Central Administrative
Tribunal
Principal Bench, New Delhi
O.A.No.1052 of 2010
M.A.Nos.2410, 2415, 2427, 2428, 2562 and 2594 of 2010
This, the 2nd day of November 2010
Honble Shri Justice V.K. Bali, Chairman
Honble Shri L.K. Joshi, Vice Chairman (A)
Honble Shri Shanker Raju, Member (J)
1. Vikas Keraba Suryawanshi,
S/o Sh. Keraba K. Suryawanshi,
Dy. Commissioner of Income Tax,
R/0 A-15, A-Block, Pragati Vihar Hostel,
Near Jawaharlal Nehru Stadium, Lodhi Estate,
New Delhi.
2. Ms. Richa Gaharwar,
W/o- Sh. Sanjay Kumar Singh,
Dy. Commissioner of Income Tax,
R/0- L-202, Ratnagiri Apartment,
Kaushambi, Ghaziabad,
Uttar Pradesh.
3. Saroj Kumar Dubey,
S/o Sh. Ram Swarup Dubey,
Dy. Commissioner of Income Tax,
R/0 B-107, Pandara Road, New Delhi.
4. Sanjay Kumar Yadav,
S/o Shri Dharam Raj Yadav,
Dy. Commissioner of Income Tax,
R/0 L-302, Ratnagiri Apartment,
Kaushambi Ghaziabad, Uttar Pradesh.
5. M. Rajan,
S/o Late Sh.S. Muthaih Ram,
Dy. Commissioner of Income Tax
Addressed At- Old Tamil Nadu House,
Kautilya Marg, Chanakyapuri, New Delhi.
6. Zeenia Handa,
D/O- Sh.P.K.Goel,
Dy.Director of Income Tax,
R/0 5124, B-7, Vasant Kunj,
New Delhi.
7. Prasahant Kumar Jha,
S/0 Sh. Hari Kumar Jha,
Dy.Commissioner of Income Tax
R/o DDA, Flats, Mayapuri,
New Delhi.
8. Vimal Anand,
S/0 Shri Ramanand Dass,
Under Secretary (TPL-11), CBDT,
R/0 L-902, Ratnagiri Apartment,
Kaushambi, Ghaziabad, Uttar Pradesh.
9. Amol Kumar Bharadwaj,
S/o Sh.Parmanand Sharma,
Under Secretary (ITJ), CBDT,
Addressed At- Room No. 702,
HUDCO Vishala,
Bhikaji Cama Place, New Delhi.
10. Pushpendra Singh Chaudhary,
S/0 Sh.Murlidhar Chaudhary,
Under Secretary (A & PAC-I), CBDT,
R/0 L-702, Girnar, Kaushambi, Ghaziabad,
Uttar Pradesh.
11. Rajesh Kumar,
S/o Shj. Budh Sain,
Dy. Commissioner of Income Tax,
R/0-6016/2,Pocket-6B, Sector-D,
Vasant Kunj, New Delhi.
12. Suresh Sivanandan,
S/o Sh. G. Sivanandan,
Dy. Commissioner of Income Tax,
R/0 B-9/6390, Vasant Kunj,
New Delhi.
13. Solgy Jose Kottram,
S/o Sh. K.A.Thomas,
Dy. Commissioner of Income Tax,
R/o- 3N, Applevilla, Shanthinagar,
Kakkanad, Cochin-30, Kerala.
14. Anjula Jain,
D/o Sh. S.C. Jain,
Dy. Commissioner of Income Tax,
R/0 808, Ahicon Apartment, Sector-3,
Vaishali, Ghaziabad, Uttar Pradesh.
15. Vivek Anand Ojha,
S/o Sh. J.K.Ojha,
Under Secretary (TPL-1), CBDT,
R/0- L-702, Ratnagiri Apartment,
Kaushambi, Ghaziabad,
Uttar Pradesh.
Applicants
(Shri Vijay Hansaria and Shri Maninder Singh, Senior
Advocates (Shri R K Singh and Ms. Sneha Kalita, Advocates
with them) for applicants
Versus
1. Union of India,
Represented by the Secretary to
the Government of India,
Department of Revenue, Miistry of Finance,
New Delhi.
2. The Chairman,
Central Board of Direct Taxes (CBDT),
Department of Revenue, North Block, New Delhi.
3. Department of Personnel & Training,
Through its Secretary,
Government of India, North Block,
New Delhi.
4. Union Public Service Commission,
Through its Chairman,
Shahjahan Road, New Delhi.
5. Joint Secretary (Admn.),
Central Board of Direct Taxes,
Department of Revenue, North Block,
New Delhi.
6. Shri S.K.Mehra S/o Sh. P.N.Mehra,
Dy. Commissioner of Income Tax,
R/0 40/110, C.R.Park,
New Delhi-110019
7. Shri R.K.Mehra S/o Sh.Jugal Kishore,
Dy.Commissionder of Income Tax,
R/0 B-242, IInd Floor, Chitaranjan Park,
New Delhi-110019.
Respondents
(Shri Parag Tripathi, ASG (Shri V.S.R.Krishna and Shri R.N.
Singh Shri Vaibhav Joshi, Advocates with him) for Union of
India)
(Ms. Alka Sharma, Advocate for UPSC)
(Shri P.P.Khurana, Senior Advocate (Shri K.K. Khurana and
Shri A.K. Mehta, Advocates with him) for applicants in M.A.
Nos. 2428 and 2452 of 2010)
(Shri B. Balaji, Advocate for applicants in MA 2415/2010)
(Applicant in person in MA 2427/2010)
(Shri A.K. Behera and Ms. Jasmine Ahmed, Advocates for
private respondent Nos. 6 & 7)
(Shri R.K. Shetty, Advocate for private respondent No.8)
(Shri Devesh Singh, Advocate for applicant in MA
2562/2010)
O R D E R
Shri Shanker Raju:
Correctness of law laid down by the Ahmedabad Bench
of the Tribunal in Shri Sanjeev Pugalia & others v.
Union of India & others (OA-417/2005) decided on
26.2.2007, insofar as following the rota rule is concerned,
contained in Rule 9 (iii) of Indian Revenue Service Rules
1988 (hereinafter referred to as Rules) maintaining 1:1
ratio in the seniority between the promotees and direct
recruits as well as correctness of the directions in
Prabhakant Ayodhya Prasad & others v. Union of India
& others, 2003 (1) SLJ 317 CAT holding validity of
relaxation on quota rules and observing that rota rule
cannot be relaxed in the backdrop of wide ramifications on
the issue of seniority as large number of Indian Revenue
Officer (Income Tax) (for short IRS) being involved, has
been referred before the Full Bench for a clear and
authoritative pronouncement on the subject.
2. At the outset, we may mention that the
Constitution Bench of Apex Court in Prafulla Kumar Das &
others v. State of Orissa & others, 2004 SCC (L&S)
121 has held that seniority is not a fundamental right but
is merely a civil right. It is also held by the Apex Court
in a three-Judge Bench decision in Bimlesh Tanwar v. State
of Haryana & others, 2003 (2) SC SLJ 119 that the
seniority is to be determined in absence of rule by
Executive instructions and for want of both, Court may
evolve fair and just principle for determination of
seniority in the facts and circumstances of the case.
3. The factual matrix of the present case, in brief,
is relevant to be highlighted. A perennial lis of seniority
between direct recruits and promotees has resurrected in
respect of officers of IRS (Income Tax). A gist of statutory
rule, i.e., the Rules framed under proviso to Article 309 of
the Constitution of India in 1988 indicates that the IRS was
constituted as a Service with duty post included in the
various grades of Service, as reflected in Schedule I
appended to the Rules, which from the lowest rung of the
hierarchy creates designation of Assistant Commissioner,
Income Tax (ACIT) (Junior Scale) with the eligibility
criteria for the promotees. This selection on promotion has
to be made on merit. Insofar as the relative seniority of
the members of the Service appointed to the Grade in initial
constitution is concerned, it is to be determined by
relative seniority, obtaining immediately before the date of
commencement as per Rule 8 of the Rules. However, the
seniority of the persons appointed to the grade of ACIT
(Junior Scale) shall be determined on a rota system as per
Rule 9 (iii) of the Rules whereby the relative seniority
between the promotees and direct recruits, shall be arranged
in the ratio of 1:1 to be operated as per the maintained
roster in the following manner:
a) Promotee,
b) Direct recruit,
c) Promotee;
d) Direct recruit and so on
Rule 10 of the Rules, as regards inter-se-seniority other
than the initial grade, i.e., senior scale of Junior
Administrative Grade (JAG), Senior Administrative Grade
(SAG) and higher grade, shall have to be determined in order
of position in respective lists of promotees and those who
have been promoted even earlier selection would rank senior
to those promoted on the basis of subsequent selection. Rule
15 of the Rules enjoins the Government in consultation with
the Union Public Service Commission (UPSC) a jurisdiction to
relax any provision of the Rules in respect of class or
category but by recording reasons.
4. In nutshell, quota rota rule has been followed
with the promotees among the Income Tax Officers (ITOs) and
direct recruit Assistant Commissioners being arranged in the
ratio of 1:1. Though it is not disputed that in the
nomenclature of seniority list, no list has ever been
published but a civil list has been issued by the official
respondents whereby the particulars of all the officers of
IRS with their service particulars have been indicated. This
list was operated for the purposes of seniority list and a
disclaimer was appended to the extent that the list
published shall not be treated as an authentic document for
seniority.
5. Before the Tribunal in Prabhakant Ayodhya Prasad
(supra), an issue was raised by 1991 batch officers
challenging relaxation made by the official respondents
under Rule 15 of the Rules whereby the quota rule was
relaxed and the promotees have been inducted on diversion of
176 vacancies meant for direct recruits. The Tribunal has
ruled that as there has been no relaxation to the seniority
rule, grant of en block seniority to the promotees against
176 vacancies was not in accordance with rules. A direction
was issued to regulate the seniority as per para (iii) of
sub-rule (3) of Rule 9 of the Rules and to follow the
provisions of the said rule for all subsequent batches.
Accordingly, the said OA was disposed of. However, no
seniority list was thereafter issued in compliance thereof.
6. An order passed by the Ministry of Finance on
31.8.2001 in consultation with the Department of Personnel
& Training and UPSC is the bone of contention and
subject matter of challenge whereby in exercise of creation
of additional posts in Income Tax Department pursuant to
cadre restructuring, giving one time relaxation in the
Rules, the quota rule was relaxed to the extent of diverting
the direct recruitment quota to the promotees and a decision
to fill up 993 posts by promotion of ITOs Group B. Out of
these vacancies, 484 vacancies were utilized for the vacancy
year 2000-01 and 509 vacancies for 2001-02 and as a result
of the same, the impleaded respondents-ITOs were promoted as
ACIT junior scale in 2001-02 respectively.
7. Before the Ahmedabad Bench of the Tribunal in
Sanjeev Pugalia (supra), direct recruit IRS officers,
appointed on the basis of Civil Service Examination 2001,
have assailed grant of en block seniority to the promotees
over and above them and have also assailed for want of
relaxation of rota rule violation of Rule 9 (iii) of the
Rules. The matter was heard and their challenge to the
relaxation of quota by the respondents vide order dated
31.8.2001 was dismissed as barred by latches and with regard
to seniority, the OA was held to be pre-mature, as no
specific order of inter-se-seniority has been put to
challenge.
8. Before the Principal Bench, the present OA, which
has been placed before this Full Bench, is filed on the
basis of a proposed action by the official respondents
whereby through several communications, i.e., 26.9.2009 and
1.10.2010, deficient ACRs were directed to be completed in
cadre of ACIT officers of 2000-01 batch for the purposes of
holding DPC to the grade of Joint Commissioner, Income Tax
(JCIT) for the year 2000-01. A challenge has been made
regarding non-finalization of seniority of the officers of
2000 batch following 1:1 ratio as per the Rule 9 (iii) of
the Rules with a further direction against the official
respondents to be restrained from effecting any promotion in
the grade of JCIT. On 5.4.2010, promotion to be made to the
post of JCIT was made subject to the final outcome. During
the course of hearing, MAs for impleadment have been filed
by the affected parties, including direct recruits of
yesteryears and promotees. However, on 16.9.2010, the
Division Bench of this Tribunal, taking note of the
recruitment rules and decisions in Sanjeev Pugalia (supra)
and Prabhakant Ayodhya Prasad (supra), observed that before
the Ahmedabad Bench in Sanjeev Pugalia (supra) the plea was
to follow the recruitment rules regarding seniority to the
ratio of 1:1 between promotees and direct recruits and also
the correctness of decision in Prabhakant Ayodhya Prasad
(supra) whereby despite holding the validity of relaxation
of quota it has been observed that rota rule could not be
relaxed. In the backdrop of wide ramifications on the issue
of seniority as large number of IRS officers are involved
and also to have an authentic pronouncement on the law and
to lay down the correct law, accordingly matter is referred
to the Full Bench with the reference, which is under
examination.
9. We could have answered the reference as to the
correctness of the order passed by the Tribunal but as the
lis is between two factions of employees under one employer,
to prevent any disharmony and discontentment, we have
considered the grievance raised in the OA by the direct
recruits, which is directed against the civil list treated
by the official respondents as a seniority list. In judicial
review, we proceed to adjudicate the issue as to whether the
civil list is to be treated as a seniority list, and if not,
what would be the methodology apt in law to publish a
seniority list as an obligation on the official respondents
as per the statutory rules?
10. Shri Vijay Hansaria, learned senior counsel
submitted that as per the rules, quota and rota being two
different aspects, the power of relaxation has been
exercised by the official respondents to relax the quota
rule by diverting the direct recruitment vacancies towards
the promotee quota but as there has been no express
relaxation of the rota rules, assignment of seniority by
bunching the seniority over and above the direct recruits
would be in contravention of Rule 9 (iii) of the Rules. It
is stated that the methodology of publishing a draft
seniority list with an opportunity to the concerned and then
dealing with the objections and publishing the seniority
list is a condition precedent for effecting the promotions.
11. The learned senior counsel also added that the
published civil list has a disclaimer whereby it has not
been treated to be an authentic document for seniority. As
such, the official respondents are duty bound by their own
decision, which cannot now be projected contrary, which
would amount to approbating and reprobating simultaneously.
Learned senior counsel further stated that if the rota rule
has not been expressly relaxed by recording reasons under
Rule 15 of the Rules by a positive act in consultation with
the UPSC and DOPT, the seniority has to be maintained in the
ratio of 1:1 and deemed relaxation cannot be construed. It
is added that since the inception of IRS no seniority list
has been issued and this practice cannot partake the
character of rule, which would amount to a violation of Rule
9 (iii) of the Rules. Accordingly referring to the decision
in Prabhakant Ayodhya Prasad (supra), which has attained