# HARIHARAN & ORS v. HARSH VARDHAN SINGH RAO & ORS

- **Citation:** [2022] 9 S.C.R. 944
- **Court:** Supreme Court of India
- **Decided:** 2022-12-14
- **Case number:** Civil Appeal No. 9228 of 2022
- **Bench:** S. Abdul Nazeer, Abhay S. Oka
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hariharan-ors-v-harsh-vardhan-singh-rao-ors-36516
- **Pages:** 28

## Headnote

Service Law: Seniority - On 7 September 2016, a modified
seniority list of the Income Tax Inspectors in the cadre of the Gujarat
region was issued - In the said list, the direct recruits of CGLE
2010 were interspaced with promotees of the year 2009-2010 - On
the basis of clarification issued by CBDT, a revised seniority list
dated 13 February 2018 was published - Direct recruits appointed
against vacancies of the year 2009-2010 were interspaced with the
promotees of the recruitment year 2010-2011 - Respondents nos.1
to 18, the direct recruits, filed writ petition before the High Court
for challenging seniority list dated 13 February 2018 - By impugned
judgment, seniority list dated 13 February 2018 was quashed and
the seniority list of 7 September 2016 was restored - Clarification
added that only those direct recruits who were eligible and qualified
in the recruitment year 2009-2010, shall be interspaced with 53
promotees who were promoted vide DPC dated 29 June 2009 -
These promotees filed instant appeal - Held: Four issues framed
for consideration - Whether the recruitment year is a financial year
or calendar year - Whether the decision of this Court in K.
Meghachandra's case is per incuriam or in the alternative, whether it
requires reconsideration - Whether the inter-se-seniority of the direct
recruits and the promotees in the facts of this case could be
determined as per the decision in N.R. Parmar's case - Whether, in
the facts of this case, the process of recruitment of direct recruits
commenced in the very recruitment year in which the vacancies arose
- Matter referred to larger Bench of five Hon'ble Judges - The
interim relief granted on 13 July 2018 vacated - Effect shall be
given to the impugned judgment subject to the final outcome of this
appeal or reference - Reference to larger bench.
Union of India & Ors. v. N. R. Parmar & Ors. 2012
(13) SCC 340 : [2012] 13 SCR 555; K. Meghachandra
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Singh & Ors. v. Ningam Siro & Ors. 2020 (5) SCC 689
: [2019] 16 SCR 651; Mervyn Coutindo & Ors. v.
Collector of Customs, Bombay & Ors. [1966] 3 SCR
600; Hon'ble Punjab & Haryana High Court at
Chandigarh v. State of Punjab & Ors. 2019 (12) SCC
496 : [2018] 13 SCR 91; Arvinder Singh Bains v. State
of Punjab & Ors. 2006 (6) SCC 673 : [2006] 2 Suppl.
SCR 886; M. Subba Reddy & Anr. v. A.P. State Road
Transport Corporation & Ors. 2004 (6) SCC 729 :
[2004] 1 Suppl. SCR 7; Union of India & Ors. v. S.D.
Gupta & Ors. 1996 (8) SCC 14 : [1996] 2 SCR 471referred to.
Case Law Reference
[2012] 13 SCR 555
referred to
Para 5
[2019] 16 SCR 651
referred to
Para 8
[1966] 3 SCR 600
referred to
Para 11
[2018] 13 SCR 91
referred to
Para 11
[2006] 2 Suppl. SCR 886
referred to
Para 11
[2004] 1 Suppl. SCR 7
referred to
Para 19
[1996] 2 SCR 471
referred to
Para 28

## Text

_Characters 0–39,916 of 66,519. This is a partial read: ask again with offset=39916 for what follows._

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SUPREME COURT REPORTS
[2022] 9 S.C.R.
 [2022] 9 S.C.R. 944
944
HARIHARAN & ORS.
v.
HARSH VARDHAN SINGH RAO & ORS.
(Civil Appeal No. 9228 of 2022)
December 14, 2022
[S. ABDUL NAZEER AND ABHAY S. OKA, JJ.]
Service Law: Seniority - On 7 September 2016, a modified
seniority list of the Income Tax Inspectors in the cadre of the Gujarat
region was issued - In the said list, the direct recruits of CGLE
2010 were interspaced with promotees of the year 2009-2010 - On
the basis of clarification issued by CBDT, a revised seniority list
dated 13 February 2018 was published - Direct recruits appointed
against vacancies of the year 2009-2010 were interspaced with the
promotees of the recruitment year 2010-2011 - Respondents nos.1
to 18, the direct recruits, filed writ petition before the High Court
for challenging seniority list dated 13 February 2018 - By impugned
judgment, seniority list dated 13 February 2018 was quashed and
the seniority list of 7 September 2016 was restored - Clarification
added that only those direct recruits who were eligible and qualified
in the recruitment year 2009-2010, shall be interspaced with 53
promotees who were promoted vide DPC dated 29 June 2009 -
These promotees filed instant appeal - Held: Four issues framed
for consideration - Whether the recruitment year is a financial year
or calendar year - Whether the decision of this Court in K.
Meghachandra's case is per incuriam or in the alternative, whether it
requires reconsideration - Whether the inter-se-seniority of the direct
recruits and the promotees in the facts of this case could be
determined as per the decision in N.R. Parmar's case - Whether, in
the facts of this case, the process of recruitment of direct recruits
commenced in the very recruitment year in which the vacancies arose
- Matter referred to larger Bench of five Hon'ble Judges - The
interim relief granted on 13 July 2018 vacated - Effect shall be
given to the impugned judgment subject to the final outcome of this
appeal or reference - Reference to larger bench.
Union of India & Ors. v. N. R. Parmar & Ors. 2012
(13) SCC 340 : [2012] 13 SCR 555; K. Meghachandra
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Singh & Ors. v. Ningam Siro & Ors. 2020 (5) SCC 689
: [2019] 16 SCR 651; Mervyn Coutindo & Ors. v.
Collector of Customs, Bombay & Ors. [1966] 3 SCR
600; Hon'ble Punjab & Haryana High Court at
Chandigarh v. State of Punjab & Ors. 2019 (12) SCC
496 : [2018] 13 SCR 91; Arvinder Singh Bains v. State
of Punjab & Ors. 2006 (6) SCC 673 : [2006] 2 Suppl.
SCR 886; M. Subba Reddy & Anr. v. A.P. State Road
Transport Corporation & Ors. 2004 (6) SCC 729 :
[2004] 1 Suppl. SCR 7; Union of India & Ors. v. S.D.
Gupta & Ors. 1996 (8) SCC 14 : [1996] 2 SCR 471referred to.
Case Law Reference
[2012] 13 SCR 555
referred to
Para 5
[2019] 16 SCR 651
referred to
Para 8
[1966] 3 SCR 600
referred to
Para 11
[2018] 13 SCR 91
referred to
Para 11
[2006] 2 Suppl. SCR 886
referred to
Para 11
[2004] 1 Suppl. SCR 7
referred to
Para 19
[1996] 2 SCR 471
referred to
Para 28
CIVIL APPELLATE JURISDICTION : Civil Appeal No.9228
of 2022.
From the Judgment and Order dated 11.05.2018 of the High Court
of Gujarat at Ahmedabad in Special Civil Application No.3212 of 2018.
With
Diary No.12422 of 2022.
Vikramjit Banerjee, ASG, Huzefa Ahmadi, Nidhesh Gupta, Sr.
Advs., Ms. Aastha Mehta, Ms. Vishakha, Sharukh Alam, Mishra Saurabh,
Anmol Chandan, Shashank Bajpai, Ayush Anand, Sughosh Subramaniam,
Abhishek Singh, Prashant Sinha, Siddhartha Sinha, Raj Bahadur Yadav,
Ms. Pallavi Singh, V. K. Verma, Ms. Vriti Gujral, Tarun Verma, Rajat
Srivastav, Ms. Japneet Kaur, Ms. Rita Jha, Ms. Pallavi Singh, Sameer
Singh, Ms. Neelam Singh, Dr. Sushil Balwada, J. P. N. Shahi, Ms. J.
Kiran, Rameshwar Prasad Goyal, Advs. for the appearing parties.
HARIHARAN & ORS. v. HARSH VARDHAN SINGH RAO &
ORS.
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Satyavi Kram, Ms. Lekha G.V., Zeeshan Diwan, Shrutanjaya
Bhardwaj, Jasir Aftab, Advs. For the Intervenors.
The Judgment of the Court was delivered by
ABHAY S. OKA, J.
1. Leave granted in Special Leave Petition (C) No.16161 of 2018.
Delay in filing Special Leave Petition (C) Diary No.12422 of 2022 is
condoned and leave is granted in the said Special Leave Petition as well.
2. In Civil Appeal arising out of SLP (C) No.16161 of 2018, the
appellants who are original respondents nos.11 to 14 before the High
Court of Gujarat, have challenged the judgment and order dated 11th
May 2018 passed by a Division Bench of the High Court of Gujarat on
a writ petition under Article 226 of the Constitution of India filed by
respondents nos.1 to 18.
FACTUAL ASPECTS IN CIVIL APPEAL ARISING OUT
OF S.L.P.(C) NO.16161 OF 2018
3. Few factual details will have to be noted. The dispute is a
typical dispute between promotees and direct appointees over inter-seseniority. Here, the dispute is about the posts of Inspectors in the Income
Tax Department in the State of Gujarat. On 7th February 1986 and 3rd
July 1986, Office Memoranda (for short, 'OM') were issued by the
Ministry of Personnel, Public Grievances and Pension. Both the OMs
record that the principle of rotation of quota will be followed for
determining the inter-se-seniority of promotees and direct recruits. It is
mentioned therein that when direct recruits are not available, the
promotees would be bunched together at the bottom of the seniority list
below the last position up to which it is possible to determine seniority on
the basis of rotation of quota with reference to the actual number of
direct recruits who become available. It is provided therein that the unfilled
direct recruitment quota vacancies would be carried forward and added
to the corresponding direct recruitment vacancies of the next year. It is
also provided that these additional direct recruits selected against the
carried forward vacancies of the previous year, should be placed en
bloc below the last promotee or direct recruit, as the case may be, in the
seniority list based on the rotation of quota for that year. Prior to these
two OMs, there was an OM dated 22nd November 1959, which provided
for fixing the seniority of direct recruits and promotees based on the
rotation of quota.
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4. In the facts of the case, we may note here that the relevant
Recruitment Rules of 1969 provided that the quota of departmental
promotees and direct recruits to the posts of Inspector will be 2:1. There
is no dispute that the rule of rotation of quota or rota and quota is applicable
for fixing their inter-se-seniority. On 7th February 2000, Office Note
was issued by the Department of Personnel and Training (for short,
'DoPT'). By the said office note, it was directed that if the examination
is not held in the vacancy year, the seniority of the vacancy year cannot
be granted to direct recruits. There was a further clarificatory OM issued
on 3rd March 2008 by DoPT, which clarified that when the appointment
against unfilled vacancies is made in subsequent years either by direct
recruitment or promotion, the persons so appointed shall not get seniority
of the earlier year. However, they should be given the seniority of the
year in which they were appointed on a substantive basis.
5. On 26th June 2009, the Chief Commissioner of Income Tax,
Ahmedabad filled in 53 posts of Income Tax Inspectors by promotion on
the basis of the recommendations of the Departmental Promotion
Committee (DPC). By a communication dated 20th November 2009, the
Chief Commissioner of Income Tax, Ahmedabad forwarded a requisition
for making appointments to 46 direct posts (35 current and 11 carried
forward) enclosing therewith the details in the prescribed proforma. The
DoPT by the letter dated 15th January 2010 granted NOC for 482
vacancies in the grade of Income Tax Inspector. Accordingly, by a letter
of the same date, the Department of Revenue of the Ministry of Finance
forwarded the said NOC to the Secretary of the Staff Selection
Commission (SSC). However, the examination for recruitment was not
conducted to fill up the vacant posts of Income Tax Inspectors for the
recruitment year 2009-10 in the same year. Accordingly, SSC initiated
the process by holding a meeting with the officers for the conduct of the
Combined Graduate Level Examination, 2010 (short, 'CGLE-2010'). The
Central Board of Direct Taxes (CBDT) proposed tentative vacancies
of 482 posts of Income Tax Inspectors for CGLE-2010. An
advertisement was published on 30th January 2010 inviting applications
for CGLE-2010. On 26th April 2010, CBDT communicated to SSC that
vacancies for the recruitment year 2009-10 were included for selection
through SSC CGLE-2010. On 10th May 2010 and 31st July 2010,
examinations were conducted by SSC for Tier-I and Tier-II. On 27th
October 2010, CBDT finally submitted 846 vacancies as confirmed
vacancies to SSC. Before the said letter was addressed, the Chief
HARIHARAN & ORS. v. HARSH VARDHAN SINGH RAO &
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Commissioner of Income Tax, Ahmedabad informed CBDT that total of
72 vacancies should be taken for the State of Gujarat. The result was
declared on 7th January 2011 and SSC recommended total 822 candidates.
On 27th November 2012, a decision of this Court in the case of Union of
India & Ors. v. N.R.Parmar & Ors.1 was pronounced. This Court
dealt with a contingency where the requisition for filling in the vacancies
of direct recruits was issued in the same recruitment year and the
advertisement for recruitment was published in the same recruitment
year when the vacancies had arisen, but the examination could not be
conducted in the same recruitment year. This Court held that in such a
case, the direct recruits would be entitled to seniority in the recruitment
year when the requisition was made and advertisement was issued.
6. On 25th May 2014, a draft seniority list of the Income Tax
Inspectors for the State of Gujarat was issued and on the basis of the
draft seniority list, the final seniority list was issued on 29th May 2014.
Further, on 7th September 2016, a modified seniority list of the Income
Tax Inspectors in the cadre of the Gujarat region was issued. In the said
list, the direct recruits of CGLE-2010 were interspaced with promotees
of the year 2009-10. There were several representations made against
the said seniority list by the promotee candidates. On 17th January 2018,
CBDT issued a clarification stating that insofar as the fixing of inter-seseniority of CGLE-2010 direct recruits with promotee officers was
concerned, the direct recruits may be interpolated with the promotees of
the same recruitment year in accordance with OMs issued on 3rd July
1986 and 4th March 2014. The said clarification was communicated by
CBDT to all Principal Chief Commissioners of Income-Tax. On the
basis of the said clarification, a revised seniority list dated 13th February
2018 was published. As per the said seniority list, the direct recruits
recruited against vacancies of the year 2009-10 were interspaced with
the promotees of the recruitment year 2010-11. Respondents nos.1 to
18 who were direct recruits, filed a writ petition before the High Court
of Gujarat for challenging the said seniority list dated 13th February 2018.
A prayer was made in the writ petition for setting aside the clarification
dated 17th January 2018 and the consequent seniority list dated 13th
February 2018. A consequential prayer was made for restoring the
seniority list dated 7th September 2016. By the impugned judgment, the
seniority list dated 13th February 2018 was quashed and the seniority list
1 2012 (13) SCC 340
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of 7th September 2016 was restored with a clarification that only those
direct recruits who were eligible and qualified in the recruitment year
2009-10, shall be interspaced with 53 promotees who were promoted
vide DPC dated 29th June 2009.
7. On 13th July 2018, notice was issued in the Special Leave
Petition no.16161 of 2018 which is the subject matter of the present
Civil Appeal and by an interim order, the status quo as of that date was
ordered to be maintained. The appellants who were respondents in the
writ petition before the High Court, are the promotees who were promoted
vide DPC dated 29th June 2009.
SUBMISSIONS IN BRIEF
8. Mr. Huzefa Ahmadi, the learned senior counsel appearing for
the appellants firstly submitted that the decision of this Court in the case
of N. R. Parmar1 has been overruled by a larger Bench of three Hon'ble
Judges of this Court in the case of K. Meghachandra Singh & Ors. v.
Ningam Siro & Ors.2 on 19th November 2019. However, it was clarified
that the decision will apply prospectively. His submission is that a
recruitment year is a calendar year and not a financial year. The learned
senior counsel submitted that in the present case, the advertisement for
recruitment was not issued in the year 2009 and the examination was
conducted in 2010. He pointed out that in the case of N.R. Parmar1, the
advertisement was issued in the same recruitment year in which
vacancies arose. He pointed out that a requisition was sent on 21st January
2010 to SSC for 482 vacancies of Income Tax Inspectors for 2009-10.
However, in the next requisition letter dated 22nd November 2010 which
was for CGLE-2010, carried forward vacancies (482) of 2009-10 were
mentioned. This requisition was made for total 844 vacancies which
included even vacancies of the recruitment year 2010-11. Based on the
observations made in paragraph 33 of the decision in N. R. Parmar's
case1, the learned senior counsel would submit that in terms of the said
decision, the vacancies arising during a particular year, should be reported
in the same year and the advertisement for recruitment should also be
published in the same year. He urged that in the present case, all these
conditions have not been fulfilled.
9. Inviting our attention to the decision of this Court in the case of
K. Meghachandra2, he submitted that now this Court has categorically
2 2020 (5) SCC 689
HARIHARAN & ORS. v. HARSH VARDHAN SINGH RAO &
ORS. [ABHAY S. OKA, J.]
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held that the seniority of direct recruits will be reckoned only from the
date of appointment and not from the stage when the requisition for their
appointment was sent. The learned senior counsel also pointed out that
CBDT by the letter dated 27th May 2019 clarified that in view of
subsequent decision of the High Court of Delhi, the decision in the case
of N.R. Parmar1 shall be implemented prospectively with effect from
27th November 2012. The learned senior counsel also pointed out that
when there was no advertisement and no requisition issued for the
vacancies of the year 2009, the vacancies of the year 2009 were combined
in CGLE-2010. Therefore, relative merit of selected candidates cannot
be determined for assigning the seniority in different recruitment years,
the reason being that there was only one merit list of CGLE-2010. He
also pointed out that the final position of vacancies was intimated to SSC
for the first time by the letter dated 27th October 2010. Therefore, the
direct recruits who were recruited on the basis of CGLE-2010 from the
quota of earlier year, cannot be interspaced between the promotees of
the year 2009. He submitted that now seniority cannot be disturbed after
lapse of eleven or twelve years.
10. Mr. Nidhesh Gupta, the learned senior counsel appearing for
respondents nos.1 to 5, 7, 8, 10 to 13, 15 to 18 and 29 to 39 firstly submitted
that even the decision in the case of K. Meghachandra2 protects the
case of the said respondents (direct appointees) as it is specifically
observed that the decision will apply prospectively and it will not affect
inter-se-seniority fixed on the basis of the decision of this Court in the
case of N. R. Parmar1.
11. He pointed out that this Court in the case of K. Meghachandra2
held that seniority cannot be granted from the date when the candidate
was not born in the cadre. He submitted that it is a well settled position
of law that the said principle does not apply when the seniority is to be
determined in accordance with rotation of vacancies between direct
recruits and promotees based on quota of vacancies reserved for both
the categories. He relied upon the decision of a Constitution Bench of
this Court in the case of Mervyn Coutindo & Ors. v. Collector of
Customs, Bombay & Ors3. He submitted that in the said decision, the
Court upheld rotational system of fixing seniority. He submitted that
attention of the Bench of three Hon'ble Judges which decided the case
of K.Meghachandra2 was not invited to the case of Mervyn Coutindo3.
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He would, therefore, submit that the decision of this Court in the case of
K. Meghachandra2 is per incuriam. He submitted that the object of
rotational system of fixing seniority is to blend the talent with experience
and to augment the efficiency. He submitted that as held by this Court in
the case of Hon'ble Punjab & Haryana High Court at Chandigarh
v. State of Punjab & Ors.4, seniority has to be determined on the basis
of roster and not on the basis of the date of joining of a particular stream.
He pointed out that in the judgment of this Court in the case of Arvinder
Singh Bains v. State of Punjab & Ors.5,it was held that making the
date of joining as the basis for determining seniority would lead to
discretion in the hands of the Government and the possibility of misuse.
The reason being that selection process of promotees is shorter as
compared to that of direct recruits. Therefore, injustice to the direct
recruits cannot be compounded by relegating them below the direct
recruits.
12. He relied upon various OMs starting from OM dated 3rd July
1986 till OM dated 13th August 2021, which clearly provide for seniority
to be determined according to the rotation of vacancies. The learned
senior counsel submitted that though a case is sought to be made out
that a recruitment year is a calendar year and not a financial year, even
the appellants have proceeded on the footing that it is the financial year.
He relied upon several documents in that behalf.
13. He submitted that the relevant year for determining seniority
is the year in which recruitment requisition is sent. He pointed out the
letter dated 20th November 2009 enclosing therewith the requisite
proforma for requisition of Income Tax Inspectors which clearly included
35 current and 11 carried forward vacancies of the direct appointees.
He pointed out that the subsequent letter addressed to the Secretary of
SSC is of 21st January 2010 which was issued in recruitment year 200910 itself which included vacancies of 2009-10. Even the advertisement
was issued in recruitment year 2009-10, as the same was issued on 30th
January 2010. He would, therefore, submit that the recruitment year in
the present case was 2009-10. He submitted that segregation of
vacancies for 2009-10 and 2010-11 was already done as is apparent
from the seniority list dated 7th September 2016.
14. He submitted that OM dated 7th February 1986 cannot be
applied and the same will apply when there is an earlier examination or
4 2019 (12) SCC 496
5 2006 (6) SCC 673
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selection which is followed by a subsequent examination or selection.
He submitted that in the facts of the case, in the year 2009-10, there
was no examination or selection conducted for direct recruits. The
expression 'direct recruits do not become available' used in OM dated
7th February 1986 means that though the selection process is held during
the relevant year, the candidates do not become available.
15. Lastly, he pointed out that as a matter of fact, a large number
of direct recruits have been promoted since then. He submitted that as
the decision of this Court in the case of K. Meghachandra2 is per
incuriam, being contrary to the binding precedent of a larger Bench in
the case of Mervyn Coutindo3, the decision in the case of N.R. Parmar1
will prevail.
16. Mr. Vikramjit Banerjee, the learned Additional Solicitor General
representing the Income Tax Department and Union of India submitted
that a new OM has been issued on 13th August 2021 by DoPT, clarifying
that as the decision in the case of K. Meghachandra2 will have
prospective operation, cases of inters-se-seniority of direct recruits and
promotees shall not be disturbed during the period between the date of
the decision in N.R. Parmar's case1 and the date of decision in K.
Meghachandra's case2. He submitted that in view of the said OM, the
cases of inter-se-seniority between officers joined between 27th
November 2012 and 18th November 2019 shall be governed by the
provisions of OMs dated 7th February 1986/3rd July 1986 read with OM
dated 4th March 2014. He submitted that a departmental OM dated 26th
October 2021 has been issued as per OM of DoPT dated 13th August
2021.
17. He submitted that Income Tax Department is adversely
affected due to the order of status quo,passed in this appeal, as162 out
of 486 sanctioned posts of Income Tax Officers (ITOs) are vacant. He
submitted that this had drastically affected service to the taxpayers. He
submitted that 109 Income Tax Inspectors are likely to be deputed for
election duty of Gujarat Assembly Elections. He submitted that nonconvening of DPC for ITOs is having cascading effects as there are
least number of promotions in Group 'C' cadre. He submitted that if this
Court is inclined to refer the question to a larger Bench, the interim
order may be clarified or vacated as the functioning of the Department
is really affected by the interim order.
18. The learned senior counsel appearing for the appellants, by
way of rejoinder, submitted that direct recruits are selected by SSC by
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open examination which is conducted annually. Therefore, SSC follows
the calendar year as opposed to the financial year. He submitted that as
no recruitment occurred in 2009, the results of the 2010 examination will
determine the seniority of carried forward candidates. He also pointed
out various documents in support of his contention that a recruitment
year will have to be taken as a calendar year.
CONSIDERATION OF SUBMISSIONS
19. We have carefully considered the submissions. The first issue
which arises for consideration is whether the decision of this Court in K.
Meghachandra's case2 is per incuriam or in the alternative, whether it
requires reconsideration being in conflict with the decision of the
Constitution Bench in the case of Mervyn Coutindo3 and the decision
of a Bench of three Hon'ble Judges in the case of M. Subba Reddy &
Anr. v. A.P. State Road Transport Corporation & Ors6. The next issue
will be assuming that the decision of this Court in N.R. Parmar's case1
stands overruled, in view of its prospective overruling, whether the interse-seniority of the direct recruits and the promotees in the facts of this
case could be determined as per the decision in N.R. Parmar's case1.
This is in the context of the fact that the seniority was fixed after the
decision in the case of N.R. Parmar1and before 19th November 2019
i.e. when the decision in K. Meghachandra's case2 was rendered. The
third issue to be decided is whether the recruitment year is a financial
year or a calendar year. Lastly, a factual issue will have to be decided
whether, in the facts of this case, the process of recruitment of direct
recruits commenced in the very recruitment year in which the vacancies
arose.
THE CONCEPT OF RECRUITMENT YEAR
20. In the facts of the case, there is no dispute that as far as the
posts of Income Tax Inspectors are concerned, the principle of rota and
quota or rotation of quota will apply. The posts of Income Tax Inspectors
are being filled in by direct recruits and promotees in the proportion
already fixed. Therefore, a roster will apply where the points will be for
direct recruits and promotees as per the proportion fixed. Before we go
into various legal issues, which we have flagged above, it will be
appropriate if we discuss the factual issues first. For the decision on the
factual issues, it is necessary to decide whether the recruitment/requisition/
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vacancy year is the same as the financial year. The appellants have
tried to contend that a recruitment year will be a calendar year. We must
note here that no such case has been made out in the Civil Appeal arising
out of Special Leave Petition (C) No.16161 of 2018. In the synopsis on
pages F and G, the appellants themselves have referred to the financial
year while referring to the vacancies available in a particular year. The
appellants made a representation dated 25th November 2016 in which
they described the recruitment years as the financial years i.e 2009-10
and 2010-11. The letter dated 3rd August 2016 addressed by the
Directorate of Income Tax, New Delhi to the Principal Chief
Commissioner of Income Tax, Ahmedabad treats a recruitment year as
a financial year. In fact, it incorporates a clarification issued by ITGOA
which in turn, refers to the recruitment year on the footing that it is a
financial year. The appellants have annexed as 'Annexure P-12' to reply
affidavit in I.A.No.161060 of 2019, a clarification dated 7th November
2014 issued by the CBDT to All Principal Chief Commissioners of Income
Tax, which refers to vacancy years as financial years right from 198687 till 2013-14. Along with the letter dated 3rd August 2010, the Office of
the Chief Commissioner of Income Tax forwarded to the CBDT, the
details of the confirmed vacancies in the post of Income Tax Inspectors
as on 31st March 2011 in the prescribed proforma. In the prescribed
proforma, under the column 'year' (year of vacancies), financial years
2009-2010 and 2011-2012 have been mentioned. 35 vacancies of Income
Tax Inspectors have been shown against the year 2009-10. In the counter
affidavit of private respondents, reliance has been placed on the OM
dated 8th May 2017 issued by the DoPT. Paragraph 5 of the said OM
specifically records that in partial modification of the OMs issued on
10th April 1989, 16th June 2000 and 20th May 2014, the vacancy year
may be shifted to a calendar year from the year 2018, wherever the
vacancy year based on financial year was being followed. The documents
on record clearly show that as far as the posts of Income Tax Inspectors
are concerned, the vacancy or recruitment year was always reckoned
as the financial year.
21. The appellants have placed reliance on the advertisement of
CGLE-2010. We have perused the said advertisement. It does not refer
to any particular recruitment or vacancy year and it does not record
whether the examination is being held for the vacancies of a particular
recruitment year. Reliance is also placed on the fact that CGLE is always
referred to with reference to the calendar year and not the financial
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year. This is hardly of any relevance. SSC acts as per the requirements
of the concerned department. SSC is not concerned in any manner with
the recruitment year. Its job is to conduct the process of recruitment as
per the instructions of the concerned department. There is material on
record to show that the Income Tax Department always treated the
vacancy year or recruitment year as a financial year.
22. We have, therefore, no manner of doubt that till the year 2018,
in relation to the recruitment and vacancies to the posts of Income Tax
Inspectors, the financial year was being treated as the recruitment year
or vacancy year.
COMMENCEMENT OF THE PROCESS FOR THE
RECRUITMENT YEAR 2009-10 FOR DIRECT RECRUITS
23. The letter dated 20th November 2009 addressed by the Chief
Commissioner of Income Tax, Ahmedabad to an officer of CBDT, refers
to the fact that there were 35 vacancies of direct recruits. The agency
for recruiting direct recruits to the post of Income Tax Inspectors is
admittedly SSC. The Government of India addressed a letter to the
Secretary of SSC on 21st January 2010 stating that for CGLE-2009/10,
approximately 482 vacancies were available. Thus, the requisition issued
to SSC was for filling in 482 vacancies of the year 2009-10. The notice
of CGLE-2010 was published on 31st January 2010. The last date for
filing applications was 2nd March 2010. The letter dated 3rd August 2010
addressed by the Chief Commissioner of Income Tax, Ahmedabad to
CBDT records that as on 31st March 2011, there will be 35 backlog
vacancies for direct recruits for the year 2009-10. In this letter, it was
stated that there were total 74 vacancies for the posts of Income Tax
Inspectors, out of which, 35 vacancies were of the year 2009-10. The
same vacancy position has been mentioned in the letter dated 20th
November 2009 referred above. The documents on record clearly indicate
that these 35 posts of direct recruits for the recruitment year 2009-10
were sought to be filled in on the basis of CGLE-2010 notified on 31st
January 2010 which was held on 16th May 2010. The notice of CGLE2010 records that the last date for submitting applications was 2nd March
2010. The advertisement mentions that the applicants should be qualified
as on 2nd March 2010, which is a date within the recruitment/vacancy
year 2009-10. Thus, on facts, it can be concluded that the process of
recruiting direct recruits to 35 posts of Income Tax Inspectors of the
vacancy/recruitment year 2009-10 commenced in the same year 200910.
HARIHARAN & ORS. v. HARSH VARDHAN SINGH RAO &
ORS. [ABHAY S. OKA, J.]
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CASES OF N.R.PARMAR1 AND K. MEGHACHANDRA2
24. Now, we turn to the decision in N.R. Parmar's case1. This
Court dealt with the issue of inter-se-seniority between the promotee
Income Tax Inspectors and direct recruits. As noted in paragraph 9 of
the decision, the controversy pertained to the vacancies for the year
1993-94. The vacancies of promotees were filled in the same year. SSC
issued the advertisement in May/June 1993 for filling in the posts of
direct recruits for the year 1993-94. Though the written test was
conducted in December 1993, viva-voce was conducted in October 1994.
The result was declared in June 1995 and the direct recruits joined in the
year 1995. The Administrative Tribunal held that the date on which the
SSC made the selection of the direct recruits, will be the material date
for fixing their seniority. The High Court interfered with the order of the
Tribunal by passing an order of remand. Ultimately, the direct recruits
succeeded before the Tribunal. The writ petitions challenging the order
of the Tribunal passed on remand were filed before the High Court. The
said petitions were transferred to this Court.
25. Perusal of the decision in the case of N.R. Parmar1 shows
that this Court considered and interpreted OMs dated 22nd December
1959, 7th February 1986, 3rd July 1986 and 3rd March 2008. Apart from
these OMs, this Court considered various Office Notes as well as
correspondence. This Court held that the OM dated 3rd March 2008 has
to be ignored to the extent to which the same is in derogation of OMs
dated 7th February 1986 and 3rd July 1986. In paragraph 52, this Court
recorded its conclusions, which reads thus:
"52. Having interpreted the effect of the OMs dated 7-2-1986
and 3-7-1986 (in paras 25 to 29 hereinabove), we are satisfied,
that not only the requisition but also the advertisement for direct
recruitment was issued by SSC in the recruitment year in which
direct recruit vacancies had arisen. The said factual position, as
confirmed by the rival parties, is common in all matters being
collectively disposed of. In all these cases the advertised
vacancies were filled up in the original/first examination/
selection conducted for the same. None of the direct recruit
Income Tax Inspectors herein can be stated to be occupying
carried-forward vacancies, or vacancies which came to be
filled up by a "later" examination/selection process. The
facts only reveal that the examination and the selection
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process of direct recruits could not be completed within
the recruitment year itself. For this, the modification/
amendment in the manner of determining the inter se
seniority between the direct recruits and promotees,
carried out through the OM dated 7-2-1986, and the
compilation of the instructions pertaining to seniority in
the OM dated 3-7-1986, leave no room for any doubt, that
the "rotation of quotas" principle would be fully applicable
to the direct recruits in the present controversy. The direct
recruits herein will therefore have to be interspaced with
promotees of the same recruitment year."
(emphasis added)
26. It is necessary to consider the findings rendered by the High
Court in the impugned judgment. The High Court has expressly relied
upon the decision of this Court in the case of N.R. Parmar1. By applying
the said decision to the facts of the case, the High Court held that:
i.
Requisition for 35+11 vacancies for direct recruits was sent
to CBDT in the recruitment year 2009-10 itself;
ii.
The recruitment for the said vacancies could not be held
during the recruitment year 2009-10 for the reasons for
which the candidates were not responsible;
iii.
It is not the case that the eligible candidates for filling in the
posts of direct recruits were not available in the year 200910;
iv.
The seniority list dated 7th September 2016 which was
prepared in terms of the decision of this Court in the case
of N.R. Parmar1 was required to be restored with a
clarification that those direct recruits who were eligible in
the recruitment year 2009-10 should be interspaced with
53 promotees appointed during the year 2009-10; and
v.
The seniority list dated 7th September 2016, which was the
final seniority list, could not be modified without giving an
opportunity of being heard to the affected candidates.
Therefore, the amended seniority list dated 13th February
2018 was illegal.
27. Now, coming to the decision of the Bench of Hon'ble three
Judges in the case of K.Meghachandra 2, this Court was dealing with
HARIHARAN & ORS. v. HARSH VARDHAN SINGH RAO &
ORS. [ABHAY S. OKA, J.]
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the Manipur Police Service Rules, 1965 (for short, 'the MPS Rules').
This Court was dealing with the issue of the dispute over the seniority in
the cadre of Manipur Police Service, Grade-II Officers between the
direct recruits and promotees. After referring to Rule 28 of the MPS
Rules, a finding was recorded that the Rule expressly provided that the
seniority shall be reckoned only from the date of appointment and not
from the stage when the requisition for the appointment was issued. In
paragraph 34, this Court held thus:
"34. The judgment in N.R.Parmar [2012 (13) SCC 340] is now
to be considered in some detail as this is heavily relied on by the
appellants' counsel. At the outset, it must however be cleared
that the cited case had nothing to do with the MPS Rules,
1965 and that litigation related to the Income Tax Inspectors
who were claiming benefits of various Central Government
OMs (dated 22-12-1959, 7-2-1986, 3-7-1986 and 3-3-2008).
The judgment was rendered in respect of the Central
Government employees having their own Service Rules.
The applicable Rules for the litigants in the present case
however provide that the seniority in the service shall be
determined by the order in which appointments are made
to the service. Therefore, the memorandums concerned
referred to in N.R. Parmar [2012 (13) SCC 340] which deal
with general principles for determination of seniority of
persons in the Central Government service, should not
according to us, have any overriding effect for the police
officers serving in the State of Manipur."
(emphasis added)
In paragraph 38, this Court held thus:
"38. At this stage, we must also emphasise that the Court
in N.R.Parmar [2012 (13) SCC 340] need not have observed
that the selected candidate cannot be blamed for
administrative delay and the gap between initiation of
process and appointment. Such observation is fallacious
inasmuch as none can be identified as being a selected
candidate on the date when the process of recruitment had
commenced. On that day, a body of persons aspiring to be
appointed to the vacancy intended for direct recruits was
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not in existence. The persons who might respond to an
advertisement cannot have any service-related rights, not
to talk of right to have their seniority counted from the
date of the advertisement. In other words, only on
completion of the process, the applicant morphs into a
selected candidate and, therefore, unnecessary observation
was made in N.R. Parmar [2012 (13) SCC 340] to the effect
that the selected candidate cannot be blamed for the
administrative delay. In the same context, we may usefully refer
to the ratio in Shankarsan Dash v. Union of India [Shankarsan
Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800]
, where it was held that even upon empanelment, an appointee
does not acquire any right."
(emphasis added)
In paragraph 39, this court observed:
"39. The judgment in N.R.Parmar [2012 (13) SCC 340] relating
to the Central Government employees cannot in our opinion,
automatically apply to the Manipur State Police Officers, governed
by the MPS Rules, 1965. We also feel that N.R. Parmar1 had
incorrectly distinguished the long-standing seniority determination
principles propounded in, inter alia, Jagdish Ch.Patnaik [Jagdish
Ch.Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC
(L&S) 1156], Suraj Parkash Gupta v. State of J&K [Suraj Parkash
Gupta v. State of J&K, (2000) 7 SCC 561 : 2000 SCC (L&S)
977] and Pawan Pratap Singh v. Reevan Singh [Pawan Pratap
Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S)
481] . These three judgments and several others with like
enunciation on the law for determination of seniority makes it
abundantly clear that under service jurisprudence, seniority cannot
be claimed from a date when the incumbent is yet to be borne in
the cadre. In our considered opinion, the law on the issue is correctly
declared in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of
Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] and
consequently we disapprove the norms on assessment of inter se
seniority, suggested in N.R. Parmar [Union of India v. N.R.
Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711].
Accordingly, the decision in N.R. Parmar1 is overruled.
However, it is made clear that this decision will not affect
HARIHARAN & ORS. v. HARSH VARDHAN SINGH RAO &
ORS. [ABHAY S. OKA, J.]
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the inter se seniority already based on N.R. Parmar1 and
the same is protected. This decision will apply prospectively
except where seniority is to be fixed under the relevant
rules from the date of vacancy/the date of advertisement."
(emphasis added)
28. With the greatest respect to the Hon'ble Bench which dealt
with K.Meghachandra's case2, we find that the attention of the Bench
was not invited to the binding decision of the Coordinate Bench in the
case of M. Subba Reddy6. This decision was rendered by a Bench of
three Hon'ble Judges. This Court in the case of M. Subba Reddy6 dealt
with the issue of the fitment of the promotees to the posts of Assistant
Traffic Manager and Assistant Mechanical Engineer in the integrated
seniority list. The majority judgment refers to the relevant Service
Regulations which provide that seniority is reckonable from the date of
appointment to service or grade. Paragraphs 6 and 7 of the said decision
read thus:
"6.