As per the case facts, a dispute exists between promotees and direct appointees regarding their seniority as Income Tax Inspectors in Gujarat, with a High Court judgment already in place. ...
No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2022
(Arising out of Special Leave Petition (C) No.16161 of 2018)
Hariharan & Ors. … Appellants
v.
Harsh Vardhan Singh Rao & Ors. ... Respondents
with
Civil Appeal No. of 2022
[Arising out of S.L.P. (C) No.________ of 2022]
[Diary No.12422 of 2022]
J U D G M E N T
ABHAY S. OKA, J.
1.Leave granted in Special Leave Petition (C) No.16161 of
2018. Delay in filing Special Leave Petition (C) Diary No.12422 of
2022 is condoned and leave is granted in the said Special Leave
Petition as well.
2.In Civil Appeal arising out of SLP (C) No.16161 of 2018, the
appellants who are original respondents nos.11 to 14 before the
High Court of Gujarat, have challenged the judgment and order
1
dated 11
th
May 2018 passed by a Division Bench of the High
Court of Gujarat on a writ petition under Article 226 of the
Constitution of India filed by respondents nos.1 to 18.
FACTUAL ASPECTS IN CIVIL
APPEAL ARISING OUT OF S.L.P.(C)
NO.16161 OF 2018
3.Few factual details will have to be noted. The dispute is a
typical dispute between promotees and direct appointees over
inter-se-seniority. Here, the dispute is about the posts of
Inspectors in the Income Tax Department in the State of Gujarat.
On 7
th
February 1986 and 3
rd
July 1986, Office Memoranda (for
short, ‘OM’) were issued by the Ministry of Personnel, Public
Grievances and Pension. Both the OMs record that the principle
of rotation of quota will be followed for determining the inter-se-
seniority of promotees and direct recruits. It is mentioned therein
that when direct recruits are not available, the promotees would
be bunched together at the bottom of the seniority list below the
last position up to which it is possible to determine seniority on
the basis of rotation of quota with reference to the actual number
of direct recruits who become available. It is provided therein that
the unfilled direct recruitment quota vacancies would be carried
forward and added to the corresponding direct recruitment
2
vacancies of the next year. It is also provided that these
additional direct recruits selected against the carried forward
vacancies of the previous year, should 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 quota for that year. Prior to
these two OMs, there was an OM dated 22
nd
November 1959,
which provided for fixing the seniority of direct recruits and
promotees based on the rotation of quota.
4.In the facts of the case, we may note here that the relevant
Recruitment Rules of 1969 provided that the quota of
departmental promotees and direct recruits to the posts of
Inspector will be 2:1. There is no dispute that the rule of rotation
of quota or rota and quota is applicable for fixing their inter-se-
seniority. On 7
th
February 2000, Office Note was issued by the
Department of Personnel and Training (for short, ‘DoPT’). By the
said office note, it was directed that if the examination is not held
in the vacancy year, the seniority of the vacancy year cannot be
granted to direct recruits. There was a further clarificatory OM
issued on 3
rd
March 2008 by DoPT, which clarified that when the
appointment against unfilled vacancies is made in subsequent
years either by direct recruitment or promotion, the persons so
3
appointed shall not get seniority of the earlier year. However, they
should be given the seniority of the year in which they were
appointed on a substantive basis.
5.On 26
th
June 2009, the Chief Commissioner of Income Tax,
Ahmedabad filled in 53 posts of Income Tax Inspectors by
promotion on the basis of the recommendations of the
Departmental Promotion Committee (DPC). By a communication
dated 20
th
November 2009, the Chief Commissioner of Income
Tax, Ahmedabad forwarded a requisition for making
appointments to 46 direct posts (35 current and 11 carried
forward) enclosing therewith the details in the prescribed
proforma. The DoPT by the letter dated 15
th
January 2010
granted NOC for 482 vacancies in the grade of Income Tax
Inspector. Accordingly, by a letter of the same date, the
Department of Revenue of the Ministry of Finance forwarded the
said NOC to the Secretary of the Staff Selection Commission
(SSC). However, the examination for recruitment was not
conducted to fill up the vacant posts of Income Tax Inspectors for
the recruitment year 2009-10 in the same year. Accordingly, SSC
initiated the process by holding a meeting with the officers for the
conduct of the Combined Graduate Level Examination, 2010
4
(short, ‘CGLE-2010’). The Central Board of Direct Taxes (CBDT)
proposed tentative vacancies of 482 posts of Income Tax
Inspectors for CGLE-2010. An advertisement was published on
30
th
January 2010 inviting applications for CGLE-2010. On 26
th
April 2010, CBDT communicated to SSC that vacancies for the
recruitment year 2009-10 were included for selection through
SSC CGLE-2010. On 10
th
May 2010 and 31
st
July 2010,
examinations were conducted by SSC for Tier-I and Tier-II. On
27
th
October 2010, CBDT finally submitted 846 vacancies as
confirmed vacancies to SSC. Before the said letter was addressed,
the Chief Commissioner of Income Tax, Ahmedabad informed
CBDT that total of 72 vacancies should be taken for the State of
Gujarat. The result was declared on 7
th
January 2011 and SSC
recommended total 822 candidates. On 27
th
November 2012, a
decision of this Court in the case of Union of India & Ors. v.
N.R.Parmar & Ors.
1
was pronounced. This Court dealt with a
contingency where the requisition for filling in the vacancies of
direct recruits was issued in the same recruitment year and the
advertisement for recruitment was published in the same
recruitment year when the vacancies had arisen, but the
examination could not be conducted in the same recruitment
1 2012 (13) SCC 340
5
year. This Court held that in such a case, the direct recruits
would be entitled to seniority in the recruitment year when the
requisition was made and advertisement was issued.
6.On 25
th
May 2014, a draft seniority list of the Income Tax
Inspectors for the State of Gujarat was issued and on the basis of
the draft seniority list, the final seniority list was issued on 29
th
May 2014. Further, on 7
th
September 2016, a modified seniority
list of the Income Tax Inspectors in the cadre of the Gujarat
region was issued. In the said list, the direct recruits of CGLE-
2010 were interspaced with promotees of the year 2009-10. There
were several representations made against the said seniority list
by the promotee candidates. On 17
th
January 2018, CBDT issued
a clarification stating that insofar as the fixing of inter-se-
seniority of CGLE-2010 direct recruits with promotee officers was
concerned, the direct recruits may be interpolated with the
promotees of the same recruitment year in accordance with OMs
issued on 3
rd
July 1986 and 4
th
March 2014. The said
clarification was communicated by CBDT to all Principal Chief
Commissioners of Income-Tax. On the basis of the said
clarification, a revised seniority list dated 13
th
February 2018 was
published. As per the said seniority list, the direct recruits
6
recruited against vacancies of the year 2009-10 were interspaced
with the promotees of the recruitment year 2010-11.
Respondents nos.1 to 18 who were direct recruits, filed a writ
petition before the High Court of Gujarat for challenging the said
seniority list dated 13
th
February 2018. A prayer was made in the
writ petition for setting aside the clarification dated 17
th
January
2018 and the consequent seniority list dated 13
th
February 2018.
A consequential prayer was made for restoring the seniority list
dated 7
th
September 2016. By the impugned judgment, the
seniority list dated 13
th
February 2018 was quashed and the
seniority list of 7
th
September 2016 was restored with a
clarification that only those direct recruits who were eligible and
qualified in the recruitment year 2009-10, shall be interspaced
with 53 promotees who were promoted vide DPC dated 29
th
June
2009.
7.On 13
th
July 2018, notice was issued in the Special Leave
Petition no.16161 of 2018 which is the subject matter of the
present Civil Appeal and by an interim order, the status quo as of
that date was ordered to be maintained. The appellants who were
respondents in the writ petition before the High Court, are the
promotees who were promoted vide DPC dated 29
th
June 2009.
7
SUBMISSIONS IN BRIEF
8.Mr. Huzefa Ahmadi, the learned senior counsel appearing
for the appellants firstly submitted that the decision of this Court
in the case of N. R. Parmar
1
has been overruled by a larger
Bench of three Hon’ble Judges of this Court in the case of K.
Meghachandra Singh & Ors. v. Ningam Siro & Ors.
2
on 19
th
November 2019. However, it was clarified that the decision will
apply prospectively. His submission is that a recruitment year is
a calendar year and not a financial year. The learned senior
counsel submitted that in the present case, the advertisement for
recruitment was not issued in the year 2009 and the examination
was conducted in 2010. He pointed out that in the case of N.R.
Parmar
1
, the advertisement was issued in the same recruitment
year in which vacancies arose. He pointed out that a requisition
was sent on 21
st
January 2010 to SSC for 482 vacancies of
Income Tax Inspectors for 2009-10. However, in the next
requisition letter dated 22
nd
November 2010 which was for CGLE-
2010, carried forward vacancies (482) of 2009-10 were
2 2020 (5) SCC 689
8
mentioned. This requisition was made for total 844 vacancies
which included even vacancies of the recruitment year 2010-11.
Based on the observations made in paragraph 33 of the decision
in N. R. Parmar’s case
1
, the learned senior counsel would
submit that in terms of the said decision, the vacancies arising
during a particular year, should be reported in the same year and
the advertisement for recruitment should also be published in
the same year. He urged that in the present case, all these
conditions have not been fulfilled.
9.Inviting our attention to the decision of this Court in the
case of K. Meghachandra
2
, he submitted that now this Court
has categorically held that the seniority of direct recruits will be
reckoned only from the date of appointment and not from the
stage when the requisition for their appointment was sent. The
learned senior counsel also pointed out that CBDT by the letter
dated 27
th
May 2019 clarified that in view of subsequent decision
of the High Court of Delhi, the decision in the case of N.R.
Parmar
1
shall be implemented prospectively with effect from 27
th
November 2012. The learned senior counsel also pointed out that
when there was no advertisement and no requisition issued for
the vacancies of the year 2009, the vacancies of the year 2009
9
were combined in CGLE-2010. Therefore, relative merit of
selected candidates cannot be determined for assigning the
seniority in different recruitment years, the reason being that
there was only one merit list of CGLE-2010. He also pointed out
that the final position of vacancies was intimated to SSC for the
first time by the letter dated 27
th
October 2010. Therefore, the
direct recruits who were recruited on the basis of CGLE-2010
from the quota of earlier year, cannot be interspaced between the
promotees of the year 2009. He submitted that now seniority
cannot be disturbed after lapse of eleven or twelve years.
10.Mr. Nidhesh Gupta, the learned senior counsel appearing
for respondents nos.1 to 5, 7, 8, 10 to 13, 15 to 18 and 29 to 39
firstly submitted that even the decision in the case of K.
Meghachandra
2
protects the case of the said respondents (direct
appointees) as it is specifically observed that the decision will
apply prospectively and it will not affect inter-se-seniority fixed on
the basis of the decision of this Court in the case of N. R.
Parmar
1
.
11.He pointed out that this Court in the case of K.
Meghachandra
2
held that seniority cannot be granted from the
10
date when the candidate was not born in the cadre. He submitted
that it is a well settled position of law that the said principle does
not apply when the seniority is to be determined in accordance
with rotation of vacancies between direct recruits and promotees
based on quota of vacancies reserved for both the categories. He
relied upon the decision of a Constitution Bench of this Court in
the case of Mervyn Coutindo & Ors. v. Collector of Customs,
Bombay & Ors
3
. He submitted that in the said decision, the
Court upheld rotational system of fixing seniority. He submitted
that attention of the Bench of three Hon’ble Judges which
decided the case of K.Meghachandra
2
was not invited to the case
of Mervyn Coutindo
3
. He would, therefore, submit that the
decision of this Court in the case of K. Meghachandra
2
is per
incuriam. He submitted that the object of rotational system of
fixing seniority is to blend the talent with experience and to
augment the efficiency. He submitted that as held by this Court
in the case of Hon’ble Punjab & Haryana High Court at
Chandigarh v. State of Punjab & Ors.
4
, seniority has to be
determined on the basis of roster and not on the basis of the date
of joining of a particular stream. He pointed out that in the
3 1966 (3) SCR 600
4 2019 (12) SCC 496
11
judgment of this Court in the case of Arvinder Singh Bains v.
State of Punjab & Ors.
5
, it was held that making the date of
joining as the basis for determining seniority would lead to
discretion in the hands of the Government and the possibility of
misuse. The reason being that selection process of promotees is
shorter as compared to that of direct recruits. Therefore, injustice
to the direct recruits cannot be compounded by relegating them
below the direct recruits.
12.He relied upon various OMs starting from OM dated 3
rd
July
1986 till OM dated 13
th
August 2021, which clearly provide for
seniority to be determined according to the rotation of vacancies.
The learned senior counsel submitted that though a case is
sought to be made out that a recruitment year is a calendar year
and not a financial year, even the appellants have proceeded on
the footing that it is the financial year. He relied upon several
documents in that behalf.
13.He submitted that the relevant year for determining
seniority is the year in which recruitment requisition is sent. He
pointed out the letter dated 20
th
November 2009 enclosing
therewith the requisite proforma for requisition of Income Tax
5 2006 (6) SCC 673
12
Inspectors which clearly included 35 current and 11 carried
forward vacancies of the direct appointees. He pointed out that
the subsequent letter addressed to the Secretary of SSC is of 21
st
January 2010 which was issued in recruitment year 2009-10
itself which included vacancies of 2009-10. Even the
advertisement was issued in recruitment year 2009-10, as the
same was issued on 30
th
January 2010. He would, therefore,
submit that the recruitment year in the present case was 2009-
10. He submitted that segregation of vacancies for 2009-10 and
2010-11 was already done as is apparent from the seniority list
dated 7
th
September 2016.
14.He submitted that OM dated 7
th
February 1986 cannot be
applied and the same will apply when there is an earlier
examination or selection which is followed by a subsequent
examination or selection. He submitted that in the facts of the
case, in the year 2009-10, there was no examination or selection
conducted for direct recruits. The expression ‘direct recruits do
not become available’ used in OM dated 7
th
February 1986 means
that though the selection process is held during the relevant year,
the candidates do not become available.
13
15.Lastly, he pointed out that as a matter of fact, a large
number of direct recruits have been promoted since then. He
submitted that as the decision of this Court in the case of K.
Meghachandra
2
is per incuriam, being contrary to the binding
precedent of a larger Bench in the case of Mervyn Coutindo
3
, the
decision in the case of N.R. Parmar
1
will prevail.
16.Mr. Vikramjit Banerjee, the learned Additional Solicitor
General representing the Income Tax Department and Union of
India submitted that a new OM has been issued on 13
th
August
2021 by DoPT, clarifying that as the decision in the case of K.
Meghachandra
2
will have prospective operation, cases of inters-
se-seniority of direct recruits and promotees shall not be
disturbed during the period between the date of the decision in
N.R. Parmar’s case
1
and the date of decision in K.
Meghachandra’s case
2
. He submitted that in view of the said
OM, the cases of inter-se-seniority between officers joined
between 27
th
November 2012 and 18
th
November 2019 shall be
governed by the provisions of OMs dated 7
th
February 1986/3
rd
July 1986 read with OM dated 4
th
March 2014. He submitted that
a departmental OM dated 26
th
October 2021 has been issued as
per OM of DoPT dated 13
th
August 2021.
14
17.He submitted that Income Tax Department is adversely
affected due to the order of status quo, passed in this appeal, as
162 out of 486 sanctioned posts of Income Tax Officers (ITOs) are
vacant. He submitted that this had drastically affected service to
the taxpayers. He submitted that 109 Income Tax Inspectors are
likely to be deputed for election duty of Gujarat Assembly
Elections. He submitted that non-convening of DPC for ITOs is
having cascading effects as there are least number of promotions
in Group ‘C’ cadre. He submitted that if this Court is inclined to
refer the question to a larger Bench, the interim order may be
clarified or vacated as the functioning of the Department is really
affected by the interim order.
18.The learned senior counsel appearing for the appellants, by
way of rejoinder, submitted that direct recruits are selected by
SSC by open examination which is conducted annually.
Therefore, SSC follows the calendar year as opposed to the
financial year. He submitted that as no recruitment occurred in
2009, the results of the 2010 examination will determine the
seniority of carried forward candidates. He also pointed out
various documents in support of his contention that a
recruitment year will have to be taken as a calendar year.
15
CONSIDERATION OF SUBMISSIONS
19.We have carefully considered the submissions. The first
issue which arises for consideration is whether the decision of
this Court in K. Meghachandra’s case
2
is per incuriam or in the
alternative, whether it requires reconsideration being in conflict
with the decision of the Constitution Bench in the case of
Mervyn Coutindo
3
and the decision of a Bench of three Hon’ble
Judges in the case of M. Subba Reddy & Anr. v. A.P. State
Road Transport Corporation & Ors
6
. The next issue will be
assuming that the decision of this Court in N.R. Parmar’s case
1
stands overruled, in view of its prospective overruling, whether
the inter-se-seniority of the direct recruits and the promotees in
the facts of this case could be determined as per the decision in
N.R. Parmar’s case
1
. This is in the context of the fact that the
seniority was fixed after the decision in the case of N.R. Parmar
1
and before 19
th
November 2019 i.e. when the decision in K.
Meghachandra’s case
2
was rendered. The third issue to be
decided is whether the recruitment year is a financial year or a
calendar year. Lastly, a factual issue will have to be decided
whether, in the facts of this case, the process of recruitment of
6 2004 (6) SCC 729
16
direct recruits commenced in the very recruitment year in which
the vacancies arose.
THE CONCEPT OF RECRUITMENT YEAR
20.In the facts of the case, there is no dispute that as far as the
posts of Income Tax Inspectors are concerned, the principle of
rota and quota or rotation of quota will apply. The posts of
Income Tax Inspectors are being filled in by direct recruits and
promotees in the proportion already fixed. Therefore, a roster will
apply where the points will be for direct recruits and promotees
as per the proportion fixed. Before we go into various legal issues,
which we have flagged above, it will be appropriate if we discuss
the factual issues first. For the decision on the factual issues, it is
necessary to decide whether the recruitment/requisition/vacancy
year is the same as the financial year. The appellants have tried
to contend that a recruitment year will be a calendar year. We
must note here that no such case has been made out in the Civil
Appeal arising out of Special Leave Petition (C) No.16161 of 2018.
In the synopsis on pages F and G, the appellants themselves have
referred to the financial year while referring to the vacancies
available in a particular year. The appellants made a
representation dated 25
th
November 2016 in which they described
17
the recruitment years as the financial years i.e 2009-10 and
2010-11. The letter dated 3
rd
August 2016 addressed by the
Directorate of Income Tax, New Delhi to the Principal Chief
Commissioner of Income Tax, Ahmedabad treats a recruitment
year as a financial year. In fact, it incorporates a clarification
issued by ITGOA which in turn, refers to the recruitment year on
the footing that it is a financial year. The appellants have annexed
as ‘Annexure P-12’ to reply affidavit in I.A.No.161060 of 2019, a
clarification dated 7
th
November 2014 issued by the CBDT to All
Principal Chief Commissioners of Income Tax, which refers to
vacancy years as financial years right from 1986-87 till 2013-14.
Along with the letter dated 3
rd
August 2010, the Office of the
Chief Commissioner of Income Tax forwarded to the CBDT, the
details of the confirmed vacancies in the post of Income Tax
Inspectors as on 31
st
March 2011 in the prescribed proforma. In
the prescribed proforma, under the column ‘year’ (year of
vacancies), financial years 2009-2010 and 2011-2012 have been
mentioned. 35 vacancies of Income Tax Inspectors have been
shown against the year 2009-10. In the counter affidavit of
private respondents, reliance has been placed on the OM dated
8
th
May 2017 issued by the DoPT. Paragraph 5 of the said OM
18
specifically records that in partial modification of the OMs issued
on 10
th
April 1989, 16
th
June 2000 and 20
th
May 2014, the
vacancy year may be shifted to a calendar year from the year
2018, wherever the vacancy year based on financial year was
being followed. The documents on record clearly show that as far
as the posts of Income Tax Inspectors are concerned, the vacancy
or recruitment year was always reckoned as the financial year.
21.The appellants have placed reliance on the advertisement of
CGLE-2010. We have perused the said advertisement. It does not
refer to any particular recruitment or vacancy year and it does
not record whether the examination is being held for the
vacancies of a particular recruitment year. Reliance is also placed
on the fact that CGLE is always referred to with reference to the
calendar year and not the financial year. This is hardly of any
relevance. SSC acts as per the requirements of the concerned
department. SSC is not concerned in any manner with the
recruitment year. Its job is to conduct the process of recruitment
as per the instructions of the concerned department. There is
material on record to show that the Income Tax Department
always treated the vacancy year or recruitment year as a financial
year.
19
22.We have, therefore, no manner of doubt that till the year
2018, in relation to the recruitment and vacancies to the posts of
Income Tax Inspectors, the financial year was being treated as
the recruitment year or vacancy year.
COMMENCEMENT OF THE PROCESS
FOR THE RECRUITMENT YEAR
2009-10 FOR DIRECT RECRUITS
23.The letter dated 20
th
November 2009 addressed by the Chief
Commissioner of Income Tax, Ahmedabad to an officer of CBDT,
refers to the fact that there were 35 vacancies of direct recruits.
The agency for recruiting direct recruits to the post of Income Tax
Inspectors is admittedly SSC. The Government of India addressed
a letter to the Secretary of SSC on 21
st
January 2010 stating that
for CGLE-2009/10, approximately 482 vacancies were available.
Thus, the requisition issued to SSC was for filling in 482
vacancies of the year 2009-10. The notice of CGLE-2010 was
published on 31
st
January 2010. The last date for filing
applications was 2
nd
March 2010. The letter dated 3
rd
August
2010 addressed by the Chief Commissioner of Income Tax,
Ahmedabad to CBDT records that as on 31
st
March 2011, there
will be 35 backlog vacancies for direct recruits for the year 2009-
10. In this letter, it was stated that there were total 74 vacancies
20
for the posts of Income Tax Inspectors, out of which, 35 vacancies
were of the year 2009-10. The same vacancy position has been
mentioned in the letter dated 20
th
November 2009 referred above.
The documents on record clearly indicate that these 35 posts of
direct recruits for the recruitment year 2009-10 were sought to
be filled in on the basis of CGLE-2010 notified on 31
st
January
2010 which was held on 16
th
May 2010. The notice of CGLE-2010
records that the last date for submitting applications was 2
nd
March 2010. The advertisement mentions that the applicants
should be qualified as on 2
nd
March 2010, which is a date within
the recruitment/vacancy year 2009-10. Thus, on facts, it can be
concluded that the process of recruiting direct recruits to 35
posts of Income Tax Inspectors of the vacancy/recruitment year
2009-10 commenced in the same year 2009-10.
CASES OF N.R.PARMAR
1
AND K. MEGHACHANDRA
2
24.Now, we turn to the decision in N.R. Parmar’s case
1
. This
Court dealt with the issue of inter-se-seniority between the
promotee Income Tax Inspectors and direct recruits. As noted in
paragraph 9 of the decision, the controversy pertained to the
vacancies for the year 1993-94. The vacancies of promotees were
filled in the same year. SSC issued the advertisement in
21
May/June 1993 for filling in the posts of direct recruits for the
year 1993-94. Though the written test was conducted in
December 1993, viva-voce was conducted in October 1994. The
result was declared in June 1995 and the direct recruits joined in
the year 1995. The Administrative Tribunal held that the date on
which the SSC made the selection of the direct recruits, will be
the material date for fixing their seniority. The High Court
interfered with the order of the Tribunal by passing an order of
remand. Ultimately, the direct recruits succeeded before the
Tribunal. The writ petitions challenging the order of the Tribunal
passed on remand were filed before the High Court. The said
petitions were transferred to this Court.
25.Perusal of the decision in the case of N.R. Parmar
1
shows
that this Court considered and interpreted OMs dated 22
nd
December 1959, 7
th
February 1986, 3
rd
July 1986 and 3
rd
March
2008. Apart from these OMs, this Court considered various Office
Notes as well as correspondence. This Court held that the OM
dated 3
rd
March 2008 has to be ignored to the extent to which the
same is in derogation of OMs dated 7
th
February 1986 and 3
rd
July 1986. In paragraph 52, this Court recorded its conclusions,
which reads thus:
22
“52. Having interpreted the effect of the OMs
dated 7-2-1986 and 3-7-1986 (in paras 25 to 29
hereinabove), we are satisfied, that not only the
requisition but also the advertisement for direct
recruitment was issued by 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.”
(emphasis added)
s
26.It is necessary to consider the findings rendered by the High
Court in the impugned judgment. The High Court has expressly
relied upon the decision of this Court in the case of N.R.
23
Parmar
1
. By applying the said decision to the facts of the case,
the High Court held that:
i.Requisition for 35+11 vacancies for direct recruits was
sent to CBDT in the recruitment year 2009-10 itself;
ii.The recruitment for the said vacancies could not be held
during the recruitment year 2009-10 for the reasons for
which the candidates were not responsible;
iii.It is not the case that the eligible candidates for filling in
the posts of direct recruits were not available in the year
2009-10;
iv.The seniority list dated 7
th
September 2016 which was
prepared in terms of the decision of this Court in the case
of N.R. Parmar
1
was required to be restored with a
clarification that those direct recruits who were eligible in
the recruitment year 2009-10 should be interspaced with
53 promotees appointed during the year 2009-10; and
v.The seniority list dated 7
th
September 2016, which was
the final seniority list, could not be modified without
giving an opportunity of being heard to the affected
24
candidates. Therefore, the amended seniority list dated
13
th
February 2018 was illegal.
27.Now, coming to the decision of the Bench of Hon’ble three
Judges in the case of K.Meghachandra
2
, this Court was dealing
with the Manipur Police Service Rules, 1965 (for short, ‘the MPS
Rules’). This Court was dealing with the issue of the dispute over
the seniority in the cadre of Manipur Police Service, Grade-II
Officers between the direct recruits and promotees. After referring
to Rule 28 of the MPS Rules, a finding was recorded that the Rule
expressly provided that the seniority shall be reckoned only from
the date of appointment and not from the stage when the
requisition for the appointment was issued. In paragraph 34, this
Court held thus:
“34. The judgment in N.R.Parmar [2012 (13) SCC
340] is now to be considered in some detail as this
is heavily relied on by the appellants' counsel. At
the outset, it must however be cleared that the
cited case had nothing to do with the MPS
Rules, 1965 and that litigation related to the
Income Tax Inspectors who were claiming
benefits of various Central Government OMs
(dated 22-12-1959, 7-2-1986, 3-7-1986 and 3-
3-2008). The judgment was rendered in respect
of the Central Government employees having
their own Service Rules. The applicable Rules
for the litigants in the present case however
provide that the seniority in the service shall
25
be determined by the order in which
appointments are made to the service.
Therefore, the memorandums concerned
referred to in N.R. Parmar [2012 (13) SCC
340] which deal with general principles for
determination of seniority of persons in the
Central Government service, should not
according to us, have any overriding effect for
the police officers serving in the State of
Manipur.”
(emphasis added)
In paragraph 38, this Court held thus:
“38. At this stage, we must also emphasise
that the Court in N.R.Parmar
[2012(13)SCC340] need not have observed that
the selected candidate cannot be blamed for
administrative delay and the gap between
initiation of process and appointment. Such
observation is fallacious inasmuch as none can
be identified as being a selected candidate on
the date when the process of recruitment had
commenced. On that day, a body of persons
aspiring to be appointed to the vacancy
intended for direct recruits was not in
existence. The persons who might respond to
an advertisement cannot have any service-
related rights, not to talk of right to have their
seniority counted from the date of the
advertisement. In other words, only on
completion of the process, the applicant
morphs into a selected candidate and,
therefore, unnecessary observation was made
in N.R. Parmar [2012 (13) SCC 340] to the
effect that the selected candidate cannot be
blamed for the administrative delay. In the
same context, we may usefully refer to the ratio
in Shankarsan Dash v. Union of
India [Shankarsan Dash v. Union of India, (1991)
3 SCC 47 : 1991 SCC (L&S) 800] , where it was
26
held that even upon empanelment, an appointee
does not acquire any right.”
(emphasis added)
In paragraph 39, this court observed:
“39. The judgment in N.R.Parmar [2012 (13) SCC
340] relating to the Central Government
employees cannot in our opinion, automatically
apply to the Manipur State Police Officers,
governed by the MPS Rules, 1965. We also feel
that N.R. Parmar
1
had incorrectly distinguished
the long-standing seniority determination
principles propounded in, inter alia, Jagdish
Ch.Patnaik [Jagdish Ch.Patnaik v. State of Orissa,
(1998) 4 SCC 456 : 1998 SCC (L&S) 1156], Suraj
Parkash Gupta v. State of J&K [Suraj Parkash
Gupta v. State of J&K, (2000) 7 SCC 561 : 2000
SCC (L&S) 977] and Pawan Pratap
Singh v. Reevan Singh [Pawan Pratap
Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011)
1 SCC (L&S) 481] . These three judgments and
several others with like enunciation on the law for
determination of seniority makes it abundantly
clear that under service jurisprudence, seniority
cannot be claimed from a date when the
incumbent is yet to be borne in the cadre. In our
considered opinion, the law on the issue is
correctly declared in Jagdish Ch. Patnaik [Jagdish
Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 :
1998 SCC (L&S) 1156] and consequently we
disapprove the norms on assessment of inter se
seniority, suggested in N.R. Parmar [Union of
India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3
SCC (L&S) 711]. Accordingly, the decision
in N.R. Parmar
1
is overruled. However, it is
made clear that this decision will not affect
the inter se seniority already based on N.R.
Parmar
1
and the same is protected. This
decision will apply prospectively except where
seniority is to be fixed under the relevant rules
27
from the date of vacancy/the date of
advertisement.”
(emphasis added)
28.With the greatest respect to the Hon’ble Bench which dealt
with K.Meghachandra’s case
2
, we find that the attention of the
Bench was not invited to the binding decision of the Coordinate
Bench in the case of M. Subba Reddy
6
. This decision was
rendered by a Bench of three Hon’ble Judges. This Court in the
case of M. Subba Reddy
6
dealt with the issue of the fitment of
the promotees to the posts of Assistant Traffic Manager and
Assistant Mechanical Engineer in the integrated seniority list.
The majority judgment refers to the relevant Service Regulations
which provide that seniority is reckonable from the date of
appointment to service or grade. Paragraphs 6 and 7 of the said
decision read thus:
“6. Mr Rakesh Dwivedi, learned Senior Counsel
appearing on behalf of the appellants submitted
that the appellants had a right to be promoted
within their quota during the years 1981 to 1987,
when vacancies for promotees' quota became
available. During this period, no direct recruits
were available. Direct recruits became available in
July 1988, November 1990 and June 1992.
Appellant M. Subba Reddy was regularised from
27-12-1986 vide order dated 9-9-1988, when no
direct recruits were available and, therefore, it was
improper for the Corporation to place direct
28
recruits above the promotees. It is the case of
the appellants that the direct recruits cannot
claim appointments from the date of the
vacancy in their quota before their selection. It
has been contended that Item 3 of Annexure ‘A’
(Section B) prescribes the method of recruitment
in the manner in which vacancy is allocated.
According to the learned counsel it does not
involve rota for the purposes of seniority. It
prescribes only quota, therefore, rota cannot be
implied. It was urged that seniority is dealt with
only by Regulation 3 of the Service Regulations,
1964 and not by Regulation 34 of the Recruitment
Regulations, 1966. Reliance was placed in this
connection on Regulation 34 as amended on 15-9-
1995. It was submitted that in view of the said
amendments, Annexure ‘A’ refers to only allocation
of vacancy and not for determination of seniority.
It was to be determined only by Regulation 3 of
the Service Regulations. The non-availability of
candidates in a particular category, it was
urged, may be on account of ban on
recruitment or on any other ground. Therefore,
in the present case, where promotees were
regularised in the promotion quota when direct
recruits were not available, the quota in Item
3(1) of Annexure ‘A’ will not apply. It was
submitted that in any event, allocation of
vacancy under the said clause was not rigid
and it cannot be a basis for denying seniority
to the promotees from the date of
regularisation. Reliance was placed on the
judgment of this Court in the case of Direct
Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S)
339 : (1990) 13 ATC 348 : AIR 1990 SC 1607].
7. We do not find any merit in the above
arguments. The appellants have not challenged
the validity of the above regulations. As stated
above, it has been contended before us on behalf
of the appellants that Item 3(1) of Annexure ‘A’
29
(Section B) prescribes method of recruitment and
the manner in which vacancy is to be allocated,
which does not involve rotation for the purposes of
seniority; that Item 3(1) of Annexure ‘A’ (Section B)
prescribes only quota and rota cannot be implied.
However, the appellants before the High Court
unequivocally submitted that under the above
regulations, promotions and direct
recruitments were required to be made in the
ratio of 1:1 and that the said regulations
provided for a cycle in which vacancies were to
be rotated. (See affidavit of M. Subba Reddy dated
28-12-1994.) In the said affidavit, it is further
submitted that in the absence of direct
recruits, the slots reserved for direct recruits
were liable to be adjusted with the promotees
immediately and subsequently arrived direct
recruits should be given their positions in the
seniority list subsequently in a bunch. In our
view, the averments of the appellants before
the High Court, if accepted, would result in
complete violation of the quota-and-rota rule
embodied in the above regulations, which
cannot be permitted. As stated above, the
appellants were promoted originally subject to the
conditions envisaged in Regulation 34 and,
therefore, they cannot claim seniority by ignoring
the said regulations and on the basis of their
officiating services. They were promoted
temporarily under Regulation 30 which provides
for ad hoc promotions. Regulation 34 ensures
induction of qualified direct recruits. But for
Regulation 34, candidates from feeder posts would
be temporarily promoted to the slots reserved for
direct recruits and on their regularisation, the
quota prescribed for direct recruits will be
defeated. Regulation 34 has been enacted to
protect quota prescribed for direct recruits. As
stated above, Regulation 3 of the Service
Regulations has to be read with Regulations 30
and 34 of the said Recruitment Regulations. The
appellants were promoted on temporary basis
30
under Regulation 30 with the clear understanding
that the period of officiation will not give them any
right over direct recruits in future. It is for this
reason that Regulation 30(6) states that if a
temporary promotee is subsequently promoted in
accordance with the regulations, his probation
will commence in the higher category only from
the date of subsequent promotions. For the same
reason, Regulation 34 states that revertees shall
be subsequently considered for repromotion
against the quota of vacancies reserved for being
filled by promotion. Therefore, Regulation 34
protects the quota prescribed for direct recruits.
On reading Regulation 3 of the Service
Regulations with Regulations 30 and 34 of the
Recruitment Regulations, it becomes clear that
neither the date of promotion nor the date of
selection is the criterion for fixation of
seniority. The fixation of seniority under the
above regulations depends upon the number of
vacancies falling in a particular category.
Therefore, the rule of rota is inbuilt in the
quota prescribed for direct recruits and for
promotees in terms of Item 3 of Annexure ‘A’
(Section B) to the Recruitment Regulations. In
the present case, the above regulations
prescribe a quota of 1:1, which leads to rota for
confirmation. The fixation of seniority under
the above regulations depends upon the
number of vacancies against which promotees
became due for promotion. In the case
of Devendra Prasad Sharma v. State of
Mizoram [(1997) 4 SCC 422 : 1997 SCC (L&S)
1053] Rule 25(iii) stated that the relative seniority
of direct recruits and of promotees shall be
determined according to rotation of vacancies
between direct recruits and promotees based on
the quota of vacancies reserved for direct
recruitment and promotion. Rule 25(iii) is similar
to Item 3(1) of Annexure ‘A’ (Section B). It was
held by this Court that in cases where there is
rotation of vacancies between direct recruits
31
and promotees based on quota of vacancies,
the rotation has to be considered in
accordance with the vacancies as and when
they accrue under the rules. Therefore, the
quota rule needs to be strictly adhered to, if
not, it would lead to absurdity. If the
contention of the appellants is accepted, it
would mean that the entire group of direct
recruits will have to be placed below the entire
group of promotees. We are of the opinion that
having fixed the quota between the two
sources of recruitment, there is no discretion
with the Corporation to alter the quota or to
deviate from the quota. In the circumstances,
there is no merit in the argument of the
appellants that Item 3(1) of Annexure ‘A’ (Section
B) prescribes only quota and not rota and that the
said item was not for determination of seniority. In
the case of S.G. Jaisinghani v. Union of India [AIR
1967 SC 1427] this Court held that having fixed
the quota between two sources of recruitment, it
is not open to the Government to alter the quota
or to deviate from the quota. In the case of Union
of India v. S.D. Gupta [(1996) 8 SCC 14 : 1996
SCC (L&S) 811 : AIR 1996 SC 3325] the
respondents were promotee Extra Assistant
Directors (Class III) in Central Water Commission
Engineering Class I Service. The Recruitment
Rules were made w.e.f. 15-10-1965. In the earlier
litigation, the Tribunal found that one Shri V.P.
Misra, Extra Assistant Director was promoted
on ad hoc basis on 31-3-1978 and he was
required to be confirmed with effect from the date
on which vacancy was available to him in the
quota of promotees. The vacancy had admittedly
arisen in the quota of promotees on 3-5-1979.
Shri V.P. Misra was fitted in that vacancy. While
doing so, the Department applied the principle of
rota and quota and determined the inter
se seniority of promotees and direct recruits.
Consequently, the promotees were pushed down in
the order of seniority which led to the second
32
round of litigation. The question which arose for
determination before this Court was whether
fitment of seniority determined by the Department
was in accordance with the rules. The Court
found that 60% of the vacancies were to be filled
by direct recruits and 40% by promotees. Among
the 40% quota, there was a further demarcation
in the ratio of 25% and 15% between promotees
and transferees. Admittedly, the promotees were
entitled to their fitment within 25% quota.
Vacancies for the promotees had arisen on 3-5-
1979 and, therefore, V.P. Misra was entitled to
that vacancy which arose on that date. However,
as stated above, in the integrated list, the
promotees were pushed down. It was contended
on behalf of the promotees that the direct
recruits were not borne in the service when
the promotees were promoted and equity
requires that the promotees cannot be pushed
down. This Court rejected the said argument
by observing that the object of direct
recruitment is to blend talent and experience.
So long as the system continues, consequences
are inevitable. Although the direct recruits
were recruited later, their fitment in the order
of seniority had to be determined with
reference to rota and quota prescribed under
the rules. In such a case, there was no
illegality even when promotees were pushed
downwards in the order of seniority. In our
view, the judgment of this Court in S.D. Gupta
case [(1996) 8 SCC 14 : 1996 SCC (L&S) 811 : AIR
1996 SC 3325] squarely applies to the facts of the
present case.”
(emphasis added)
It was held that although certain direct recruits were recruited
subsequent to the promotees, their fitment in the order of
seniority had to be determined with reference to rota and quota
33
or ‘rotation of quota’ prescribed under the Rules. It was held that
there was no illegality when the promotees were pushed
downwards in the order of seniority. This Court quoted with
approval its earlier judgment in the case of Union of India &
Ors. v. S.D. Gupta & Ors
7
. In this case, by applying the
principle of rota and quota, the inter-se-seniority of the
promotees and direct recruits was fixed. This Court, in the said
case, held that though direct recruits were recruited subsequent
to the appointment of promotees, the fitment of direct recruits
and promotees must be determined with reference to the rota and
quota prescribed. In paragraph 8, this Court dealt with an
argument that the direct recruits were not born in the service
when the promotees were promoted and therefore, the promotees
should not be pushed down. In paragraph 8, this Court held
thus:
“8. It is then contended that the direct recruits
were not born in the service when the promotees
were promoted and equity requires that they
cannot be pushed down. The object of direct
recruitment is to blend talent and experience
to augment efficiency when direct recruits,
though came from green pastures, were
imbued with dedication and honesty. So long
as system continues, consequences are
inevitable. The question of equity does not
arise. Shri Krishnamani then contended that
7 1996 (8) SCC 14
34
direct recruits are shown temporary and so they
cannot be similar to promotee substantive
appointees. The quota of 60% of direct recruits is
to substantive vacancies, though their initial
appointment is temporary; on completion of
period of probation they become substantive
appointees. That is the settled principle of law in
this behalf. The Tribunal, therefore, is not right in
giving direction to consider their fitment vis-à-vis
the order passed by this Court in their quota
above the direct recruits.”
(emphasis added)
29.Now, we turn to the decision of the Constitution Bench in
the case of Mervyn Coutindo
3
. This Court decided a petition
under Article 32 of the Constitution of India filed by the
Appraisers in the Customs Department. The Constitution Bench
noted that the system which prevailed for recruitment to the
posts of Appraisers was that 50% of posts were reserved for direct
recruits and the remaining 50% were filled in by promotion from
sub-ordinate officers in the Customs Department. The contention
raised in the petition was that this system had resulted in
discriminatory treatment to the promotees in as much as the
promotees who had rendered much longer service in the cadre of
Appraisers were put in seniority below the direct recruits with
much shorter service. There was one more grievance in the
petition with which we are not concerned. The Apex Court
referred to the circular/OM dated 12
th
September 1959 which is
35
referred in the OMs dated 7
th
February 1986 and 3
rd
July 1986.
After considering the submissions, the Constitution Bench held
thus:
“6. Before we come to what has been done in 1963
in the matter of fixing seniority of Appraisers, we
may refer to two other circulars. The first is a
circular of the Board issued in 1953. That circular
in our opinion has nothing to do with the question
of fixing of seniority as between direct recruits and
promotees. Its main value is that it emphasises
that the proportion fixed for direct recruits and
promotees should be rigidly maintained. It also
directs that promotion to higher grades should be
made on the basis of a combined seniority list of
both direct recruits and promotees. Then there is
another circular of 1955. That circular again
emphasises the rotational system and says
that it has been decided that “inter se
seniority of direct recruits and promotees in
the grade of Appraisers should be determined
in the order in which the vacancy in that grade
is filled by a direct recruit or by a promotee
according to the quota fixed for such
appointments”. Stress has been laid on behalf
of the petitioners on the words “is filled” in
this circular, and it is urged that this means
that until the direct recruit is actually
recruited and fills the vacancy meant for a
direct recruit he cannot get seniority from
before the date he fills the vacancy merely on
the ground of rotational system of fixing
seniority. We do not think that this is the
meaning of the words “is filled” used in this
circular. We have already said that this circular
also emphasises the rotational system in the
matter of fixing of seniority and all that it
means is that vacancies should be filled either
by direct recruits or by promotees according to
the quota fixed for such appointments.
36
7. This brings us back to the circular of 1959, and
the main question in that connection is the
meaning to be assigned to the words “seniority
determined accordingly”, in the explanation to
principle 6 relating to relative seniority of direct
recruits and promotees. As we read these words,
their plain meaning is that seniority as
between direct recruits and promotees should
be determined in accordance with the roster,
which has also been specified, namely, one
promotee followed by one direct recruit and so
on. Where therefore recruitment to a cadre is
from two sources, namely, direct recruits and
promotees and rotational system is in force,
seniority has to be fixed as provided in the
explanation by alternately fixing a promotee
and a direct recruit in the seniority list. We do
not see any violation of the principle of
equality of opportunity enshrined in Article
16(1) by following the rotational system of
fixing seniority in a cadre half of which
consists of direct recruits and the other half of
promotees, and the rotational system by itself
working in this way cannot be said to deny
equality of opportunity in government service.
The anomalies which have been referred to in
the petition arise not on account of there
being anything opposed to equality of
opportunity in government service by the use
of the rotational system; they arise out of the
fortuitous circumstance that in this particular
service of Appraisers, for one reason or
another, direct recruitment has fallen short of
the quota fixed for it. It is merely because of
this fortuitous circumstance that anomalies to
which reference has been made in the petition
have arisen. There is no doubt that if direct
recruitment had kept pace with the quota
fixed therefor there would have been no
anomalies in fixing the seniority list. The
question therefore narrows down to this: Can it be
said that there is denial of equality of opportunity
37
which arises out of this fortuitous circumstance
and which is not a vice inherent in the rotational
system? We are not prepared to say that the
rotational system of fixing seniority itself offends
equality of opportunity in government service. Any
anomalies which may have resulted on account of
insufficient recruitment of direct recruits in the
past cannot in our opinion be a ground for
striking down the rotational system, which, as we
have said, does not itself amount to denial of
equality of opportunity in the matter of
employment in government service. It is
regrettable that some anomalies have appeared
because of insufficient recruitment of direct
recruits in the past in this particular service.
But that in our opinion can be no reason for
striking down the seniority list prepared in
1963 which is undoubtedly in strict
accordance with the rotational system based
on the fixed quotas for recruitment of direct
recruits and promotees. The order of the Board
of 1963 on the basis of which the impugned
seniority list of Appraisers has been prepared
clearly lays down that “the principle of
determination of seniority of the direct
recruits and the promotees inter se in the
prescribed ratio of 1:1 should be worked out”.
This order is in accordance with the circular of
1959 and as we have said already, there is no
inherent vice in the principle of fixing
seniority by rotation in a case where a service
is composed in fixed proportion of direct
recruits and promotees.”
(emphasis added)
30.The argument made before us is that the decision in the
case of K. Meghachandra
2
will have to be ignored on the ground
that it is per incuriam as the attention of the Bench which
38
decided the case was not invited to the binding decisions of the
Constitution Bench in the case of Mervyn Coutindo
3
and a
Coordinate Bench in the case of M. Subba Reddy
6
. Prima facie,
we find substance in the argument that the attention of the
Bench which decided the case of K. Meghachandra
2
was not
invited to the aforesaid binding precedents. Therefore, we are of
the view that the appropriate course of action will be to refer the
question to a larger Bench. We are dealing with a case where the
‘rotation of quota’ or rota and quota system is being followed. If
the promotees are recruited in the relevant recruitment year, but
the process of recruitment of the direct recruits which
commenced in the same recruitment year could not be completed
in the same year, the direct recruits appointed subsequently will
have to be interspaced between the promotees of the same
recruitment year. In such a case, it cannot be said that direct
recruits were not available during the recruitment year. Their
appointment could not be made during the same year, though
the process of appointment commenced in the same year. But, if
the process of recruitment of the direct recruits is completed in
the same recruitment year but an adequate number of candidates
could not be selected, the shortfall should be carried forward to
39
the next recruitment year. In such cases, the candidates who are
selected against shortfall vacancies will have to be bunched below
the promotees of the earlier years. Unless such a procedure is
followed, the rotation of quota system will be defeated.
31.Coming to the facts of the case, though process of
recruitment of direct recruits to the post of Income Tax
Inspectors commenced in the recruitment year 2009-10, the
same could not be completed in the same recruitment year. This
is not a case where an adequate number of direct recruits could
not be recruited even though the recruitment was done in the
recruitment year itself. In this case, those who were eligible for
direct recruitment were deprived of the opportunity as the
process of recruitment could not be completed during the same
recruitment year 2009-10 due to no fault on their part. The
documents annexed to the counter affidavit show that the
segregation of vacancies for 2009-10 and 2010-11 has been
properly made.
32.In any event, the decision in the case of K. Meghachandra
2
has a prospective operation. The seniority list of 7
th
September
2016 was made in terms of the decision in the case of N. R.
40
Parmar
1
. Hence, the same could not have been altered on 13
th
February 2018 when the said decision was in force.
33.Thus, our conclusion can be summarised as under:
i.The decision in the case of K. Meghachandra
2
requires reconsideration by a larger Bench in view of
the fact that the binding decision of a Constitution
Bench in the case of Mervyn Coutindo
3
and another
binding decision of a Coordinate Bench in the case of
M. Subba Reddy
6
were not placed for consideration
before the Bench which decided the case of K.
Meghachandra
2
;
ii.Even assuming that the case of K. Meghachandra
2
was correctly decided, paragraph 39 of the decision
shows that the decision in the case of N.R. Parmar
1
has been prospectively overruled by observing that
the decision will not affect the inter-se-seniority
already fixed on the basis of the case of N.R. Parmar
1
and the same was protected. It is also held that the
decision will apply prospectively except where
seniority is to be fixed under the relevant Rules from
41
the date of vacancy / the date of advertisement. In
this case, as on the date when the case of N.R.
Parmar
1
was decided, there was no rule which
required that the inter-se-seniority of direct recruits
and promotees to the post of Income Tax Inspectors
should be fixed from the date on which a person is
born in the cadre. In the facts of the case, the
seniority list was correctly published on 7
th
September
2016 in terms of the decision in the case of N.R.
Parmar
1
by interspacing those direct recruits who
were eligible in the recruitment year 2009-10 and
were appointed against the vacancies of the said year
with 53 promotees who were promoted vide DPC dated
29
th
June 2009. The seniority list was later on
modified on 13
th
February 2018 without giving an
opportunity of being heard to the affected direct
recruits.
34.At this stage, we may note here the factual aspects stated in
the affidavit dated 12
th
October 2022 filed by Shri Anurag
Chandra, Deputy Commissioner of Income Tax in the Office of
the Principal Chief Commissioner of Income Tax, Gujarat. The
42
affidavit refers to the interim order dated 13
th
July 2018 in the
Civil Appeal arising out of S.L.P. (C) No.16161 of 2018, by which
status quo as of that date with respect to the posts held, was
ordered to be maintained. The affidavit notes that as a result of
the interim order, the promotion to the cadre of Income Tax
Officers from the cadre of Income Tax Inspectors could not take
place. As a result, 33.33% of posts in the cadre of Income Tax
Officers are vacant as the same cannot be filled in. As noted
earlier, the decision in the case of K.Meghachandra
2
applies
prospectively i.e. from 19
th
November 2019. Prima facie, the
seniority fixed based on the decision in the case of N.R. Parmar
1
has to be given effect. Therefore, while we are recommending a
reference to a larger Bench, interim relief will have to be vacated
and seniority will have to be fixed on the basis of the impugned
judgment, subject to the final outcome of the appeal or the
decision of the larger Bench, as the case may be.
35.Hence, we pass the following order:
i.We are of the considered view that the following
questions need to be decided by a larger Bench of five
Hon’ble Judges:
43
a.Whether the decision in the case of K.
Meghachandra
2
can be said to be a binding precedent in
the light of the law laid down by the Constitution Bench
in the case of Mervyn Coutindo
3
and the law laid down
by a Coordinate Bench in the case of M. Subba Reddy
6
?
b.In absence of specific statutory rules to the contrary,
when the ‘rotation of quota’ rule is applicable, whether
the seniority of direct recruits who were recruited in the
recruitment process which commenced in the relevant
recruitment year but ended thereafter, can be fixed by
following ‘rotation of quota’ by interspacing them with the
direct recruits of the same recruitment year who were
promoted earlier during the same year?
ii. We direct the Registry to place this petition before Hon’ble
the Chief Justice of India for appropriate orders.
iii. The interim relief granted on 13
th
July 2018 stands
vacated. Effect shall be given to the impugned judgment
subject to the final outcome of this appeal or reference, as
the case may be. We also clarify that the seniority of
promotees and direct recruits who may be appointed
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hereafter will be subject to the final outcome of the decision
of this appeal or the decision in reference, as the case may
be. Accordingly, concerned persons shall be informed in
writing by the Income Tax Department.
36.In the Civil Appeal arising out of Special Leave Petition (C)
Diary No.12422 of 2022, the challenge is to the judgment and
order dated 6
th
February 2018 passed by the High Court of
Judicature at Patna which follows the decision in the case of N.R.
Parmar
1
dealing with the issue of appointment of Income Tax
Inspectors pertaining to the recruitment year 2009-10. This
appeal be heard along with the main appeal.
…....…………………J.
(S. Abdul Nazeer)
…….…………………J.
(Abhay S. Oka)
New Delhi;
December 14, 2022.
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