Karnataka High Court

Inturi Rama Rao vs Government Of India on 6 May, 2022

Bench: P.S.Dinesh Kumar, M G Uma

                                   W.P No.51545/2019
                                 C/W W.P. No.868/2021


                          1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 6TH DAY OF MAY, 2022

                      PRESENT

     THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                        AND
         THE HON'BLE MRS. JUSTICE M.G. UMA

         WRIT PETITION No.51545 OF 2019
                       C/W
       WRIT PETITION No.868 OF 2021 (S-CAT)

IN W.P. No.51545 OF 2019

BETWEEN :

1.     GOVERNMENT OF INDIA
       REP. BY ITS SECRETARY
       MINISTRY OF LAW AND JUSTICE
       DEPARTMENT OF LEGAL AFFAIRS
       4TH FLOOR, A-WING
       SHASTRI BHAWAN
       NEW DELHI-110 001

2.     THE PRESIDENT
       INCOME TAX APPELLATE TRIBUNAL
       11TH FLOOR, LOK NAYAK BHAWAN
       KHAN MARKET
       NEW DELHI-110 003

3.     THE DEPARTMENT OF PERSONNEL
       AND TRAINING
       GOVERNMENT OF INDIA
       NORTH BLOCK
       CENTRAL SECRETARIAT
                                      W.P No.51545/2019
                                   C/W W.P. No.868/2021


                         2
     NEW DELHI-110 001
     REP. BY SECRETARY                  ... PETITIONERS

(BY SHRI. M.B. NARAGUND, ASG A/W
    SHRI. M.N. KUMAR, CGSC)

AND :

SRI. INTURI RAMA RAO
S/O LATE INTURI SUBBA RAO
AGED ABOUT 53 YEARS
OCC: ACCOUNTANT MEMBER
INCOME TAX APPELLATE TRIBUNAL
SECOND AND THIRD FLOOR
GOLDEN JUBILEE BUILDING, FKCCI
KEMPEGOWDA ROAD
BENGALURU-560 009
RESIDING AT FLAT NO.604
BLOCK-1, NAGARJUNA MEADOWS
PHASE-II, DODDABALLAPURA MAIN ROAD
YELAHANKA
BENGALURU-560 064                  ... RESPONDENT

(BY SHRI. CHALLA KODANDARAM, SENIOR ADVOCATE FOR
    SMT. KRISHMA NEDUNGADI, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE JUDGMENT AND ORDER DATED 20.03.2019
MADE IN ORIGINAL APPLICATION NO.170/00238/2018, BY
THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL,
BANGALORE BENCH AT ANNX-A.

IN W.P. No.868 OF 2021

BETWEEN :

INTURI RAMA RAO
S/O LATE INTURI SUBBA RAO
AGED ABOUT 53 YEARS
E-601, EKTA CALIFORNIA SOCIETY
                                      W.P No.51545/2019
                                   C/W W.P. No.868/2021


                         3
NIBM-UNDRI ROAD,UNDRI
MAHARASTRA                              ... PETITIONER

(BY SHRI. CHALLA KODANDARAM, SENIOR ADVOCATE FOR
    SMT. KRISHMA NEDUNGADI, ADVOCATE)

AND :

1.   GOVERNMENT OF INDIA
     REP. BY ITS SECRETARY
     MINISTRY OF LAW AND JUSTICE
     DEPARTMENT OF LEGAL AFFAIRS
     4TH FLOOR, A-WING
     SHASTRI BHAWAN
     NEW DELHI-110 001

2.   THE PRESIDENT
     INCOME TAX APPELLATE TRIBUNAL
     11TH FLOOR, LOK NAYAK BHAWAN
     KHAN MARKET
     NEW DELHI-110 003

3.   THE DEPARTMENT OF PERSONNEL
     AND TRAINING
     GOVERNMENT OF INDIA
     NORTH BLOCK
     CENTRAL SECRETARIAT
     NEW DELHI-110 001
     REP. BY SECRETARY                 ... RESPONDENTS

(BY SHRI. M.B. NARAGUND, ASG A/W
    SHRI. M.N. KUMAR, CGSC)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
1) ISSUE A WRIT OF CERTIORARI OR ORDER OR DIRECTION
QUASHING THE ORDERS DATED 20.03.2019 ANNEXURE F
AND ANNEXURE G DATED 03.12.2019 PASSED IN THE
ORIGINAL APPLICATION NO. 170/00238/2018 AND M.A.
NO.170/00605/2019 IN O.A. NO.170/00238/2018 BY THE
LEARNED     CENTRAL     ADMINISTRATIVE     TRIBUNAL,
BENGALORE BENCH TO THE EXTENT OF THE DIRECTION
THAT THE NAME OF THE PETITIONER SHALL BE PLACED IN
THE NEXT POSITION AFTER THE LAST PERSON APPOINTED
                                                 W.P No.51545/2019
                                              C/W W.P. No.868/2021


                                      4
IN THE SENIORITY LIST PERTAINING TO THE SELECT LIST
DATED 22.09.2005, DULY DECLARING THAT THE DIRECTION
TO THE SAID EXTENT AS ILLEGAL. 2. DIRECT THE
RESPONDENTS TO PLACE THE NAME OF THE PETITIONER IN
THE SENIORITY LIST OF THE MEMBERS OF THE INCOME TAX
APPELLATE TRIBUNAL BETWEEN SL.NO.32 AND 33 AND
3. GRANT OTHER CONSEQUENTIAL BENEFITS AND PASS ANY
OTHER ORDER OR DIRECTION.

     THESE WRIT PETITIONS, HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 19.04.2022 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, P.S.DINESH
KUMAR. J, PRONOUNCED THE FOLLOWING:-

                               ORDER

Government of India, Ministry of Law and

Justice and the applicant before the CAT have filed

these writ petitions challenging the orders dated

March 20, 2019 passed by the CAT1 in O.A.

No.170/00238/2018 and M.A. No.170/00605/2019.

2. For the sake of convenience, parties

shall be referred as per their status in the CAT.

3. We have heard Shri. M.B.Nargund,

learned Addl. Solicitor General, Shri. Chella

Kodandaram, learned Senior Advocate.

Central Administrative Tribunal W.P No.51545/2019 C/W W.P. No.868/2021

4. Brief facts of the case are, Government

of India, Ministry of Law and Justice, Department of

Legal Affairs, vide Notification dated January 22,

2005, invited applications for 22 posts of Members

to Income Tax Appellate Tribunal2 throughout India.

The Selection Board recommended 18 candidates in

the main list consisting of 7 candidates for the post

of judicial members and 11 candidates for the post

of Accountant Member. Two candidates each for

Judicial Member and Accountant Member were

placed in the wait-list. Applicant was one of the

wait-listed candidates for the post of Accountant

Member. The same was placed before the

Appointment Committee of the Union Cabinet. The

Cabinet approved all 16 appointments of

Accountant Members and instructed the Law

Ministry to amend the recruitment rules for making

further appointments to the ITAT.

ITAT W.P No.51545/2019 C/W W.P. No.868/2021

5. The Revenue Bar Association filed W.P.

No.8288/2007 before Madras High Court, seeking a

direction to implement the Select List dated

22.09.2005 and the Madras High Court issued the

said direction. The said order was challenged in

SLP(C)No. 13681/2007 and the same was

dismissed vide order dated August 17, 2007.

6. Applicant and another wait-listed

candidate Shri. B. Krishna Mohan approached the

CAT, Hyderabad and another candidate by name

Shri. P.K. Kedia, wait-listed for Accountant Member

also filed an O.A. before CAT, Mumbai. All three

cases were heard by the CAT, Principal Bench, Delhi

and a direction was issued to consider their cases

against vacant posts in ITAT. The said order was

challenged before the Delhi High Court contending

inter alia that their cases would be considered after

recruitment rules were amended as suggested by W.P No.51545/2019 C/W W.P. No.868/2021

the ACC . The Delhi High Court rejected the said

contention and directed that the three wait-listed

candidates be appointed as Members of the ITAT.

The order passed by the Delhi High Court was

challenged in Civil Appeal No.6567-6569/2010. The

Hon'ble Supreme Court of India allowed the said

appeals and set-aside the order passed by the CAT

and Delhi High Court.

7. The applicant found that without

amending the Rules, appointments were being

made to the post of Member, ITAT. He filed a writ

petition under Article 32 of the Constitution of India

registered as W.P.(C) No.202/2013. The Hon'ble

Supreme Court of India allowed the said writ

petition and directed consideration of applicant's

case within 30 days from the date of disposal. The

applicant was appointed on March 13, 2005 with

effect from April 9, 2015.

Appointment Committee of the Cabinet W.P No.51545/2019 C/W W.P. No.868/2021

8. Applicant submitted several

representations to consider his notional seniority

and consequential benefits from the date of the

Select List i.e., September 22, 2005 and the same

were not considered. Applicant filed the instant

O.A. No. 238/2018 before CAT, Bengaluru with a

prayer inter alia to direct the respondents therein to

consider his representations and to restore his

seniority with consequential benefits. The CAT vide

order passed in the O.A., has held that the

applicant is eligible to be kept in the seniority and

he shall be placed in the select position after the

last person was appointed in the Selection List.

Thereafter, applicant filed a Misc. application

seeking a clarification that petitioner's name shall

be placed in the Select List dated 22.09.2005

between Shri. Vijay Paul Rao, Judicial Member and

Shri. George George K., Judicial Member and to fix

the pay with effect from October 2007, on notional W.P No.51545/2019 C/W W.P. No.868/2021

basis. The said Misc. application has been disposed

of with a clarification that applicant would be

eligible to be considered in the first list of selection

and the seniority benefits would be granted except

the salary for the period which he had not worked.

9. Shri. M.B. Naragund, learned Additional

Solicitor General submitted that:

• the CAT failed to notice that applicant was not

in the Select List of 22.09.2005, but he was in

the wait-list;

• the applicant was appointed as Accountant

Member on March 13, 2015. As per Sub-Rule

(1) of Rule 10 of the Recruitment Rules,

applicant has no right to claim refixation of

seniority and consequential benefits from

August 31, 2007, on which day, the ACC

approved the appointment of 16 candidates in

the Select List.

W.P No.51545/2019 C/W W.P. No.868/2021

10. In substance, the learned ASG has

argued that applicant was appointed in 2015 and

therefore, he is not entitled for the seniority and

other benefits from the date of approval of the

Select List.

11. Shri. Chella Kodandaram, learned Senior

Advocate submitted that the applicant's case has

been decided in W.P.(C) No.202/2013 by the

Hon'ble Supreme Court of India. He submitted that

Rule 10 of ITAT Member (Recruitment and

Conditions of Service) Rules, 1963, provides for

fixation of Seniority as per the date of appointment.

However, applicant had been deprived of the

appointment against a clear vacancy. He has been

appointed as per the directions of the Apex Court

against the General category vacancy. Therefore,

applicant is entitled for his seniority. In support of W.P No.51545/2019 C/W W.P. No.868/2021

his contention, he has relied upon para 3 in Ms.

Neelima Shangla Vs. State of Haryana and others4.

12. We have carefully considered rival

contentions and perused the records.

13. Undisputed facts of the case are,

applicant's candidature was kept in the wait-list. His

specific case is that though the ACC had directed to

amend the 1963 Rules, respondents were making

appointments to the post of Member, ITAT. Hence,

he filed a writ petition under Article 32 of the

Constitution of India. A copy of the order in W.P.(C)

No.202/2013 dated September 23, 2014 is placed

on record as Annexure-A4. The prayer made in the

said writ petition is, inter alia for a direction against

Union of India and others to appoint applicant as an

Accountant Member of ITAT in lieu of selections

already made and/or to issue appropriate order for

(1986)4 SCC 268 W.P No.51545/2019 C/W W.P. No.868/2021

enforcement of its order dated September 17, 2009

in SLP (C) 13681/2011. The operative portion of

the order of the Apex Court reads as follows:

"We, therefore, allow this writ petition and

direct consideration of the case of the petitioner for

appointment on the basis of his position in the

Waiting List against one of the two vacancies that

had arisen on account of two of the candidates in

the merit list not having been granted the vigilance

clearance. This will be done by the concerned

Authority within 30 days from the date of receipt of

a copy of this order.

The writ petition shall stand disposed of in

the above terms."

(Emphasis Supplied)

14. Thus, it is clear that the direction by the

Apex Court is for consideration of applicant's case

for appointment on the basis of his position in the

wait-list. The said direction has been complied

with. This means, applicant ought to have been

appointed by operating the wait-list. If that is done, W.P No.51545/2019 C/W W.P. No.868/2021

he is entitled to be placed at the end of the list of

candidates in the Select List who have joined the

service.

15. Shri. Chella Kondandaram is right in his

submission that applicant's case has been decided

by the Apex Court.

16. In the facts and circumstances of this

case and the clear directions of the Apex Court in

W.P.(C) 202/2013, the elaborate arguments

advanced by the learned Addl. Solicitor General

with reference to Rule 10 are unnecessary. Once

applicant has been appointed pursuant to the

directions of the Apex Court, 'in his position in the

waiting list', he shall be entitled for consideration of

notional seniority and other consequential benefits.