Pradeep Kumar & Others vs Union Of India & Others

L. Narasimha Reddy, J

Since common questions of facts and law are involved in both these OAs, they are disposed of through this common Judgment.

For the sake of convenience, the facts of OA No. 3279/2014 are referred to in detail. The facts in other OA are also similar, except for small variations.

The applicants were initially appointed as Lower Division Clerk (LDC), in the Income Tax Department, on being selected by the Staff Selection Commission (SSC). Later on, they were promoted to the post of Upper Division Clerk (UDC). The appointment to the post of Income Tax Inspector (ITI) is partly through promotion from the feeder category of UDC and other similar categories, and partly through direct recruitment. All the applicants herein were promoted as ITIs with effect from the different dates in 2006, on being selected by the Departmental Promotion Committee (DPC). These are referable to the vacancy year 2005-06.

For the channel of direct recruitment, five vacancies were notified by the Central Board of Direct Taxes (CBDT), the 2nd respondent herein, to the SSC for the year 2005-06. The Preliminary Examination of the Combined Graduate Level Examination (CGLE) was conducted on 13.11.2005, and the results were declared on 02.03.2006. The Main Examination of the CGLE, 2005 was held from 23-25 June, 2006. By that time, the 2nd respondent confirmed five vacancies for the year 2005-06 and 50 vacancies of backlog for the years 2001-02. After the results of the Main Examination was declared, the Screening Committee cleared the names of 363 candidates for consideration to the post of ITIs for the years 2002-03 to 2005-06. Thereafter, the Government created 1193 posts of ITIs. In November, 2006, the CBDT, the 2nd respondent herein, addressed a letter dated 20.02.2007 to the SSC, intimating 817 vacancies. By September, 2008, the 2nd respondent appointed 817 as ITIs for different charges, i.e., zones across the country.

The final list for the post of ITIs containing 522 names for Delhi charge, was published on 17.06.2010. The applicants herein figured at certain places, which are above the candidates who were selected and appointed in September, 2009.

The Hon'ble Supreme Court, in Civil Appeal Nos.7514-7515 of 2005 delivered its judgment in Union of India & Ors. vs. N.R. Parmar & Ors. in the year 2012. It was held that whenever the vacancies meant for direct recruitment are notified in the same year in which the promotions are also made, and the selecting agency conducts examination also, the mere fact that delay in publication of the results and consequential appointments should not be a ground to deny the direct recruits of the concerned year, their legitimate place in the seniority list. Citing that judgment, some of the direct recruits referred to above, filed OA No.1854/2013 before this Tribunal. It was disposed of, directing the respondents therein to rearrange the seniority in accordance with the judgment of the Hon'ble Supreme Court in N.R.Parmar's case (supra). It was also mentioned that the rights of the parties cannot be treated as having been decided, and if any officer is aggrieved by such recasting, it shall be open to them to pursue the remedies.

The 2nd respondent prepared a draft seniority list for the post of ITIs on 21.05.2014, containing 988 names. The applicants were placed at relatively lower positions and they submitted their objections. It is stated that a Committee of three Commissioners was also constituted to examine the objections and other related issues. Ultimately on 25.05.2014, a final seniority list was published in which the names of the applicants were pushed down, and the direct recruits, who were appointed in the year 2009, i.e. respondents 4 to 92, were placed above them.

This OA is filed, challenging the seniority list dated 25.05.2014, and for a direction to the respondents to restore the seniority list published on 17.06.2010. Secondly, the relief in the form of directing the respondents to revise, recall and modify the promotions that have taken place on the basis of the seniority list dated 25.05.2014, is sought. They have also incorporated a prayer to set aside the appointments of respondents 4 to 92 as ITIs.

The applicants contend that the vacancies for the direct recruitment, which were available in the year 2005-06, were notified by the 2nd respondent to the SSC, and once the list of selected candidates for those vacancies was forwarded, there was no basis to add any vacancy thereafter. They submit that when the new posts were sanctioned only in November, 2006, the appointment against them can be made only by notifying them to the SSC in the next examination, and there was absolutely no basis for operating the residual list of the examination conducted for the year 2005-06. They contend that gross illegality, irregularity and the flagrant violation of the prescribed procedure has taken place in appointment of respondents 4 to 92.

The applicants further contend that nowhere in its judgment in N.R. Parmar's case (supra), the Hon'ble Supreme Court held that the seniority list that has become final, must be reopened, even where the vacancies for the direct recruitment were notified in the same year, but appointments were delayed. They submit that the very process of appointment of respondents 4 to 92 does not fit into any codified law or precedents, and there is a flagrant violation of the prescribed procedure. According to applicants, there was no basis at all for altering the seniority and placing the respondents 4 to 92 above them. It is urged that the while the applicants were promoted in the year 2006 against the vacancies of 2005-06, the posts against which the respondents 4 to 92 were appointed, were themselves created in November, 2006 and notified to the SSC in the year 2007.

On behalf of respondents 1 and 2, on the one hand, and the respondents 4 to 92, on the other hand, separate counter affidavits were filed. They contend that the vacancies that were notified to the SSC are only tentative and depending on the availability of vacancies, they can be intimated to the SSC till the final stage. According to them, the newly created vacancies were notified to the SSC with a request to operate the seniority list of CGLE, 2005, and appointments were made accordingly. It is stated that the applicants cannot challenge the appointment of respondents 4 to 92, and that the impugned seniority list was issued strictly in accordance with law.

We have heard Sh. Thakur Sumit with Sh. Ajesh Luthra, learned counsel for the applicants and S/Sh. Hanu Bhaskar, NK Kaushik, Dr. Ch. Shamsuddin Khan, MK Bhardwaj and Ms. Lakshmi Gurung, learned counsel for the respondents, at length and on more occasions than one.

In this OA, the main issue is about the validity of the seniority list dated 25.05.2014 for the post of ITIs published by the CBDT for Delhi charge. According to the relevant Recruitment Rules, appointment to the post of ITIs is partly through direct recruitment and partly through promotion. The applicants joined the service of the Income Tax Department as LDCs and were thereafter promoted to the post of UDCs. In the year 2006, they were promoted to the post of ITIs against the vacancy year 2005-06. The selection for direct recruitment to the post of ITI is by SSC, through the CGLE. The applicants did not have any qualms about the process of direct recruitment for the year 2005-06, because in the final seniority list published on 17.06.2010, they were assigned the relevant positions, and the direct recruits, appointed in the year 2008 against the vacancies of 2005-06, were placed below them. The direct recruits, such as respondents 4 to 92, were not satisfied with that seniority list and approached this Tribunal by filing OA No. 1854/2013. On the basis of the directions issued therein, the 2nd respondent has undertaken an exercise said to be in accordance with the judgment of the Hon'ble Supreme Court in N.R. Parmar's case and published another seniority list on 25.05.2014. It is stated that the places of the applicants were changed to their detriment.

The applicants not only have raised several contentions as to the legality of the seniority list dated 25.05.2014, but also have challenged the very appointment of the respondents 4 to 92 by incorporating a specific prayer in the OA. In other words, they did not feel aggrieved when such appointments took place but felt the necessity to challenge such appointments only when the persons so appointed were placed above them. It is in this background that we propose to examine two aspects, i.e. appointment of respondents 4 to 92 and other similarly situated persons, on the one hand, and the legality of the seniority list dated 25.05.2014, on the other hand.

In the context of direct recruitment for the year 2005-06, the 2nd respondent notified 5 vacancies to the SSC. The break-up is UR-1, SC-2, ST-1 and OBC-1. There existed about 50 backlog vacancies upto the year 2004. The 2nd respondent decided that those vacancies be dealt with in CGLE 2005. In the notification issued for the Preliminary Examination, only 5 vacancies of ITIs were mentioned. The results of that examination were declared on 02.03.2006. A notification for the Main Examination was issued in March, 2006. Even by that time, the vacancies remained the same, and the results of the Main Examination were declared. The Screening Committee is said to have completed the process on 26.06.2006 in respect of the vacancies notified for the year 2002-03 to 2005-06.

The Ministry of Finance created as many as 7051 additional posts of different categories in the Income Tax Department. The relevant particulars are not available on record, but the letter dated 04.11.2006 addressed by the 2nd respondent to the SSC throws light on this issue. It reads as under:-

"Please refer to my earlier DO of 16th November, 2006 in which it was informed that the category-wise break-up of different posts would be made available for you for seeking direct recruitment. A chart indicating the details is enclosed as per Annexure. The net direct recruitment vacancies as per the chart are as under:-

SI. No.

Category of Posts

Number of Posts

A.

Income Tax Inspector (ITI)

481

B.

Tax-Assistant (TA)

3591

C.

Steno Gr.-III

895

TOTAL

4967

As we have informed earlier, there may be slight variation in the category-wise break up depending upon the final calculation received from the field formations of the Income Tax department. In any case the variation will not be more than 5%. I may also like to inform you that the notification for the creation of 7,051 additional posts in the Income Tax Department was issued on 20th November 2006 (and not on 15 th November 2006 as informed earlier).

There is another requirement of seeking 'no objection from the "Surplus Cell" of DOPT for which Secretary Revenue has separately addressed a DO letter to the Secretary, DOPT on 30th November 2006. We are also following up the matter.

You may like to take up the matter at the appropriate level for initiating the process of recruitment at the earliest."

On 20.02.2007, a requisition was forwarded by the CBDT to the SSC for filling up of 817 posts of ITIs, including 58 which were notified earlier. The letter reads as under:-

"Sub: Filling up of DR vacancies in the grades of Income Tax Inspector Tax Assistant and Steno Gr.III in Income Tax Department - confirmed number of vacancies - intimation regarding.

Sir,

I am directed to refer to Commission's letter No.1/21/2006-P&P-II dated 22/12/2006 and this Department's OM of even number dated 25th January 2007 on the above subject.

The category-wise break-up of confirmed total number of vacancies to be filled in the grades of (i) Income Tax Inspector - 759, (ii) Tax Assistant - 3533 and (iii) Steno Gr.-III - 1841 are given below. The reservation against these vacancies and other details are as under:-

Nu mb er of vac anc ies

Horizontal reservation

Vert ical Res erva tion

Tot al

Ex. ser

Physically handicapped

OH

HH

VH

UR

SC

ST

OB

C

Inc om e Tax Ins pec tor

366

122

73

198

769

53

30

Nil

Nil

Tax Ass ista nt

173 1

567

264

971

353

3

375

Total-114

52

38

25

Ste no Gr. -III

959

273

112

497

18

4

176

Total-54

36

8

10

The 58 vacancies of Inspector of Income Tax, reported earlier vide CBDT's letter No.A-14013/1/2004-Ad.VII dated 9th May 2006 are separate from these vacancies and are available for filling up. Therefore, total number of vacancies of Income Tax Inspector being from the Combined Graduate Level (Main) Exam 2005 are 817 (58+759).

The vacancies mentioned in para 2 are part of ADR Plans of Recruitment Years 2002-03 to 2005-06 and DR quota of posts recently sanctioned for the Income Tax Department. The Screening Committee has approved the vacancies of ADPRs 2002-03 to 2005-06. Approval of Screening Committee is not required for filling new sanctioned posts.

The Surplus Cell has given 'NOC' for all the above mentioned vacancies vide their letter 4/10/2006-CS.III dated 10/1/2007. A copy has already been sent with CBDT's OM of even number dated 25/1/2007. However, a copy of 'NOC' is again enclosed for ready reference.

The tentative vacancies intimated earlier vide Member(P)-CBDT's DO of even number dated 28/9/2006 and CIT(C&S) DO No. 402/88A/2/2006(R) CIT(C&S) dated 04/11/2006 may be treated as withdrawn.

There is acute shortage of Stenographers Grade-III in the Income Tax Department. As brought out in OM dated 25/1/2007, no relaxation in shorthand and typing speed prescribed in the notified RRs of the post is possible. It is again requested that Special Exam (Crash Scheme) for recruiting Stenos to the IT Department may be conducted so that candidates are available by August, 2007."

Anybody in the Administration would have been surprised, if not astonished at the very attempt to fill such a large number of vacancies from the candidates, who appeared in the examination, which took place much before their creation.

At one stage of hearing, we did express our surprise about this and passed an order on 16.10.2018 as under:-

"We heard the learned counsel for the applicant and the learned counsel for the respondents in some detail.

The issue pertains to the fixation of seniority between those Income Tax Inspectors who were appointed on promotion on the one hand and those who were appointed on direct recruitment on the other hand. In the earlier round of litigation, this Tribunal directed the respondents herein to apply the principle laid down by the Hon'ble Supreme Court in Union of India and others vs. N.R.Parmar, (2012) 13 SCC 340 and fix the seniority. In compliance with that, respondents issued the seniority list which has virtually pushed the places of the promotee Income Tax Inspectors to very low levels in that.

In the course of hearing this OA, we noticed certain important aspects. The Staff Selection Commission (SSC) issued a notification dated 23.07.2005 for preliminary examination wherein the number of vacancies for the post of Income Tax Inspectors was not mentioned and it was stated that the number will be disclosed in future. After that stage the notification for main examination was issued in the Employment News of 18 - 24 March 2006. The number of posts of Income Tax Inspectors to be filled through direct recruitment was mentioned as 5; which included 1 unreserved, 2 SC, 1 ST and 1 OBC. In purusance thereof, the examination was conducted between 23 to 25 June 2006. It is long thereafter, i.e., on 20.02.2007 that the Central Board of Direct Taxes addressed a letter notifying 817 vacancies of the post of Income Tax Inspector.

In the normal course, when there is such huge and phenomenol increase in the number of vacancies, one expects a fresh notification to be issued so that an opportunity is given to the intending candidates. However, for reasons best known to them, the SSC is said to have forwarded a list of candidates who have participated in the examination which was held for 5 posts, whereas the Income Tax Department appointed 817 Income Tax Inspectors. This would shock the conscience of anyone who expects fairness in the matter of public appointments.

Learned counsel for the respondents is a bit handicapped in answering this question since SSC is not made a party. We intend to go into the matter and accordingly, permit the applicant to implead SSC as a party respondent, since it would be better that the matter is explained by the appropriate agency."

The information, which was made available in the course of such verification, has indeed justified our surprise. The CBDT itself was reluctant for such a course of action. In order dated 03.05.2019, the following was observed:-

"We heard the matter at length. Mr. Hanu Bhasker, learned standing counsel has placed before us certain documents relating to the entire issue. The letter dated 20.11.2006, addressed by the then Member of Staff Selection Commission (SSC), has extracted two paragraphs from a letter addressed by the CBDT (Department of Revenue) in this behalf. They read as under:-

"(a) The examination of Staff Selection Commission (SSC) has been conducted declaring particular number of vacancies at the time of advertisement. In fact, the final examination took place even before these posts were created. That time these posts were not in existence at all. Obviously, the number of vacancies were not there. Can the SSC recruit candidates on the basis of such advertisement for these posts, which came into effect from 15.11.2006.

(b) Many candidates either did not apply or did not appear in the examination for the posts considering the lesser number of vacancies advertised. After the examination, the vacancies to be filled are likely to increase four times for ITI and ten times for TAs. There is a strong likelihood of the left out candidates may take recourse to the court to prevent recruitment through the examinations already held. They may also invoke RTI Act or approach higher authorities for suitable intervention. Should this happen, the entire effort of the Department to bring in place the manpower by June, 2007 will come to a naught frustrating the entire exercise of investigation and assessment to be completed by 31.12.2007. The consequences of the failure would be too frightening for the Department to comprehend. I would, therefore, urge upon you to have the matter examined and give commitment for the same. We have to write to you all these due to the circumstances we are placed in. You will appreciate our concern and take necessary steps expeditiously."

However, the Member, SSC appears to have virtually ignored it and initiated further steps. The clearance appears to have been given vide letter dated 30.11.2006, addressed by the then Joint Secretary, DoPT. From the records placed before us, we do not find anything to indicate that the apprehension and objection raised by the CBDT was addressed in the the proper perspective.

Added to that, nearly 100 posts were included, without any proposal. As against 5 posts initially notified and then enlarged to 58 posts, 817 posts of Income Tax Inspectors were filled.

The entire exercise shocks the conscience of any person, who expects objectivity and transparency in the matter. We are of the view that the issue needs to be examined in detail from various angles, so that if any illegality has taken place, it needs to be identified, and then further course of action needs to be taken.

In this behalf, we felt it appropriate to get the matter inquired into by an officer not below the rank of Additional Secretary in the Government of India. For this purpose, we request the learned standing counsel to find out from the Cabinet Secretary whether it would be possible to name an officer of that rank, to be entrusted with the task."

The effort made by us to get the matter examined did not yield any result, and the officer, who was entrusted with the verification, has only tried to whitewash the otherwise patent illegality. Later, we passed an order dated 20.09.2019, referring the matter to the Director, CBI, to conduct a detailed inquiry into the entire issue and to submit a report. A counter affidavit is filed on behalf of CBI, stating that the Tribunal has no jurisdiction to order, inquiring into that. When such a patent illegality was brought to the notice of CBI, some attention was required to be paid. However, once they remained insensitive to it, we did not want to thrust it upon them. Therefore, the issue has to be examined from the point of view of the settled principles of law.

The examinations for selection of candidates at various levels are conducted by the UPSC and the SSC and in certain cases by the Departments themselves, periodically. In the notification proposing to hold the examination, tentative vacancies are mentioned so that, the aspirants would decide whether or not to appear. For example, if vacancies notified for unreserved are only two or three, the candidates belonging to that category may not be inclined to appear since the possibility of being selected is too remote, if not completely upset. In the present case, it was only one, for the concerned year. On the other hand, if a fairly good number of vacancies are notified, many candidates will be inclined to apply and appear and there would be real competition.

The CGLE is conducted not only for the post of ITIs but also for many posts of similar status. It is not uncommon that the vacancies that are mentioned at the initial stage would change later. Notwithstanding the possibility of change of vacancy at the initial level, a semblance of accuracy is required to exist, by the time the results of the final examination are declared. The reason is that the SSC would determine the candidates to be interviewed, depending upon the number of vacancies. Once the interviews are conducted, taking into account the number of vacancies, the uncertainty in that behalf needs to be put at rest. If any vacancies are added after the conclusion of the selection process, blatant illegality is prone to creep in.

For example, if the notified vacancies are 100, and the ratio of candidates to be interviewed is 1:4, 400 candidates are to be interviewed, and a merit list is prepared. If the same list is to be operated for 300 vacancies on account of addition of 200 vacancies at the later stage, the selection process becomes illegal. The reason is that for 300 vacancies, the candidates to be interviewed at 1:4 would be 1200. Thus, the candidates, who were to be interviewed on account of addition of 200 vacancies at the later stage, on the basis of 1:4 from the merit list, stood excluded from the process, though they were otherwise entitled to, and they may have been considered for other posts.

In the instant case, the vacancies notified to the SSC were 58, which included the backlog vacancies also. This figure remained same, till the interviews were conducted. Obviously, the corresponding numbers of candidates were interviewed and select list was prepared. Once the select list is prepared, the selection process for the concerned year stands concluded.

It is only after the conclusion of the selection process for CGLE, 2005 that about 817 posts for ITIs were created. They were intimated to the SSC only in February, 2007. They would not have become the subject matter of even CGLE, 2006 if it were to have been held. The only correct process would have been to make them the subject matter of CGLE, 2007. The nature of objections raised by the CBDT itself is evident, from the letter dated 20.11.2006, which is extracted in the preceding paragraphs. That was completely overruled or ignored and appointments were made of as many as 817 ITIs in the year 2005 on the basis of the examination held for the year 2005. It would not have been a surprise, if some called it a scandal.

By no stretch of imagination, the appointments of direct recruits to the post of ITIs can be referred to the year 2005-06. The reason is that the vacancies did not exist in that year at all. The entire selection process was contrary to the settled norms and a clear illegality has crept in that. However, we do not propose to set aside the appointment of respondents 4 to 92 for two reasons. Firstly, the applicants were not the candidates who were denied of any appointment on account of selection of respondents 4 to 94. Secondly, the applicants did not challenge the appointments of respondents 4 to 92 when they took place. It was almost a decade thereafter that the challenge is made. At the same time, we are of the firm view that the entire process through which as many as 817 ITIs were appointed, almost through a surreptitious means, can constitute the subject matter of inquiry or verification at the proper level. The reason is that such a large number of persons so inducted are bound to hold very high positions over the period and any deviation that took place at the stage of their appointment, is bound to have its own serious impact upon the entire administration. It is for the respondents 1 and 2 to take a call in this behalf before it is too late.

Another important aspect is that though the appointments of 817 ITIs were made through the direct recruitment, we are required to bestow attention to indicate the year to which those vacancies can be attributed, and whether the corresponding number of promotions had been made. Despite our repeated queries, nothing meaningful was forthcoming.

Now, about the seniority, it has already been mentioned that the applicants were assigned their places in the seniority list, published on 17.06.2010. In Para XVIII of the OA, it is mentioned that a final seniority list dated 17.06.2010 containing 522 names of ITIs was published. In that list, the applicant no.1 appeared at SI. No. 1940 and the respondents 4 to 11 in that list, figured below him between SI. No. 2149 and 2297. Similar particulars are mentioned in sub para b) to i). The manner in which their places have been change in the seniority list dated 25.05.2014 is indicated in Para XXVI. In the said seniority list, the applicant no.1 was shown at SI. No. 1948, whereas the respondents 4 to 11 were shown between SI. Nos. 1926 and 1947. Similar dislocations occurred in the case of other applicants also. The applicant no.8, who was senior to respondents 4 to 48 in the earlier list, became junior to all of them. Similarly, the applicant no.9, who was senior to respondents 4 to 81, became junior to them.

The whole basis for such a whole sale change of seniority is said to be the judgment of the Hon'ble Supreme Court in N.R. Parmar's case (supra). The recent experience has shown that in almost all the departments, the seniority lists were revised or were attempted to revised based on the judgment in N.R. Parmar's case(supra). What, however, was lost sight of was the ultimate direction issued therein. Their Lordships were dealing with OM dated 03.03.2008 and 07.02.1986 which was to the effect that the date of joining of an employee shall be treated as basis for reckoning seniority, irrespective of the place assigned to him by the Selection Committee or his position vis-a-vis a promotee. Their Lordships held that in case

(a) the requisition for conducting direct recruitment and the advertisement for direct recruitment, were issued in the same recruitment year; and (b) an examination or selection is conducted in the same year, the mere delay in declaration of results, for direct recruitment, it shall not be a basis for denying the places in the seniority list for such candidates.

The concluding paragraphs of the judgment read as under:-

"33. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraphs 20 and 21 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued by the SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as confirmed by the rival parties, is common in all matters being collectively disposed of. In all these cases the advertised vacancies were filled up in the original/first examination/selection conducted for the same. None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried forward vacancies, or vacancies which came to be filled up by a "later" examination/selection process. The facts only reveal, that the examination and the selection process of direct recruits could not be completed within the recruitment year itself. For this, the modification/amendment in the manner of determining the inter-se seniority between the direct recruits and promotees, carried out through the OM dated 7.2.1986, and the compilation of the instructions pertaining to seniority in the OM dated 3.7.1986, leave no room for any doubt, that the "rotation of quotas" 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.

In view of the above, the Civil Appeals, the Transferred Case, as well as, the Transfer Case (filed by the direct recruits and the Union of India) are hereby allowed. The claim of the promotees, that the direct recruit Income Tax Inspectors, in the instant case should be assigned seniority with reference to the date of their actual appointment in the Income Tax Department is declined."

Nowhere was it mentioned that in case the vacancies of a particular year are notified to the SSC, subsequent to the promotions and advertisement is also issued at a later date, the candidates selected thereunder shall steal a march over the persons who are appointed on promotion, in time. In other words, if the vacancies are referable to the year 2003, promotions have taken place in that very year, but the direct recruitment vacancies are notified to the SSC in the year 2005, the candidates selected for direct recruitment cannot be treated as seniors to the promotes.

In the instant case, firstly, the posts against which the respondents 4 to 92 were appointed, did not exist at all in the year 2005, whereas the applicants are promotees of that very year. Secondly, the applicants, who were not successful in the CGLE, 2005 for the vacancies that were notified for it, were selected on the basis of a requisition issued in the year 2007 and appointed in September, 2008.

The judgment of the Hon'ble Supreme Court in N.R. Parmar's case was interpreted and explained by the Hon'ble High Court of Delhi in Paras 61 to 63 of its judgment in Ms. Veena Kothavale Vs. Union of India & Ors. (W.P. No. 3087/2016). It reads as under:-

"61. To literally construe the observations made by the Supreme Court in N.R. Parmar(supra) vis-à-vis the O.M. dated 03.03.2008,would lead to infraction of the settled position in law -that settled seniority should not be unsettled on account of a change in the rule position/ applicable principle. That would lead to unsettling of seniority positions of hundreds, if not thousands, of employees engaged in Central Services all over the country, which would give rise to a spate of avoidable litigations.

62.During the course of hearing, we had enquired from Mr. Narula whether post the decision of the Supreme Court in N.R. Parmar(supra), the Central Government had undertaken a general exercise of re-drawing the seniority lists by ignoring the seniority lists which may have been drawn in terms of the OM dated 03.03.2008 in all services and departments of the Central Government. Mr. Narula could not confirm that the Government of India had taken a general decision to revise all such seniority lists which had been drawn on the basis of the OM dated 03.03.2008 between the period 03.03.2008 and the date of the decision of the Supreme Court in N. R. Parmar (supra), i.e., 27.11.2012.

Pertinently, even though the decision in N.R. Parmar(supra) does not state that the said decision would be applicable only from the date on which it was rendered, the OM dated 04.03.2014 states that "principles for determination of inter se seniority of direct recruits and promotees" which are contained in the OMs dated 07.02.1986 / 03.07.1986, "would be effective from 27.11.2012, the date of the Supreme Court judgment in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar Vs. UOI & Others". Thus, even as per the OM dated 04.03.2014, the decision in N.R. Parmar(supra) was sought to be given effect to from the date of the said decision, i.e. 27.11.2012. The consequence of the application of the OM dated 04.03.2014, in our view, is that the seniority positions as settled up to the date of decision of N.R. Parmar(supra), were treated as final."

Similar view was taken in Prakash Singh Vs. Union of India in WP(C) No. 9580/2015. Recently, in Sudhir Kumar & Ors. Vs. CVC & Ors. (OA No. 3644/2015 and batch), this Tribunal examined as to whether the seniority list, which has already become final, can be reopened on the basis of the judgment of the Hon'ble Supreme Court in N.R. Parmar's case. In Para 22 of the said judgment, it was held as under:-

"22. Through a detailed judgment dated 03.06.2016, the Hon'ble High Court of Delhi has taken the view that the seniority which assumed finality cannot be reopened and that the Hon'ble Supreme Court, in its judgment in N. R. Parihar's case did not direct that the seniority lists, which assumed finality, must be reopened. The finding that the OA was barred by limitation, was upheld by referring to various judgments of the Hon'ble Supreme Court. Even otherwise, the DoP&T had incorporated two pertinent clauses in its OM dated 04.03.2014, and the exercise undertaken by the CVC, for revisiting the seniority list is clearly barred by those clauses. There is nothing on record to disclose that the CVC made an effort to seek any clarification from the DoP&T in this behalf. Therefore, we hold that the exercise undertaken by the respondents does not have any support from the judgment of N. R. Parmar's case."

Assuming that there existed a scope for re-visiting the seniority list dated 17.06.2010 in view of the judgment in N.R. Parmar, the said judgment was held to be not laying the correct law. Recently, in K. Meghachandra Singh & Ors. (Civil Appeal No.8833-8835 of 2019), the Hon'ble Supreme Court held that the judgment in N.R. Parmar's case cannot be said to have laid the correct proposition of law. In Para 39 of the said judgment, it was observed as under:-

"39. At this stage, we must also emphasize that the Court in N. R. Parmar (Supra) 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 in as much as none can be identified as being a selected candidate on the date when the process of recruitment had commenced. On that day, a body of persons aspiring to be appointed to the vacancy intended for direct recruits was not in existence. The persons who might respond to an advertisement cannot Page 24/32 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 (Supra) 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 vs. Shankarsan Dash Vs. Union of India4, where it was held even upon empanelment, an appointee does not acquire any right."

Therefore, the very basis for the revision of seniority list and conferring benefit upon the so called direct recruits, i.e., respondents 4 to 92, ceases to exist.

Viewed from any angle, the seniority list dated 25.05.2014 cannot be sustained. As a consequence, the seniority list dated 17.06.2010 needs to be treated as valid and final for Delhi charge and any promotion to higher post shall be strictly in accordance with that. The corrective steps, if any in this behalf, shall be taken within a period of three months from the date of receipt of a copy of this order. We also make it clear that in case any promotion is found to be untenable, the concerned officer need not be reverted and exercise shall be confined to re-fixation of the seniority.

We, therefore, allow both the OAs and set aside the impugned seniority list and declare that the seniority list dated 17.06.2010, is final. Any promotions to higher posts shall be in accordance with that list. Necessary steps in that behalf shall be taken within 3 months from the date of receipt of a copy of this Judgment.

Pending MAs, if any, shall also stand disposed of. There shall be no order as to costs.