# 13 S.C.R. 555 UNION OF INDIA & ORS v. N.R. PARMAR & ORS

- **Citation:** [2012] 13 S.C.R. 555
- **Court:** Supreme Court of India
- **Decided:** 2012-11-27
- **Case number:** Civil Appeal Nos. 7514-7515 of 2005
- **Bench:** D.K. Jain, Jagdish Singh Khehar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-s-c-r-555-union-of-india-ors-v-n-r-parmar-ors-28148
- **Pages:** 56

## Headnote

A
B
Service Law - Seniority - lnter-se-seniority - Between
direct recruit and promotee Income Tax Inspectors -
Applicability of 'quota' and 'rota' principle - Vacancies for the C
year 1993-94 required to be filled up by promotion as well as
direct recruitment - Simultaneously refeffed to Departmental
Promotion Committee and to Staff Selection Commission
respectively - Appointment of promotees prior to the direct
recruits as the selection process for direct recruits could not D
be completed within the recruitment year - Determination of
date of seniority of the direct recruits - Plea of promotees that
the date of seniority of the direct recruits should be from the
date of their actual appointment, primarily placing reliance on
Office Memorandum dated 7.2.1986 - Held: The date of E
seniority of direct recruits could not be the date of their actual
appointment, but would be the date of initiation of process of
recruitment - The general principles for determining inter se
seniority between promotees and direct recruits was provided
in the Office Memorandum dated 22.11.1959 - The Office
F
Memorandum dated 7. 2. 1986 only introduced modification in
respect of the vacancies which could not be filled and were
carried forward and had to be filled later through a subsequent
process of selection - In the instant case, the advertised
vacancies were not carried forward vacancies - Direct recruits
G
have to be interspaced with promotees of the same
recruitment year.
Interpretation of Statutes - When the language used in
555
H
556
SUPREME COURT REPORTS
(2012] 13 S.C.R.
A a statute is unambiguous and on a plain meaning being given
to the words, the end result is neither arbitrary, nor irrational
nor contrary to the object of the statute, the words used should
be given effect to.
B
The instant appeals and transferred cases, involved
the dispute of inter-se seniority between the direct recruit
and promotee income Tax Inspectors. The question to be
decided was whether determination of the seniority of the
direct recruits would be with reference to the date of their
actual appointment, or the date of arising of the direct
C recruit vacancies, or the date of initiation of the process
of recruitment, or the date when the Staff Selection
Commission made recommendations for filling up direct
recruit vacancies.
D
E
The rival parties agreed that the seniority dispute was
liable to be determined on the basis of Office Memoranda
dated 7.2.1986 and 3.7.1986 issued by the Department of
Personnel and Training read with the clarificatory Office
Memoranda and Office Notes.
Allowing the appeals and the transferred cases, the
Court
HELD: 1. General principles for determining seniority
in Central services have been laid down in an annexure
F to an Office Memorandum dated 22.11.1959 issued by the
Government of India, Ministry of Home Affairs. Under the
OM dated 22.11.1959 inter se seniority between the
promotees and direct recruits was based on the "quota"
and "rota" principle. The OM dated 22.11.1959, was
G modified by an Office Memorandum dated 7 .2.1986,
issued by the Government of India, Department of
Personnel and Training. 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
H remained) unfilled during the process of selection, and
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS.
557
the unfilled vacancies, had to be filled up through "later''
A
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
8
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 C
pr

## Text

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(2012] 13 S.C.R. 555
UNION OF INDIA & ORS.
v.
N.R. PARMAR & ORS.
(Civil Appeal Nos. 7514-7515 of 2005 etc.)
NOVEMBER 27, 2012
[D.K. JAIN AND JAGDISH SINGH KHEHAR, JJ.]
A
B
Service Law - Seniority - lnter-se-seniority - Between
direct recruit and promotee Income Tax Inspectors -
Applicability of 'quota' and 'rota' principle - Vacancies for the C
year 1993-94 required to be filled up by promotion as well as
direct recruitment - Simultaneously refeffed to Departmental
Promotion Committee and to Staff Selection Commission
respectively - Appointment of promotees prior to the direct
recruits as the selection process for direct recruits could not D
be completed within the recruitment year - Determination of
date of seniority of the direct recruits - Plea of promotees that
the date of seniority of the direct recruits should be from the
date of their actual appointment, primarily placing reliance on
Office Memorandum dated 7.2.1986 - Held: The date of E
seniority of direct recruits could not be the date of their actual
appointment, but would be the date of initiation of process of
recruitment - The general principles for determining inter se
seniority between promotees and direct recruits was provided
in the Office Memorandum dated 22.11.1959 - The Office
F
Memorandum dated 7. 2. 1986 only introduced modification in
respect of the vacancies which could not be filled and were
carried forward and had to be filled later through a subsequent
process of selection - In the instant case, the advertised
vacancies were not carried forward vacancies - Direct recruits
G
have to be interspaced with promotees of the same
recruitment year.
Interpretation of Statutes - When the language used in
555
H
556
SUPREME COURT REPORTS
(2012] 13 S.C.R.
A a statute is unambiguous and on a plain meaning being given
to the words, the end result is neither arbitrary, nor irrational
nor contrary to the object of the statute, the words used should
be given effect to.
B
The instant appeals and transferred cases, involved
the dispute of inter-se seniority between the direct recruit
and promotee income Tax Inspectors. The question to be
decided was whether determination of the seniority of the
direct recruits would be with reference to the date of their
actual appointment, or the date of arising of the direct
C recruit vacancies, or the date of initiation of the process
of recruitment, or the date when the Staff Selection
Commission made recommendations for filling up direct
recruit vacancies.
D
E
The rival parties agreed that the seniority dispute was
liable to be determined on the basis of Office Memoranda
dated 7.2.1986 and 3.7.1986 issued by the Department of
Personnel and Training read with the clarificatory Office
Memoranda and Office Notes.
Allowing the appeals and the transferred cases, the
Court
HELD: 1. General principles for determining seniority
in Central services have been laid down in an annexure
F to an Office Memorandum dated 22.11.1959 issued by the
Government of India, Ministry of Home Affairs. Under the
OM dated 22.11.1959 inter se seniority between the
promotees and direct recruits was based on the "quota"
and "rota" principle. The OM dated 22.11.1959, was
G modified by an Office Memorandum dated 7 .2.1986,
issued by the Government of India, Department of
Personnel and Training. 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
H remained) unfilled during the process of selection, and
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS.
557
the unfilled vacancies, had to be filled up through "later''
A
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
8
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 C
promotees and direct recruits, was modified. 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.
The purpose of this O.M. was to "consolidate" existing
governmental orders on the subject of seniority. The
D
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.
[Paras 18, 19 and 21) [577-C-G-H; 578-B-E; 586-F; 590-B]
E
2. An Office Note of the Department of Personnel and
Training, Establishment (D) Section, dated 20.12.1999 was
issued. It was provided therein that only where the
appointing authority has not been able to fill up the
vacancies earmarked for direct recruits/promote~s. with
F
reference to the requisition for a particular recruitment
year, inspite of its best efforts, the instructions contained
in O.M. dated 7.2.1986 would come into operation; and
that it was not necessary, that the direct recruits for
vacancies of a particular recruitment year, should join G
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. Initiation of action for recruitment within the
recruitment year would be sufficient to assign seniority
H
558
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A to the concerned appointees in terms of the "rotation of
quotas" principle, so as to arrange them with other
appointees (from the alternative source), for vacancies of
the same recruitment year. Yet another Office Note dated
2.2.2000 provided that if the process of recruitment has
B been initiated during the recruitment year (in which the
vacancies have arisen) itself, even if the examination for
the said recruitment is held in a subsequent year, and the
result is declared in a year later (than the one in which
the examination was held), and the selected candidates
C joined in a further later year (than the one in which the
result was declared), the selected candidates would
entitled to be assigned seniority, with reference to the
recruitment year (in which the requisition of vacancies
was made). The words "initiation of action for
0 recruitment", and the words "initiation of recruitment
process", were explained to mean, the date of sending
the requisition to the recruiting authority. Ministry of
Finance, Department of Revenue issued letter dated
11.5.2004, whereby it was clarified that Direct Recruits'
seniority vis-a-vis the promotees is reckoned from the
E year in which they are actually recruited. They cannot
claim seniority of the year in which the vacancies had
arisen. By Another letter dated 27.7.2004, the application
of the clarification dated 11.5.2004 was directed to be
kept in abeyance till further orders. By yet another letter
F dated 8.9.2004, it was provided that the clarification given
in the letter dated 11.5.2004, would be ignored and the
seniority of direct recruits would be reckoned with
reference to the date of initiation of the process of
recruitment in their case. Office memorandum was issued
G by the Government of India, Department of Personnel
and Tr~ining, dated 3.3.2008 which was in the nature of
a "clarification", to the earlier consolidated instructions
on seniority, contained in the OM dated 3.7.1986. [Paras
22, 23, 24 and 25) (590-D; 591-C; 593-C-D-E-F; 595-G-H;
H 596-A-C-D; 597-A-C; 598-F-G; 600-A-B-D-G; 602-C]
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 559
3. The OM dated 7 .2.1986 is binding for the A
determination of the issues expressed therein, and 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. [Para 27] [605-B]
B
4. 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 wUh the OMs dated 7.2.1986 and
C
3.7.1986. A perusal of the OM dated 3.3.2008, however
reveals, that it was not the intention of the Department of
Personnel and Training to alter the manner of
determining inter se seniority between promotees and
direct recruits, as had been expressed in the OMs dated
7.2.1986 and 3.7.1986. The intention was only to "clarify"
D
the earlier OIVi 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
E
the extent that the same is in derogation of the earlier OMs
dated 7.2.1986 and 3.7.1986. Thus, 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
F
the extent that the same is in derogation of the earlier OMs
dated 7.2.1986 and 3.7.1986. [Para 29) [607-0-H]
Jagdish Ch. Patnaik and Ors. v. State of Orissa and Ors.
(1998) 4 SCC 456: 1998 (2) SCR 676; Suraj Prakash Gupta
G
and s. V. State of J&K and Ors. (2000) 7 sec 561: 2000 (3)
SCR 807; Pawan Pratap Singh and Ors. v. Reevan Singh
and Ors. (2011) 3 sec 267: 2011 (2) SCR 831 -
distinguished.
5. The OM dated 3.3.2008 is neither in the nature of H
560
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A 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
B instruction/office memoranda being "consolidated" or
compiled therein, or which is contrary thereto. [Para 27]
[605-G-H; 606-A]
S.S. Garewal vs. State of Punjab (1993) 3 Suppl. 234 -
C relied on.
6. Reliance on the letter dated 11.5.2004, for the
determination of the present controversy, is liable to
outright rejection because the letter dated 11.5.2004
though styled as a "clarification", breaches both the
D essential ingredients of a "clarification". A perusal of the
letter dated 11.5.2004 also reveals, that it adopts a
pqsition 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. That apart, the letter dated
E 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, wher~by
clarification was directed to be kept in abeyance till
further orders. [Para 24] [597-E-F-G; 598-8-E]
F
7. 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
G memoranda, only when the language of the office
memoranda is ambiguous and where there is no conflict
between the two i.e., the office note and the office
memoranda sought to be interpreted. [Para 22] [590-D-F]
I
i
H
8. "When the language used in the sta~ute is
"
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS.
561
unambiguous and on a plain grammatical meaning being
A
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". The various
ONs and letters issued by the DOPT (referred to above)
B
do not leave room for any ambiguity. [Para 32] [609-C-E]
Jagdish Ch. Patnaik and Ors. v. State of Orissa and Ors.
(1998) 4 sec 456: 1998 (2) SCR 676 - relied on.
9. In the present cases, not only the requisition but
also the advertisement for direct recruitment was issued
c
by the SSC in the recruitment year in which direct recruit
vacancies had arisen. In all the cases the advertised
vacancies were filled up in the original/first examination/
D
selection conducted for the same. None of the direct
recruit Income Tax Inspectors 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.
E
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
F
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 will therefore G
have to be interspaced with promotees of the same
recruitment year. 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 allowed.
The claim of the promotees, that the direct recruit Income
H
562
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A 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.
[Para 33] (609-F-H; 610-A-D]
B
Case Law Reference:
(1993) 3 Suppl. 234
Relied on
Para 26
1998 (2) SCR 676
Distinguished
Para 30
Relied on
Para 32
c
2000 (3) SCR 807
Distinguished
Para 30
2011 (2) SCR 831
Distinguished
Para 30
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 7514-7515 of 2005.
WITH
Civil Appeal No. 3876-3880 of 2007.
Civil Appeal No. 7516 of 2005.
E T.C. (C) No. 91 and 681 of 2006.
P.P. Malhotra, ASG, P. Vishwanatha Shetty, Arvind Varma,
Pallav Shishodia, Vikas Malhotra, Abhinav Mukherjee, Anil
Katiyar (for B.V. Balaram Das), A.K. Behera, Dr. Krishan Singh
Chauhan, Ajit Kumar Ekka, Adam Ambrose P., Chand Kiran,
F
Vijay Kumar Paradesi, Ajay Sharma, Kiran, Sanjay Kumar
Singh, Syed I. Ibrahim, T. Mahipal, R.C. Kaushik, Kishan Datta,
Subramonium Prasad, Sobhit Tiwari, Pradeep Aggarwal, Lal
Pratap Singh and Ruchi Kohli for the appearing parties.
G
N.R. Parmar (in-person).
The Judgment of the Court was delivered by
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
H and promotees are pitted on opposite sides.
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS.
563
[JAGDISH SINGH KHEHAR, J.]
2. One of the matters in hand came to be considered by
A
the Central Administrative Tribunal, Ahmadabad Bench,
Ahmadabad (hereinafter referred to as "the CAT,
Ahmadabad") 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
B
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 c
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 0
recommendations for the filling up direct recruit vacancies, were
inconsequential for determination of seniority of direct recruits.
3. The decision rendered by the CAT, Ahmedabad dated
12.1.2004 was assailed before the High Court of Gujarat at
Ahmedabad (hereinafter referred to as "the Gujarat High
E
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.
F
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
G
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
H
564
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A 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
B 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.
C
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
D India & Ors.), respondent no.9 in Writ Petition (C) nos.344649 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
E 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
F 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
G aforesaid writ petitions were re-numbered as Transferred Case
(C) No.91 of 2006 (Pritpal Singh & Ors. vs. Union of India &
Ors.).
H
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. v. N.R. PARMAR & ORS.
565
[JAGDISH SINGH KHEHAR, J.]
Union of India & Ors.), OA no.275 of 2002 (Bhanwar Lal Soni A
& Ors. vs. Union of India & Ors.), OA no.293 of 2002 (Ranjeet
Singh Rathore & Ors. vs. Union of India & Ors.),were filed by
promotee Income Tax Inspectors before the Central
Administrative Tribunal, Jodhpur Bench, Jodhpur (hereinafter
referred to as "the CAT, Jodhpur"), to assail the seniority-list
8
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
C
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 & 0
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
E
(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
F
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 G
hereinabove which are tagged together for disposal, is the
same. During the course of hearing submissions came to be
advanced first of all in Transferred Case no.91 of 2006. As
such, the facts recorded in the said case have been adverted
to while passing the instant judgment.
H
566
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
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
B 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 Prqmotion Committee (hereinafter referred
to as "the DPC"), whereas, those identified to be filled up by
direct recruitment, v.(ere simultaneously referred to the Staff
C 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
D 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
E 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
F applications for appointment by way of direct recruitment,
against vacancies of Income Tax Inspectors of the year 199394. 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
G 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
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS.
567
[JAGDISH SINGH KHEHAR, J.]
21/28.1.1995 the SSC declared the result of the Inspectors of A
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
B
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
C
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
D
two Original Applications being K.C. Arora & Ors. vs. Union
of India & Ors (OA no.1478 of 1995) and J.S. Tanwar & Ors.
vs. Union of India & Ors. (OA no.1899 of 1995). In the
pleadings of the aforesaid two original applications, it was
acknowledged by the official-respondents, that the impugned
E
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
F
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,
G
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
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in view of the seniority list dt.8.2.1999 the official
respondents are directed to make promotions strictly in
terms of the seniority list dt.8.2.1999. They must arrange
a review DPC to consider the claim of the applicants for
promotion. In case, the applicants are found fit and suitable
for promotion by the review DPC then on the basis of the
said seniority list, the applicants shall be granted
promotion from the date their juniors got promotion. The
applicants should get seniority over the juniors in case they
are found suitable for promotion. However, the applicants
will not be entitled to any monetary benefits. In such a case,
the applicants' pay may be fixed notionally from the dates
of their deemed retrospective promotion. However, the
applicants will not be entitled to any actual arrears of
monetary benefits till the date of actual order of promotion.
The actual monetary benefits are prospective, only from the
date of order of promotion and consequent date of
assuming charge.
2. In the circumstances of the case, the official respondents
are granted three months time from the date of receipt of
copy of this order to comply with these directions.
3. In the circumstances of the case, there will be no order
as to costs."
On 10.9.1999 a clarificatory order was passed by the CAT,
F 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
G
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
H
order we have passed on the basis of the admission made
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS.
569
[JAGDISH SINGH KHEHAR, J.]
by the official respondents in their reply. Now, the private
A
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
B
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
C
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
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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
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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 adF
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 1ake up the stand whenever
that occasion arises. But, we have not given any finding
G
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."
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[2012) 13 S.C.R.
A
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
B "rota" principle. O.n 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
c 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
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can be considered for seniority vis-a-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
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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
F 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
G Bench, vide its order dated 23.2.2000 quashed the seniorityH
list dated 8.2.1999 by holding as under:
"8. In our judgment, for deciding the aforesaid Gontroversy
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:
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS.
571
[JAGDISH SINGH KHEHAR, J.]
..... the relative seniority of direct recruits and
A
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
B
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
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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
0
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
E
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
F
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,
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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
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SUPREME COURT REPORTS
(2012] 13 S.C.R.
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 SO% by direct recruitment, and
assuming there are ten vacancies in the grade
arising in each of the years 1986 and 1987 and that
two vacancies intended for direct recruitment,
remain unfilled during 1986 and they could be filled
during 1987. The seniority position of the
promotees and direct recruits of these two years will
be as under:
1986
1987
1. P1
9. P1
2. 01
10. 01
3. P2
11. P2
4. 02
12. 02
S. P3
13. P3
6. 03
14. 03
7. P4
1S. P4
8. PS
16. 04
17. PS
18. 05
19. 06
20. 07
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS.
573
[JAGDISH SINGH KHEHAR, J.]
It is not necessary to make a reference to the subsequent
A
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
8
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.
C
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
D
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
E
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
F
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
G
present order.
10. In the circumstances, the said seniority list is hereby
quashed and set aside. Respondent no.3 is directed to
recast the seniority list on the basis of directions contained
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SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
in this order. The present order will also apply to seniority
list of UDCs which is the subject matter of QA No.6761
1999.
B
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
C 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
D 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:
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"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.
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS.
575
[JAGDISH SINGH KHEHAR, J.]
These writ petitions are disposed of with the A
aforementioned observations and directions without any
order as to costs."
15. Consequently, the matters referred to above went back
to the CAT, Principal Bench for re-adjudication. During their
pendency before the CAT, Principal Bench, an additional B
affidavit dated 12.3.2003 was jointly filed by the officialrespondents. In the aforesaid additional affidavit it was, inter
alia, pleaded as under:
"Para 4
c
(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 D
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
E
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
F
on the DoP&T's O.M.