 is answered as follows: The earlier gradation list dated 1.9.1999, was revised and changed on or before 10.4.2002. The revised seniority list was neither circulated nor objections were invited from any affected 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the seniority of various categories of persons employed in Central Services. 2. While the above mentioned principle was working satisfactorily in cases where direct recruitment and promotion kept pace with each other and recruitment could also be made to the full extent of the quotas as prescribed, in cases where there was delay in direct recruitment or promotion, or where enough number of direct recruits or promotees did not become available, there was difficulty in determining seniority. In such cases, 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 when direct recruits or promotees became available through later examinations or selections, such persons occupied the vacant slots, thereby became senior to persons who were already working in the grade on regular basis. In some 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom time to time on the subject. Paragraphs 2.1 to 2.4.2 provide for principles of determining the seniority of direct recruits and promotees. Paragraphs 3.1, 3.2 and 3.3 relate to seniority of transferees. It is useful to quote paragraphs 2.1 to 3.3 of the Government Order dated 3.7.1986 which are as follows: No. 22011/7/86-Estt.(D) Government of India Ministry of Personnel, Public Grievances Pensions (Department of Personnel Training) dated 3.7.1986 OFFICE MEMORANDUM Subject: SENIORITY - Consolidated orders on. The undersigned is directed to say that instructions have been issued by this Department from time to time laying down the principles for determining seniority of persons appointed to services and posts under the Central Government. For facility of reference, the important orders on the subject have been consolidated in this Office Memorandum. The number 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. Thereafter in that year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional, direct recruits selected against the carried forward vacancies of the previous year would be placed en-bloc below the last promotee (or direct recruit as the case may be), in the seniority list based on the rotation of vacancies for that year. The same principle holds good for determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies (as the case may be) in the subsequent year. ILLUSTRATION : Where the Recruitment Rules provide 50% of the vacancies of a grade to be filled by pro-motion and the remaining 50% by direct recruitment, and a assuming there are ten vacancies in the grade arising in each of the year 1986 and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es shall be determined according to the rotation of vacancies which shall be based on the quotas reserved for transfer, direct recruitment and promotion respectively in the Recruitment Rules. Where the vacancies in any quota or quotas are carried forward, the principles stated in para 2.4.2 will apply, mutatis mutandis in determining inter-se seniority of the appointees. 3.3 Where a person is appointed by transfer in accordance with the provisions in the Recruitment Rules providing for such transfer in the event of non-availability of suitable candidate by direct recruitment or promotion, such transferee shall be grouped with direct recruits or promotees, as the case may be. He shall be ranked below all direct recruits or promotees, as the case may be, selected on the same occasion. 68. Before we proceed to consider the criteria for determining the seniority as provided by the Government of India orders from time to time, it is useful to refer to the orders passed by the Principal Bench of the Tribunal, this Court, Gujarat High Court and the orders of the Supreme Court which have been repeatedly referred to in the pleadings of both the parties which are being referred to in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. Parmar. The issues which had arisen for consideration before the Gujarat High Court were : (I) As to whether complying with the Quota and Rota Rules, seniority of direct recruits should be reckoned on the basis of year in which the vacancies arose; (II) Or the year in which the selection process was initiated; (III) Or the year in which the candidates were selected and; (IV) Or the year in which the candidates were actually appointed. The Gujarat High Court delivered its judgment on 17.8.2004, holding that the Office Memorandum dated 7.2.1986 and 3.7.1986 clearly envisaged that seniority to the Direct Recruits can be given by the year of their actual appointment disregarding the year in which the recruitment process was initiated or completed. The writ petition was dismissed (V) Writ petitions were also filed before the Delhi High Court raising the issue of determination of seniority between the direct recruits and promotees, which writ petitions were decided referring to the judgment of the Gujarat High Court dated 17.8.2004, Union of India v. N.R. Permar. Against the judgment of the Delhi High Court, Special Leave to Appeal No. 9181-9185/2005, Mukunk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. That it further transpires from the record that in alleged purported compliance of the order dated 3.12.2001 passed in Original Application No. 1421 of 2001 sought to be instituted by Ram Kumar Bhargawa and another, the entire seniority list as on 1.9.1999 was changed and a revised seniority list of the inter-se seniority of the promoted Inspectors and Inspectors came from inter charge transfer was fixed from the date of joining. So far as the inter-se seniority of direct recruit Inspectors is concerned, the same was fixed from the date of sending requisition to the recruiting authority. For the kind perusal of this Hon'ble Court, a photo-copy of the inter-se seniority list of the Inspectors as on 1.1.2002 is being filed herewith and marked as Annexure 7 to this writ petition. Paragraph 23 of the writ petition has been replied by filing counter-affidavit by the respondent Nos. 2 and 3. In the counter-affidavit filed by the respondent Nos. 2 and 3, paragraph 23 of the writ petition has been replied in paragraph 8 of the counter-affidavit which is to the following effect: 8. That the contents of paras 19, 20, 21, 22 and 23 of the writ petition are matter of record nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them under the rotation and the seniority amongst the direct recruits selected by one recruitment is on the basis of order of merit. Thus, direct recruits who are recruited on the basis of one selection shall take their seniority in order of merit irrespective of their date of joining, but the seniority can be reckoned for direct recruit in the year when they are actually available for appointment. The Government orders dated 7.2.1986 and 3.7.1986 do not provide that the direct recruits can reckon their seniority from the date when the process of recruitment was initiated or the ' date when the selection was held, rather the seniority is reckoned after appointment as per the quota meant for them. 73. The Gujarat High Court in N.R. Parmar's case (supra) had interpreted the same very Government orders dated 7.2.1986 and 3.7.1986 and laid down following in paragraphs 10.1, 11, 12 and 13: 10.1 The basic rule for relative seniority of direct recruits and promotees, as laid down in paragraph 2.4.1 in O.M. dated 22.12.1959, is that their vacancies are to be rotated on the basis of the quota reserved for direct recruitment and promotion. However, in case adequate number of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary formalities always take a longer time resulting into delay in actual appointment of DRs. 12. Reading the expressions direct recruits and do not become available in any particular year in paragraph 2.4.2 in the context of the scheme provided for fixing seniority, it is clear that the DRs contemplated by the rule are those who are actually available for placement by rotation in the seniority list in a particular year. The candidates who are undergoing the process of recruitment cannot be said to be available for rotation of quotas till they are appointed. If later appointees against the quota of vacancies of an earlier year were to be considered for seniority in that earlier year, the clarification for carrying forward such vacancies and placing them in the seniority list en-bloc in the year of appointment would not have been required. Paragraph 2.4.4 of the O.M. dated 7.2.1986 takes care of the tendency of unreporting/suppressing the vacancies to be notified to the concerned authorities for DRs and provides for pushing down the excess promotees. It has no bearing on the promotees appointed against their own quota of the year concerned. Paragraph 2-4.2 read with its c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, for the purpose of rotation and fixation of seniority, shall be the actual year of appointment after declaration of results/ selection and completion of pre-appointment formalities as prescribed. It is further clarified that when appointments against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. year of Vacancy/panel or year in which recruitment process is initiated) but should get the seniority of the year in which they are appointed on substantive basis. The year of availability will be the vacancy year in which a candidate of the particular batch of selected direct recruits or an officer of the particular batch of promotees joins the post/service. 4. Cases of seniority already decided with reference to any other interpretation of the term available' as contained in OM dated 3.7.1986 need not be reopened. 76. The clarification issued by the Government Order dated 3.3.2008, is to the same effect that the direct recruits seniority shall be the actual year of appointment after declaration of the results/ selection and completion of pre-ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar's case (supra) on the relevant criteria for determining the seniority of direct recruits is also relevant while determining the inter-se seniority between the direct recruits and inter-charged transferee. The Government Order dated 3.7.1986, also contains specific provision pertaining to determination of the seniority of the transferees in paragraphs 3.1 to 3.3. 79. According to para 3.2 of the Government Order dated 3.7.1986, seniority of such transferees vis-a-vis direct recruits or promotees shall be determined according to the rotation of vacancies which shall be based on the quotas reserved for transfer, direct recruitment and promotion respectively. In the present case it is relevant to note that the petitioner was transferred under the quota meant for Direct Recruits which is clearly mentioned in the transfer order 10.12.1991 and he was adjusted against the quota meant for direct recruits. Para 2 of the transfer order dated 10.12.1991 stated as follows: That the petitioner shall reckon his seniority from the date when he joined at Kanpur charge and his name shall be placed below of all working Inspectors (Permanent/Temporary) Para 2 of the transfer order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been pressed by the learned counsel for the respondents is that the seniority is prepared Zone-wise of Income Tax Inspector and the judgment of the Gujarat High Court was relevant for determining seniority of the Income Tax Inspector of Gujarat Zone. A perusal of the Government Orders dated 7.2.1986 and 3.7.1986 indicate that the Government has issued orders for laying down principles for determining the seniority of persons appointed to services and posted under the Central Government. 83. Thus, the orders issued by the Government are of general application and the principles for determination of seniority does not differ from zone to zone. The principles for determination which are relevant for direct recruits are well applicable on the interpretation of the above Government Orders in every zone. 84. From the aforesaid discussion, it is clear that the seniority of private respondents as direct recruits have been given from a date earlier to their appointment as direct recruits which was impermissible. The direct recruits can reckon their seniority in the year in which they have joined as direct recruits. The direct recruits cannot reckon their seniority from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present writ petition will have no relevant, hence the earlier writ petition should be decided first. 88. It is also relevant to note the submission of the learned counsel for the respondents that the matter of seniority being subjudice before the Apex Court the department is not obliged to implement the judgment of the Gujarat High Court in N.R. Parmar's case (supra). 89. The submission of the learned counsel for the petitioner to the contrary is that the Apex Court vide its order dated 20.3.2006 has directed for implementation of the Gujarat High Court judgment. It is relevant to note that the order dated 20.3.2006, was passed by the Apex Court in a case arising from Delhi Zone. When the Apex Court directed for implementation of the judgment of the Gujarat High Court in context of a case arising out of Delhi Zone, it is explicit that the interpretation put by the Gujarat High Court on the principles of determination of seniority are applicable in all zones. The submission of the learned counsel for the respondents that the issue of seniority being pending before the apex Court the Department is not obliged to revise the seniority list as per the Gujarat High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the order passed by the Supreme Court itself on 20.3.2006, it is clear that the Supreme Court itself has observed that till the final decision in the pending Special Leave Petition, the order of the Gujrat High Court be implemented thus, the submission of the learned counsel for the respondents that the seniority cannot be revised since the issue is pending has no legs to stand. 93. The second reason given by the learned counsel for the respondents is that the order of status quo passed in Special Leave Petition No. 22000-22002/2009, Anil Kumar Sehgal and others v. Smt Anita Vinayak and others. Special Leave Petition was filed against the Division Bench judgment of this Court dated 19.8.2009 in Anil Kumar Sehgal v. Smt. Anita Vinayak, 2009 (7) ADJ 552. 94. From the Division Bench judgment of this Court, it is clear that the inter-se seniority of the persons appointed on the post of stenographers was subject-matter of dispute in the aforesaid writ petition and the matter was taken up in the writ petition before the Division Bench against which judgment Special Leave to Appeal (Civil) Nos. 22000-22002/2009 was filed in which following order was passed by the Apex Court on 7.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between direct recruit and promotee inspectors of Income Tax as outlined in OM. No. 3501/2/80 EST (D) dtd. 7.2.1986 of DOPT in their own way and that there is no uniformity in this regard. In the case of N.R. Parmar and others, an OA was filed before CAT, Ahmedabad Bench which vide its order dated 12.1.04 quashed the impugned seniority list dated 25.3.2003 drafted by the CCIT Ahmedabad and directed not to disturb the seniority already assigned to persons in the finally published list of 1996-2000. The contention of Drs to assign seniority to Drs from a date earlier to the date of their appointment was also rejected. The CAT's directions were challenged by the Department before Gujarat High Court by way of filing a WP, which was, however, dismissed and against which the Department has filed an SLP before the Supreme Court of India. The Hon'ble Supreme Court in its hearing held on 24.1.2005 has issued notice but has not granted stay on the operation of CAT/High Court's 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 continue as fixed by the CCIT before 8.9.2004 in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 22.2.2006 clearly contemplates that where there are orders of the CAT/High Court, the principle that seniority determined before 8.9.2004 shall not be re-opened shall be inapplicable. 101. In the present case, there was express order of the CAT dated 13.8.2003 passed in the O.A. No. 917/2003, directing the Chairman, CBDT to consider the representation of the petitioner dated 10.6.2002 wherein clandestine change in the seniority list of the year 2002 was an issue. The representation of the petitioner was rejected on 19.11.2003, against which action the petitioner filed O.A. No. 1658/ 2004, which was dismissed on 10.2.2006, against which writ petition No. 23672/ 2006 was filed and which is being decided by this judgment. Thus, in the present case there is no impediment for refixing or redetermining the seniority and the order dated 22.2.2006 directing not to reopen the seniority fixed prior to 8.9.2004 is not applicable. 102. Issue No. 9. The O.A. No. 1084/ 2010, filed by the petitioner was decided by the judgment and order of the Tribunal dated 4.8.2010, by which order the Tribunal disposed of the aforesaid O.A. directing the respondents to decide the matter of sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st reserved for accommodating the applicant of the said O.A., if found otherwise eligible. 103. All the aforesaid three applications were heard and disposed of by the judgment and order dated 27.8.2010, which is clear from the cause title of the judgment. As noticed above, in the application filed by the respondent Nos. 1 to 3 i.e. Application No. 3289/2010, the prayer was made to recall the order dated 4.8.2010 or to modify/delete the order which was to the following effect: We make it further clear that prior to the finalisation of the seniority list as observed above, no promotion shall be made by the respondents. 104. The respondent Nos. 1 to 3 also prayed by the above application that adequate opportunity of hearing be given by way of filing counter-affidavit. In the application filed by private respondents only modification of the order dated 4.8.2010 was sought to the extent that while deciding the representation of the applicant (writ petitioner) the respondent Nos. 4,6,7,9,11 and 12 may also be heard. In the application of non-parties a prayer was made that the respondent Nos. 1 and 2 be permitted to grant promotion to the post of Assistant Commissioner Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order. However, the Tribunal at the time of deciding the aforesaid applications for recall/modification of the order dated 4.8.2010, it was not appropriate to decide the various issues on merits when neither the counter-affidavit was filed in the O.A. nor there was relevant materials to decide the various issues including the res-judicata, limitation and other issues. The Tribunal could have very well recalled the order dated 4.8.2010 and ordered for fresh hearing of the application. Insofar, as the order of the Tribunal dated 27.8.2010, by which he had recalled the order dated 4.8.2010 is concerned, there was sufficient ground made by the applicants to recall the order dated 4.8.2010, which according to the respondents was prejudical to their rights and the order was passed without giving adequate opportunity to them, that ground was itself sufficient for recall of the order dated 4.8.2010, and we do not interfere with the order of the Tribunal dated 27.8.2010, insofar as it has recalled the judgment and order dated 4.8.2010. However, the part of the order of the Tribunal dated 27.8.2010 by which the Tribunal dismissed the O.A. No. 1084/2010 on merit is unsustainable and deserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... private respondents deserves to be redetermined. Although the petitioner and some of the private respondents have been promoted as Income Tax Officer, but the promotion of the petitioner was affected as Income Tax Officer by order dated 8.9.2003, whereas the respondent No. 4 was promoted by decision dated 18.4.2002 and the seniority of Income Tax Officer which is maintained on All India Basis is directly dependent on the seniority in the feeder cadre i.e. Income Tax Inspector, thus the determination in the seniority is necessary to protect the interest of the parties. 110. As noticed above, the challenge to the seniority list of 2002 was very much there in Writ Petition No. 23672/2006 arising from the O.A. No. 1658/2004 and has already been held that the order of the Tribunal dated 10.2.2006 dismissing the O.A. is unsustainable, thus the order of the Tribunal dated 10.2.2006 deserves to be set-aside and the O.A. No. 1658/2004 deserves to be decided accordingly. 111. Insofar as, the second Writ Petition No. 56072/2010, arising from O.A. No. 1084/2010 is concerned, we have already held that the Tribunal committed error in dismissing the O.A. itself by its order dated 27.8.2010, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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