CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI
O.A. No. 233/2013 & 234/2013
Date of decision : August 1st, 2013
Coram:
Hon'ble Shri Justice A.K. Basheer, Member (J)
Hon'ble Shri R.C. Joshi, Member (A)
O.A. No. 233/2013
1.
Abhijeet Sharma
R/At: C-68, Anand Nagar
Cooperative Housing Society
Ltd., Nr. Sankalp Chowk,
Raghunat Nagar,
Thane (W) 400 604
2.
Vikas Meena
R/At: B-124,
Vikas Finlay Tower,
Parel Tank Road,
Parel (E), Kala Chowki,
Mumbai 400 033.
3.
Rajesh Kumar
R/At: 1003, Ahwini,
Tarangan Wayle Nagar,
Kalyan (W) 421 301.
4.
Jagdish Kumar Verma
R/At: Flat No. 8, Highway
Shirin Apartment,
Mental Hospital Road,
Nr. Dhyansadhna College
Parabwadi, Thane (W)
5.
Rakesh Ranjan,
R/At: 1F, Shankeshwar
Residency, Phase II,
Tawripada, Nr. Water
Treatment Plant, Kalyan (W)
Thane 421 301
6.
Dinesh Kumar Verma
R/At: Flat No. 001,
B-Wing, B-2 Swastik
Park, Ghodbunder Road,
Opp. Brahmand Phase IV,
Thane (W) 400 607
7.
Mani Kant Jha
R/at: 1F-501, Shankeshwar
2
OA Nos.233 & 234/2013
Residency Phase II,
Tawari Pada, Kalyan (W),
District Thane 421 301
8.
Satish Kumar Bhadani
R/At: A-3, Income Tax Colony,
CIDCO Ambad Link Road,
Nr. Brukule Hall, Krishna Nagar
Nashik 422 010
9.
Shivjee Singh
R/At: F-702, Shankeshwar
Residency,Pada, Kalyan (W),
District Thane 421 301
10.
Pankaj Kumar
R/At: B-8, Income Tax Officers
And Staff Quarters,
Khutwad Nagar, Kamathwada,
Nr. CITU Bhawan,
Nashik
11.
Indu Bhusan Kumar
R/At: B-404, Purushottam Park,
Ghodbunder Road, Nr. Mucchala
College, Thane (W) 400 607 ... Applicants
in OA No.233/2013
O.A. No. 234/2013
1.
Shankar Prasad
R/At: 502/13-A,
Income Tax Colony,
MHADA Residential Complex
Ram Baug, P.O. IIT, Powai,
Mumbai 400 076
2.
Deepak Prakash Bishnoi
R/At: 603/13-B,
Income Tax Colony,
MHADA Residential Complex
Ram Baug, P.O. IIT, Powai,
Mumbai 400 076
3.
Rajesh Soni
R/At: Room No. 52,
Building No. 3, CGS Colony,
Sector 7, Antop Hill
Mumbai 400 037
4.
Ujjawal Kumar Sinha
R/At: Old Income Tax
Colony, Yashodham Enclave
Goregaon (E),
Mumbai 400 063
3
OA Nos.233 & 234/2013
5.
Pankaj Kumar Jha
R/At: III/33/325,
Ekta Vihar, CGS Colony,
CBD Belapur,
Navi Mumbai 400 614 ... Applicants
in OA No. 234/2013
(By Advocate Shri R.G. Walia)
VERSUS
1.
Union of India, through
The Chairman, Central Board
of Direct Taxes, CBDT,l
Ministry of Finance,
Department of Revenue
North Block,
New Delhi 110 011
2.
The Revenue Secretary
Ministry of Finance,
Department of Revenue,
Central Board of Direct
Taxes, North Block,
New Delhi 110 011 ... Respondents
in both the O.As
3.
The Chief Commissioner of
Income Tax, Pune-I (CCA),
Pune, Aayakar Bhavan,
Sadhu Vaswani Chowk,
Pune 440 001. ... Respondent
in O.A. No. 233/2013
3.
The Chief Commissioner of
Income Tax, Mumbai (CCA)
Aayakar Bhavan, M.K. Road,
Churchgate,
Mumbai 400 020. ... Respondent
in O.A. No.234/2013
(By Advocates S/Shri R.R. Shetty,
D.A. Dubey, P. Khosla and Smt. H.P. Shah)
ORDER (ORAL)
Per: Justice A.K. Basheer, Member (J)
These
two Original Applications are the off
shoot of a dispute which has been settled once and for
all by their Lordships of the Supreme Court in Union of
India v/s. N.R. Parmar 2013 (2) Service Cases Today.
4 OA Nos.233 & 234/2013
2. The issue that came up for consideration in
Parmar (supra) was in relation to the dispute of
inter-se seniority between Direct recruits and
Promotees in the cadre of Income Tax Inspectors. After
an elaborate consideration of the entire issue, the
Supreme Court held thus :
33. Having interpreted the effect of the OMs dated
7.2.1986 and 3.7.1986 (in paragraph 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 (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.
3. The applicants in the two cases on hand are
direct recruit Inspectors of Income Tax. Their
grievance is that the respondents are trying to promote
5 OA Nos.233 & 234/2013
their juniors (departmental candidates) to the cadre of
Income Tax Officer from the panel drawn up by the
Departmental Promotion Committee based on the old
seniority list which has been found to be inoperable by
the Apex Court. According to the applicants, the
attempt of the respondents is to circumvent the
judgment of the Apex Court in Parmar (supra) by which
the respondent-department has been interdicted from
giving effect to the seniority list, which in principle
was based on wrong interpretation or understanding of
Office Memorandum of 2008. The Apex Court has in
unambiguous terms held that Rota and Quota needs to
be maintained and direct recruit Inspectors will have
to be interspaced with promotees of the same
recruitment year. Applicants contend that if the
judgment of the Supreme Court is implemented in letter
and spirit then they would all stand promoted to the
post of Income Tax Officer as the promotee Officers of
2005-2006 batch have already been promoted.
Therefore, the applicants pray for issue of an
appropriate order quashing A-1 order dated March 21,
2013 by which the Central Board of Direct Taxes has
given permission to pass orders of promotion to the
cadre of Income Tax Officers from the panel already
drawn up by the Departmental Promotion Committee in the
year 2012 subject to revision of the seniority of the
Income Tax Officers, if any, while implementing the
6 OA Nos.233 & 234/2013
judgment of the Apex Court in Parmar (supra).
Applicants further pray for issue of a direction to the
respondents to implement the judgment of the Apex Court
in Parmar by publishing and circulating the correct
and valid seniority list immediately, and to hold the
meeting of the Departmental Promotion Committee only
thereafter, to make further promotions.
4. It may at once be noticed that the applicants
in O.A. No. 233/2013 are working in Pune Zone, whereas
the applicants in O.A. No. 234/2013 are under the
Mumbai Zone. In the written statement filed by the
respondents in O.A. No. 233/2013, it is stated that
respondent no. 3 viz. Chief Commissioner of Income Tax,
Pune had formed a Task Force to examine the effects of
the judgment of the Apex Court in Parmar and to refix
the seniority list of Income Tax Officers and
Inspectors of Income Tax. It is further stated that:
the task force has submitted its report and the same has
already been submitted to the Board on 11/02/2013. However,
while submitting the report, clarifications on various issues that
has cropped up during recasting such seniority list has been
sought from the Board. The same is awaited and upon receipt
of clarification, the process will be again undertaken to place
the applicants amongst other direct recruit Inspectors...............
................
Moreover, the CBDT vide letter dated 13.06.2013
has now informed the CCIT, Pune that the case of Union of
India and Others V/s N.R. Parmar and others, (Civil Appeal
7514-7515 of 2005) is under examination in DOP&T. Thus
implementation of the decision of the Hon'ble Supreme Court is
pending for clarification from DOP&T .
5. The respondents have further stated in para 39
of the written statement thus:
7 OA Nos.233 & 234/2013
39. With reference to para 5(p) of the Original
Application, the respondents submit that the CCIT, Pune has
already carried out the work of refixing the seniority in the
cadre of Income Tax Officers and have also conducted mock
review DPC for arriving at the seniority according to the
Hon'ble Supreme Court judgement dated 27/11/2012.
However, it has sought certain clarifications from the CBDT
i.e. respondent no. 1 and the process will be completed on
receipt of the clarifications only.
6. In O.A. No. 234/2009, the case of the
respondents is made explicit thus in para 14:
14. With reference to para 4.16, 4.17, 4.18 and 4.19 of the
OA, the respondents submit that the contention of the
applicants that respondents are conducting DPC for
promotion to the post of ITO without revising seniority list
and implementing the above mentioned Supreme Court
judgment is absolutely false as no eligibility list for promotion
to the post of ITO for R.Y 2013-2014 has been released till
date. In old seniority list loses its relevance for any of the
future Recruitment Year. Hence no promotion in R.Y. 20132014
to the post of ITO can be resorted until eligibility list for
promotion to ITO for Recruitment Year 2013-2014 is
released. The respondents are earnestly striving for
implementation of the said judgment dated 27/11/2012.
However, as this judgment has impact on seniority across all
cadres of Income Tax, the same cannot be done until the
clarification from CBDT is received.
7. It can be seen from the contention raised by the
Bombay Zone in OA No.234/2013 that they have not
prepared or published any eligibility list for
promotion to the post of Income Tax Officer for the
Recruitment Year 2013-14 on the basis of the old
seniority list. They have further asserted that old
seniority list has lost its relevance for any of the
future Recruitment Years and, therefore, no promotion
in the Recruitment Year 2013-2014 can be made until an
eligibility list is prepared and published.
8 OA Nos.233 & 234/2013
8. More importantly, the respondents in OA
No.234/2013 have further stated that their earnest
endeavour is to implement the judgment in Parmar
(supra). However, their only reservation or
apprehension is that it may not possible to implement
the same unless and until clarification sought for from
CBDT is received since the judgment has impact on
seniority across all cadres of Income Tax . In short,
as far as Bombay Zone is concerned, it appears that
there is no imminent prospect of any promotion on the
basis of the old or existing seniority list.
9. However, the situation is different as far as
Pune Zone is concerned. According to the respondents in
OA No.233/2013, there are 19 vacancies in the cadre of
Income Tax Officer in the Pune Region addition to 7
more vacancies which will arise during the year due to
retirements. Thus, they contend that if these 26
vacancies are not filled up, it will severely affect
the functioning and tax collection in the Region and
hence there is an immediate need to conduct the DPC for
ITOs. They further contend that all the
Commissionerates in this charge are already pressing
hard for providing ITOs as there are huge vacancies for
ITOs . The Respondents further contend that even if
the DPC for promotion to the post of Income Tax Officer
and Inspector of Income Tax is conducted with the
existing seniority list, it will be subject to
9 OA Nos.233 & 234/2013
revision, if any, upon implementing the Hon'ble Supreme
Court judgment . It is further contended that on
refixing the seniority list of Income Tax Officers and
Income Tax Inspectors in terms of the above judgment,
review DPC will be conducted wherever necessary and the
claims of Direct Recruits will be automatically taken
care of, as per their seniority upon giving effect to
the Supreme Court judgment in Parmar. In short, the
contention of the Respondents in OA No.233/2013 is that
even if the above 26 vacancies are now filled up on the
basis of the existing seniority list, the interest of
the applicants will be protected. The priority of the
Respondents appears to be to meet the immediate crisis
of shortage of Income Tax Officers and consequently in
the cadre of Income Tax Inspectors .
10. The short question that arises for consideration
is whether on the face of the law laid down by the Apex
Court, the Respondents have to be permitted to resort
to this modus operandi at this juncture.
11. It may at once be noticed that the judgment in
Parmar was pronounced by the Supreme Court on November
27, 2012. As on today, nine months have elapsed after
pronouncement of the above judgment. The case of the
Respondents is that the question for implementation has
been pending consideration before the Department of
Personnel and Training. They contend that certain
difficulties and issues may crop up while fixing the
10 OA Nos.233 & 234/2013
seniority in the cadre of Income Tax Officer if the
judgment in Parmar is implemented. According to the
Respondents the ramification is too huge and,
therefore, Central Board of Direct Taxes, in
consultation with the Ministry of Finance, has referred
the matter to the Department of Personnel and Training.
12. Mrs. Shah, who appears for the Respondents in OA
No.233/2013 has invited our attention to the latest
communication dated July 30, 2013 issued by the Central
Board of Direct Taxes to the Chief Commissioner of
Income Tax (CCA), Pune. The communication reads thus
I am directed to refer to your letter
No.PN/CC/VIG/CAT/Abhijeet & Ors./2013-14/2649 dated
18.07.2013 on the subject cited above and to state that the matter
in the case of Sh. N.R. Parmar was referred to DoPT on
12.07.2013 for their opinion/advice on the implementation of the
order dated 27.11.2012 of the Hon'ble Apex Court. However, the
same has since been received back from DoPT on 28.07.2013.
The DoPT has sought certain clarifications. As such, the process
of taking decision regarding implementation or otherwise of the
Hon'ble Supreme Court's decision may take further time .
(emphasis supplied by us)
13. We have extracted the entire text of the
communication only to highlight the casual and
lackadaisical manner in which this issue has been dealt
with so far by the authority concerned. It is seen from
the above communication that the matter has been
referred to the DoP&T only on July 12, 2013. But Mrs.
Shah contends that the process of consultation with
DoP&T had commenced sometime back and not July 12,
2003. Even assuming that this consultation process had
11 OA Nos.233 & 234/2013
been going on for quite sometime, as is now contended
by the Respondents, one fails to understand how the
DoP&T can stand in the way of implementation of the
judgment in Parmar. The last sentence in the above
communication is still more strange and baffling. It
reads that the process of taking decision regarding
implementation or otherwise of the decision of the Apex
Court may take further time . Are we to assume that
DoP&T, CBDT or for that matter, any Department or
Ministry of the Union or State Government can sit in
judgment over the decision taken by the Supreme Court
and decide whether or not to implement the same?
14. As has been noticed already nine months have
elapsed after the pronouncement of the judgment in
Parmar. Even assuming that the task of refixing the
seniority is so huge or mammoth, it does not stand to
reason as to why the authorities concerned did not take
any steps to complete the process till date. In this
modern era of advanced technology, it may be only a
matter of a few days (if not hours) to complete the
process of refixation of seniority. The number of
Officers in the Income Tax department does not run to
millions. Therefore, we have no hesitation to repel the
contention raised by the Respondents that they have not
been able to implement the judgment so far because of
the enormous nature of the task or the complexity
involved therein. In our view the Respondents are not
12 OA Nos.233 & 234/2013
entitled to place any reliance on the existing
seniority list which has been found to be inoperable by
the Supreme Court. We do not propose to deal with this
issue in extenso any further since in our view the
operative portion of the judgment of the Apex Court
which has been extracted in the earlier part of this
order, is self explicit.
15. The next question that arises for consideration
is whether the Respondents should be allowed to make
promotions to fill up the 26 vacancies of Income Tax
Officers in Pune Zone at this stage. It is true that
the Respondents have stated that the promotions will be
subject to refixation of seniority in terms of the
judgment in Parmar. Why such an exercise especially
when the issue has been settled by the Apex Court?
There is no answer.
16. In this context, we may refer to one aspect
which may have some significance. It is pointed out by
learned counsel for the applicants that in Annexure A-1
it is seen mentioned that the decision to make
promotions to the cadre of Income Tax Officers has been
taken keeping in view the request made by Income Tax
Employees Federation. He submits that this revelation
gives a clue as to what prompted the authorities to go
ahead with this clearly illegal act. We refrain from
making any comment or observation on the above
contention.
13 OA Nos.233 & 234/2013
17. Shri R.R. Shetty who appears for the respondents
in OA No.234/2013 has invited our attention to an order
passed by a co-ordinate bench of this Tribunal at
Jabalpur in OA No.531/2013. The short order passed by
the Jabalpur Bench on July 22, 2013 in the above case
is extracted hereunder for the sake of convenience:
2. Through this Original Application, the applicants have prayed
for the following reliefs:
(i) That, respondents be restrained from holding
DPC for the post of Income Tax Officers (ITO) on the
basis of the old seniority list.
(ii) By an appropriate Order or Direction the
respondents be directed to hold the DPC on the basis of
the recasted seniority list dated 11.03.2013 (Annexure A3)
as per the judgment dated 27.11.2012 of the Apex
Court in the case of N R Parmar.
(iii) Any other order of direction, which this Hon'ble
Tribunal deems fit and proper in the facts and
circumstances of the case, may kindly be passed in favour
of the applicant.
(iv) Cost of the present case.
3. The respondents have filed their detailed reply. In para 17 of
their reply they have categorically stated as under:
17. To take care of the interest of the aggrieved
applicants, the Hon'ble Tribunal is hereby assured that the
promotion orders to the post of ITO shall be passed only
after incorporating the following rider:
The promotion of these officers shall be subject
to revision of the seniority of Inspectors/Income-tax
Officers, if any, consequent to implementation of Hon'ble
Supreme Court judgment dated 27.11.2012 in N.R.
Parmar case and other similar cases on the matter
pending, if any, in various court including the present
Original Application.
It is pertinent to mention that the CBDT itself has
followed the same line of action while releasing the
promotion orders to the post of Assistant Commissioner
of Income Tax by incorporating in the promotion order
the aforementioned rider.
4. In view of the above averments in the reply filed by the
respondents, nothing survives in this Original Application and the
same is accordingly disposed of.
14 OA Nos.233 & 234/2013
18. Shri Shetty submits that these two cases on
hand can also be disposed of in the same terms as has
been done by the Jabalpur Bench by making it clear that
the promotion of the officers concerned shall be
subject to revision of the seniority of
Inspectors/Income Tax Officers, if any, consequent to
implementation of the judgment of the Apex Court in
Parmar (supra). However, Shri Walia, who appears for
the Applicants has invited our attention to an order
passed by the Ahmedabad Bench in OA Nos.506/2012 and
508/2012. In the above two cases, the Respondents had
informed the Tribunal that holding of DPC had been
deferred pending decision to be taken by the Department
concerned. The Tribunal had recorded the statement made
by the Respondents in their written statement that
after due consultation with the Department of Personnel
and Training, the judgment of the Apex Court in Parmar
will be implemented and till such time no DPC would be
held.
19. It may at once be noticed that the Jabalpur
Bench in its order had no occasion to take stock of the
developments which has come to the fore in this case.
We have already referred to the communication dated
July 13, 2013 which clearly indicates that this so
called consultation process is still going on.
20. Learned counsel for the Respondents have
submitted before us that several queries and
15 OA Nos.233 & 234/2013
clarifications have been sought by the various
Departments and the Board, so far. But it seems that no
light is seen at the end of the tunnel so far. It is
evident from the latest communication dated July 13,
2013, itself that the decision regarding
implementation or otherwise of the Supreme Court
judgment may take further time .
21. In our view this attitude of the department, and
that too on the face of the judgment passed by the Apex
Court, cannot be countenanced at all. It is true that
the Bombay Zone does not seem to be in a hurry to hold
DPC and make any promotion as has been clarified by
them. But the Pune Zone has decided to proceed further
and make promotions on the basis of the existing
seniority list inspite of the admitted position that
the Task Force has submitted its report. They have, of
course, given a solemn assurance that these promotions
will be subject to revision of the seniority list in
tune with the order passed by the Apex Court. But, as
rightly pointed out by the learned counsel for the
applicants this appears to be nothing but a ploy to
delay the process of implementation of the Apex Court's
order.
22. The respondents have not been able to give any
satisfactory explanation as to why the judgment of the
Apex Court could not be implemented so far even though
nine months have elapsed. In any view of the matter, we
16
OA Nos.233 & 234/2013
have no hesitation to hold that the Respondents are not
entitled to hold the DPC and make any promotions on the
basis of the existing seniority list. Ordered
accordingly. Annexure A-1 is quashed.
23. Before we part with the case we deem it
appropriate to alert the respondents that the judgment
in Parmar is the law of the land as on today and it has
to be necessarily implemented without any further
delay.
24. Original Applications are allowed.
Miscellaneous Application Nos.448/2013 and 495/2013
also stand closed. No costs.
(R.C. Joshi)
(Justice A.K. Basheer)
Member (A) Member (J)
ma/sc.
