Page 1 “ 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

1

Page 2 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

2

Page 3 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.

3

Page 4 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

4

Page 5 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

5

Page 6 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

6

Page 7 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

7

Page 8 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.”

8

Page 9 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.”

9

Page 10 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:

10

Page 11 “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,

11

Page 12 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

12

Page 13 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.”

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Page 14 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.”

14

Page 15 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

15

Page 16 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

16

Page 17 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.

17

Page 18 “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

18

Page 19 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

19

Page 20 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,

20

Page 21 “…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.

21

Page 22 (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.

22

Page 23 (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

23

Page 24 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

24

Page 25 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:-

“2.4.1The 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 .

2.4.2If 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

25

Page 26 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.

2.4.4With 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

26

Page 27 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.

27

Page 28 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

28

Page 29 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 5

th

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 6

th

will in any case go

to promotee. But for the instructions contained in our O.M. dated

07.02.1986, the 5

th

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/-

29

Page 30 (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

30

Page 31 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

31

Page 32 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

32

Page 33 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 11

th

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

33

Page 34 inspectors should be

given seniority of the

year in which selection

process initiated or

vacancy occurred

orotherwise

that Direct Recruits’

seniority vis-à-vis the

promotees is reckoned

from the year in which

they are 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,

34

Page 35 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 27

th

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 8

th

September, 2004

To

Al CCITs(CCA)

35

Page 36 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

36

Page 37 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 3

rd

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:

2.4.1The relative seniority of direct recruits and of promotees

shall be determined according to the rotation of

vacancies between direct recruits and promotees, which

37

Page 38 shall be based on the quota of vacancies reserved for

direct recruitment and promotion respectively in the

Recruitment Rules.

2.4.2If 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:

38

Page 39 (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

39

Page 40 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

40

Page 41 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

41

Page 42 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.

42

Page 43 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

43

Page 44 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

44

Page 45 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

45

Page 46 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

46

Page 47 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”

47

Page 48 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

48