Delhi High Court
Union Of India & Ors. vs Shri Vikas Keraba Suryawanshi & ... on 6 July, 2012
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 6.07.2012
+ W.P.(C) No.8018/2010
Union of India & Ors. ... Petitioners
versus
Shri Vikas Keraba Suryawanshi & Ors. ... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr.Parag Tripathi, ASG with
Mr.V.S.R.Krishna, Mr.Shadan Farasat
& Mr.Vaibhav Joshi.
For Respondents : Mr.Naresh Kaushik, Advocate for the
respondent/UPSC.
Mr.Vijay Hansaria, Mr.Maninder
Singh, Sr.Advocates with Mr.Satya
Mitra Garg & Mrs.Manju Aggarwal,
Advocates for respondent Nos.1 to 15.
Mr.A.K.Bhardwaj, Advocate for
respondent No.16.
Mr.Rakesh Kumar Garg, Advocate for
the intervener.
+ W.P.(C) No.8017/2010
S.K.Mehra & Ors. ... Petitioners
versus
Union of India & Ors. ... Respondents
WP (C) 8018, 8017, 7990 of 2010 Page 1 of 70
Advocates who appeared in this case:
For the Petitioners : Mr.Anil Kumar Gupta,
Mr.N.A.Alvi & Mr. Vivek Singhal
For Respondents : R.N.Singh and Mr.A.S.Singh,
Advocates for Respondent Nos. 1 to 3
: Mr. Naresh Kaushik, Advocate for the
respondent no.4/U.P.S.C
: Mr.S.M.Garg, Mr. Sneha Kalita and
Ms. Manju Aggarwal, Advocates for
private respondent Nos. 6 to 20
: Mr. G.D.Gupta, Sr. Advocate with Mr.
Rakesh Kumar Garg, Advocate for the
applicants/Intervenors.
AND
+ W.P.(C) No.7990/2010
Sanjay Pandey & Ors. ... Petitioners
versus
Union of India & Ors. ... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr. A.K.Behara & Mr. Ramesh
Gopinath Advocates for Petitioners.
For Respondents : R.N.Singh and Mr.A.S.Singh
Advocates for Respondent Nos. 1 to 3
: Mr. Naresh Kaushik, Ms. Aditi Gupta
and Ms. Amita Kalkal Chaudhary
Advocate for the respondent
No.4/U.P.S.C
: Mr.Mukul Rohtagi, Mr.Vijay Hansaria
& Mr.Maninder Singh, Sr. Advocates
WP (C) 8018, 8017, 7990 of 2010 Page 2 of 70
with Mr.Satya Mitra Garg & Mrs.
Manju Aggarwal, Advocates for private
respondent Nos. 6 to 20
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL
ANIL KUMAR, J.
*
1. The petitioners, Union of India and ors. in WP (C) 8018 of 2010,
have challenged the order dated 2nd November, 2010 passed by the
Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No.
1052/2010 alongwith the connected Miscellaneous Applications in M.A
Nos. 2410, 2415, 2427, 2428, 2562 and 2594/2010 titled as „Vikas
Keraba Suryawanshi & Ors v. Union of India & Ors‟ wherein the
Tribunal held that the Civil List published by the petitioners is not
exclusively for seniority, but rather it is a directory of officers of
different grades with their particulars including transfers and postings.
In the circumstances while answering the reference, The Tribunal
directed the petitioners to draw a seniority list within a period of two
weeks by applying the relevant rules and thereafter, also allowed two
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
WP (C) 8018, 8017, 7990 of 2010 Page 3 of 70
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 Grade (JCIT) on the basis of the DPC that concluded on
23.09.2010. An application C.M 6728 of 2011 had also been filed in the
said writ petition by respondent no.1/ Sh. Vikas Keraba Suryavanshi
under Section 151 of Code of Civil Procedure seeking directions to take
into consideration the information obtained under Right to Information
Act i.e Office Notes of the Directorate of HRD (CBDT) contradicting the
stand taken by the official Petitioners in the present writ petition and
thus dismiss the writ petition and quash the ad-hoc promotion to the
post of JCIT dated 30.3.2011 and sought directions to the official
petitioners to comply with the directions of Tribunal given by order
dated 2.11.2010 impugned before this Court.
WP (C) 8018, 8017, 7990 of 2010 Page 4 of 70
2. The petitioners in the WP (C) 8017 of 2010 are the direct recruit
officers of Indian Revenue Service (Income Tax) of the year 2000 and
2001 batch. According to them official Respondents had held
Departmental Promotion Committee (DPC) on 20.09.2010 to 23.09.2010
through which the petitioners were to be promoted to the rank of Joint
Commissioner of Income Tax, since these petitioners were in the zone of
consideration as per the seniority list prepared by the official
respondents. They have challenged the order of Tribunal dated
2.11.2010 quashing the DPCs held from 20.9.2010 to 23.09.2010.
These petitioners have sought quashing of Tribunal's order dated
2.11.2010 and have also sought that the official respondents be
directed to act upon the minutes/result of DPCs and promote the
petitioners and other eligible officers of 2000 and 2001 batch of IRS
from grade of DCIT to JCIT. In the said petition an application 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.
3. The Petitioners in WP(C) 7990 of 2010, S.K.Mehra & ors Vs Union
of India & ors have also sought quashing of order dated 2.11.2010
WP (C) 8018, 8017, 7990 of 2010 Page 5 of 70
passed by the Tribunal in O.A No. 1052 of 2010 filed by Respondent
nos. 6 to 20 and dismissal of said Original Application filed by the said
private respondents. The petitioners have also sought directions to the
respondent nos. 1 to 3 to give promotion to the petitioner to next higher
grade of 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
WP (C) 8018, 8017, 7990 of 2010 Page 6 of 70
Income Tax Department. While creating these posts it was also decided
by the competent authority that all the posts sanctioned in the various
grades would be filled through promotions from the feeder grade.
6. Consequently by a detailed order dated 31st August, 2001 a one-
time relaxation of the Quota Rule under Rule 7(2) of the IRS Rules,
1988 was given as per the terms of the powers given under Rule 15 by
the petitioners. Therefore there was a diversion of the quota of the
Direct Recruits to that of the Promotees and as a result of the said
relaxation the 993 vacancies (484 vacancies for the year 2000-2001 and
509 vacancies for the year 2001-2002) in the grade of ACIT in the IRS
was to be filled up by promotion from the feeder grade i.e. the ITOs, in
view of the relaxation of Rule 7(2) of the Indian Revenue Service Rules,
1988. The order dated 31st August, 2001 whereby one time relaxation
was granted is as under:-
F. No.A-32013/08/2000-Ad VI
Government of India
Ministry of Finance
Department of Revenue
New Delhi, the 31st August, 2001
ORDER
Subject: Creation of additional posts in the Income Tax
Department pursuance of Cadre restructuring-filling up of
the posts of Assistant Commissioner of Income Tax by
promotion of ITO- One time relaxation in the Indian
Revenue Service Rules, 1988.
WHEREAS a large number of Group "A" posts viz.
CCIT, CIT, Addl.CIT, JCIT, DCIT and ACIT have been
created vide sanction order No.A-11013/3/98-Ad. VII dated
24th October, 2000 consequent upon a comprehensive
Cadre restructuring of the Income Tax Department. While
creating these posts in Indian Revenue Service it has been
decided by the competent authority that all the posts
sanctioned in the various grades shall be filled up through
promotions from the feeder grade.
AND WHEREAS in the grade of Assistant
Commissioner of Income Tax, a total of 293 additional posts
have been created. Similarly in the higher grade 675
additional posts have been created and another 25 posts
shall stand sanctioned during 2001-2002. Once these 700
(675+25) posts are filled up in the higher grades, a total
number of 993 posts are available in the grade of Assistant
Commissioner of Income Tax, 484 vacancies will pertain to
the year 2000-2001 and 509 vacancies to the 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 year 2000-2001 and 509 vacancies for the year 2001-
2002) in the grade of Assistant Commissioner of Income
Tax in IRS will be filled up by promotion from the feeder
ITOs in relaxation of Rule 7(2) of the Indian Revenue
Service Rule, 1988."
7. Thereafter, letters were written by the Department of Revenue to
all the Chief Commissioners of Income Tax on 26th August, 2009, 6th
November, 2009, 1st January, 2010, 4th February, 2010, 16th February,
2010 and 18th March, 2010, requiring them to furnish the deficient list
of ACRs/APARs of the officers of 2000 & 2001 Batches along with the
left over batches, for convening a DPC to the grade of JCIT for the year
2010-11. On becoming aware of these communications and examining
the list of officers for whom the deficient ACRs were sought by the
Department, comprising of 237 officers in total, the respondents
became apprehensive that the promotee officers of 2001 and 2002 were
being given seniority in gross violation of Rule 9(iii) of the Indian
Revenue Service Recruitment Rules, 1988 (hereinafter referred to as
"IRS Rules, 1988") based on the seniority of the employees denoted in
the Civil List of the IRS.
8. According to the respondents no official seniority lists have been
published by the IRS Department till date and that the Department has
only published a Civil List from time to time which carries the names
of the officers akin to a seniority list. The grievance of the
respondents is that the latest available Civil List of the year of 2006,
clearly reveals that Rule 9(iii) of the IRS Rules, 1988 has not been
complied with, since the Promotees and the Direct Recruits of the 2000
batch have been matched and arranged on 1:1 basis and after the
Direct Recruits of the 2000 batch have been exhausted, the remaining
promotes have been clubbed together before the first promotee of the
2001 batch i.e. the subsequent batch. The same trend is observed with
respect to the Promotees and Direct Recruits of the batch of 2001 as
well, since the Direct Recruits of 2001 batch have been exhausted, the
excess Promotees of 2001 batch have been bunched above the first
promotee officer of the 2002 batch. According to the respondents even
though there was relaxation of Quota Rule under Rule 7(2) of the IRS
Rules, 1988 by order dated 31st August, 2001 however, there was no
relaxation of the Rota Rule under Rule 9(iii) of the IRS Rules, 1988 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 Ayodhya Prasad (supra) it was held that
relaxation with regard to "quota" rule was justified however, since in the
said order no justification was given for upholding the relaxation
regarding the "rota" rule, therefore, the same could not be deemed to be
relaxed in the facts and circumstances.
11. Thus, the Tribunal in the said case had held that the relaxation
in "quota" rule and diversion of 176 vacancies from the direct recruit
quota to the Promotees quota was not arbitrary in any manner and was
in conformity with the provision of Rule 15 of IRS Recruitment Rules,
1988. However, since there was no relaxation to the seniority rule,
therefore, the action of the petitioner to give en-block seniority to 176
Promotees below the Direct Recruits and Promotees of 1990 batch was
not in accordance with the Indian Revenue Service Rules.
12. Thus the respondent‟s' had prayed for the following relief before
the Tribunal:
"[i] Direct the Respondent Nos.1 & 2 to fix the seniority of
officers of the 2000 Batch and that of the later Batch of the
Indian Revenue Service following the 1:1 ratio as per the
Rules for Regulating Recruitment to the Indian Revenue
Service, 1988.
[ii] Direct the Respondent Nos.1 & 2 to implement the ratio
of 1:1 between Direct Recruits and Promotees from the date
of appointment and grant all other consequential benefits.
[iii] Restrain the Respondent Nos.1 & 2 from giving further
promotion to the Promotees, appointed beyond their quota,
to the grade of JCIT in the proposed DPC for the year 2010-
11, without first finalizing the seniority position as per the
ratio of 1:1 for Direct Recruits and Promotees.
[iv] Direct the Respondent Nos.1 & 2 to prepare and publish
a seniority list following the ratio of 1:1 as mandated by the
RR Rules, 1988.
[v] Direct the Respondent No.5 to bring before this Hon‟ble
Court the entire records pertaining to the sanction as
mandated by para 15 of the RR Rules 1988.
[vi] Grant such other reliefs as may be prayed for and as
the Court may deem fit to-grant; and
[vii] Grant the costs of this Original Application."
13. The petitioners had refuted the pleas and contentions of the
respondents by contending inter-alia that similar issues, as raised by
the respondents in the original application, had been raised in O.A
No.417/2005 titled as "Sh.Sanjay Punglia and Ors v. Union of India and
Ors" which were declined by the Central Administrative Tribunal,
Ahmedabad Bench by a detailed judgment dated 26th February, 2007
with cost of Rs.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 specific plea was raised by the petitioners that the respondents
are seeking to challenge the settled seniority after a gap of more than
eight years and, therefore, their claim is in any case barred by time, as
was the claim of the applicants in the case of Sanjay Punglia (supra)
which was also declined on the ground of delay.
16. The petitioners also relied on the decision of Sh.Sanjay Punglia
(supra) to point out that the Ahmedabad Bench, Tribunal had
specifically noted that neither the order dated 31st August, 2001 which
prescribed the relaxations of the IRS Rules, 1988 nor any specific order
of inter se seniority was challenged by the Direct Recruits of 2002 and
that the original application was filed on mere apprehension. The
Tribunal, therefore had rejected the claim of the Direct Recruits of 2002
in Sanjay Punglia (supra), without going into the merits.
17. After taking into consideration the pleas and contentions of both
the parties the Tribunal, Principal Bench by order dated 16th
September, 2010 held that it is a moot point whether the O.A
No.417/2005 titled as „Sh.Sanjay Punglia and Ors v. Union of India and
Ors‟ could be dismissed as barred by limitation. It was also held that it
is also a moot point whether it was correct to hold in Prabhakant
Ayodhya Prasad that by the order of relaxation, "quota" rules could be
relaxed but not the "rota" rule. The Tribunal, therefore, decided to refer
the matter to the Larger Bench. The relevant order dated 16th
September, 2010 of the Tribunal referring the matter to the Larger
Bench is as under:-
6. In the instant OA as well as in the OA number 417 of
2005 before the Ahmedabad Bench the challenge is not to
the order dated 31.08.2001. The plea is to follow the rule
regarding 1:1 seniority between the Promotee and Direct
Recruit officers and to issue a seniority list as per the
Recruitment Rules, i.e., in the ratio of 1:1 as provided in
Rule 9 (iii) ibid. In the light of this it is a moot point
whether the OA number 417 of 2005 could be dismissed as
barred by limitation. It is also a moot point whether it was
correct to hold in Prabhakant Ayodhya Prasad (supra) that
by the order of relaxation „quota‟ rules could be relaxed but
not the „rota‟ rule.
7. The issue has very wide ramifications and seniority of
very large number of officers is involved. In view of this and
in the light of the judgment 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 counsel for the respondents
that the result of DPC may be put in a sealed cover, the Tribunal
ordered that the DPC may go on but the result thereof be put in a
sealed cover. The order dated 20th September, 2010 is as under:-
20.09.2010
MA-2410/2010 in OA-1052/2010
Present: Mr. Chetan Sharma, Senior Advocate with Mr.
R.K. Singh, counsel for the applicant
Mr. R. N. Singh and Mr. VSR Krishna, counsel
for respondents
Ms. Alka Sharma, counsel for UPSC
MA-2410/2010
Applicant, by way of interim direction, seeks an order
of restraint upon the respondents staying the meeting of
DPC for promotion to the post of JCIT scheduled to be held
from 20th to 22nd September, 2010 pending disposal of the
Original Application. The matter, vide orders dated
16.09.2010, has been referred to Full Bench. We are prima
facie of the view that the order as sought for by the
applicants would be passed only by the Full Bench.
However, counsel limits his prayer, at this stage, only to the
extent that DPC may go on but the result be put into sealed
cover for the purpose of showing it to the Tribunal at the
time of final arguments. Direction as sought for, it appears
to us, would not adversely affect the respondents. Since no
order affecting the parties adversely, at this stage, has to be
passed, we proceed to pass orders on this Misc.
Application.
Having heard arguments, we order that the DPC may
go on but the result thereof be put into sealed cover to be
shown to the Tribunal. Let the Full Bench be constituted
for 22.09.2010. Arguments shall be heard in the Full
Bench and no adjournment shall be granted in the matter.
Process DASTI.
20. The Larger Bench of the Tribunal was therefore required to decide
on the correctness of the law laid down by the Ahmedabad Bench of the
Tribunal in Sanjay Punglia (supra) as well as the law laid down in
Prabhakant (supra) as the issue had wide ramifications on the issue of
seniority for a large number of Indian Revenue Officers involved.
21. After the matter was referred by the Tribunal to the Larger Bench
by order dated 16th September, 2010, an affidavit dated 18th October,
2010 was filed on behalf of petitioners contending that the petitioners
have been operating the Civil List as the seniority list for the
purpose of consideration of the promotion of IRS (I.T. Officers) from one
grade to another and that all the promotions made in the cadre 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 promotions made in the cadre
till now have been based on the inter se seniority position of
the officers indicated in the Civil List. Therefore it is an
accepted position that the Civil List published by the
department from time to time is also used as the seniority
list for the purpose of consideration of promotion of the
officers. The disclaimer on the first page of the Civil List has
been given as a measure of abundant caution so as to
indicate that in case of any dispute the 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 rota 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. Accordingly the present
application is barred by limitation since the issue pertains
to the period 2001 and also promissory estoppel.
vi) That presently there are more than 500 vacancies in
the grade of Joint Commissioner of Income Tax and the
officers who are under consideration for promotion are to
the tune of around 330. Hence any promotions made to
the level of JCIT is not going to effect the applicants since
they are not even in the eligibility zone having not put in
the requisite years of service for consideration for
promotion to JCIT."
22. The petitioners also filed another affidavit dated 20th October,
2010 stating the vacancy positions in the grade of JCIT (Joint
Commissioner of Income Tax) as on that day and the number of officers
likely to be promoted consequent to the DPC held on 20th to 23rd
September, 2010. The petitioners also disclosed that the last officer
considered by the DPC held on 23rd September, 2010 is a Promotee
Officer of 2001 batch who is placed at SI Number 743 of IRS Civil List
2006 whereas the direct recruit officer of 2002 batch is placed at serial
Number 849 of the same IRS Civil List, 2006 which 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
year 2010-11 : 503
B. Total number of eligible DCITs (including those
officers in whose case minimum, eligible
service has been relaxed by one year) as
on 01.01.2010 available for consideration : 385
C. Number of officers out of (B) above, who have
retired or expired, upto 30.09.2010 : 046
D. Maximum number of officers available for
promotion, if found fit by the DPC (i.e. B-C): 339
E. Minimum number of vacancies which would
still be available even after promotions are
made (i.e. A-D) : 164
24. The Larger Bench heard both the parties at length and decided to
consider the grievances raised in the original application, rather than
answering the reference, directed to it, regarding the correctness of the
orders passed by the two Tribunals in the cases of Sanjay Punglia
(supra) and Prabhakant (supra). Thus the Larger Bench considered the
issue of whether or not the Civil List is to be treated as a seniority list
and if not then what would be the methodology apt in law to publish a
seniority list as per the statutory rules.
25. The Larger Bench observed that with regard to the contention of
limitation in relation to the decision of the Ahmedabad Tribunal in
Sanjay Punglia (supra) holding that the non-challenge to the order
dated 31st August, 2001 is barred by delay and laches, it would not hold
good in the present facts and circumstances as what has been
challenged in the present original application is the non-settling of the
seniority. The Larger Bench held that after the categorical finding as to
no seniority list being issued by the petitioners, which they were bound
to make as per Prabhakant Ayodhya Prasad (supra), it gives a recurring
and continuing cause of action to the respondents to assail any act of
the petitioners whereby the seniority list has not been issued as per the
methodology laid down under the statutory rules.
26. With regard to the issue of whether the Civil List is the seniority
list, the Larger Bench observed that in the counter reply the petitioners
had failed to take a proper stand that the civil list is the seniority list
and that instead they had given a very evasive reply until the additional
affidavit dated 18th October, 2010 was filed wherein they finally took the
stand that the civil List is the seniority list. However, the Larger 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 in
case of any discrepancies or mistakes in any of the incorporated
information relating to the officers, the redressal of the same is not
immediate, as it would be corrected only after the next Civil List is
published. In this regard the Larger Bench also relied on the decision of
the Apex Court in Union of India & Anr. v. P.K. Roy & Ors. AIR 1968 SC
850, in which the methodology to be adopted while examining a
gradation list, which forms the basis of the promotions, was outlined.
The relevant portion of the Larger Bench‟s reasoning is as follows:
"34. The Apex Court in Union of India & another v. P.K.
Roy & others, AIR 1968 SC 850, while examining the
gradation list, which forms basis of promotion, laid down a
methodology in a Constitution Bench, which overrides any
other decision of the lower coram under Article 141 of the
Constitution, whereby a preliminary draft seniority list is
prepared as per the statutory rules and on publication
representations are invited by the affected persons and on
consideration of the representations, a final seniority list is
to be published. The aforesaid view was also taken by the
three-Judge Bench in Prabhakant Ayodhya Prasad (supra),
where the denial of opportunity to the officers to make
representation against the gradation list has been held to
be invalid in law.
35. The aforesaid ratio decidendi mutatis mutandis
applies to the seniority list on an analogy and the pre-
requisite for preparation of final seniority list to be followed
by the official respondents. The published civil list, by no
stretch of imagination and even by applying the test of a
common reasonable prudent man, shall not be treated as a
seniority list. Perhaps the official respondents, when it has
not been pointed out on judicial intervention to them that
the civil list is not a seniority list, have perpetuated this
illegality in the past. However, we being the judicial fora
cannot shut our eyes to such an illegality in view of the
Article 14 of the Constitution. The question before us is
whether the issue gathered from the rival contentions is to
treat the civil list where statutory rules are followed to place
the officers on both sides in appropriate places, cannot be
countenanced unless there is a seniority list against which,
on its draft, an opportunity is accorded to the applicants
and other categories and on dealing with the objections 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 (Larger Bench) dated 2nd
November, 2010 that the petitioners have approached this Court under
its writ jurisdiction by contending inter alia that the reference made to
the Tribunal was:
6. In the instant OA as well as in the OA number 417 of
2005 before the Ahmedabad Bench the challenge is not to
the order dated 31.08.2001. The plea is to follow the rule
regarding 1:1 seniority between the Promotee and Direct
Recruit officers and to issue a seniority list as per the
Recruitment Rules, i.e., in the ratio of 1:1 as provided in
Rule 9 (iii) ibid. In the light of this it is a moot point
whether the OA number 417 of 2005 could be dismissed as
barred by limitation. It is also a moot point whether it was
correct to hold in Prabhakant Ayodhya Prasad (supra) that
by the order of relaxation „quota‟ rules could be relaxed but
not the „rota‟ rule.
7. The issue has very wide ramifications and seniority of
very large number of officers is involved. In view of this and
in the light of the judgment 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."
31. The Tribunal even after taking note of the specific point of
reference, instead of answering the same, had altogether proceeded on
an entirely separate issue, outside the very scope of reference, and
directed the petitioners to draft a seniority list within a period of two
weeks. As per the learned ASG, Sh. Parag Tripathi Sr. Advocate the
answer to the reference was of grave importance, since on its very basis
the seniority of around 3500 members of the IRS was to be determined.
32. The reference was made regarding the issue of the correctness of
the law laid down in the two cases of Prabhakant Ayodhya (supra) and
Sanjay Punglia (supra). However, since the Tribunal failed to determine
this very issue, the learned ASG contended that doubt still remains
regarding which of the two views is to be complied with while drafting
the seniority list as desired by the Tribunal. Thus, it is urged that even
if it is accepted that the Civil List is not the seniority list, entailing the
drafting of a fresh seniority list, it is not clear if the quota-rota principle
followed in the case 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
aforementioned road blocks the learned ASG contended that since the
very direction of the Tribunal is un-implementable, therefore the same
deserves to be quashed and the impugned judgment is liable to be set
aside.
34. The learned ASG also contended that the Tribunal based its
directions to draft a seniority list on the presumption that as on date
there is no seniority list in the IRS, which is not correct in its
understanding since as expressly argued even before the Tribunal, the
IRS Civil List is the Seniority List. The learned ASG also urged that the
Tribunal had erred in concluding that the IRS Civil List 2006 cannot be
held to be a seniority list even by the common tests of a prudent man,
since as per the learned ASG the said list is prepared in strict
compliance of the provisions, as prescribed in the IRS Rules 1988 i.e.
Rule 5, 9(i), 9(ii), 9(iii) and 10 and DOPT OM No. 22011/7/1986-Estt.
(D) dated 03-07-1986. It is also pointed out that the IRS Civil List has
definite parts for different grades like ACIT/DCIT, Joint /ADL. CIT, CIT
and CCIT, and is published on an annual basis. It contains all the
service details of an employee like the Date of Birth, Date of Promotion
and Date of Joining in IRS, which are relevant for determining his/her
seniority position. The IRS Civil List also has additional information i.e.
Qualification and Details of present posting, which is mentioned therein
as a matter of convenience for both publishing and reference. According
to the learned ASG, the serial number mentioned in the list clearly
denotes the Seniority Position of the officers in their respective grade. It
is also contended that this fact is even further substantiated by para „2‟
of the said list which clearly prescribes that "all the IRS Officers are
given the opportunity to represent against any discrepancy" found in
the said list.
35. The learned ASG has further contended by way of affidavit dated
7th December, 2010 filed before this Court, that right from the
publication of the first Civil List, representations have been made by
officers in respect of inaccuracies in the Civil List, which have been duly
dealt with and corrections were also effected on the Civil List wherever
called for. By way of example, the petitioners have enclosed certain
orders passed in this regard which are marked as Annexures A-1 to A-7
in WP (C) 8018 of 2010.
36. 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 import or purpose and wrongly concluded that
immediate redressal could not be provided in the Civil List in case of
any wrong perceived in the placement of the officer on the list.
38. Sh. Parag Tripathi, the learned ASG, also pointed out that it is on
the very basis of the Civil List alone that the respondents themselves
have enjoyed the benefits of promotion to the Senior Scale of the Deputy
Commissioner of Income Tax, based upon their respective positions in
the said list. Therefore, the learned ASG contends that the respondents
are estopped from challenging the IRS Civil List. Thus it is contended
that to direct the petitioners to draft a separate Seniority List over and
above the Civil List at this juncture would negate every promotion made
since the very inception of the IRS on the basis of the seniority denoted
on the Civil List and this in turn would only cause chaos in the
administrative side of the IRS department.
39. The learned ASG, has also urged that the promotions for the
officers of the year 2001 & 2002, which had been finalized by the DPC
and approved by the UPSC in terms of the IRS Rules, 1988 had been
made pursuant to the Relaxation Order dated 31.8.2001 which resulted
in the diversion of the posts at the entry level of the IRS from the quota
of the Direct Recruits to that of Promotees. It was also pointed out that
this relaxation order was passed under Rule l5 of the IRS Rules 1988
and no challenge, direct or indirect to this Relaxation Order has been
made either in the order of reference, or before the Larger Bench of the
Tribunal or even in the OA No. 417/2005, Sanjay Punglia (supra).
Therefore, since there is no challenge to the order of relaxation, the
learned ASG contended, that the same cannot be invalidated by the
backdoor technique of alleging that the rota rules should be followed,
which in any case has been followed by the petitioners with respect to
the inter se seniority of the employees (Promotees and direct recruits) of
a particular batch as opposed to a uniform application of the rota rules
irrespective of the batches they belong to as demanded by the
respondents.
40. According to the learned ASG, the promotions in the instant case,
both for the Direct Recruits and the Promotees, were assigned to the
batches of 2000 and 2001 and not even one of the Direct Recruits in the
concerned year have raised any challenge to 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 Direct Recruits
and Promotees, the Rota Rule (as per Rule 9(iii) of IRS Rules 1988) was
followed for the 50 Direct Recruits i.e. 24 in the year 2000 and 26 in the
year 2001, by arranging them in the ratio of 1 : 1 with the Promotees of
the respective years. The balance promotee (i.e. 984-50=934) were
bunched and kept at the bottom of their respective years i.e. 2000 and
2001, because 50% of the 993 posts of ACIT i.e.497 belonged to the PR
Quota as per Quota Rule (i.e. Rule 7(2) of IRS Rules 1988) and the
balance 496 posts of the ACIT were diverted from DR to PR Quota,
pursuant to the diversion and relaxation of the Quota Rule under Rule
7(2) of the IRS Rules 1988, by order dated 31-08-2001 with due
approval of the DOPT and UPSC. Thus it is urged that since the order of
relaxation has not been challenged by the respondents, the purpose
behind the same cannot be thwarted by demanding that the rota be
maintained between the Promotees and direct recruits across all
batches or that the promotees of 2000 & 2001 be matched with the
Direct Recruits of 2002 & 2003 who are junior to the promotees on
account of their subsequent appointment.
42. The Learned ASG also relied on the judgment of Direct Recruit
Class II Engineer Officers‟ Association & Ors. v. State of Maharashtra &
Ors. AIR 1990 SC 1607, wherein the Supreme Court clearly held that
where the Quota Rule has broken down and the appointments are made
from one source in excess of the quota, but are made after following the
procedure prescribed by the rules for the appointment, the appointees
should not be pushed down below the appointees from the other source
inducted in the service at a later date.
43. The petitioners also contended that the Tribunal had completely
lost sight of the fact that none of the respondents who approached the
Tribunal were personally affected in any manner by the results of the
promotions, cleared by the DPC and announced by the UPSC. The
learned ASG also vehemently argued that the Tribunal erred in not
properly appreciating the affidavit dated 20.10.2010 submitted on
behalf of the petitioners, in which it was specifically stated that the
respondents were not eligible to be considered for promotion to the
grade of JCIT as they had not completed the requisite 5 years as DCIT
(Sr. Scale) and also that no officer junior to the said respondents had
been considered for promotion. 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
with the question of reference. It is contended that the Tribunal had
rightly resolved the controversy in the present matter by directing the
petitioners to draft a seniority list, since without this very basic
requirement being fulfilled, the position of the respondents along with
the other employees of the department could not be ascertained and the
drafting of the same would to a great extent also resolve the long drawn
dispute existing in the minds of the employees.
46. The learned Senior Counsel has primarily reiterated the pleas
made on behalf of the respondents before the Tribunal and has very
emphatically asserted that the Civil List is not the seniority list and
cannot be construed to be a seniority list under any circumstances. It is
urged that the petitioners cannot be allowed to wriggle out of the
specific stipulation in the Civil List, stating that the Civil List is for the
purpose of information and guidance only and does not purport to be
an authentic document for seniority. The stipulation as enumerated in
the preface of the compilation of the Civil List of the Indian Revenue
Services is as under:-
"The Civil List is for the purpose of information and
guidance only and does not purport to be an authentic
document for seniority and other particulars of the
members of the Service which can be determined from the
original records at the time of entry into Service and
promotion to various grades, Service Books and other
relevant documents."
47. Learned Senior Counsel also asserted that despite interim
observations and directions by the Tribunal to keep the seniority list
ready for the perusal of the Tribunal, neither was any seniority list
produced, nor was it disclosed nor was it pleaded before the Tribunal
that the Civil List is the seniority list for all intents and purposes. In
this regard specific reliance has been placed on the order dated 7th July,
2010 of the Tribunal whereby the petitioners were directed to keep the
seniority list ready for the perusal of the Tribunal.
48. The learned senior counsel further pointed out that, even during
the pendency of the present writ petition, instead of issuing a seniority
list, the writ 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 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
amongst the concerned officers and their objections were invited before
issuing the final seniority list after considering the objections. However,
in the same department for the respondents such a draft seniority list
was not prepared and contradictory stands have been taken. Even the
draft Civil List is addressed only to the Chief Commissioner of Income
Tax and it is not marked to the concerned officers, nor does it give any
opportunity to the respondents or other officials to file objections to the
said list.
50. Learned senior counsel has also relied on the written submission
filed on behalf of the petitioner (CBDT) dated 26th October, 2010 filed
before the Tribunal in O.A. No.1052 of 2010 where in para 23, it is
categorically stated that it is not disputed that the formal seniority list
was not drawn up for the IRS. The stipulation made in the said written
submission is as under:-
"It is not in dispute that the formal seniority list was not
drawn up for IRS. However, it is under IRS Civil List
published annual basis, which has always been operated as
seniority list, right since inceptions of IRS itself. The
seniority of officers of IRS Civil List fully confirmed with IRS
Rule 1988 and DOP&T OM dated 3rd July, 1986."
51. On behalf of the respondents, certain inaccuracies have also been
pointed out to establish that the Civil List could not be the seniority list
in the facts and circumstances. In the Civil List incorporating the
promotions, transfers and postings till 10th January, 2007 referring to
Page 241, it is contended that at serial no.109 is a promotee officer
whereas at serial no.110 and 111 there are Direct Recruits. At serial
no.112 is again a promotee officer which does not reflect the quota and
rota rule of one promotee officer and one direct recruit. Similarly, other
inflections at page no.253 at serial nos.223, 224, 225; at page no.323,
at serial nos.847, 848, 849, 853, 854 & 856 and at page no.337 at
serial nos. 978, 979, 980, 981 have been pointed out as well.
52. The learned senior counsel for the respondents has further
contended that the relaxation order dated 31.8.2001 clearly reveals that
it only deals with relaxation of the Quota Rule under Rule 7(2) as a one-
time relaxation and that it does not deal with the issue of inter se
seniority which is governed by Rule 9(iii) of the IRS Rules 1988. Since
Rule 9(iii) has not been dealt 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 in
writing" and "in consultation with the Union Public Service
Commission" and in the order dated 31-8-2001 there is nothing that
has been recorded with regard to the relaxation of Rule 9. Therefore, as
per the learned counsel for the respondents the assumption of implied
relaxation of the Rule 9(iii) on relaxation of Rule 7(2) is against the letter
and spirit of Rule 15 of the IRS Recruitment Rules, 1988.
54. The learned senior counsel for the respondents has further
contended that there is no conflict between the rotation rule of seniority
and the assertion that the Direct Recruits of a later batch cannot claim
seniority before they are born in the Cadre. The learned counsel for the
respondent clarified that in the present matter the respondents are not
claiming the vacancies of Direct Recruits of earlier years which were
filled by Promotees. The respondents are only asking for determination
of seniority list based on the roster as mandated by Rule 9(iii) of the IRS
Recruitment Rules. It is also contended that ante-jumping of later direct
recruit is not permissible in law, but pushing down of excess promotees
appointed in excess of their quota is a well settled law. Therefore, it is
urged that the rotational system of seniority which provides for pushing
down excess promotees is not in conflict with the assertion that Direct
Recruits of later batches cannot claim retrospective seniority. In
support of this contention the learned counsel has relied on the
judgment of Mervyn Coutindo & Ors vs Collector Of Customs, Bombay
& Ors, (1966) 3 SCR 600, and Suraj Parkash Gupta & Others vs. State
of J & K Others, (2000) 7 SCC 561.
55. The learned senior counsel also contended that since the
Promotees had been appointed in excess of their prescribed ceiling of
50% quota for promotion, thus, it is urged that the Promotees of 2001
and 2002 had been promoted on an ad hoc basis, therefore, they should
not be entitled to count their ad hoc service for computing the length of
continuous officiation for determination of their seniority. Hence it is
submitted that such ad hoc promotion should not be equated with
regular appointment by counting the same for seniority. Thus, the
Promotees who had been appointed against the vacancies in excess,
ought to have been pushed down to be adjusted against the quota of
their category during the subsequent years.
56. The learned counsel 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 case) wherein Rule 3(iii) of the Income Tax Officers (Class I)
Service (Regulation of Seniority) Rules 1973, which is similar to Rule
9(iii) of the IRS Rules 1988, was challenged questioning its validity and
fairness. According to the learned counsels for the respondents the non-
implementation of Rule 9(iii), the provisions of which had been held as
just and fair and non violative of Article 16 of the Indian Constitution, is
not only against the very principles laid down by the Constitutional
Bench of the Supreme Court, but also is violative of the statutory
provisions of the IRS Rules, 1988. It is further contended that the ratio
of the BS Gupta (supra) has been upheld by the Supreme Court in the
case of S.G Jaisinghani vs. Union of India and Ors., AIR 1967 SC 1427;
BS Gupta v. Union of India (BS Gupta 2nd case); 1975 (3) SCC 38,
Kamal Kanti Dutta & Ors. v. Union of India & Ors; 1980 (4) SCC 38 and
Hundraj Kanyalal Sajnani v. Union of Indian & Ors. 1990 (Suppl) SCC
577.
58. The learned counsel for the respondents has also argued that the
OM of DOPT dated 3.7.1986 is not applicable for the Indian Revenue
Service, since the same has been superseded by the IRS Rules, 1988. It
has been pointed out that OM dated 3.7.1986 is a consolidated order on
seniority which refers to another DOP&T OM No. 35014/2/80-Estt.(D)
dated 7.2.1986. Para 6 of the OM Dated 7.2.1986 clearly states that
"The General Principles of seniority issued on 22nd December, 1959,
referred to above, may be deemed to have been modified to that extent."
Therefore, it is contended that the OM dated 7.2.1986 has only the
modifying effect on its original OM dated 22.12.1959 and thus it would
only be applicable in the cases in which the OM dated 22.12.1959 is
applicable. In turn OM dated 22.12.1959 clarifies on the issue of its
applicability in para 1 wherein the following has been stated:
"These principles shall apply to the determination of
seniority in Central Civil Services and civil posts except
such services and posts for which separate principles have
already been issued or may be issued hereafter by
Government."
Therefore, the learned counsel for the respondents contended that
the said para makes it amply clear that it does not apply to the Indian
Revenue Service, for which statutory rules, i.e. the IRS Recruitment
Rules, 1988, are already in place, which lay down the principles for
determining 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. Thus it is contended that the petitioners ought to be
directed to comply with the directions of the Tribunal, which has been
issued after duly observing the IRS Rules, 1988, the Civil List and the
relevant facts and circumstances.
61. This Court has heard both the parties in detail and has also
perused the entire records pertaining to O.A. No. 1052/2010
comprising of the original application, the counter affidavit, the
additional affidavits as well as the Civil List of 2006 along with other
important documents incidental thereto. The records of other writ
petitions WP(C) 8017 of 2010 and WP(C) 7990 of 2010 have also been
perused.
62. It is not disputed that a complete cadre restructuring exercise,
was done in the year 2001, wherein various grades were given enhanced
sanctioned strength commencing from the grade of CCIT, CIT etc. At the
stage of the entry-level grade of IRS, 993 additional posts were made
out of which, as per Rule 7(2) of IRS Rules 1988, 50% of 993 i.e.497
was the share of the Promotees while the remaining 50% was the share
of the Direct Recruits. However by relaxation order dated 31-8-2001,
the share of Direct Recruits, was diverted to the quota of the Promotees,
in order to alleviate the stagnation in the feeder cadre.
63. It appears that the said relaxation order was not challenged by
any of the Direct Recruits either in OA No. 417/2005, Sanjay Punglia
(supra) or the impugned order of reference. Since the same has not
been challenged and over 11 years have elapsed since the said
relaxation had been effected, the validity of the same could not be
questioned, prima facie and it appears that the said relaxation order
has attained finality in law. In any case in view of the reference made to
the Tribunal, this question and other pleas and contentions ought to
have been determined by the Tribunal before directing the petitioners to
draw the seniority list, if the Civil List is not to be treated as seniority
list. Therefore, the validity of the relaxation order dated 31-8-2001 is
not to be assessed by this Court in exercise of its writ jurisdiction when
the same has not been determined by the Tribunal.
64. The dispute pertaining to the relaxation order dated 31-8-2001
with regard to its application and its consequence i.e. whether or not
the said relaxation order resulted in the relaxation of the Quota Rule
alone or whether by relaxing 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
reference has directed the petitioners to first draw the seniority list. The
dispute about the seniority of the promotees and direct recruits is
required to be sorted out in view of the contentions raised by the parties
and cannot be resolved by merely drawing the seniority list.
67. The Tribunal, larger Bench, had to answer whether Prabhakant
Ayodhya Prasad (supra) had correctly laid down the law or not.
Apparently the Tribunal has not answered it and has rather directed
the petitioners to draw the seniority list. In the circumstances the
contention of the respondents that the Tribunal in substance has
answered the reference cannot be accepted. If it has not been clarified
that along with `quota‟, the principle of `Rota‟ was also exempted or not,
drawing of seniority list would be a futile exercise. If the petitioners
draw the seniority lists without following the `rota‟, the direct recruits
would challenge it. If the petitioners draw the seniority list following the
`rota‟, the promotees would challenge it. Therefore, even if the Tribunal
was of the view that civil list cannot be construed as `seniority list‟, it
should have answered the reference before giving directions for
preparation of seniority list.
68. The question referred to the Larger Bench of the Tribunal by
order dated 16th September, 2010 has been reproduced above. Perusal
of the same makes it abundantly clear that the reference made to the
larger bench was to determine the correctness of the law laid down in
the case of Sanjay Punglia (supra) and the case of Prabhakant
Ayodhaya Prasad (supra) which are contrary to each other. Therefore, in
the circumstances it is imperative to determine whether or not when the
quota rule is relaxed, the relaxation of the rota rule will also follow or
not. The Tribunal primarily adjudicated on the issue of whether the
Civil List is to be treated as a seniority list or not and if not then what
would be the methodology apt in law to publish a seniority list. Though
a detailed order has been given by the larger bench, it is clear that,
instead of rendering a decision on the correctness of the law laid down
in the above mentioned two judgments, the Tribunal deemed it more
appropriate to direct the petitioners to draw a seniority list within a
period of two weeks. It further directed that the promotions already
effected by the DPC 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 226 of the Constitution of India
was dealt with by the Supreme Court in the matter of L Chandra Kumar
Vs Union of India, (1997) 3 SCC 261 holding that the Central
administrative tribunal will be the court of first instance in the areas of
law for which it was constituted. In para 93 of the said judgment it was
held by the Supreme Court that it will not be open for litigants to
directly approach the High Courts even in cases where they question
the vires of a statutory legislation by overlooking the jurisdiction of the
Tribunal except the legislation which creates the particular Tribunal is
challenged. The Supreme Court in L. Chandra Kumar (supra) at page
309 in para 93 had held as under :
93. Before moving on to other aspects, we may summarise
our conclusions on the jurisdictional powers of these
Tribunals. The Tribunals are competent to hear matters
where the vires of statutory provisions are questioned.
However, in discharging this duty, they cannot act as
substitutes for the High Courts and the Supreme Court
which have, under our constitutional set-up, been
specifically entrusted with such an obligation. Their
function in this respect is only supplementary and all
such decisions of the Tribunals will be subject to
scrutiny before a Division Bench of the respective High
Courts. The Tribunals will consequently also have the
power to test the vires of subordinate legislations and rules.
However, this power of the Tribunals will be subject to one
important exception. The Tribunals shall not entertain any
question regarding the vires of their parent statutes
following the settled principle that a Tribunal which is a
creature of an Act cannot declare that very Act to be
unconstitutional. In such cases alone, the High Court
concerned may be approached directly. All other decisions
of these Tribunals, rendered in cases that they are
specifically empowered to adjudicate upon by virtue of their
parent statutes, will also be subject to scrutiny before a
Division Bench of their respective High Courts. We may add
that the Tribunals will, however, continue to act as the only
courts of first instance in respect of the areas of law for
which they have been constituted. By this, we mean that it
will not be open for litigants to directly approach the High
Courts even in cases where they question the vires of
statutory legislations (except, as mentioned, where the
legislation 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 seniority list or not or can be
considered as Seniority list or not, the Tribunal has held that the Civil
List cannot be even construed as Seniority list. The petitioners assert
that the Civil List has served as the seniority list since the inception of
the IRS. The respondents have contended that the Civil List is not the
seniority list and have relied on the disclaimer in the preface of Civil
List which categorically states that it does not purport to be an
authentic for seniority and other particulars of the members of the
service. The Tribunal after taking into consideration the pleas and
contentions of both parties concluded that the Civil List is not seniority
list on the following grounds:
(i) That there was lack of a proper stand taken by the
petitioners before the Tribunal that the Civil List is the
Seniority List.
(ii)That the disclaimer contained in para 3 of the Civil List is
clearly reflective of the fact that the Civil List is not the
Seniority List.
(iii)That the opportunity of redressal provided by the Civil
List is unsatisfactory, since any correction would be effected
only after a new Civil List would be published, after the
lapse of one year.
74. Regarding the plea of the petitioners, it was observed that the
stand taken in the Counter Affidavit as well as the additional affidavit
was "rather an evasive reply". However a perusal of the said affidavit
clearly shows that it was far from evasive. In fact a very specific and
categorical stand was taken regarding the Civil List being the seniority
list in the affidavit dated 18th October, 2010. The plea of the petitioners
is as follows;
"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 QD Officers
from one grade to another. All the promotions made in the
cadre till now have been based on the inter se seniority
position of the officers indicated in the Civil List. Therefore,
it is an accepted position that the Civil List published by
the department from time to time is also used as the
seniority list for the purpose of consideration of the
promotions of the officers. The disclaimer on the first page
of the Civil List has been given as a measure of abundant
caution so as to indicate that in case of any dispute the
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 which has
been reproduced hereinabove. However it is imperative to note that the
said disclaimer had been duly explained by the petitioners on two
grounds. Firstly that the disclaimer was by way of abundant caution;
and secondly that the disclaimer is inherent in every seniority list for
the sole purpose that if the list contains an error, the member of the
Cadre who is affected by the error has a right to object to it. This is
particularly true given the fact that the Civil List also stipulates in para
2 of its preface that all the IRS Officers are given the opportunity to
represent against any discrepancy found in the said list. Therefore the
disclaimer referred to by the respondents and relied upon by the
Tribunal must be read as a whole which then would not lead to the
inference that the Civil List is not the Seniority List.
77. The Tribunal also concluded that in its view the Civil List only
amounted to a "Directory of the Officers" and that in case of any
discrepancy or mistake, "the redressal is not immediate". The Tribunal
further observed that any redressal would be corrected only after a
fresh list is published, which is after a lapse of one year. However as
has been vehemently argued by the learned counsel for the petitioners
on the basis of affidavit dated 7.12.2010 (along with Annexures A-1 to
A-7) it is clearly evident that the moment a change is required in the
Civil List, which operates as a seniority list, an Office Order is issued
and the placement of that officer is made with a S.No. with the alphabet
'A', to indicate the precise placement of the said officer. The petitioners
also provided an illustration by stating that, if say an officer is at S. No.
4 in the CIT grade, and pursuant to a redressal of the grievance by a
CAT Order, the said employee is assigned the rectified position of S. No.
84-A in the CCIT grade and is placed in between S. No. 84 and 85,
which becomes a normal whole number, once the next year's select list
is published. This plea of the petitioners has not been sufficiently
refuted by the respondents and therefore in the facts and
circumstances it cannot be held that the redressal and the opportunity
to represent against the same is not given to the officers of the IRS in
the said Civil List, which is one of the essential elements for
constituting a Seniority List.
78. By affidavit dated 7th December, 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 officers, whether Promotee or
Direct Recruits are bunched together and kept at the bottom of that
year. It has also been pleaded that the said Civil List has operated as a
Seniority List since the very inception of the IRS for promotions up to
the level of Chairman Central Board of Direct Taxes without any
objections from any member of the service, be it Direct Recruits or
Promotees. The learned counsel for the petitioners also drew our
attention to the fact that all the officers have been promoted to the next
level and higher levels on the basis of such lists and have since retired.
In the circumstances the direction of the Tribunal is not clear as to
whom the alleged draft seniority list is to be circulated. In any case, if
the Tribunals‟ directions are allowed then in effect it would lead to
unsettling the position for over 29 years which in turn would result in
the massive disruption of the administrative side of the Department.
80. On behalf of the petitioners it was also clarified that presently
there are no records available for the period prior to the year 1981.
However the seniority position of the officers in the cadre as on
01.01.1981 was examined and duly considered while preparing the IRS
Civil List of 1981, as a composite Seniority List of all grades in the IRS.
The learned ASG also pointed out that there are no records available
with the Department with respect to any separate and distinct seniority
list being used prior to 1981. Therefore, the respondent‟s contention
that there was Seniority List in the I.T. Department before is of no
consequence, especially when a Civil List which in itself is a seniority
list, as it has all the ingredients of seniority list, has been in operation
since 1981. It is also noteworthy that the respondents have not
produced any other seniority list in support of their assertions that the
Civil List is not the seniority list.
81. The respondents have also contended that the petitioners have
prepared fresh seniority List in the past on many occasions as is
evident in the cases of S.G. Jaisinghani (supra), B.S. Gupta (1st case)
(supra), B.S. Gupta (2nd case) (supra) and Union of India v. Vasant
Jayaram & Ors, (1970) 3 SCC 658. Thus it is pleaded that another
seniority list had been in operation at that time and thus it is clear that
the Civil List is not the seniority list. However, the learned ASG has
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
regularly, on an annual basis, which provided the officers their up to
date seniority position and a continuous/multiple opportunity for
pointing out discrepancy, if any, including with regard to their seniority
position.
82. It was also asserted that in the preface to the Civil List of 1982
(appearing at page-69 of the counter-reply) there is no disclaimer
whatsoever on the seniority aspect. Another pertinent fact is that, since
1981 i.e post IRS Civil List (annually), although there have been Court
cases with regard to seniority position reflected in the Civil List, there
has been no case claiming that the IRS Civil List is not being operated
as the Seniority List, except in the instant case. Thus, the learned ASG
has urged that the IRS Civil List has stood not only the test of time but
it is the seniority list, as it has all the ingredients of a seniority list and
in the circumstances the nomenclature and disclaimer, which has also
been satisfactorily explained by the petitioners, will not change its
character, format and its purpose.
83. The learned counsel for direct recruits are unable to explain that
if the Civil List is not the Seniority list how the seniority had been
determined since the inception of the IRS up until now. It is also
pointed out by the petitioners that uptil now there was no dispute
regarding the Civil List being the Seniority List since 1981. It is for the
first time only now that the same is being questioned.
84. The respondents, direct recruits, have not been able to rebut the
plea of the petitioners that even their own promotions had been effected
by their position in the Civil List. The respondents have merely
contended that the plea that even their promotions have been effected
as per their position on the Civil List is a grave misrepresentation of
facts. How it is grave misrepresentation of facts has not been answered
by the respondents, direct recruits.
85. It has been also contended on behalf of the respondents that the
ACITs are promoted to DCITs only by their having completed the
requisite minimum number of years of service in a particular
cadre/scale. It has also been contended that the promotion from the
post of ACITs to DCITs does not involve any selection process and no
formal DPC is constituted by involving UPSC for holding promotions.
Thus it is asserted that the Civil List was not the basis of their
promotion. 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 the respondents as well.
86. It is also imperative to note that only the respondents who
comprise of a few Direct Recruits out of 3600 IRS Officers in the service,
have assailed the IRS Civil List as not being a seniority list and that too
after the lapse of so many years since the inception of the IRS. Thus,
their plea that the Civil List which has operated since 1981 and no
other seniority list has been produced by them has to be repelled and
cannot be accepted.
87. During the hearing, the Civil List was placed before this Court
and the petitioners have cited many individual examples to show that
any change on account of either Government orders, notifications or the
orders passed by the Tribunal in the past have been incorporated in the
Civil List. The allegation that the Civil List is only a Directory of the
officers as contended by the respondents, is also negated by the fact
that the Direct Recruits and the Promotees have been matched in the
ratio of 1:1, except when the excess Promotees of a particular batch had
been bunched up before the subsequent batch of Direct Recruits and
promotees.
88. In the rejoinder filed by the petitioner dated 25th January, 2011
before this Court, the petitioners have highlighted the essentials or
characteristics of a seniority list which cannot be refuted by the
respondents, direct recruits. The relevant portion of the rejoinder is as
follows:
"c) CHARACTERISTICS OF A SENIORITY LIST
That as a matter of fact, the tests for finding out as to
whether a list of officers is a Seniority list or not, existence
or otherwise, of following characteristics will have to be
ascertained:-
i) Whether the list shows Name, Serial Number, Post occupied
and other relevant details of members of the service.
ii) Whether the list has been prepared taking into account
Rota-Quota Rules, as stipulated in the Recruitment Rules.
iii) Whether such a list has been understood and accepted as a
Seniority list, by a majority of members of the service.
iv) Whether the said list is used by DPC for recommending
promotions to the higher grades in the service.
v) Whether as a result of Court‟s directions, members of the
service have been assigned a higher or lower position in the
seniority assigned or on any other criteria, in such list.
89. The above characteristics would render a particular list as a
Seniority list and distinguish 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 seniority list. If the plea of the respondents regarding
applicability of the rota would succeed, they would be entitled for
amendment and modification in the Civil List in accordance with law
and rules. The other discrepancies in the draft Civil List of 2011 which
are not pertaining to the grievances raised by the respondents, they will
be corrected, if required in accordance with rules and regulations. The
discrepancies, if any, are to be rectified by representing against the
same through the proper channel as prescribed by the Rules, but such
discrepancies will not change the character of the Seniority list.
91. The learned counsel for the respondents, direct recruits, have
failed to point out any ingredient of seniority list which is not present in
the Civil List. If the parameters of seniority list are, say three, and the
Civil List has more parameters which are required to determine the
seniority, it will not lose the character of seniority list. Therefore, for the
foregoing reasons the findings of the Tribunal that the Civil List is not
the Seniority list cannot be accepted and is erroneous and is liable to be
set aside. The Civil List is the Seniority List and has been used as
seniority list since 1981 and can continue to be used as seniority list in
future also. The petitioners are, however, required to correct it as and
when any errors are established in it.
92. Therefore, the decision of the Tribunal that the Civil List is not
the seniority list is erroneous and it is set aside. The Civil List is
directed to be taken as seniority list as has been taken since 1981. The
discrepancies or errors, if any, in the civil list are liable to be corrected
at the instance of appropriate officers in accordance with the rules and
regulations and the law laid down by the Courts.
93. Consequently, the decision of the Tribunal to prepare a fresh
seniority list after inviting objections from the concerned persons is set
aside. If any officer will have any objection to his placement in the Civil
List, he would be entitled to make representation to the petitioners who
will consider the same and shall carry out the modification or
amendment in the Civil List/seniority list in accordance with the rules
and regulations and the law laid down by the Courts
94. The Tribunal by impugned order dated 2nd November, 2010 has
also granted stay against the promotions recommended 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
by the said DPC.
96. It has been disclosed that the last officer considered by the DPC
which was held on 23rd September, 2010 for promotion from the grade
of DCIT to JCIT was Sri Samporana Nand who is a promotee of the
2001 batch and is placed at Sl. No. 743 in the List of 2006. First direct
recruit officer of the 2002 batch is placed at Sl. No. 849 of the same IRS
List.
97. By affidavit dated 20th October, 2010 which has been referred to
hereinabove, the petitioners have also highlighted that 164 vacancies
would still remain after the promotion pursuant to recommendation
consequent to the DPC held on 20th to 23rd September, 2010. The
figures as given by the petitioners are as under:
A. Total number of vacancies in the grade of JCIT
Reported to the DPC for the vacancy year 2010-11 : 503
B. Total number of eligible DCIT (including those officers
In whose case minimum eligible service has been
Relaxed by one year as on 01.01.2010
Available for consideration : 385
C. Number of officers out of (B) above, who have
Retired or expired, upto 30.09.2010 : 046
D. Maximum number of officers available for
Promotion if found fit by the DPC (B-C) : 339
Thus the number of vacancies in the grade of JCIT which would
still remain unfilled would be above 164. Thus the number of vacancies
in the grade of JCIT as on date are far in excess to the number of
officers now available for promotion and therefore, even after promotion
of eligible officers considered by DPC held on 23rd September, 2010,
vacancy in the grade of JCIT will still be available. In the circumstances
the respondents, direct recruits, promotional rights and prospects will
be adversely affected 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.
98. In the circumstances the inconvenience to those officers who have
been recommended for promotion to the grade of JCIT shall be much
more, in case the recommendation is not implemented till the
finalization of the seniority list till after the decision of reference made
to the Tribunal. If that be so, the balance of convenience in the facts
and circumstances is in favour of those promotee officers whose cases
have been recommended by the DPC held on 23rd September, 2010.
Though the Tribunal by the 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, implementation of the
recommendations of the said DPC shall be subject to the outcome of the
reference which is to be decided by the Tribunal and drawing up of the
seniority of promotees and the direct recruits on the basis of the same.
99. Therefore, in the facts and circumstances and for the foregoing
reasons, the impugned order dated 2nd November, 2010 in O.A No. 1052
of 2010 and M.A Nos. 2410, 2415, 2427, 2428, 2562 and 2594 of 2010
titled Vikas Keraba Suryawanshi & ors Vs Union of India & ors
impugned by the petitioners in WP (C) 8018 of 2010 titled as Union of
India and ors. Vs Vikash Keraba Suryawanshi & ors is set aside. It is
held that the Civil List operated by the petitioners is the seniority list for
the officers of IRS Department and it will be liable to be
amended/modified according to the reference which is to be decided by
the Tribunal. The Tribunal is directed to decide the reference made to it
as expeditiously as possible in the facts and circumstances of the case.
In the meanwhile the petitioners shall be entitled to implement the
recommendations of the DPC held on 20th September, 2010 to 23rd
September, 2010 subject to outcome of the reference to be decided by
the Tribunal. All the pending application in the said petition being WP
(C) 8018 of 2010 are also disposed of. The writ petition 8017 of 2010
titled Sanjay Pandey & ors Vs Union of India is also allowed in terms of
the order passed in WP(C) 8018 of 2010 and the recommendation of
DPC held on 20.09.2010 to 23.09.2010 be implemented by the
petitioners subject to outcome of the reference which is to be answered
and decided by the Tribunal. The writ petition 7990 of 2010 titled
S.K.Mehra & ors Vs Union of India is also disposed of in terms of the
order passed in WP(C) 8018 of 2010. The Union of India & ors are
directed to give the petitioners in the said writ petition all the
consequential benefits subject to outcome of the reference which is to
be answered and decided by the Tribunal. Considering the facts and
circumstances, the parties in the above noted writ petitions are left to
bear their own costs.
ANIL KUMAR J.
July 6, 2012. VEENA BIRBAL J.
„vk‟
