“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 7514-7515 OF 2005
Union of India & Ors. …. Appellants
Versus
N.R. Parmar & Ors. …. Respondents
WITH
CIVIL APPEAL Nos. 3876-3880 of 2007
Mukund Lal & Anr. …. Appellants
Versus
Pritpal Singh & Ors. …. Respondents
WITH
CIVIL APPEAL No. 7516 OF 2005
Virendra Kumar & Ors. …. Appellants
Versus
Union of India & Ors. …. Respondents
WITH
T.C. (C) No. 91 OF 2006
Pritpal Singh & Ors. …. Petitioners
Versus
Union of India & Ors. …. Respondents
WITH
TRANSFER CASE No......2012
(Arising out of T.P. (C) No. 681 OF 2006
Union of India & Ors. …. Petitioners
Versus
R.K. Bothra & Ors. …. Respondents
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. The present controversy is a dispute of inter se seniority between
Income Tax Inspectors of the Income Tax Department. Direct recruits and
promotees are pitted on opposite sides.
2. One of the matters in hand came to be considered by the Central
Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred
to as “the CAT, Ahmedabad”) in R.C. Yadav & Ors. vs. Union of India & Ors.
(OA no.92 of 2003). The said Original Application had been filed by direct
recruits. Another Original Application, on the same subject matter, being
OA no.123 of 2003 (N.R. Parmar & Ors. vs. Union of India & Ors.) was filed
by promotees. Both the OA no.92 of 2003 and OA no.123 of 2003 were decided
by a common order dated 12.1.2004. In its determination the CAT, Ahmedabad
held, that seniority of direct recruits would have to be determined with
reference to the date of their actual appointment. The implicit effect of
the aforesaid determination was, that the date of arising of the direct
recruit vacancies, or the date of initiation of the process of recruitment,
or the date when the Staff Selection Commission had made recommendations
for the filling up direct recruit vacancies, were inconsequential for
determination of seniority of direct recruits.
3. The decision rendered by the CAT, Ahmedabad dated 12.1.2004 was
assailed before the High Court of Gujarat at Ahmedabad (hereinafter
referred to as “the Gujarat High Court”), in Union of India & Ors. vs. N.R.
Parma & Ors. (Special Civil Appeal no.3574 of 2004). Direct recruits
separately filed Special Civil Application no.1512 of 2004 (Virender Kumar
& Ors. vs. Union of India & Ors.). The Gujarat High Court by its order
dated 17.8.2004, upheld the order of the CAT, Ahmedabad, dated 12.1.2004.
4. The Union of India assailed the order passed by the Gujarat High
Court dated 17.8.2004 before this Court, through Civil Appeal nos.7514-7515
of 2005 (Union of India & Ors. vs. N.R. Parmar & Ors.). Direct recruits
have also separately raised a challenge to the order passed by the Gujarat
High Court dated 17.8.2004, by filing Civil Appeal No.7516 of 2005
(Virender Kumar & Ors. vs. Union of India & Ors.).
5. On the same subject, an identical controversy was raised before the
Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter
referred to as “the CAT, Principal Bench”). After a series of legal
battles between the rivals, i.e., promotee Income Tax Inspectors and direct
recruit Income Tax Inspectors (details whereof are being narrated at a
later juncture), the CAT, Principal Bench passed an order dated 22.9.2004.
The aforesaid order of the CAT, Principal Bench was assailed by direct
recruit Income Tax Inspectors by filing Writ Petition (C) nos.3446-49 of
2005 before the Delhi High Court.
6. In Writ Petition (C) nos.3446-49 of 2005 a Division Bench of the
Delhi High Court on 2.3.2005, while issuing notice, had stayed the impugned
order passed by the CAT, Principal Bench dated 22.9.2004. Mukund Lal (one
of the applicants in OA no.2107 of 2003, Mahender Pratap & Ors. vs. Union
of India & Ors.), respondent no.9 in Writ Petition (C) nos.3446-49 of 2005,
filed an application for vacation of the interim order passed by the Delhi
High Court dated 2.3.2005 (whereby the order of the CAT, Principal Bench
dated 22.9.2004 had been stayed). Since the application was not disposed
of by the Delhi High Court within the time frame expressed in Article
226(3) of the Constitution of India, Mukund Lal aforesaid, approached this
Court to assail the order dated 2.3.2005 by filing Civil Appeal nos.3876-
3880 of 2007. Since the subject matter of the controversy in the aforesaid
writ petitions was identical to the one raised in Civil Appeal nos.7514-
7515 of 2005 (Union of India & Ors. vs. N.R. Parma & Ors.) and Civil Appeal
no.7516 of 2005 (Virender Kumar & Ors. vs. Union of India & Ors.), the said
writ petitions were transferred to be heard with the Civil Appeals referred
to hereinabove. On transfer to this Court, the aforesaid writ petitions
were re-numbered as Transferred Case (C) No.91 of 2006 (Pritpal Singh &
Ors. vs. Union of India & Ors.).
7. OA no.270 of 2002 (R.K. Bothra & Ors. vs. Union of India & Ors.), OA
no.271 of 2002 (G.R. Chalana & Ors. vs. Union of India & Ors.), OA no.275
of 2002 (Bhanwar Lal Soni & Ors. vs. Union of India & Ors.), OA no.293 of
2002 (Ranjeet Singh Rathore & Ors. vs. Union of India & Ors.), were filed
by promotee Income Tax Inspectors before the Central Administrative
Tribunal, Jodhpur Bench, Jodhpur (hereinafter referred to as “the CAT,
Jodhpur”), to assail the seniority-list wherein direct recruit Income Tax
Inspectors, though appointed later, were placed higher in the seniority-
list, i.e., above promotee Income Tax Inspectors, merely because they
occupied vacancies of earlier years. The CAT, Jodhpur allowed the claim of
the promotee Income Tax Inspectors by a common order dated 8.9.2003. The
order passed by the CAT, Jodhpur dated 8.9.2003 was assailed before the
High Court of Judicature for Rajasthan at Jodhpur (hereinafter referred to
as “the Rajasthan High Court”) by filing four writ petitions (DBC WP
no.785 of 2004, Union of India & Ors. vs. R.K. Bothra & Ors.; DBC WP no.786
of 2004, Union of India & Ors. vs. Banwari Lal Soni & Ors; DBC WP no.787 of
2004, Union of India & Ors. vs. Giriraj Prasad Sharma & Ors; DBC WP no.788
of 2004, Union of India & Ors. vs. G.R. Chalana & Ors.). The petitioners
in the aforesaid writ petitions before the Rajasthan High Court (i.e.,
Union of India) filed Transfer Petition (C) no.681 of 2006 under Article
139A(1) of the Constitution of India, seeking the transfer of the aforesaid
writ petitions to this Court by asserting that the controversy raised
therein was identical to the one pending adjudication before this Court in
the Civil Appeals already mentioned above. Accordingly Transfer Petition
(C) no.681 of 2006 was ordered to be tagged with Civil Appeal nos.7514-7515
of 2005 (and other connected matters).
8. Learned counsel for the rival parties are agreed, that the legal
issue involved in all the matters, referred to hereinabove which are tagged
together for disposal, is the same. During the course of hearing
submissions came to be advanced first of all in Transferred Case no.91 of
2006. As such, the facts recorded in the said case have been adverted to
while passing the instant judgment.
9. Appointment to the cadre of Income Tax Inspectors in the Income-Tax
Department is made by way of promotion, as also, by direct recruitment in
the ratio of 2:1 respectively, i.e., 66-2/3 by promotion and 33-1/3 by
direct recruitment. The controversy in TC (C) no.91 of 2006 pertains to
vacancies for the year 1993-94. The vacancies for the year 1993-94 which
were identified to be filled up by way of promotion were referred to the
Departmental Promotion Committee (hereinafter referred to as “the DPC”),
whereas, those identified to be filled up by direct recruitment, were
simultaneously referred to the Staff Selection Commission (hereinafter
referred to as “the SSC”).
10. Based on the recommendations made by the DPC, the Income-tax
Department promoted five persons from the feeder cadre(s) (respondents 5,
7, 8, 10 and 11) as Income Tax Inspectors on 30.8.1993. A day later, on
1.9.1993, one more person (respondent no.6) was similarly promoted as
Income Tax Inspector. Thereafter on 14.12.1993 yet another promotion (of
respondent no.9) was ordered, in the same manner. Likewise, respondent
no.12 was promoted as Income Tax Inspector on 8.9.1995. It is essential to
emphasize, that all these promotions were ordered against promotee
vacancies, identified for the year 1993-94.
11. On the receipt of a requisition pertaining to the post of Income Tax
Inspectors from the Income Tax Department, the SSC issued advertisements in
May/June, 1993, inviting applications for appointment by way of direct
recruitment, against vacancies of Income Tax Inspectors of the year 1993-
94. To fill up these vacancies, the SSC held the Inspectors of Central
Excise and Income Tax Examination, 1993. All the petitioners in TC (C)
no.91 of 2006 responded to the aforesaid advertisement. The said
petitioners, were in the first instance, subjected to a written test
conducted by the SSC in December, 1993. Thereafter, those who qualified
the written examination, were invited for an interview/viva-voce. All the
petitioners appeared for the viva-voce test conducted in October 1994. On
21/28.1.1995 the SSC declared the result of the Inspectors of Central
Excise and Income-Tax Examination, 1993. The names of the petitioners in
TC (C) no.91 of 2006, figured in the list of successful candidates. After
verification of their character and antecedents, and after they were
subjected to a medical fitness examination, the petitioners in TC (C) no.91
of 2006 were issued offers of appointment as Income Tax Inspectors in the
Department of Income Tax. All the petitioners joined the cadre of Income
Tax Inspectors between March and May, 1995.
12. In the interregnum, some promotee Income Tax Inspectors were promoted
to the next higher post of Income Tax Officer. Certain direct recruits who
considered themselves senior to the promoted Income Tax Officers,
approached the CAT, Principal Bench, seeking consideration for promotion to
the cadre of Income Tax Officers, from the date their juniors were promoted
as such. Reference in this behalf may be made to two Original Applications
being K.C. Arora & Ors. vs. Union of India & Ors (OA no.1478 of 1995) and
J.S. Tanwar & Ors. vs. Union of India & Ors. (OA no.1899 of 1995). In the
pleadings of the aforesaid two original applications, it was acknowledged
by the official-respondents, that the impugned promotions in the aforesaid
two original applications, had been made on purely adhoc basis, as the
seniority list of the cadre of Income Tax Inspectors had not by then been
finalized. It was also mentioned therein, that after the seniority-list is
finalized, the official-respondents would review the promotions already
made, and if necessary, a review DPC would also be convened. During the
pendency of the aforesaid two original applications, the Income Tax
Department issued a seniority list of the cadre of Income Tax Inspectors on
8.2.1999. The aforesaid factual-position was brought to the notice of the
CAT, Principal Bench, whereupon, the aforesaid two original applications
came to be disposed of with the following directions on 8.9.1999:
“6. In the result, both the OAs are disposed of as follows:
1. As admitted in the counter reply mentioned above and in
view of the seniority list dt.8.2.1999 the official respondents
are directed to make promotions strictly in terms of the
seniority list dt.8.2.1999. They must arrange a review DPC to
consider the claim of the applicants for promotion. In case,
the applicants are found fit and suitable for promotion by the
review DPC then on the basis of the said seniority list, the
applicants shall be granted promotion from the date their
juniors got promotion. The applicants should get seniority over
the juniors in case they are found suitable for promotion.
However, the applicants will not be entitled to any monetary
benefits. In such a case, the applicants’ pay may be fixed
notionally from the dates of their deemed retrospective
promotion. However, the applicants will not be entitled to any
actual arrears of monetary benefits till the date of actual
order of promotion. The actual monetary benefits are
prospective, only from the date of order of promotion and
consequent date of assuming charge.
2. In the circumstances of the case, the official respondents
are granted three months time from the date of receipt of copy
of this order to comply with these directions.
3. In the circumstances of the case, there will be no order
as to costs.”
On 10.9.1999 a clarificatory order was passed by the CAT, Principal Bench.
A relevant extract, of the aforesaid clarificatory order, is being
reproduced hereunder:
“2. But, on reconsideration and on second thought, we feel that
there is no necessity to allow this M.A. and to recall our order
dt.8.9.99 for the simple reason that our order will not prejudice the
case of the private respondents in any way. What we have stated in
our order dt.8.9.1999 is that the official respondents should strictly
enforce the seniority list dt.8.2.99 and then on that basis hold
review DPC and consider the claim of the applicants for promotion.
This order we have passed on the basis of the admission made by the
official respondents in their reply. Now, the private respondents are
contending that the seniority list dt.8.2.1999 has been challenged by
the applicants in OA 676/99 and other cases and there is a stay order
granted by the Delhi High Court in C.W. No.3468/99 staying the
official respondents holding a review DPC on the basis of the impugned
seniority list dt.8.2.1999.
3. We may place it on record that we have not considered the
correctness and legality of the impugned seniority list dt.8.2.1999.
We have simply directed the administration to follow the latest
seniority list as admitted by the official respondents in their reply.
We may also place it on record that we have not expressed any opinion
on the correctness or legality of the seniority list dt.8.2.1999. We
have simply directed the Administration to follow the latest seniority
list which they have issued and considers the case of the applicants
for promotion. If the seniority list itself is in dispute and its
correctness is challenged by other officials, then naturally the
department will not be able to take any decision unless the seniority
list is upheld by the Tribunal. If there is any such stay order
granted by any Tribunal or High Court, then naturally our direction in
our order dt.8.9.1999 will be subject to such directions or stay
orders passed by any Tribunal or any High Court. We also place on
record that we have not expressed any opinion whether the promotion of
private respondents was regular or ad-hoc, but only referred to the
contentions in the reply statement without giving a finding on that
point. If the private respondents feel that their promotions were
regular, then it is for them to take up the stand whenever that
occasion arises. But, we have not given any finding on that disputed
question of fact. In view of this clarifications issued by us, there
is no necessity to allow the M.A. or recall our order dt.8.9.1999.
4. In the result, the M.A. No.1938/99 is disposed of subject to
above observations. No order as to costs.”
13. Some direct recruits again approached the CAT, Principal Bench by
filing Original Application no.2307 of 1999 (Sanjeev Mahajan & Ors. vs.
Union of India & Ors.) alleging, that while drawing the seniority list
dated 8.2.1999, the Department of Income Tax had not applied the “quota”
and “rota” principle. On 23.2.2000, the CAT, Principal Bench disposed of
OA no.2307 of 1999, and other connected original applications (Krishan
Kanahiya & Ors. vs. Union of India, OA No.676 of 1999; H.P.S Kharab & Ors.
vs. Union of India & Ors., OA no.387 of 1999; Muneesh Rajani & Ors. vs.
Union of India & Ors., OA no.964 of 1999) by a common order. In paragraph
7 of its order the CAT, Principal Bench, narrated the issues which came up
for its determination as under:
“7. The short question which is posed for our consideration is as to
what is the precise date on which direct recruits can be considered
for seniority vis-à-vis the promotees. Whether it is (i) the date on
which the vacancies have arisen; (ii) the date when the same have been
notified by the department by sending requisitions to the Staff
Selection Commission; (iii) the date on which selection by the
Commission is made; (iv) the date when the selection is reported to
the department; or (v) the date on which the direct recruit actually
assumes office.”
During the course of hearing of the aforementioned original applications,
it was acknowledged by the rival parties, that the questions under
consideration had to be determined with reference to instructions contained
in two office memoranda dated 7.2.1986 and 3.7.1986, issued by the
Department of Personnel & Training (hereinafter referred to as the “DoPT”).
Based on the aforesaid office memoranda, the CAT, Principal Bench, vide
its order dated 23.2.2000 quashed the seniority-list dated 8.2.1999 by
holding as under:
“8. In our judgment, for deciding the aforesaid controversy a
reference to the office memorandum of 7.2.1986 may usefully be made.
In the earlier O.M. it has inter alia been provided as under:
…..the relative seniority of direct recruits and promotees
shall be determined according to rotation of vacancies between
the direct recruits and the promotees, which will be based on
the quota of vacancies reserved for direct recruitment and
promotion respectively in the Recruitment Rules……
……….the present practice of keeping vacant slots for being
filled up by direct recruits of later years, thereby giving them
unintended seniority over promotees who are already in position,
would be dispensed with.
Thus, if adequate number of direct recruits do not become
available in any particular year, rotation of quotas for the
purpose of determining seniority would take place only to the
extent of the available direct recruits and the promotees. In
other words, to the extent direct recruits are not available,
the promotees will be bunched together at the bottom of the
seniority list below the last position upto which it is possible
to determine seniority, on the basis of rotation of quotas with
reference to the actual number of direct recruits who become
available. The unfilled direct recruitment quota vacancies
would, however, be carried forward and added to the
corresponding direct recruitment vacancies of the next year (and
to subsequent years where necessary) for taking action for
direct recruitment for the total number according to the usual
practice. Thereafter, in the year while seniority will be
determined between direct recruits and promotees, to the extent
of the number of vacancies for direct recruits and promotees as
determined according to the quota for the year, the additional
direct recruits selected against the carried forward vacancies
of the previous year would be placed on en bloc below the last
promotee for direct recruit (as the case may be), in the
seniority list based on the rotation of vacancies for the year.
The same principle holds good for determining seniority in the
event of carry forward, if any, of direct recruitment or
promotion quota vacancies (as the case may be) in the subsequent
years.
ILLUSTRATION:
Where the Recruitment Rules provide 50% of the vacancies
of grade to be filled by promotion and the remaining 50% by
direct recruitment, and assuming there are ten vacancies in the
grade arising in each of the years 1986 and 1987 and that two
vacancies intended for direct recruitment, remain unfilled
during 1986 and they could be filled during 1987. The seniority
position of the promotees and direct recruits of these two years
will be as under:
1986 1987
1. P1 9. P1
2. D1 10. D1
3. P2 11. P2
4. D2 12. D2
5. P3 13. P3
6. D3 14. D3
7. P4 15. P4
8. P5 16. D4
17. P5
18. D5
19. D6
20. D7
It is not necessary to make a reference to the subsequent office
memorandum of 3.7.1986 as the same is nothing but a repetition of the
instructions contained in the office memorandum dated 7.2.1986.
9. We have heard the learned counsel appearing for the contending
parties at considerable length and we are of the view that as far as
inter se seniority is concerned, the same has to be based on the
vacancies arising for a particular year. Thereafter, the seniority
has to be determined on the basis of rota quota rule which has been
illustrated in the aforesaid illustration contained in the O.M. of
7.2.1986. As far as direct recruits are concerned, the crucial date
on which they have to be considered will be the date when the Staff
Selection Commission makes the selection of direct recruits. Hence
the date of forwarding the dossier of direct recruits by the
Commission to the department, date of actual joining or taking over
charge by the direct recruit would all be irrelevant. It would be the
date on which the Staff Selection Commission makes the selection of
the direct recruits that will be the material date for fixing the
seniority. This would avoid injustice being done on account of
administrative delays, i.e., delay in matter of issue of orders of
appointment and posting and of actual taking over of charge. Similar
will be the position in regard to promotees. It will be the date on
which the promotee is selected for promotion by the departmental
promotion committee. Hence the date on which the promotee actually
assumes charge of the promotional post similarly will be relevant.
The seniority list which is impugned in the present proceedings, it
appears, has not followed the instructions which we are not issuing in
the present order.
10. In the circumstances, the said seniority list is hereby quashed
and set aside. Respondent no.3 is directed to recast the seniority
list on the basis of directions contained in this order. The present
order will also apply to seniority list of UDCs which is the subject
matter of OA No.676/1999.
11. All the OAs stand disposed of on the above lines. There shall,
however, be no order as to costs.”
14. Direct recruit Income Tax Inspectors, assailed the interpretation
placed by the CAT, Principal Bench, on the office memorandum dated 7.2.1986
(in its order dated 23.2.2000), by filing a number of writ petitions (Civil
Writ Petition No.460 of 2000, Sanjiv Mahajan & Ors. vs. Union of India &
Ors; Civil Writ Petition No.670 of 2002, Pankaj Saxena vs. Union of India &
Ors.; Civil Writ Petition No.7356 of 2000, Chief Commissioner of Income Tax
vs. Sanjiv Mahajan & Ors; Civil Writ Petition No.5549 of 2001, Kamal Khanna
& Ors. vs. Union of India & Ors.) before the Delhi High Court. The
aforesaid writ petitions were disposed of by the Delhi High Court by a
common order dated 25.9.2002, whereby, the order dated 23.2.2000 passed by
the CAT, Principal Bench, was set aside with the following observations:
“23. Having regard to the fact that the judgment of the learned
Tribunal is absolutely cryptic and no cogent or valid reason has been
assigned in support thereof, and as the contentions raised before the
Tribunal as also before us have not been considered at all, we are of
the opinion that for determination of the crucial questions where for,
it may be necessary, for the parties to adduce further evidence, the
matter may be remitted back to the learned Tribunal for consideration
of the matter afresh and the parties may bring on record such other or
further materials as may be directed by the learned Tribunal. The
impugned judgment is, therefore, set aside. However, having regard to
the facts and circumstances of the case, we would request the learned
Tribunal to consider the desirability of disposing of the matter as
expeditiously as possible.
These writ petitions are disposed of with the aforementioned
observations and directions without any order as to costs.”
15. Consequently, the matters referred to above went back to the CAT,
Principal Bench for re-adjudication. During their pendency before the CAT,
Principal Bench, an additional affidavit dated 12.3.2003 was jointly filed
by the official-respondents. In the aforesaid additional affidavit it
was, inter alia, pleaded as under:
“Para 4
(a) ….. …..
(b) The respondent has since obtained the advice of the Central
Board of Direct Taxes and the Deptt. of Personnel and Training which
is the nodal Ministry for promulgation and monitoring of the relevant
rules and regulations, issuing Office Memorandums and the
clarifications thereof. Based on the advice of the DOP&T there has
been a change in the stand taken by the respondent before this Hon’ble
Tribunal and as such, an application for amendment was made before the
Hon’ble Delhi High Court which allowed the application and has also
taken note of the same in its judgment dt.25.9.2002. In view of the
revised position, the seniority list dt.8.2.1999 was not in conformity
with the clarifications provided by the DoP&T with reference to its
O.M. Dt.7.2.1986 and 2.7.1986. Relevant extracts based on the DoP&T’s
O.M. dt.7.2.1986 and 3.7.1986 and the clarifications furnished by that
department which formed part of the application for amendment of the
writ petition which was filed before the Hon’ble Delhi High Court is
annexed (Annexure R-1).
(c) to (q) ….. …..”
The applicants before the CAT, Principal Bench were direct recruits. They
were satisfied with the latest position adopted by the official respondents
before the CAT, Principal Bench through the additional affidavit dated
12.3.2003. They therefore, chose not to press their applications any
further. The CAT, Principal Bench passed the following order on 26.4.2003:
“Learned counsel for the applicants, keeping in view the amended reply
dated 12.3.2003, does not press the present application.
Accordingly, the OA is dismissed as withdrawn.”
16. The Income Tax Department thereupon, issued another seniority list of
Income Tax Inspectors, dated 17.7.2003, by following the “quota” and “rota”
principle prescribed in the office memoranda dated 7.2.1986 and 3.7.1986.
The aforesaid seniority-list was assailed by promotee Income Tax Inspectors
before the CAT, Principal Bench, through OA no.2068 of 2003 (C.P.S. Yadav &
Anr. vs. Union of India & Ors.), OA no.2107 of 2003 (Mahender Pratap & Ors.
vs. Union of India & Ors.), OA No.124 of 2004 (S.K. Puri-II & Anr. vs.
Union of India & Ors.). The CAT, Principal Bench, by a common order dated
22.9.2004 allowed the claim preferred by the promotee Income Tax Officers,
and as such, quashed the seniority list dated 17.7.2003. The direct
recruit Income Tax Inspectors, who were respondents in the original
applications referred to above, assailed the order passed by the CAT,
Principal Bench, dated 22.9.2004, before the Delhi High Court by filing
Writ Petition (C) No.3446-49 of 2005 (Pritpal Singh & Ors. vs. Union of
India & Ors.). As already mentioned hereinabove, the aforesaid writ
petitions were transferred to this Court and assigned TC (C) no.91 of 2006.
17. During the course of hearing, learned counsel for the rival parties
agreed, that the seniority dispute between the promotee and direct recruit
Income Tax Inspectors of the Income Tax Department was liable to be
determined on the basis of office memoranda dated 7.2.1986 and 3.7.1986,
read with the clarificatory office memoranda and office notes. It is
important to notice, before embarking upon the claim of the rival parties,
that none of the parties have assailed the vires of the office memoranda
dated 7.2.1986 and 3.7.1986 (or for that matter, the clarificatory office
memoranda/office notes). It is therefore apparent, that the dispute
between the rival parties is nothing but, the true and correct
interpretation of the office memoranda dated 7.2.1986 and 3.7.1986, read
with clarificatory office memoranda and office notes. It is therefore,
that the matter in hand is being examined in the light of the aforesaid
office memoranda.
18. General principles for determining seniority in Central services are
shown to have been laid down in an annexure to an office memorandum dated
22.11.1959 issued by the Government of India, Ministry of Home Affairs
(hereinafter referred to as “the OM dated 22.11.1959”). Paragraph 6 of the
annexure, referred to above, laid down the manner of determining inter se
seniority between direct recruits and promotees. Paragraph 6 is being
extracted hereunder:
“6. Relative seniority of Direct Recruits and Promotees.
The relative seniority of direct recruits and of promotees shall be
determined according to the rotation of vacancies between direct
recruits and promotees which shall be based on the quotas of vacancies
reserved for direct recruitment and promotion respectively in the
Department Rules.”
It is apparent from the above extract of the OM dated 22.11.1959, that the
“quota” between promotees and direct recruits was to be read into the
seniority rule. The OM also provided for a definite rotation of seniority
points (“rota”) between promotees and direct recruits. The rotation
provided for was founded on the concept of rotation of quotas between
promotees and direct recruits. It is therefore apparent, that under the OM
dated 22.11.1959 inter se seniority between the promotees and direct
recruits was based on the “quota” and “rota” principle. The same has been
meaningfully described as “rotation of quotas” in some of these
instruments.
19. The aforesaid prescription of the manner of determining inter se
seniority between the direct recruits and promotees, determined through the
OM dated 22.11.1959, was modified by an office memorandum dated 7.2.1986,
issued by the Government of India, Department of Personnel and Training
(hereinafter referred to as, “the OM dated 7.2.1986”). The modification
introduced through the OM dated 7.2.1986 was to redress a situation
wherein, vacancies of one of the sources were kept (or remained) unfilled
during the process of selection, and the unfilled vacancies, had to be
filled up through “later” examinations or selections. For the
determination of seniority, in the contingency wherein the process of
recruitment resulted in filling the vacancies earmarked for the two sources
of recruitment, the manner of determining inter se seniority between
promotees and direct recruits, expressed in the OM dated 22.11.1959
remained unaltered. But where the vacancies could not be filled up, and
unfilled vacancies had to be filled up “later” through a subsequent
process of selection, the manner of determining inter se seniority between
promotees and direct recruits, was modified.
20. Since it is the case of the rival parties before us, that the OM
dated 7.2.1986 is the principal instruction, on the basis whereof the
present controversy is to be settled, the same is being extracted hereunder
in its entirety.
“The 7 February, 1986.
Office Memorandum
Subject: General Principles for determining the seniority of various
categories of persons employed in Central Services.
As the Ministry of Finance etc. are aware, the General Principles for
determination of seniority in the Central Services are contained in
the Annexure to Ministry of Home Affairs O.M. No. 9/11/55-RPS dated
22nd December 1959. According to Paragraph-6 of the said Annexure, the
relative seniority of direct recruits and promotees shall be
determined according to rotation of vacancies between the direct
recruits and the promotees, which will be based on the quota of
vacancies reserved for direct recruitment and promotion respectively
in the Recruitment Rules. In the Explanatory Memorandum to these
Principles, it has been stated that a roster is required to be
maintained based on the reservation of vacancies for direct
recruitment and promotion in the Recruitment Rules. Thus where
appointment to a grade is to be made 50% by direct recruitment and 50%
by promotion from a lower grade, the inter-se seniority of direct
recruits and promotees is determined on 1:1 basis.
2. While the above mentioned principle was working satisfactorily in
cases where direct recruitment and promotion kept pace with each other
and recruitment could also be made to the full extent of the quotas as
prescribed, in cases where there was delay in direct recruitment or
promotion, or where enough number of direct recruits or promotees did
not become available, there was difficulty in determining seniority.
In such cases, the practice followed at present is that the slots
meant for direct recruits or promotees, which could not be filled up,
were left vacant, and when direct recruits or promotees became
available through later examinations or selections, such persons
occupied the vacant slots, thereby became senior to persons who were
already working in the grade on regular basis. In some cases, where
there was short-fall in direct recruitment in two or more consecutive
years, this resulted in direct recruits of later years taking
seniority over some of the promotees with fairly long years of regular
service already to their credit. This matter had also come up for
consideration in various Court Cases both before the High Courts and
the Supreme Court and in several cases the relevant judgement had
brought out the inappropriateness of direct recruits of later years
becoming senior to promotees with long years of service.
3. This matter, which was also discussed in the National Council has
been engaging the attention of the Government for quite some time and
it has been decided that in future, while the principle of rotation of
quotas will still be followed for determining the inter-se seniority
of direct recruits and promotees, the present practice of keeping
vacant slots for being filled up by direct recruits of later years,
thereby giving them unitended seniority over promotees who are already
in position, would be dispensed with. Thus, if adequate number of
direct recruits do not become available in any particular year,
rotation of quotas for purpose of determining seniority would take
place only to the extent of the available direct recruits and the
promotees. In other words, to the extent direct recruits are not
available, the promotees will be bunched together at the bottom of the
seniority list, below the last position upto which it is possible to
determine seniority on the basis of rotation of quotas with reference
to the actual number of direct recruits who become available. The
unfilled direct recruitment quota vacancies would, however, be carried
forward and added to the corresponding direct recruitment vacancies of
the next year (and to subsequent years where necessary) for taking
action for direct recruitment for the total number according to the
usual practice. Thereafter, in that year while seniority will be
determined between direct recruits and promotees, to the extent of the
number of vacancies for direct recruits and promotees as determined
according to the quota for that year, the additional direct recruits
selected against the carried forward vacancies of the previous year
would be placed en-bloc below the last promotee (or direct recruit as
the case may be) in the seniority list based on the rotation of
vacancies for that year. The same principle holds good in determining
seniority in the event of carry forward, if any, of direct recruitment
or promotion quota vacancies (as the case may be) in the subsequent
years.
Illustration:
Where the Recruitment Rules provide 50% of the vacancies in a
grade to be filled by promotion and the remaining 50% by direct
recruitment, and assuming there are 10 vacancies in the grade
arising in each of the years 1986 and 1987 and that 2 vacancies
intended for direct recruitment remained unfilled during 1986
and they could be filled during 1987, the seniority position of
the promotees and direct recruits of these two years will be as
under:
1986 1987
1. P1 9. P1
2. D1 10. D1
3. P2 11. P2
4. D2 12. D2
5. P3 13. P3
6. D3 14. D3
7. P4 15. P4
8. P5 16. D4
17. P5
18. D5
19. D6
20. D7
4. In order to help the appointing authorities in determining the
number of vacancies to be filled during a year under each of the
methods of recruitment prescribed, a Vacancy Register giving a running
account of the vacancies arising and being filled from year to year
may be maintained in the proforma enclosed.
5. With a view to curbing any tendency of under-reporting/suppressing
the vacancies to be notified to the concerned authorities for direct
recruitment, it is clarified 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 quotas 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 only as ad-
hoc promotees.
6. The General Principles of seniority issued on 22nd December, 1959
referred to above, may be deemed to have been modified to that extent.
7. These orders shall take effect from 1st March 1986. Seniority
already determined in accordance with the existing principles on the
date of issue of these orders will not be reopened. In respect of
vacancies for which recruitment action has already been taken, on the
date of issue of these orders either by way of direct recruitment or
promotion, seniority will continue to be determined in accordance with
the principle in force prior to the issue of this O.M.
8. Ministry of Finance etc. are requested to bring these instructions
to the notice of all the Attached/Subordinate Offices under them to
whom the General Principles of Seniority contained in O.M. dated
22.12.1959 are applicable within 2 week as these orders will be
effective from the next month.
Sd/- Joint Secretary to the Govt. of India”
(emphasis is ours)
Since the OM dated 7.2.1986 would primarily constitute the determination of
the present controversy, it is considered just and appropriate to render an
analysis thereof. The following conclusions are apparent to us, from a
close examination of the OM dated 7.2.1986:
(a) Paragraph 2 of the OM dated 7.2.1986 first records the existing
manner of determining inter se seniority between direct recruits and
promotees (i.e., as contemplated by the OM dated 22.11.1959), namely, “…the
slots meant for direct recruits or promotees, which could not be filled up,
were left vacant, and when direct recruits or promotees become available
through later examinations or selections, such persons occupied the vacant
slots, (and) thereby became senior to persons who were already working in
the grade on regular basis. In some cases, where there was shortfall in
direct recruitment in two or more consecutive years, this resulted in
direct recruits of later years taking seniority over some of the promotees
with fairly long years of regular service to their credit….”. The words,
“when direct recruits or promotees become available through later
examination or selections”, clearly connotes, that the situation
contemplated is one where, there has been an earlier examination or
selection, and is then followed by a “later” examination or selection. It
is implicit, that in the earlier examination or selection there was a
shortfall, in as much as, the available vacancies for the concerned
recruitment year could not all be filled up, whereupon, further
examination(s) or selection(s) had to be conducted to make up for the
shortfall. In the instant situation, the earlier OM dated 22.11.1959
contemplated/provided, that slots allotted to a prescribed source of
recruitment which remained vacant, would be filled up only from the source
for which the vacancy was reserved, irrespective of the fact that a
candidate from the source in question became available in the next process
of examination or selection, or even thereafter. In other words the
“rotation of quotas” principle was given effect to in letter and spirit
under the OM dated 22.11.1959, without any scope of relaxation.
(b) The position expressed in the sub-paragraph (a) above, was sought to
be modified by the OM dated 7.2.1986, by providing in paragraph 3 thereof,
that the earlier “…principle of rotation of quotas would still be followed
for determining the inter se seniority of direct recruits and promotees…”
except when the direct recruit vacancies were being “… filled up by direct
recruits of later years…”. Read in conjunction with paragraph 2 of the OM
dated 7.2.1986, the words “…direct recruits of later years…” must be
understood to mean, direct recruits who became available through “later”
examination(s) or selection(s). Essentially the “later” examination(s) or
selection(s) should be perceived as those conducted to fill up the carried
forward vacancies, i.e., vacancies which could not be filled up, when the
examination or selection for the concerned recruitment year was
originally/ first conducted. This change it was clarified, was made to
stop direct recruits of “later” years, from gaining “…unintended seniority
over promotees who are already in position…”, as High Courts and the
Supreme Court had “…brought out the inappropriateness…” thereof. It is
therefore apparent, that the OM dated 7.2.1986 partially modified the
“rotation of quotas” principle in the determination of inter se seniority
originally expressed in the OM dated 22.11.1959. The OM dated 7.2.1986,
provided that the “rota” (rotation of quotas) would be adhered to “…only to
the extent of available direct recruits and promotees…”, i.e., for promotee
and direct recruit vacancies which could be filled up through the
original/first process of examination or selection conducted for the
recruitment year in which the vacancies had arisen.
(c) For the vacancies remaining unfilled when the same were
originally/first sought to be filled up, the slots available under the
“rota” principle under the OM dated 22.11.1959, would be lost to the extent
of the shortfall. In other words, the “rotation of quotas” principle would
stop operating after, “…the last position upto which it is (was) possible
to determine seniority on the basis of rotation of quotas…”, for the
concerned recruitment year.
(d) Paragraph 3 of the OM dated 7.2.1986 provided, the manner of
assigning seniority to vacancies carried forward on account of their having
remained unfilled in the original/first examination or selection process.
The change contemplated in the OM dated 7.2.1986, referred to hereinabove,
was made absolutely unambiguous by expressing that, “The unfilled direct
quota vacancies would …be carried forwarded and added to the corresponding
direct recruitment vacancies of the next year.….”. It is therefore
apparent, that seniority of carried forward vacancies would be determined
with reference to vacancies of the recruitment year wherein their selection
was made, i.e., for which the “later” examination or selection was
conducted.
(e) The OM dated 7.2.1986 formulated the stratagem to be followed, where
adequate number of vacancies in a recruitment year could not be filled up,
through the examination or selection conducted therefor. The OM provided,
“…to the extent direct recruits are not available, the promotees will be
bunched together at the bottom of the seniority list, below the last
position upto which it is (was) possible to determine the seniority on the
basis of rotation of quotas with reference to the actual number of direct
recruits who become available...”.
(f) Paragraph 3 of the OM dated 7.2.1986 further postulated, that the
modification contemplated therein would be applied prospectively, and that,
“…the present practice of keeping vacant slots for being filled up by
direct recruits of later years, …over promotees who are (were) already in
position, would be dispensed with…”. It is therefore apparent, that the
slots assigned to a particular source of recruitment, would be relevant for
determining inter se seniority between promotees and direct recruits, to
the extent the vacancies could successfully be filled up (and the unfilled
slots would be lost) only for vacancies which arose after the OM dated
7.2.1986, came to be issued.
(g) The illustration provided in paragraph 3 of the OM dated 7.2.1986
fully substantiates the analysis of the OM dated 7.2.1986 recorded in the
foregoing sub-paragraphs. In fact, the conclusions drawn in the foregoing
sub-paragraphs have been drawn, keeping in mind the explanatory
illustration narrated in paragraph 3 of the OM dated 7.2.1986.
(h) In paragraph 6 of the OM dated 7.2.1986 it was asserted, that the
general principles for determining seniority in the OM dated 22.11.1959
were being “modified” to the extent expressed (in the OM dated 7.2.1986).
The extent of modification contemplated by the OM dated 7.2.1986 has
already been delineated in the foregoing sub-paragraphs. Para 6 therefore
leaves no room for any doubt, that the OM dated 22.11.1959 stood “amended”
by the OM dated 7.2.1986 on the issue of determination of inter se
seniority between direct recruits and promotees, to the extent mentioned in
the preceding sub-paragraphs. The said amendment was consciously carried
out by the Department of Personnel and Training, with the object of
remedying the inappropriateness of direct recruits of “later”
examination(s) or selection(s) becoming senior to promotees with long years
of service, in terms of the OM dated 22.11.1959.
21. The O.M. dated 7.2.1986, was followed by another Office Memorandum
issued by the Government of India, Department of Personnel and Training,
dated 3.7.1986 (hereinafter referred to as, “the O.M. dated 3.7.1986”).
The purpose of the instant O.M., as the subject thereof suggests, was to
“consolidate” existing governmental orders on the subject of seniority.
Paragraphs 2.4.1 to 2.4.4 of the O.M. dated 3.7.1986 dealt with the issue
of inter se seniority between the direct recruits and promotees. The same
are accordingly being reproduced hereunder:-
“2.4.1 The relative seniority of direct recruits and of promotees
shall be determined according to the rotation of vacancies
between direct recruits and promotees which shall be based on
the quota of vacancies reserved for direct recruitment and
promotion respectively in the Recruitment Rules.
2.4.2 If adequate number of direct recruits do not become available in
any particular year, rotation of quotas for the purpose of
determining seniority would take place only to the extent of the
available direct recruits and the promotees.
In other words, to the extent direct recruits are not available
the promotees will be bunched together at the bottom of the
seniority list below the last position upto which it is possible
to determine seniority, on the basis of rotation of quotas with
reference to the actual number of direct recruits who become
available. The unfilled direct recruitment quota vacancies
would, however, be carried forward and added to the
corresponding direct recruitment vacancies of the next year (and
to subsequent years where necessary) for taking action for
direct recruitment for the total number according to the usual
practice. Thereafter in that year while seniority will be
determined between direct recruits and promotees, to the extent
of the number of vacancies for direct recruits and promotees as
determined according to the quota for that year, the additional,
direct recruits selected against the carried forward vacancies
of the previous year would be placed en-bloc below the last
promotee (or direct recruit as the case may be), in the
seniority list based on the rotation of vacancies for that year.
The same principle holds good for determining seniority in the
event of carry forward, if any, of direct recruitment or
promotion quota vacancies (as the case may be) in the subsequent
year.
ILLUSTRATION: Where the Recruitment Rules provide 50% of the
vacancies of a grade to be filled by promotion and the remaining
50% by direct recruitment, and a assuming there are ten
vacancies in the grade arising in each of the year 1986 and 1987
and that two vacancies intended for direct recruitment remain
unfilled during 1986 and they could be filled during 1987, the
seniority position of the promotees and direct recruits of these
two years will be as under:
1986 1987
1. P1 9. P1
2. D1 10. D1
3. P2 11. P2
4. D2 12. D2
5. P3 13. P3
6. D3 14. D3
7. P4 15. P4
8. P5 16. D4
17. P5
18. D5
19. D6
20. D7
2.4.3 In order to help the appointing authorities in determining
the number of vacancies to be filled during a year under each of
the methods of recruitment prescribed, a Vacancy Register giving
a running account of the vacancies arising and being filled from
year to year may be maintained in the proforma enclosed.
2.4.4 With a view to curbing any tendency of under-
reporting/suppressing the vacancies to be notified to the
concerned authorities for direct recruitment, it is clarified
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 quotas prescribed in
the relevant recruitment rules. Excess promotees, if any,
exceeding the share failing to the promotion quota based on the
corresponding figure, notified for direct recruitment would be
treated only as ad-hoc promotees.”
(emphasis is ours)
The following conclusions have been drawn by us from the O.M. dated
3.7.1986:-
(a) If adequate number of direct recruits (or promotees) do not become
available in any particular year, “rotation of quotas” for the purpose of
determining seniority, would stop after the available direct recruits and
promotees are assigned their slots for the concerned recruitment year.
(b) To the extent direct recruits were not available for the concerned
recruitment year, the promotees would be bunched together at the bottom of
the seniority list, below the last position upto which it was possible to
determine seniority, on the basis of rotation of quotas. And vice versa.
(c) The unfilled direct recruitment quota vacancies for a recruitment
year, would be carried forward to the corresponding direct recruitment
vacancies of the next year (and to subsequent years, where necessary). And
vice versa. In this behalf, it is necessary to understand two distinct
phrases used in the OM dated 3.7.1986. Firstly, the phrase “in that year”
which connotes the recruitment year for which specific vacancies are
earmarked. And secondly, the phrase “in the subsequent year”, which
connotes carried forward vacancies, filled in addition to, vacancies
earmarked for a subsequent recruitment year.
(d) The additional direct recruits selected, against the carried forward
vacancies of the previous year, would be placed en-bloc below the last
promotee. And vice versa.
It is, therefore, apparent, that the position expressed in the O.Ms. dated
7.2.1986 and 3.7.1986, on the subject of inter se seniority between direct
recruits and promotees, was absolutely identical. This is indeed how it
was intended, because the OM dated 3.7.1986 was only meant to “consolidate”
existing governmental instructions, on the subject of seniority.
22. Chronologically, it is necessary, at the present juncture to refer to
an Office Note of the Department of Personnel and Training, Establishment
(D) Section, dated 20.12.1999 (hereinafter referred to as, “the O.N. dated
20.12.1999”). Undoubtedly, an office note has no legal sanction, and as
such, is not enforceable in law. Yet an office note is certainly relevant
for determining the logic and process of reasoning which prevailed at the
relevant point of time. These would aid in the interpretation of the
binding office memoranda, only when the language of the office memoranda is
ambiguous. Ofcourse, only where there is no conflict between the two i.e.,
the office note and the office memoranda sought to be interpreted. In the
aforesaid background, and for the aforesaid limited purpose, reference is
being made to the O.N. dated 20.12.1999. The same is being reproduced
hereunder:-
“Department of Personnel and Training
Estt.(D) Section
Ref. Preceding notes.
It is not clear whether the instructions contained in our O.M.
dated 07.02.1986 has been interpreted correctly. It is clarified that
on a perusal of our O.M. dated 22.12.1959 read with our O.M. dated
07.02.1986 it will be clear that the inter-se seniority of direct
recruits and promotees will have to be fixed by following the
principle of rotation of quotas prescribed for them in the recruitment
rules subject to the condition that the rotation as per quota will be
made only upto the actual number of DRs/Promotees available and to the
extent direct recruits/promotees do not become available in any
recruitment year the promotees or the direct recruits as the case may
be will be bunched together at the bottom of the seniority list. In
other words, only where appointing authority has not been able to fill
up the post inspite of best efforts with reference to the requisition
for the particular recruitment year in question, the instructions
contained in O.M. dated 07.02.1986 will come into operation as will
be clear from para 5 thereof. For example, if the quota in the Rrs
and DR and promotee is fifty-fifty and if the UPSC has recommended
only 2 DRs against the three vacancies of a particular recruitment
year, say 1987 for which requisition was sent to them in 1987 and even
if both the DRs had joined in 1988 the inter-se seniority of DRs and
promotees may be fixed in the ratio of 1:1 upto the number of DRs
available i.e. the first four places in the seniority list will be
assigned alternatively to DR and promotee, the 5th in the seniority
list which would have normally gone to DR will not go to the promotee
because of the non-availability of DR and the 6th will in any case go
to promotee. But for the instructions contained in our O.M. dated
07.02.1986, the 5th place would have been kept reserved for the DR as
and when it is actually filled by DR, even if it takes a few years.
However, after the issue of our O.M. dated 07.02.1986, it is no longer
kept vacant but is assigned to the promotee who is available. It is
not necessary that the DR for 1987 vacancy should join in 1987 itself.
It would suffice if action has been initiated for 1987 DR vacancies in
1987 itself. This is because, in a case of direct recruitment, if the
administrative action in filling up the post by DR takes more than a
year or so the individual cannot be held responsible for such
administrative delay and hence it would not be appropriate to deprive
him of his due seniority for delay on the part of administration in
completing his selection by direct recruitment. In fact ordinarily the
process of direct recruitment takes more than a year to be completed
and if DR is to join in the same year for getting seniority of that
year then no DR will get seniority of the same year because as already
stated the DR process takes more than a year. Hence, as already stated
initiation of action for recruitment in sufficient.
It is not clear whether our O.M. of 07.02.1986 has been
interpreted correctly on the above line by the Deptt. of Revenue.
Hence the above position may be suitably incorporated in the para-wise
comments prepared by them and it may be modified accordingly. Subject
to this, the parawise comments appear to be generally in order. It is
however for the Department of Revenue to ensure the correctness of the
factual position mentioned therein.
Deptt. of Revenue may please see.
Sd/-
(K. Muthu Kumar)
Under Secretary
3357/DIR E 1/99
20/12
Dir (E-1)
The clarification given above needs to be adhered to as we have been
consistently advising on the aforesaid lines. Any other
interpretation of the relevant instructions would be illogical.
Sd/-
DIR (E-1)
21.12.99”
(emphasis is ours)
The logic and the process of reasoning, emerging from the O.N. dated
20.12.1999, as they appear to us, are analysed below:-
(a) Only where the appointing authority has not been able to fill up the
vacancies earmarked for direct recruits/promotees, with reference to the
requisition for a particular recruitment year, inspite of its best efforts,
the instructions contained in O.M. dated 7.2.1986 will come into operation.
(b) It is not necessary, that the direct recruits for vacancies of a
particular recruitment year, should join within the recruitment year
(during which the vacancies had arisen) itself. As such, the date of
joining would not be a relevant factor for determining seniority of direct
recruits. It would suffice if action has been initiated for direct recruit
vacancies, within the recruitment year in which the vacancies had become
available. This is so, because delay in administrative action, it was
felt, could not deprive an individual of his due seniority. As such,
initiation of action for recruitment within the recruitment year would be
sufficient to assign seniority to the concerned appointees in terms of the
“rotation of quotas” principle, so as to arrange them with other appointees
(from the alternative source), for vacancies of the same recruitment year.
23. Following the ON dated 20.12.1999, the Department of Personnel and
Training, Establishment (D) Section, examined the issue in yet another
Office Note dated 2.2.2000 (hereinafter referred to as “the ON dated
2.2.2000”). Just like the earlier ON dated 20.12.1999, the instant ON
dated 2.2.2000 also has no legal sanction, and as such, is not enforceable
in law. But just like the earlier office note, the instant ON dated
2.2.2000 would also be relevant in determining the logic and process of
reasoning which prevailed at the relevant point of time. This would aid in
the interpretation of binding office memoranda, only where the language is
ambiguous, and only if there is no conflict between the two (the office
note and the office memoranda, sought to be interpreted). In the aforesaid
background, and for the aforesaid limited purpose, reference is also being
made to the ON dated 2.2.2000. The same is being extracted hereunder:
“ Department of Personnel & Training
Estt. (D) Section
Notes from p.17/ante may please be seen with reference to our
earlier note on Pp.9-10 ante.
With reference to ‘X’ on p.18 and ‘Y’ on p.19/ante, it will be
clear from our note on Pp.9-10/ante that if action for the Recruitment
Year 1986-1987 has been initiated at any time during that Recruitment
Year even if the exam is held in 1988 and the results are declared in
1989 and the candidate join only in 1990, since the action for
recruitment was initiated in 1986-1987 itself merely because the
process of recruitment took so long for which the candidates cannot be
blamed and since the responsibility for the delay in completing the
process of recruitment squarely lies with the administration, it would
not be appropriate to deprive the candidates of their due seniority of
1986-87. Consequently, if action was initiated during the Recruitment
Year 1986-1987 even if it culminates in the joining by the selected
candidates only in 1990, they will get seniority of 1986-1987. This
applies equally to DRs as well as promotees. In other words, if such
DRs of 1986-1987 ultimately join in 1990 yet they will be rotated with
promotees of 1986-87.
As regards point (1) on page 19/N, it is clarified that
“initiation of action for recruitment/initiation of recruitment
process” would refer to the date of sending the requisition to the
recruiting authority for a particular Recruitment Year in question.
Points (2) & (3) are the concern of Estt.(B).
As regards point (4), it is clarified that as already stated the
concept of initiation of action for recruitment is applicable equally
to direct recruits and promotees.
As regards point (5), it may be stated that even if DOPT is also
one of the respondents, it is for the Administrative
Ministry/Department who are concerned with the persons involved in the
CAT court case to take necessary action on behalf of DOPT also. In
any case, our comments are already contained in our earlier note as
well as this note. It is for the Administrative Ministry/Department
to incorporate them suitably in the counter reply. Hence, the counter
reply on Pp.159-175/Cor. May be suitably modified in the light of our
advice on Pp.9-10/ante as already advised at ‘X’ on p.10/ante and this
note.
In future, the Department of Revenue, if they want our advice,
refer such cases well in time (instead of making such reference at the
eleventh hour) to enable us to consider the matter in its proper
perspective without any time constraint.
Estt.(B) may please see for comments on points (2) and (3) on
Pp.19-20/ante before the file is returned to Department of Revenue.
Sd/-
(Under secretary)
2.2.2000.”
The logic and process of reasoning emerging from the ON dated 2.2.2000, as
is apparent to us, is being analysed below:
(a) If the process of recruitment has been initiated during the
recruitment year (in which the vacancies have arisen) itself, even if the
examination for the said recruitment is held in a subsequent year, and the
result is declared in a year later (than the one in which the examination
was held), and the selected candidates joined in a further later year (than
the one in which the result was declared), the selected candidates will be
entitled to be assigned seniority, with reference to the recruitment year
(in which the requisition of vacancies was made). The logic and reasoning
for the aforesaid conclusion (expressed in the ON dated 2.2.2000) is, if
the process of direct recruitment is initiated in the recruitment year
itself, the selected candidate(s) cannot be blamed for the administrative
delay, in completing the process of selection.
(b) The words “initiation of action for recruitment”, and the words
“initiation of recruitment process”, were explained to mean, the date of
sending the requisition to the recruiting authority.
24. Having examined the matter thus far, it is necessary to refer to the
Ministry of Finance, Department of Revenue’s, letter dated 11.5.2004
(hereinafter referred to as, “the letter dated 11.5.2004”). The aforesaid
letter is being reproduced below:
“ New Delhi, the 11th May, 2004
To,
The Chief Commissioner of Income Tax (CCA),
CHANDIGARH
Subject: Fixation of inter-se seniority of DR and Promotee Income
Tax Inspectors in view of clarification given by DOP&T in
r/o OM dated 3.7.87
Sir,
I am directed to refer to your letter F.No.CC/CHD/2003-04/935
dated 4.12.2003 on the above subject and to say that the matter has
been examined in consultation with DOP&T and necessary clarification
in the matter is given as under:
|Point/querry raised |Clarification |
|Whether direct recruit |‘It is clarified by DOP&T |
|inspectors should be given |that Direct Recruits’ |
|seniority of the year in |seniority vis-à-vis the |
|which selection process |promotees is reckoned from |
|initiated or vacancy |the year in which they are |
|occurred orotherwise |actually recruited. DRs |
| |cannot claim seniority of the|
| |year in which the vacancies |
| |had arisen. The question of |
| |grant of seniority to DRs of |
| |the period when they were not|
| |even in service does not |
| |arise.’ |
3. The representations may please be disposed off accordingly.
Yours faithfully,
Sd/-
Under Secretary to the Government of India”
A perusal of the letter dated 11.5.2004 reveals, that it adopts a position
in clear conflict with the one expressed in the OMs dated 7.2.1986 and
3.7.1986, as well as, in the ONs dated 20.12.1999 and 2.2.2000. In the
aforesaid letter dated 11.5.2004 it was sought to be “clarified”, that the
seniority of direct recruits vis-à-vis promotees, would be determined with
reference to the year in which the direct recruits are appointed. And
further, that direct recruits cannot claim seniority with reference to the
year in which the vacancies against which they are appointed had arisen.
In our considered view reliance on the letter dated 11.5.2004, for the
determination of the present controversy, is liable to outright rejection.
This is so because, the letter dated 11.5.2004 has been styled as a
“clarification” (see heading in right hand column). One of the essential
ingredients of a clarification is, that it “clarifies” an unclear,
doubtful, inexplicit or ambiguous aspect of an instrument. A
“clarification” cannot be in conflict with the instrument sought to be
clarified. The letter dated 11.5.2004 breaches both the essential
ingredients of a “clarification” referred to above. That apart, the letter
dated 11.5.2004 is liable to be ignored in view of two subsequent letters
of the Ministry of Finance, Department of Revenue dated 27.7.2004 and
8.9.2004. The letter dated 27.7.2004 is reproduced hereunder:
“ New Delhi, the 27th July, 2004
To
Chief Commissioner of Income Tax (CCA)
CHANDIGARH
Subject: Fixation of inter-se seniority of DR and Promotee Income
tax Inspectors in view of clarification given by DOP&T in
r/o OM dated 3.7.86.
Sir,
I am directed to refer to Board’s letter of even number dated
11.5.2004 on the above subject and to request that the application of
this clarification may be kept in abeyance till further orders.
Yours faithfully,
Sd/-
Under Secretary to the Government of India”
A perusal of the letter dated 27.7.2004 reveals, that the allegedly
clarificatory letter dated 11.5.2004, had been kept in abeyance. The
second letter dated 8.9.2004 (referred to above) is also being reproduced
below:
“ New Delhi, the 8th September, 2004
To
Al CCITs(CCA)
Sub: Fixation of inter se seniority between Direct Recruits (DR) and
Promotee (PR) Inspectors of Income tax in various charges of the
Income tax Department – regarding.
Sir,
I am directed to say that a number of OAs/WPs are pending/under
adjudication in the various benches of CAT and High Courts on the
above subject. The Board has been taking a consistent stand in all
those cases that the policy as laid down in Sanjeev Mahajan’s case
(pertaining to CCIT, Delhi Charge), which was finalized in
consultation with DOP&T and the Ministry of Law would prevail and that
seniority of DRs would be reckoned with reference to date of
initiation of recruitment process in their case.
2. Subsequently on a query raised by CCIT, Chandigarh on an issue
relating to the treatment to be given to the promotee Inspectors, who
would face reversion on account of refixation of seniority as per
DOP&T/Ministry of Law’s advice, the Board issued a clarification vide
letter of even number, dated 11.5.2004, which created an adverse
situation before the Gujarat High Court in a related case. As such
this clarification was held in abeyance vide letter dated 27.07.2004
till further orders.
3. The matter has been reexamined and it has been decided that the
stand taken/finalized by the Board in the case of Sanjeev Mahajan
would hold good in future also and all the cases on the issue would be
handled/defended in the light of clarification submitted in that case.
4. All CCITs(CCA) are accordingly requested to take necessary
action in the matter of fixation of seniority of DRs & Promotee
Inspectors accordingly.
Yours faithfully,
Sd/-
Under Secretary (V&L)”
A perusal of the letter dated 8.9.2004 reveals, that the clarification
given in the letter dated 11.5.2004, would be ignored in favour of the
position adopted in Sanjeev Mahajan’s case, in consultation with the
Department of Personnel and Training. It would be relevant to notice, that
the position adopted in Sanjeev Mahajan’s case, referred to in the letter
dated 8.9.2004 was, that seniority of direct recruits would be reckoned
with reference to the date of initiation of the process of recruitment in
their case. In the aforesaid view of the matter, the letter dated
11.5.2004 is bound to be disregarded and excluded from consideration not
only because it does not satisfy the legal parameters of a “clarification”,
but also because, it is deemed to have been superseded by the subsequent
letters dated 27.7.2004 and 8.9.2004.
25. Reference necessarily needs to be made to yet another office
memorandum issued by the Government of India, Department of Personnel and
Training, dated 3.3.2008 (hereafter referred to as, “the OM dated
3.3.2008”). In view of the emphatic reliance on the OM dated 3.3.2008,
during the course of hearing, the same is reproduced hereunder, in its
entirety:
“ New Delhi, dated the 3rd March, 2008
OFFICE MEMORANDUM
Subject: Consolidated instructions on seniority contained in DOP&T
O.M. No.22011/7/1986-Estt.(D) dated 3.7.1986 –
Clarification regarding
The undersigned is directed to refer to this Department’s
consolidated instructions contained in O.M. No.22011/7/1986-Estt.(D)
dated 3.7.1986 laying down the principles on determination of
seniority of persons appointed to services/posts under the Central
Government.
2. Para 2.4.1 and 2.4.2 of the O.M. dated 3.7.1986 contains the
following provisions:
2.4.1 The relative seniority of direct recruits and of promotees shall
be determined according to the rotation of vacancies between
direct recruits and promotees, which shall be based on the quota
of vacancies reserved for direct recruitment and promotion
respectively in the Recruitment Rules.
2.4.2 If adequate number of direct recruits does not become available
in any particular year, rotation of quotas for the purpose of
determining seniority would take place only to the extent of
available direct recruits and the promotees.
3. Some references have been received seeking clarifications
regarding the term ‘available’ used in the preceding para of the OM
dated 3.7.1986. It is hereby clarified that while the inter-se
seniority of direct recruits and promotees is to be fixed on the basis
of the rotation of quota of vacancies, the year of availability, both
in the case of direct recruits as well as the promotees, for the
purpose of rotation and fixation of seniority, shall be the actual
year of appointment after declaration of results/selection and
completion of pre-appointment formalities as prescribed. It is
further clarified that when appointments against unfilled vacancies
are made in subsequent year or years, either by direct recruitment or
promotion, the persons so appointed shall not get seniority of any
earlier year (viz. year of vacancy/panel or year in which recruitment
process is initiated) but should get the seniority of the year in
which they are appointed on substantive basis. The year of
availability will be the vacancy year in which a candidate of the
particular batch of selected direct recruits or an officer of the
particular batch of promotees joins the post/service.
4. Cases of seniority already decided with reference to any other
interpretation of the term ‘available’ as contained in O.M. dated
3.7.1986 need not be reopened.
5. Hindi version will follow.
Sd/-
Director (Estt.I)”
(emphasis is ours)
The following conclusions, in our view, can be drawn from the OM dated
3.3.2008:
(a) The OM dated 3.3.2008 is in the nature of a “clarification”, to the
earlier consolidated instructions on seniority, contained in the OM dated
3.7.1986 (referred to and analysed, in paragraph 21 above).
(b) The term “available” used in para 2.4.2 in the OM dated 3.7.1986 has
been “clarified” to mean, both in case of direct recruits as well as
promotees, for the purpose of fixation of seniority, would be the actual
year of appointment “…after the declaration of the result/selection, i.e.,
after the conclusion of the selection process, and after the “…completion
of the pre-appointment formalities…” (medical fitness, police verification,
etc.).
(c) As per the OM dated 3.7.1986, when appointments are made against
unfilled vacancies in subsequent year(s), the persons appointed would “not”
get seniority with reference to the year in which the vacancy arose, or the
year in which the recruitment process was initiated, or the year in which
the selection process was conducted.
(d) As per the OM dated 3.3.2008, when appointments are made against
unfilled vacancies in subsequent year(s), the persons appointed would get
seniority of the year in which they are appointed “on substantive basis”.
26. Before examining the merits of the controversy on the basis of the OM
dated 3.3.2008, it is necessary to examine one related submission advanced
on behalf of the direct recruits. It was the contention of learned
counsel, that the OM dated 3.3.2008 being an executive order issued by the
Department of Personnel and Training, would apply only prospectively. In
this behalf it was pointed out, that the disputed seniority between rival
parties before this Court was based on the appointment to the cadre of
Income Tax Inspectors, well before the OM dated 3.3.2008 was issued. As
such, it was pointed out, that the same would not affect the merits of
controversy before this Court. We have considered the instant submission.
It is not possible for us to accept the aforesaid contention advanced at
the hands of the learned counsel. If the OM dated 3.3.2008 was in the
nature of an amendment, there may well have been merit in the submission.
The OM dated 3.3.2008 is in the nature of a “clarification”. Essentially,
a clarification does not introduce anything new, to the already existing
position. A clarification, only explains the true purport of an existing
instrument. As such, a clarification always relates back to the date of
the instrument which is sought to be clarified. In so far as the instant
aspect of the matter is concerned, reference may be made to the decision
rendered by this Court in S.S. Garewal vs. State of Punjab, (1993) 3 Suppl.
234, wherein this Court had observed as under:
“8 ….. In the alternative, it was urged that the order dated April
8, 1980 could only have prospective operation with effect from the
date of issue of the said order and the sub-roster indicated by the
said order could be given effect to only from that date and on that
basis the first post reserved for Scheduled Castes should go to
Balmikis or Mazhabi Sikhs and on that basis also respondent No. 3 was
entitled to be placed against point No. 7 in the 100-point roster and
Shri G.S. Samra against point No. 9 in the said roster.
9. From a perusal of the letter dated April 8, 1980, we find that
it gives clarifications on certain doubts that had been created by
some Departments in the matter of implementation of the instructions
contained in the earlier letter dated May 5, 1975. Since the said
letter dated April 8, 1980 is only clarificatory in nature, there is
no question of its having an operation independent of the instructions
contained in the letter dated May 5, 1975 and the clarifications
contained in the letter dated April 8, 1980 have to be read as a part
of the instructions contained in the earlier letter dated May 5, 1975.
In this context it may be stated that according to the principles of
statutory construction a statute which is explanatory or clarificatory
of the earlier enactment is usually held to be retrospective. (See:
Craies on Statute Law, 7th Ed., p.58). It must, therefore, be held
that all appointments against vacancies reserved for Scheduled Castes
made after May 5, 1975 (after May 14, 1977 in so far as the Service is
concerned), have to be made in accordance with the instructions as
contained in the letter dated May 5, 1975 as clarified by letter dated
April 8, 1980. On that view, the appointment of Shri Bal want Rai in
1979 has to be treated to be an appointment made under the said
instructions and operation of these instructions cannot be postponed
till April 8, 1980…..”
In view of the above, it is not possible for us to accept that the OM dated
3.3.2008, would only apply prospectively. We are also satisfied, that the
OM dated 3.3.2008 which is only a “clarification” of the earlier OM dated
3.7.1986, would relate back to the original instrument, namely, the OM
dated 3.7.1986.
27. We shall now endeavour to examine the effect of OM dated 3.3.2008 on
the subject of inter se seniority between direct recruits and promotees.
Would the OM dated 3.3.2008 supersede the earlier OMs dated 7.2.1986 and/or
3.7.1986? And, would the OMs dated 7.2.1986 and 3.7.1986 negate the OM
dated 3.3.2008, to the extent that the same is repugnant to the earlier OMs
(dated 7.2.1986 and 3.7.1986)? In our view, what needs to be kept in mind
while determining an answer to the aforesaid queries is, that the OM dated
7.2.1986 is in the nature of an amendment/modification. The Department of
Personnel and Training consciously “amended” the earlier OM dated
22.11.1959, by the later OM dated 7.2.1986. The said amendment was
consciously carried out, with the object of remedying the inappropriateness
of direct recruits of later years becoming senior to promotees with long
years of service. It is not the case of any of the parties before us, that
the OM dated 7.2.1986, has ever been “amended” or “modified”. It is
therefore imperative to conclude, that the OM dated 7.2.1986 is binding for
the determination of the issues expressed therein, and that, the same has
the force of law. The OM dated 3.7.1986 is in the nature of consolidatory
instruction, whereby, all earlier instructions issued from time to time
were compiled together. This is apparent, not only from the subject of the
aforesaid OM dated 3.7.1986, but also, the contents of paragraph 1 thereof.
Paragraph 1 of the OM dated 3.7.1986, is being reproduced hereunder:
“ Dated 3.7.86
OFFICE MEMORANDUM
Subject: SENIORITY – consolidated orders on
The undersigned is directed to say that instructions have been
issued by this Department from time to time laying down the principles
for determining seniority of persons appointed to services and posts
under the Central Government. For facility of reference, the
important orders on the subject have been consolidated in this office
memorandum. The number and date of the original communication has
been quoted in the margin so that the users may refer to it to
understand fully the context in which the order in question was
issued.”
(emphasis is ours)
It is therefore clear, that the OM dated 3.3.2008 is neither in the nature
of an “amendment” nor in the nature of a “modification”. Since the OM
dated 3.3.2008, is a mere “consolidation” or compilation of earlier
instructions on the subject of seniority, it is not prudent to draw any
inferences therefrom which could not be drawn from the earlier
instruction/office memoranda being “consolidated” or compiled therein, or
which is contrary thereto.
28. It is relevant to notice, that there is a marginal note against
paragraph 2.4.2 in the OM dated 3.7.1986. The aforesaid marginal note is
being extracted hereunder:
“DOPT No.35014/2/80-Estt(D) dt.7.2.86”
Therefore, paragraph 2.4.2 must be deemed to have been recorded in the
consolidating OM, on the basis of the OM dated 7.2.1986. The instant
assertion has been made on account of it having been expressly mentioned in
the opening paragraph of the OM dated 3.7.1986 (extracted above), that the
number and date of the original communication has been quoted in the
margin, so that the user may refer to it, to understand fully the context
in which the order in question was issued. Therefore, for all intents and
purposes the OM dated 3.3.2008 is with reference to the OM dated 7.2.1986.
It is for this reason, that while debating the exact purport of the OM
dated 3.3.2008, it has been our endeavour to examine the same, with
reference to the earlier OMs dated 7.2.1986 and 3.7.1986, which were inter
alia “consolidated” in the OM dated 3.3.2008.
29. A perusal of the OM dated 3.3.2008, would reveal, that a reference to
paragraphs 2.4.1 and 2.4.2 of the OM dated 3.7.1986, has been made therein.
Thereupon, the meaning of the term “available” used in paragraph 2.4.2 of
the OM dated 3.7.1986, is statedly “clarified”. In view of the conclusion
drawn in the foregoing paragraph, the said clarification must be deemed to
be with reference, not only to the OM dated 3.7.1986 but also the OM dated
7.2.1986. We have already noticed, in an earlier part of the instant
judgment, the essential ingredients of a “clarification” are, that it seeks
to explain an unclear, doubtful, inexplicit or ambiguous aspect of an
instrument, which is sought to be clarified or resolved through the
“clarification”. And that, it should not be in conflict with the
instrument sought to be explained. It is in the aforesaid background, that
we will examine the two queries posed in the preceding paragraph. We have
already analysed the true purport of the OM dated 7.2.1986 (in paragraph 20
hereinabove). We have also recorded our conclusions with reference to the
OM dated 3.7.1986 wherein we have duly taken into consideration the true
purport of paragraph 2.4.2 contained in the OM dated 3.7.1986 (in paragraph
21 hereinabove). The aforesaid conclusions are not being repeated again
for reasons of brevity. We have separately analysed the effect of the OM
dated 3.3.2008 (in paragraph 26 of the instant judgment). It is not
possible for us to conclude that the position expressed in the earlier
office memoranda is unclear, doubtful, inexplicit or ambiguous. Certainly
not on the subject sought to be clarified by the OM dated 3.3.2008. A
comparison of the conclusions recorded in paragraph 20 (with reference to
the OM dated 7.2.1986) and paragraph 21 (with reference to OM dated
3.7.1986) on the one hand, as against, the conclusions drawn in paragraph
26 (with reference to OM dated 3.3.2008) on the other, would lead to
inevitable conclusion, that the OM dated 3.3.2008 clearly propounds, a
manner of determining inter se seniority between direct recruits and
promotees, by a method which is indisputably in conflict with the OMs dated
7.2.1986 and 3.7.1986. Ofcourse, it was possible for the Department of
Personnel and Training to “amend” or “modify” the earlier office memoranda,
in the same manner as the OM dated 7.2.1986 had modified/amended the
earlier OM dated 22.11.1959. A perusal of the OM dated 3.3.2008, however
reveals, that it was not the intention of the Department of Personnel and
Training to alter the manner of determining inter se seniority between
promotees and direct recruits, as had been expressed in the OMs dated
7.2.1986 and 3.7.1986. The intention was only to “clarify” the earlier OM
dated 3.7.1986 (which would implicitly include the OM dated 7.2.1986). The
OM dated 3.3.2008 has clearly breached the parameters and the ingredients
of a “clarification”. Therefore, for all intents and purposes the OM dated
3.3.2008, must be deemed to be non-est to the extent that the same is in
derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. Having so
concluded, it is natural to record, that as the position presently stands,
the OMs dated 7.2.1986 and 3.7.1986 would have an overriding effect over
the OM dated 3.3.2008 (to the extent of conflict between them). And the OM
dated 3.3.2008 has to be ignored/omitted to the extent that the same is in
derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. In the light of
the conclusions recorded hereinabove, we are satisfied that the OM dated
3.3.2008 is not relevant for the determination of the present controversy.
30. Besides the interpretation of the relevant OMs issued by the DOPT,
learned counsel representing the promotees placed reliance on some
judgments of this Court in order to press their contention, that seniority
for direct recruits could not be determined with reference to a date
preceding the date of their recruitment. In so far as the instant aspect
of the matter is concerned, reliance was placed on Jagdish Ch. Patnaik &
Ors. v. State of Orissa and others, (1998) 4 SCC 456; Suraj Prakash Gupta &
Ors. v. State of J&K & Anr., (2000) 7 SCC 561; and Pawan Pratap Singh &
Ors. v. Reevan Singh & Ors., (2011) 3 SCC 267.
31. The seniority rule applied in Jagdish Ch. Patnaik’s case (supra) has
been extracted in paragraph 24 of the said judgment. The seniority rule in
question, inter alia expressed, that seniority would be determined with
reference to the date of recruitment. In Suraj Prakash Gupta’s case
(supra), the relevant seniority rule was extracted in paragraph 53 which
provided, that seniority would be determined with reference to the date of
first appointment. The rule itself expressed that the words “date of first
appointment” would mean the date of first substantive appointment against a
clear vacancy. In Pawan Pratap Singh’s case (supra) the question which
arose for consideration, related to determination of inter se seniority
between two sets of direct recruits. The first set comprised of vacancies
advertised in 1987 which came to be filled up in 1994, and the second set
comprised of vacancies of the year 1990 which came to be filled up in the
year 1991. The controversy in Pawan Pratap Singh’s case (supra) was
conspicuously different from the controversy in hand. In view of the fact
that the seniority rules, as also the factual matrix in the cases relied
upon was substantially at variance with the relevant OMs dated 7.2.1986 and
3.7.1986 (which are the subject of interpretation in so far as the present
case is concerned), as also the facts of the cases in hand, it is apparent,
that the judgments relied upon by the learned counsel are inapplicable to
determine the present controversy.
32. One finds attracted to the observations recorded in Jagdish Ch.
Patnaik’s case (supra) wherein it was observed, “when the language used in
the statute is unambiguous and on a plain grammatical meaning being given
to the words in the statute, the end result is neither arbitrary, nor
irrational nor contrary to the object of the statute, then it is the duty
of the court to give effect to the words used in the statute because the
words declare the intention of the law making authority best”. We are of
the view that the aforesaid observations are fully applicable to the
present controversy. We may add that the various ONs and letters issued by
the DOPT (referred to above) do not leave room for any ambiguity.
33. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986
(in paragraphs 20 and 21 hereinabove), we are satisfied, that not only the
requisition but also the advertisement for direct recruitment was issued by
the SSC in the recruitment year in which direct recruit vacancies had
arisen. The said factual position, as confirmed by the rival parties, is
common in all matters being collectively disposed of. In all these cases
the advertised vacancies were filled up in the original/first
examination/selection conducted for the same. None of the direct recruit
Income Tax Inspectors herein can be stated to be occupying carried forward
vacancies, or vacancies which came to be filled up by a “later”
examination/selection process. The facts only reveal, that the examination
and the selection process of direct recruits could not be completed within
the recruitment year itself. For this, the modification/amendment in the
manner of determining the inter-se seniority between the direct recruits
and promotees, carried out through the OM dated 7.2.1986, and the
compilation of the instructions pertaining to seniority in the OM dated
3.7.1986, leave no room for any doubt, that the “rotation of quotas”
principle, would be fully applicable to the direct recruits in the present
controversy. The direct recruits herein will therefore have to be
interspaced with promotees of the same recruitment year.
34. In view of the above, the Civil Appeals, the Transferred Case, as
well as, the Transfer Case (filed by the direct recruits and the Union of
India) are hereby allowed. The claim of the promotees, that the direct
recruit Income Tax Inspectors, in the instant case should be assigned
seniority with reference to the date of their actual appointment in the
Income Tax Department is declined.
……………………………………J.
(D.K. Jain)
……………………………………J.
(Jagdish Singh Khehar)
NEW DELHI;
NOVEMBER 27, 2012
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