Union of India and Others vs Kavita Yadav and Others

Since all the three writ petitions has been decided by a common order of the Central Administrative Tribunal dated 11.4.2005, are being disposed of by the present order.

The facts of the case are being noticed from D.B. Civil Writ Petition No. 6628/2005 - Union of India & Another v. Smt. Kavita Yadav & Others. The respondent-Smt. Kavita Yadav was appointed as Income Tax Inspector by direct recruitment vide Office Memorandum dated 19.9.1990 issued by the office of Commissioner of Income Tax, Bombay City-I, Bombay, pursuant to which she joined her services at Bombay on 4.3.1991. Due to change in circumstances, the respondent-officer made a request for inter-charge transfer from Bombay to Jaipur in terms of the inter-charge transfer circular dated 14.5.1990, and after due acceptance of her application, the officer was relieved by the Commissioner of Income Tax, Bombay City-V, Bombay, vide letter dated 30.9.1992 for Jaipur office, and in compliance thereof the officer joined at office of the Commissioner of Income Tax, Jaipur and taken over charge on 4.10.1992.

After the respondent joined in Rajasthan charge, seniority list of Inspectors was circulated on 1.9.1994 and thereafter a provisional seniority list was circulated on 1.9.1998 in which her name was shown below the batch of 1993 at No. 127 and the name of the officer she impleaded was at No. 114 Girraj Prasad Sharma and the fact that respondent officer joined prior to Girraj Prasad Sharma in Rajasthan charge on 4.10.1992, her grievance was that he could not be placed senior to her in terms of the scheme of Rules. Revised seniority list of Inspectors as on 1.9.1998 came to be circulated by the Department on 23.9.2002 wherein the name of the present officer was shown lower to Shri Girraj Prasad Sharma.

That came to be challenged by filing of Original Application before the Central Administrative Tribunal, and after the reply was filed by the Union of India, both the counsel joined hands together and submitted before the Tribunal that the controversy which has been raised in the Original Applications, at least for the Tribunal, stands decided and is no more res integra in view of the judgment of the Tribunal passed in OA No. 270/2002 (R.K. Bothra & Others v. Union of India & Others), and OA No. 293/2002 (Ranjeet Singh Rathore & Others v. Union of India & Others) and two other Original Applications which were decided by a common order by the Tribunal on 8.9.2003, and the emphasis was on para 12 of the order of the Tribunal and counsel for respondent before the Tribunal prayed to assign seniority to the officer, and since there was a unanimity between the parties, and the Tribunal also was convinced that the order passed previously in the case of Bothra dated 8.9.2003 covers the controversy which has been raised by the present officer in the Original Application. Keeping that ratio into consideration, the Original Application was decided along with other two Original Applications by a common order of the Tribunal dated 11.4.2005, and we consider it appropriate to quote para 12 of the order passed in case of Bothra and the final operative part of the order of the Tribunal, which was to be implemented by the administration in assigning seniority to the officers who were aggrieved by the seniority list dated 23.9.2002:-

"12. For fixing the seniority of the persons who join on transfer from other charge on their own request, the principle is contained in the Circular dated 14.5.1990 which has been referred to above. Clause (e), (f) and (g) of the said circular are reproduced hereunder:-

Clause (e)

The direct recruits coming on transfers will be shown against direct recruitment quota and promotees against the promotion quota.

Clause (f)

The service rendered in the old charge will not be counted in the new charge for the purpose of seniority. He/she will be placed at the bottom of the list of the employees of the concerned cadre in the new charge. Seniority in the cadre in the charge to which person is transferred will start from the day that person reports for duty in that charge. However, he will not rank senior to any official who belongs to a batch selected on merit, whose inter se seniority is not regulated by date of joining.

Clause (g)

On transfer the transferee will forfeit all claims for promotion/confirmation in the old charge. He/she will be eligible for promotion/confirmation only in the new charge in accordance with the seniority allotted to him on transfer."

Final operative part of the impugned order of the Tribunal is as under:-

"In the result, this OA is allowed. The impugned seniority list dated 23.9.2002 showing the position of the applicants and the candidates who were appointed/joined in Rajasthan later than the applicants is hereby quashed. The official respondents shall revise the seniority of the applicants above such candidates in the light of the observations made in Para 12 in R.K. Bothra and three others (supra). It is further directed that on revising the seniority, if the applicants are found suitable for promotion, they should be promoted from the date their immediate junior was so promoted with all consequential benefits. This order shall be complied with within a period of three months from the date of communication of this order. No costs."

It is brought to our notice that against order of the Tribunal in the case of R.K. Bothra (OA No. 270/2002) decided on 8.9.2003, the writ petition came to be preferred by the Union of India and by that time a controversy of a similar nature was pending before the Hon''ble Supreme Court in the case of N.R. Parmar & Others. It appears from the record, that transfer petition came to be filed by the department, which was allowed by the Apex Court and all the writ petitions were tagged along with Civil Appeal Nos. 7514-7515 of 2005 Union of India and others v. N.R. Parmar and others, and we find that a reference to R.K. Bothra''s order of the Tribunal OA No. 270/2002 has been referred to by the Apex Court in para 7 of the judgment in Union of India (UOI) and Others Vs. N.R. Parmar and Others etc. etc., (2013) 136 FLR 134 : (2012) 12 JT 99 : (2012) 11 SCALE 437 : (2013) 2 SCT 287 : (2013) 212 TAXMAN 97 , and while examining the controversy and reference to the Bothra''s order and such other persons who were direct recruits and asking for assignment of seniority on inter-charge on one way or the other, also came to be considered in para 33 of the judgment of the Hon''ble Supreme Court. We consider it appropriate to quote paras 7, 33 and 34 of the judgment of the Hon''ble Supreme Court referred to herein:-

"7. OA No. 270 of 2002 (R.K. Bothra and Ors. v. Union of India and Ors.), OA No. 271 of 2002 (G.R. Chalana and Ors. v. Union of India and Ors.), OA No. 275 of 2002 (Bhanwar Lal Soni and Ors. v. Union of India and Ors.), OA No. 293 of 2002 (Ranjeet Singh Rathore and Ors. v. Union of India and Ors.), were filed by promotee Income Tax Inspectors before the Central Administrative Tribunal, Jodhpur Bench, Jodhpur (hereinafter referred to as "the CAT, Jodhpur"), to assail the seniority-list wherein direct recruit Income Tax Inspectors, though appointed later, were placed higher in the seniority-list, i.e., above promotee Income Tax Inspectors, merely because they occupied vacancies of earlier years. The CAT, Jodhpur allowed the claim of the promotee Income Tax Inspectors by a common order dated 8.9.2003. The order passed by the CAT, Jodhpur dated 8.9.2003 was assailed before the High Court of Judicature for Rajasthan at Jodhpur (hereinafter referred to as "the Rajasthan High Court") by filing four writ petitions (DBC WP No. 785 of 2004, Union of India and Ors. v. R.K. Bothra and Ors.; DBC WP No. 786 of 2004, Union of India and Ors. v. Banwari Lal Soni and Ors.; DBC WP No. 787 of 2004, Union of India and Ors. v. Giriraj Prasad Sharma and Ors.; DBC WP No. 788 of 2004, Union of India and Ors. v. G.R. Chalana and Ors.). The Petitioners in the aforesaid writ petitions before the Rajasthan High Court (i.e., Union of India) filed Transfer Petition (C) No. 681 of 2006 under Article 139A(1) of the Constitution of India, seeking the transfer of the aforesaid writ petitions to this Court by asserting that the controversy raised therein was identical to the one pending adjudication before this Court in the Civil Appeals already mentioned above. Accordingly Transfer Petition (C) No. 681 of 2006 was ordered to be tagged with Civil Appeal Nos. 7514-7515 of 2005 (and other connected matters)."

"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."

"34. In view of the above, the Civil Appeals, the Transferred Case, as well as, the Transfer Case (filled 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."

It can be further noticed that such batch of writ petitions in regard to determination of seniority, which came to be challenged on the self same controversy in other connected Original Applications challenged by the Union of India and by the other persons who were affected, by filing writ petition before the main seat of this Court at Jodhpur, D.B Civil Writ Petition No. 6058/2003 (Chandra Prakash Sharma v. Central Administrative Tribunal & Others) and several other writ petitions including the writ petition preferred by the Union of India in the case of R.K. Bothra (D.B. Civil Writ Petition No. 785/2004). It is not disputed that the present officer is a direct recruit and inter-charged from Bombay circle to Rajasthan circle and as regards Mr. R.K. Bothra and Mr. Ranjeet Singh Rathore are concerned, both are direct recruits and inter-charged from Gujarat circle to Rajasthan, alike that of the present officer. That controversy also came to be decided by the main seat at Jodhpur keeping in view the dictum of the Apex Court in N.R. Parmar and Others, and para 33 in particular, vide judgment dated 5.2.2013, as under:-

"Since the controversy stands concluded with the decision of the Hon''ble Supreme Court and assignment of seniority to the respective incumbents is to be made in conformity with the directions of the Hon''ble Supreme Court, it appears appropriate to dispose of these writ petitions with the observations that the order as passed by the CAT shall stand set aside and instead, the rights of the parties shall be governed by the decision of the Hon''ble Supreme Court above-referred.

Though the "rotation of quota" principle has been made applicable to the direct recruits and they have been ordered to be interspaced with the promotees of the same year, but then the applicants of OA No. 270/2002 Shri R.K. Bothra and No. 293/2002 Shri Ranjeet Singh Rathore had been the direct recruits in Gujarat Circle and came to Rajasthan Circle at request. Hence, in the interest of justice, it is also made clear that after carrying out all the exercise qua the direct recruits and promotees of the Circle concerned as per the judgment of the Hon''ble Supreme Court, the placement of these applicants in seniority shall be considered in conformity with the stipulation contained in office memorandum No. CCIT/Sen/2003-04/6212 dated 05.09.2003 and other instructions as might be applicable in relation to the incumbents appointed on transfer from one Circle to another."

It is also brought to our notice that keeping in view what has been observed by the Hon''ble Supreme Court in Union of India v. N.R. Parmar and the circular issued by the Department on 14.5.1990 of which reference has been made by the Tribunal, and the later circular of the Department dated 22.5.2015, revised seniority list of Inspectors as on 1.9.1998 has been published from the office of Principal Chief Commissioner of Income Tax, Rajasthan, Jaipur, in which the name of present officer Smt. Kavita Yadav, has been shown at serial No. 324 (revised serial No. 127), and the two other respondent-officers in connected writ petitions, they have been shown in the revised seniority list at serial Nos. 389 (revised serial No. 188) and 428 (revised serial No. 225) respectively, and objections are invited from the officers who feel aggrieved from their placement in the seniority list of Inspectors as on 1.9.1998 and the officer submits that objections have been submitted by her but no decision has been communicated by the authorities so far.

Counsel for the petitioner submits that after matter has been examined by the Apex Court in Union of India v. N.R. Parmar (supra) the present writ petitions, in the light of judgment of the Apex Court may be disposed of and further submits that revised seniority list of the Inspectors as on 1.9.1998 dated 28.5.2015 has been published from the office of Principal Chief Commissioner of Income Tax, Jaipur, and representation/objections are invited from all the officers who are affected by their placement in seniority list, and at the time of finalising seniority list the objections, if any, has to be looked into by the authority and the writ petition, in the light of judgment in N.R. Parmar, may be disposed of.

Counsel for the respondents, on the other hand, submits that matter certainly has been decided by the Hon''ble Supreme Court in N.R. Parmar''s case (supra), and it is also true that both the counsel relied upon para 12 of the order of the Tribunal in the case of R.K. Bothra (supra), which had been taken care of by the Hon''ble Supreme Court in the case of N.R. Parmar (supra), but there is some distinctive feature which may be looked into by this court, and submits that in fact the seniority of Income Tax Inspector direct recruits and inter-charge transferees, has not been specifically considered in N.R. Parmar''s case decided by the Hon''ble Apex Court, but that was looked into by the Division Bench of the High Court of Allahabad in writ application No. 23672/2006 decided on 13.4.2012 and the SLP preferred by the Union of India against the aforesaid judgment of the High court of Allahabad has been dismissed on 11.3.2014, and review petition later on preferred by few affected officers also met the same fate vide judgment dated 12.11.2014, and submits that at least the seniority of the present respondents be considered in the light of what has been considered by the Division Bench of the High Court of Allahabad, particularly in regard to those officers who are direct recruit Income Tax Inspectors and inter-charge transferees.

He further submitted that even that has now taken care of by the authorities while revised seniority list of Inspectors as on 1.9.1998 has been published on 28.5.2015 and submits that objections have been submitted and will be considered independently while finalising the seniority list of Inspectors as on 1.9.1998 in terms thereof.

We find from the record that both the parties jointly agreed upon before the Tribunal that the controversy which has been examined in the case of R.K. Bothra decide the controversy in respect of determination of seniority of the present respondent officers, and the learned Tribunal has not examined the controversy regarding determination of seniority of direct recruit inter-charge transferee officers independently and as jointly agreed, directed the authorities to assign seniority to direct recruit Income Tax Inspector inter-charge transferee keeping in view para 12 of the order passed in the case of R.K. Bothra (OA No. 270/2002), and Ranjeet Singh Rathore (OA No. 293/2002) which was originally decided by a common order of the Tribunal 8.9.2003, and the respondent officers are not aggrieved by the order of the Tribunal.

Indisputably pending litigation at the instance of the Union of India and order of the Tribunal in R.K. Bothra and Ranjeet Singh Rathore dated 8.9.2003 on a transfer application filed before the Apex Court, the matters were transferred and that can be noticed in para 7 of the judgment, transfer applications were allowed and connected with the pending litigation, and in para 33 of the judgment the Apex Court finally decided the controversy, which has been referred to by us in the present order, and after the controversy is being examined by the Hon''ble Supreme Court in N.R. Parmar, reference of which has been made supra, what has been observed by the Tribunal and taken care of in the present order impugned, stands modified in view of the order of the Apex Court referred to supra, and is not open for us to examine any further.

As regards the submission made in respect of the revised seniority list of Inspectors as on 1.9.1998 which has been published from the office of Principal Chief Commissioner of Income Tax, Jaipur, dated 28.5.2015, as informed their representation/objections have already been submitted by the respondent officers and they are certainly at liberty to clarify the factual position, if any, and order of the High Court of Allahabad, of which reference has been made for the authorities to consider in meeting out the objections raised by the officers while finalising the seniority list of Inspectors as on 1.9.1998 published on 28.5.2015.

Consequently, in our considered view, all the writ petitions are disposed of in the light of the judgment in Union of India v. N.R. Parmar, and the respondent officers are at liberty to submit their written objections in reference to seniority list of Inspectors as on 1.9.1998 published on 28.5.2015. It is expected of the authorities to consider the objections and decide it in accordance with law. No costs.