AI Structured Summary
Not yet generated for this judgment
Judgment
Sunil Thomas, Member J
Inter se dispute regarding seniority among direct recruits and promotees in the cadre of Income Tax Inspectors under the Income Tax Department in State of Kerala has led to the above Original Applications.
Applicants in OA No. 143 of 2019 are few Income Tax Inspectors who were directly recruited by notification in 2014. They participated in the written examination in 2014, placed in the rank list and allotted Kerala region by appointment order issued in the year November/December, 2015. When steps were initiated for finalising the seniority, the applicants approached this Tribunal claiming that their seniority should be reckoned from 2013. The allegation in the above OA was that the respondent Income Tax Department, Kerala region was not finalizing the seniority list in tune with the decision of the Supreme Court in Union of India & Ors. v. N.R. Parmar & Ors. [(2012) 13 SCC 340]. Respondent department contended that only a draft list has been published and it would be finalized after considering all objections. They undertook that the decision in N.R. Parmar’s case (supra) would be carefully followed. When the matter was taken up for final hearing, the Tribunal was informed that N.R. Parmar’s decision stood overruled by the decision of the Supreme Court in K. Meghachandra Singh & Anr. v. Ningam Siro & Ors. [(2020) 5 SCC 689].
Consequently, by order dated 10.1.2020 the Tribunal disposed of the OA by directing respondent Income Tax Department to finalize the seniority list following the ratio in Meghachandra Singh’s (supra) decision and directed to finalize the draft seniority list as per Rule within 60 days and thereafter to give effect to promotion by convening the DPC.
On 10.8.2020, CP No. 17 of 2021 was filed in OA No. 153 of 2017 by the respondents Nos. 7 & 9 in the OA, who were the promotee Income Tax Inspectors stating that a seniority list was circulated among the Head of the Departments and Head of Office of Kerala region, along with a communication dated 5.8.2021. It was alleged by the petitioners in the CP that the list was prepared in terms of N.R. Parmar’s (supra) decision. The grievance was that N.R. Parmar’s decision stood overruled by the decision of the Supreme Court in Meghachandra Singh’s decision and the direction of this Tribunal was to finalize the list in accordance with the law in Meghachandra Singh. However, the respondent officials continued to follow N.R. Parmar’s decision. Accordingly, it was alleged that the respondents committed contempt of this Tribunal and requested this Tribunal to initiate contempt proceedings against the respondents. The above Contempt Petition is pending.
While so, few days after the Contempt Petition was filed, few of the promotee Income Tax officials in the Income Department in Kerala filed OA No. 396 of 2021 challenging the seniority list which was the subject matter of CP No. 17 of 2021. They challenged the seniority list circulated along with the communication dated 5.8.2021. They also challenged OM No. 20011/2/2019 Estt.(D), dated 13.8.2021 issued by the Department of Personnel & Training, produced in the above OA as Annexure A10. Annexure A11 was the seniority list dated 1.2.2022. In the present OA, the applicants in OA No. 143 of 2019 were arrayed as respondents Nos. 5 to 9. The contention of the applicants therein was that in spite the direction in OA No. 143 of 2019, seniority list was published in accordance with the directions contained in N.R. Parmar’s case (supra). Accordingly, they sought the following reliefs:
“i. Call for the records leading to the issue of Annexure A5 seniority list and set aside the same to the extent that it runs against the law laid down in Mechacahndra Singh’s case and Annexure A4 order.
ii. Declare that the action of the respondents in issuing Annexure A5 in tune with N.R. Parmar’s case which has been overruled by Meghachandra Singh’s case is illegal and unsustainable.
iii. Direct the respondents to grant promotion to the applicants to the post of Income Tax Officer in accordance with the ratio laid down in Meghachandra Singh’s case.
v. Call for the records leading to Annexure A10 order and set aside paragraph 7 clause (iii) of the said order.
vi. Declare that paragraph 7 clause (iii) of Annexure A10 order is illegal, unfair, arbitrary, discriminatory and violative of Article 14 of the Constitution of India, needless to say the same are void and non-est.
vii. Call for the records leading to Annexure A11 final seniority list and set aside the same to the extent to which it runs against the law laid down in Meghachandra’s case and Annexure A4 order.”
Reply statement was filed by the 4th respondent Principal Commissioner of Income Tax, Kerala contending that a draft seniority list was prepared for the year 2014-15 and circulated among the officials and objections were invited. Pursuant to directions in OA No. 143 of 2019 steps were taken to revise the list in the light of the decision of the Supreme Court in Meghachandra Singh’s case. DoP&T had in the meanwhile issued OM dated 13.8.2021 for fixation of seniority in the light of Meghachandra Singh’s case. Provisional seniority list was circulated in terms of OM dated 5.8.2021 by applying/implementing judgment in N.R. Parmar’s case prospectively. 77 representations were received regarding the provisional seniority list. It was considered along with the directions contained in various OMs and guidelines and the list was finalized. It was claimed that the list was finalized strictly in accordance with the law that existed.
The respondents Nos. 5 to 9 contended that the OA was itself was bad in so far as all the persons who were likely to be affected were not impleaded. List was finalized in accordance with the applicable Rules. Assignment of seniority was in accordance with the decision of the Supreme Court in Meghachandra Singh’s case. In OA No. 143 of 2019 these respondents did not have a contention that the list was not in accordance with the principles laid down in N.R. Parmar’s case. The only issue that was in dispute in that OA was on facts, as to whether the year of recruitment was 2013-14 or 2014-15.
During the pendency of the above OAs’, OA No. 441 of 2021 was filed by another set of promotees in the cadre of Income Tax Inspectors promoted on various dates during the years 2014 to 2016. The respondents Nos. 5 to 9 were directly recruited in the category of Income Tax Inspectors during the period 2015 to 2018. It was claimed by the applicants in the above OA that respondents Nos. 4 to 9 were in fact juniors to them. However, Annexure A1 seniority list was published in 2018. While so, the 4th respondent and others filed OA No. 143 of 2019 challenging the seniority list and seeking to reckon the seniority with effect from the recruitment years 2013 – 2014. It was disposed of with the direction to finalize the seniority list in the light of Meghachandra Singh’s case. The above order is under challenge and is pending now before the Hon’ble High Court in OP (CAT) No. 106 of 2020.
It was alleged in the OA that without following the order in OA No.143 of 2019, the Income Tax Department in Kerala published a provisional seniority list dated 5.8.2021. Respondents Nos. 4 to 9 were placed above the applicants by giving seniority with effect from date of recruitment year. The main contention was that the seniority was assigned in terms of N.R. Parmar’s case and not in accordance with Meghachandra Singh’s case as directed in OA No. 143 of 2019. It was also contended that since the list was not finalized, it did not fall within the exemption as provided under Meghachandra Singh’s case (supra).
On the basis of the above pleadings the following reliefs were sought:
“(i) Call for the records leading to Annexure A3 seniority list and set aside the same to the extent it assigns seniority to respondents 4 to 9 and other similarly situated direct recruits above the applicants;
(ia) Call for the records leading to Annexure A7 proceedings dated 1.2.2022 and Annexure A7(a) revised final seniority list and set aside the same to the extent it assigns seniority to respondents 4 to 9 and other similarly situated direct recruitees above the applicants;
(ii) Call for the records leading Annexure A4 order and set aside paragraph 7 clause (iii) of the said order;
(iii) Declare that Annexure A3 seniority list to the extent it assigns seniority to direct recruits with effect from the date of their recruitment year and paragraph 7 Clause (iii) of Annexure A4 order is illegal, unfair, arbitrary, discriminatory and violative of Article 14 of the Constitution of India, needless to say the same are void and non-est;
(iiia) To declare that Annexure A7 proceedings dated 1.2.2022 and Annexure A7(a) revised final seniority list to the extent it assigns seniority to respondents 4 to 9 and other similarly situated direct recruitees above the applicants with effect from the date of their appointment year, which is against the directions contained in the decision reported in 2020 (5) SCC 689 (Megha Chandra Singh’s case) and also in violation of Annexures A8 and A9 OMs is absolutely illegal, unfair, discriminatory, arbitrary and is violative of Article 14 of the Constitution of India.”
An interim order dated 20.09.2021 was passed in this O.A directing the official respondents not to act on the basis of the above Provisional list. In the meanwhile additional respondents were impleaded. Separate reply statements were filed by all contesting parties specifically respondents Nos. 1 to 7 and 10 to 14, who were the direct recruits.
Extensive arguments on the basis of respective pleadings and rival contentions were advanced by Mr. C.S.G. Nair for the petitioner in CP No. 17 of 2021, Mr. Vishnu Prasad for the applicants in OA No. 396 of 2021, Mr. T.C. Govindaswamy for the contesting respondents in that OA, Mr. Elvin Peter for the applicants in OA No. 441 of 2021 and Senior Advocate Mr. K.P. Satheesan, instructed by Mr. Mohandas for respondents Nos. 5 to 7 and 10 to 14 in OA No. 441 of 2021 and Mrs. O.M. Shalina, SCGSC and Mr. N. Anil Kumar, Sr. PC representing the Income Tax Department.
The basic facts are not in dispute. The entire dispute now revolves on the question whether the seniority of the direct recruits is to be reckoned with respect to the date of notification inviting applications of the direct recruits in the present case. Consequently, the question was whether N.R. Parmar’s case should hold the field or Meghachandra Singh’s case. We do not propose to go into the niceties of legal issues of N.R. Parmar’s case and Meghachandra Singh’s case and the detailed arguments advanced by both sides in the light of a subsequent decision of the Supreme Court.
In N.R. Parmar’s case (supra) the Hon’ble Supreme Court held that the available direct recruits and promotees for assignment of inter se seniority would refer to the direct recruits and promotees who were appointed against the vacancies of a particular recruitment year, where the recruitment year shall be the year in which the recruitment process for either modes of recruitment (direct recruitment or promotion) for a particular vacancy year was initiated and that initiation of recruitment process against a vacancy year would mean the date of sending the requisition for filing up the vacancy to the recruiting agency in case of direct recruits or the date on which a proposal was completed in all respects and sent to UPSC/Chairman DPC for convening the DPC, to fill up the vacancy earmarked for promotion. However, in Meghachandra Singh’s case Supreme Court disapproved the norms of assessment of inter se seniority suggested in N.R. Parmar’s case. Accordingly, N.R. Parmar’s case was overruled. The Supreme Court held that the OMs dated 7.2.1986 and 3.7.1986 were not properly construed in N.R. Parmar’s case. It was held that contrary to the eventual findings, the said OMs have made clear that seniority of direct recruits be declared only from the date of appointment and not from the date of initiation of direct recruitment process. But it was held that surprisingly the judgment in N.R. Parmar’s case, while referring to the illustration given in OM, in fact overlooked the effect of the said illustration. According to Meghachandra Singh’s case, the illustration extracted in N.R. Parmar’s case itself made it clear that the vacancies which were intended for direct recruitment in the particular year (1986) which were filled in the next year (1987) could be taken into consideration only in the subsequent years’ seniority list and not in the seniority list of 1986. The Supreme Court noted that it was so indicated in the two OMs dated 7.2.1986 and 3.7.1986.
Though N.R. Parmar’s case was overruled, it was made clear by the Supreme Court that the decision will not affect the inter se seniority already based on N.R. Parmar’s case and the same was protected. The Supreme Court clarified as follows:
“This decision will apply prospectively except where seniority is to be fixed under the relevant rules from the date of vacancy/date of advertisement.”
It emerges that subsequently, in the light of Meghachandra Singh’s case, Department of Personnel & Training issued OM dated 13.8.2021, specifying the modalities which were to be adopted consequent to the decision in Meghachandra Singh’s case. The legal position that now emerges is that Meghachandra Singh’s case holds the field as on the date of its pronouncement and at the time of filing of the present OAs. N.R. Parmar’s case stood overruled. However, it was a case of a prospective overruling by which seniority fixed under the relevant Rules from the date of vacancy/date of advertisement in accordance with N.R. Parmar’s case stood protected.
When this Tribunal by order in OA No. 143 of 2019 directed appropriate decision shall be taken in the light of Meghachandra Singh’s case, actually it did not specify the fact that Meghachandra Singh’s case apply only prospectively and did not apply to seniority which were finalized in accordance with N.R. Parmar’s case.
After the detailed hearing of the present OAs and after the OAs’ were taken for orders, the Supreme Court by its judgment in Hariharan v. Harsh Vardhan Singh Rao & Ors. in SLP No. 16161 of 2018 considered the impact of Meghachandra Singh’s case on N.R. Parmar’s case. After an elaborate consideration of the legal issues involved, the Supreme Court concluded that Meghachandra Singh’s case was per incurium in so far as the binding decision of the Constitution Bench in Mervyn Coutindo & Ors.v. Collector of Customs, Bombay & Ors. [(1966) 3 SCR 600] and another binding decision of a co-ordinate bench in M. Subba Reddy & Anr. v. A.P. State Road Transport Corporation & Ors. [(2004) 6 SCC 729] were not noticed. It was held that even assuming that Meghachandra Singh’s case was correctly decided, paragraph 39 of the decision showed that the decision in N.R. Parmar’s case has been prospectively overruled by observing that the decision will not affect the inter se seniority already fixed on the basis of N.R. Parmar’s case and the same was protected. It was also held that the decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/date of advertisement. It was held that whether the decision in Meghachandra Singh’s case can be said to be binding precedent in the light of Mervyn Coutindo’s case and M. Subba Reddy’s case need to be considered by a larger bench of the Supreme Court. Accordingly, the matter was ordered to be placed before the Hon’ble Chief Justice for appropriate decision.
Necessarily, the entire question as to whether N.R. Parmar’s case (supra) or Meghachandra Singh’s case (supra) hold the field is a matter to be considered and settled by a larger bench of the Hon’ble Supreme Court. However, even in Meghachandra Singh’s case the seniority list which were finalized in accordance with N.R. Parmar’s case were saved by Megahchandra Singh’s case. It was contented by the learned counsel for the contesting respondents/the direct recruits as well as by the learned SCGSC and the Senior Panel Counsel that the seniority list in the present case was finalized in the light of the decision in N.R. Parmar’s case. Even though this Tribunal in OA No. 143 of 2019 had directed that seniority should be reckoned in the light of Meghachandra Singh’s case, virtually in the light of the prospective overruling, the impact of applying Meghachandra Singh’s case would have been ordinarily to give effect to N.R. Parmar’s case, subject to seniority being fixed under the relevant Rules. Accordingly, whether N.R. Parmar’s case would hold the field or it stood reversed by Meghachandra Singh’s case is now to be finalized by a larger bench of the Supreme Court. In the light of Hariharan’s (supra) decision, the learned counsel for the contesting respondents/direct recruits and the learned SCGSC and SPC pleaded for affirming the seniority list, subject to the outcome of the Supreme Court.
On the other hand, the learned counsel for the applicants contended that even the prospective overruling in Meghachandra Singh’s case will not apply in the facts of the present case. The learned counsel invited our attention to the operative portion in Meghachandra Singh’s case which directed that this decision “will not affect the inter se seniority already based on N.R. Parmar and the same is protected. This decision will apply prospectively except to where seniority is to be fixed under the relevant rules from the date of vacancy/date of advertisement”. (emphasis supplied).
It was contended by the learned counsel that the use of the term ‘fixed’ among the words ‘except where seniority is to be fixed’ has to be understood in the context of the decision of the Hon’ble Supreme Court in Ahmadsahab Abdul Mulla v. Bibijan & Ors. [2009 (5) SCC 462]. In that case it was held that the term ‘fixed’ in essence meant, ‘having become final or crystallized form or character and not subject matter to change or fluctuation’. It was contended that the seniority list that was issued by the Department and was the subject matter of OA 143/2019 was only a provisional seniority list, which was subject to change on the basis of objections filed by the affected parties. The same would get fixed and finalized only after the Department, after considering the objections, finalize the same by publishing a final seniority list which again is subject matter to challenge by the affected parties before the appropriate authority including the courts of law. It was hence contended that the list was yet to be finalized and the Meghachandra Singh’s case to the extent it prospectively overruled did not save the list in the present case.
Though the learned counsel for the applicants strenuously advanced the above contention, we feel that this question is directly linked with the question as to whether Meghachandra Singh’s case would hold the field. Only if it is held that Meghachandra has been correctly decided, the question of applying the decision in Meghachandra Singh’s case (supra) prospectively or retrospectively would arise. Hence, till the reference is answered, we feel that any decision on the question as to implication of “except to where seniority is to be fixed” will only be pre-empting the issue, which is the subject matter referred to a larger bench of the Supreme Court. It is for the Supreme Court now to decide whether Meghachandra Singh’s case would hold the field. If the Supreme Court sustains Meghachandra Singh’s case, whether it would sustain it prospectively or retrospectively is a matter still to be settled. Necessarily, till then N.R. Parmar should govern the field. Hence, the question as now posed by the learned counsel for the applicants is not liable to be considered at this stage. Further, the 2nd prayer in OA No. 396 of 2021 and the tenor of pleadings in the OAs’ indicate that the seniority list was prepared in terms of N.R. Parmar’s decision.
In the light of the above legal position, we feel that parties will have to await final determination on the reference order made by the Hon’ble Supreme Court in Hariharan’s case (supra). However, regarding the moulding of reliefs the learned SCGSC and the learned Senior Counsel and other counsel for the contesting respondents invited our attention to the operative portion of the judgment in Hariharan’s case (supra). By the above judgment the interim stay granted as against the final list which was approved was vacated, subject to the outcome of the appeal or reference as the case may be. It was clarified that the seniority of the promotees and direct recruits who may be appointed thereafter will be subject to the final outcome of the decision of the appeal or the decision in reference, as the case may be.
Countering this contention, the learned counsel for the applicants in OA No. 441 and 396 of 2021 contended that such a relief was granted in the light of the peculiar situation that existed in that case. It was pointed out by the learned counsel for the applicants that the judgment in N.R. Parmar’s case was rendered on 27.12.2012 whereas judgment in Meghachandra Singh’s case was decided on 19.11.2019. The list in Hariharan’s case was finalized on 29.4.2014. It was at a time when N.R. Parmar’s case governed the field. According to the counsel, in the above factual circumstances, the Supreme Court while referring the matter to a larger bench was justified in vacating the stay and to confirm that the list as finalized in accordance with N.R. Parmar’s case should hold the field. That is not the situation in the facts present case, it was contended.
We are not attracted by the above contentions since N.R. Parmar’s case (supra) was overruled in Meghachandra Singh’s case on 19.11.2019. However, it saved the list already finalized in accordance with N.R. Parmar. In this case also Meghachandra Singh’s decision was binding till it was held to be per incurium in Hariharan’s case. Hence, the contention of the learned counsel that the list in Hariharan’s case stood finalized before Meghachandra Singh’s case and when N.R. Parmar’s case held the field would make no difference in the present case also. Hence, we are not inclined to accept that argument.
The second argument advanced by the learned counsel for the applicants was that reference order has only a limited binding nature as held by the Hon’ble Supreme Court in Ashok Sadarangani & Anr. v. Union of India & Ors. [2012 KHC 4171], State of Maharashtra & Anr. v. Sarva Shramik Sangh, Sangli & Ors. [(2013) 16 SCC 16], Harbhajan Singh & Anr. v. State of Punjab & Anr. [2009 KHC 5866] and Indian Oil Corporation Limited v. Municipal Corporation & Anr. [AIR 1995 SC 1480]. The binding nature of the reference order is limited and notwithstanding the reference, the law which governed the field as on that date will continue to be in force, till reference was answered, it was contended. Though we agree with the above legal proposition, the facts in the present case is different. Reference was made, not only doubting the correctness of Meghachandra Singh’s case but by holding that decision to be per incurium, its correctness is doubtful. If Meghachandra Singh’s case (supra) is held to be per incurium, that judgment cannot have any legal validity at all.
In the light of the above facts we are inclined to direct that the interim order granted in OA No.441/2021 on 20.09.2021 will stand vacated with a direction to the respondents Income Tax officials to convene the DPC to further proceed with the list prepared in the light of the decision of this Tribunal in OA No. 143 of 2019. It is made clear that the finality of this list will be subject to the outcome of the Supreme Court in the reference order consequent to Hariharan’s case (supra) as well as the outcome of the judgment in OP (CAT) No. 106 of 2020. It is reiterated that the seniority of the promotees and direct recruitees who may be appointed pursuant to this order will be subject to the final outcome of the reference order consequent to Hariharan’s case (supra) and subject to the directions in OP (CAT) No. 106 of 2020 as held above.
Accordingly, Contempt Petition No. 17 of 2021 is closed reserving the right of the petitioner to move again, if required, subject to outcome of OP (CAT) 106 of 2020. OA No. 396 of 2021 and OA No. 441 of 2021 are accordingly, disposed of as above. No order as to costs.