District- Muzaffarpur v. Patna High Court Cwjc

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.17935 of 2017 ====================================================== 1. Prasun Kumar Jha, S/o Arbind Kumar Jha, resident of Flat No-501, Ganga Darshan Apartment, Chanakya Vihar Colony, P.S.-Barari, District- Bhagalpur- 812003 at present posted asInspector of Income Tax, in Office of Tax Recovery Officer,Kachari Chouk, Bhagalpur- 812001.2. Rajiv Kumar, S/o Ramakant Dubey, Magadh Colony, ChandautiMore, Behind Transmission I.B. (on Nala), P.S.- Gaya, District-Gaya- 823001 at present posted as Inspector of Income Tax inOffice of Income Tax Officer, Ward- 3 (1), Ranchi. 3. Gaurav Kumar, S/o Arun Mahaseth, Vill- Pandasarai, P.S.-Laheriasarai, District- Darbhanga, Bihar- 846001, Inspector ofIncome Tax, at present posted in Office of ITO (TDS),Darbhanga, Aayakar Bhawan, Opposite- Old Bus Stand, Lalbagh,Darbhanga- 846004. 4. Satyendra Kumar, S/o Janak Nandan Prasad, resident of Village-Chainpur, Near Jogapur, PO & PS- Sherghati, Dist- Gaya, Bihar-824211, at present posted as Inspector of Income Tax posted inOffice of Assistant Commissioner of Income Tax, Circle- 1,Ranchi. 5. Vivek, S/o Late Ram Niwas Sinha, Singh Sadan, Pokharipir,Sadpura, PO- Ramna, District- Muzaffarpur- 842002, Bihar atpresent posted as Inspector of Income Tax in Office of Pr.Commissioner of Income Tax, Bela, Kothi Post Office, MIC,Muzaffarpur. 6. Ajay Kumar, S/o Late Yadunandna Prasad. Krishna Kutir, AzadPath, PS- Chandmari Road, District- Patna- 800020, Bihar atpresent posted as Inspector of Income Tax in Office of theDeputy Commissioner of Income Tax, C.R. Building, Ranchi.7. S.M. Ashraf Ali, S/o Ashfaque Ahmad, 3rd Floor, ALA Complex,Brahpura Road, Near Madina Masjirl, PS- Bhikhanpur, District-Bhagalpur, Bihar, at present posted as Inspector of Income Tax,in Office of Income Tax Officer, Ward- 1 (1), Bhagalpur, R.N.Plaza, Kachari Chauk, Bhagalpur. 8. Abhishek Kumar, S/o Chandra Mohan Prasad Sinha, Type- III/14, Income Tax Colony, P.S.- Lalpur, District- Ranchi- 834001,at present posted as Inspector, in Office of Deputy Director ofIncme Tax (Inv), Ranchi.9. Deepak Kumar, S/o Chandrika Prasad, Vill+ PO- Jharana Saren,PS- Nimchak Bathani, District- Gaya, Bihar- 843311, at presentposted as Inspector of Income Tax in Office of Income TaxOfficer (TDS), Bokaro. 10. Pankaj Kuamr Jha, S/o- Vijay Kumar Jha, Vill- Dharhara, PO-Ganpatganj, District- Supaul, Bihar- 852109 at present posted asInspector of Income Tax, in Office of Assistant Commissioner ofIncome Tax, Circle- 2, Lok Nayak Jay Prakash Bhawan, DakBunglow Road, Patna- 800001. ... ... Petitioner/s Versus 1. The Union of India through the Secretary, Ministry of Finance, Governmentof India, Department of Revenue, New Delhi- 110001.of India, Department of Revenue, New Delhi- 110001. 2. The Chairman, Central Board of Direct Tax, Ministry of Finance, Ministry ofFinance, Government of India, Department of Revenue, New Delhi- 110001.Finance, Government of India, Department of Revenue, New Delhi- 110001.3. The Member of Income Tax (V & L), Ministry of Finance, Government ofIndia, Department of Revenue, New Delhi- 110001.India, Department of Revenue, New Delhi- 110001. 4. The Director of Income Tax (HRD), Central Board of Direct Tax, ICADRBuilding, Plot No- 6, Basant Kung Institutional Area, Phase- II, Ministry ofFinance, Government of India, Department of Revenue, New Delhi- 110001.Building, Plot No- 6, Basant Kung Institutional Area, Phase- II, Ministry ofFinance, Government of India, Department of Revenue, New Delhi- 110001. 5. The Principal Chief Commissioner of Income Tax (CCA), Bihar & Jharkhand,C.R. Building, Birchand Patel Path, Patna- 800001.C.R. Building, Birchand Patel Path, Patna- 800001. 4. The Director of Income Tax (HRD), Central Board of Direct Tax, ICADRBuilding, Plot No- 6, Basant Kung Institutional Area, Phase- II, Ministry ofFinance, Government of India, Department of Revenue, New Delhi- 110001.Building, Plot No- 6, Basant Kung Institutional Area, Phase- II, Ministry ofFinance, Government of India, Department of Revenue, New Delhi- 110001. 5. The Principal Chief Commissioner of Income Tax (CCA), Bihar & Jharkhand,C.R. Building, Birchand Patel Path, Patna- 800001.C.R. Building, Birchand Patel Path, Patna- 800001. 6. Anish Chandra Satya, son of Late Satish Chandra Verma, Inspector of IncomeTax, Office of the Assistant Commissioner of Income Tax, Circle- 4, Patna-800 001 (Bihar).Tax, Office of the Assistant Commissioner of Income Tax, Circle- 4, Patna-800 001 (Bihar). 7. Prabhu Nath Singh, son of Late Shiv Jatan Singh, Inspector of Income Tax,Office of the Income Tax Oficer, Ranchi.Office of the Income Tax Oficer, Ranchi. 8. Kundan Kumar, son of Late J.P. Gupta, Inspector of Income Tax, Office of theJoint Commissioner, Income Tax, Hazaribagh.Joint Commissioner, Income Tax, Hazaribagh. 9. Gopal Kumar Pandey, son of Sri Sirdhar Pandey, Inspector of Income Tax,Investigation Wing, Jamshedpur.Investigation Wing, Jamshedpur. 10. Pawan Kumar Singh, son of Late Deep Narayan Singh, Inspector of IncomeTax, Ward No. 3 [2], Purnea [Bihar].Tax, Ward No. 3 [2], Purnea [Bihar]. 11. Rajesh Kumar Choudhary, son of Sri B.B. Choudhary, Inspector of IncomeTax, Office of the Income Tax Oficer, Jamshedpur.Tax, Office of the Income Tax Oficer, Jamshedpur. 12. Sunanda Kumar, wife of Sri Bimal Kumar, Inspector of Income Tax, Office ofthe CIT/ Exemption, Patna.the CIT/ Exemption, Patna. 13. Sanjay Kumar Sinha, son of Late C.P. Verma, Inspector of Income Tax, Officeof the Principal Chief Commissioner of Income Tax, Patna- 800 001 (Bihar).of the Principal Chief Commissioner of Income Tax, Patna- 800 001 (Bihar). 14. Kundan Kumar Pandey, son of Sri Nirmal Kumar Pandey, Inspector ofIncome Tax, Office of the Income Tax Officer, Ranchi.Income Tax, Office of the Income Tax Officer, Ranchi. 15. Om Prakash Madhukar, son of Sri Y.B. Paswan, Inspector of Income Tax,Intelligence and Criminal Investigation, Bhagalpur (Bihar).Intelligence and Criminal Investigation, Bhagalpur (Bihar). 16. Satish Chandra Roy, son of Late P.C. Roy, Inspector of Income Tax,Muzaffarpur (Bihar).Muzaffarpur (Bihar). ... ... Respondent/s ======================================================Appearance :For the Petitioner/s:Mr. Subodh Kumar JhaAdvocate Mr. Bal Krishna MishraAdvocate Mr. Pranay Kumar JhaAdvocate For the Union of India :Mr. S. D. SanjayAddl. S. G.Mr. Akshay Bahadur MathurCGCFor the Respondents 4-16:Mr. M. P. DixitAdvocate Mr. S. K. DixitAdvocate Mr. Sanjay Kumar Choubey Advocate Ms. SwastikaAdvocate Mr. Sunil KumarAdvocate Mr. Shailendra KumarAdvocate ====================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI and HONOURABLE JUSTICE SMT. NILU AGRAWALCAV JUDGMENT(Per: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI) Date : 06-02-2018 Two O.A.s, numbered as 223 of 2017 and 356 of 2017, cameto be filed before the Central Administrative Tribunal, PatnaBench, Patna by a set of promotee Income Tax Inspectors of therecruitment year 2009-2010, whose seniority came to be upset bythe direct recruit Inspectors of Income Tax by a seniority list, dated29.07.2016. The seniority list, dated 29.07.2016, became thereason for filing the two O.A.s, wherein the following reliefs wereprayed for: “8.1 That your Lordships maygraciously be pleased to quash and set asidethe impugned seniority list dated 29.07.2016as contained in Annexure – A/3 whereunderthe respondents no. 6 to 15 have been placedabove the applicant against the RecruitmentYear 2009-2010 instead of in the RecruitmentYear 2010-2011 as shown in annexure – A/1& A/2. 8.2 That your Lordships may be furtherbe pleased to hold and declare the seniority “8.1 That your Lordships maygraciously be pleased to quash and set asidethe impugned seniority list dated 29.07.2016as contained in Annexure – A/3 whereunderthe respondents no. 6 to 15 have been placedabove the applicant against the RecruitmentYear 2009-2010 instead of in the RecruitmentYear 2010-2011 as shown in annexure – A/1& A/2. 8.2 That your Lordships may be furtherbe pleased to hold and declare the seniority list dated 05/06.11.2015 and 18.01.2016 ascontained in annexure – A/1 & A/2 are legaland valid which requires no interference. 8.3 That your Lordships may further bepleased to direct / command the respondentsto grant all consequential benefits in favourof the applicant without any further delay. 8.4 Any other relief or reliefs including the cost of the proceeding may be allowed in favour of the applicant.” Since the O.A.s came to be allowed, restoring the seniority of the promotee Income Tax Inspectors for the reasons provided inthe impugned order, dated 10.10.2017, the direct recruits arebefore the High Court, assailing the order, dated 10.10.2017, of theCAT Bench, Patna. There are primarily two submissions, which have been madeon behalf of the petitioners. First, that a factual error has beencommitted by the Central Administrative Tribunal by recording afinding that the examination for the recruitment year 2009-2010got canceled and, therefore, no examination for recruitment for thesaid year was held. There was only one examination, which waspertaining to the year 2010-2011. During the course of arguments, counsel for the respondentsas well as the Union of India agreed that the cancellation of theexamination for the year 2009-2010 is not factually correct. Theirstand is that only one common examination was held by the Staff Selection Commission for the year 2010. Counsel for the private-respondent tried to expand and explain the 2010 examination bystating that since there was only one examination held in the year2010, therefore, the vacancy years / the recruitment years was2010-2011 and it cannot be said to be an examination forrecruitment for the year 2009-2010. This aspect of the matter willbe further dealt with in the subsequent part of the order. The second submission made on behalf of the petitioners isthat the Tribunal has totally misread the judgement rendered by theHon'ble Supreme Court in the case of Union of India & Ors. Vs. N. R.Parmar & Ors., reported in (2012) 13 SCC 340. A very firm stand has been taken on behalf of the petitionersthat since the process of recruitment had been initiated during therecruitment year itself, i.e., 2009-2010, mere delay in the conductof the examination or even declaration of result, in no manneralters the year of recruitment, especially when the Central Boardof Direct Taxes sent requisition for 482 vacancies for the year2009-2010 on 21.01.2010 to the Staff Selection Commission(Annexure – 5-A to the writ application), which included 10vacancies for the Patna CCA Office, which has become the boneof contention. The said requisition for the year 2009-2010 was sent within the recruitment year, which ends on 31[st] of March of theyear in question. Not only this, on 30[th] of January, 2010, the Staff SelectionCommission issued an advertisement for the reported vacancies,dated 21.01.2010, which forms part of the writ application asAnnexure – 6. On the above factual position and taking cue fromthe Apex Court decision in N.R. Parmar’s case (supra), theargument is that merely because the Staff Selection Commissionheld the preliminary examination on 16.05.2010 and the mainsexamination on 01.08.2010, followed by declaration of result on07.01.2011, it will make no difference, so far as the recruitmentyear in question is concerned. Court’s attention has been drawn to the significant paragraphof N.R. Parmar’s case (supra), which is paragraph 34.1 and 34.2,which is reproduced hereinbelow: “34.1. If the process of recruitment has Not only this, on 30[th] of January, 2010, the Staff SelectionCommission issued an advertisement for the reported vacancies,dated 21.01.2010, which forms part of the writ application asAnnexure – 6. On the above factual position and taking cue fromthe Apex Court decision in N.R. Parmar’s case (supra), theargument is that merely because the Staff Selection Commissionheld the preliminary examination on 16.05.2010 and the mainsexamination on 01.08.2010, followed by declaration of result on07.01.2011, it will make no difference, so far as the recruitmentyear in question is concerned. Court’s attention has been drawn to the significant paragraphof N.R. Parmar’s case (supra), which is paragraph 34.1 and 34.2,which is reproduced hereinbelow: “34.1. If the process of recruitment has been initiated during the recruitment year (inwhich the vacancies have arisen) itself, evenif the examination for the said recruitment isheld in a subsequent year, and the result isdeclared in a year later (than the one inwhich the examination was held), and theselected candidates joined in a further lateryear (than the one in which the result wasdeclared), the selected candidates will beentitled to be assigned seniority, with reference to the recruitment year (in whichthe requisition of vacancies was made). Thelogic and reasoning for the aforesaidconclusion (expressed in the OM dated02.02.2000) is, if the process of directrecruitment is initiated in the recruitmentyear itself, the selected candidate(s) cannot beblamed for the administrative delay, incompleting the process of selection. 34.2. The words “initiation of action forrecruitment”, and the words “initiation ofrecruitment process”, were explained tomean, the date of sending the requisition tothe recruiting authority.” The argument further expanded on behalf of the petitioners isthat merely because some more vacancies came to be notifiedsubsequently, which arose during the period, the exercise forrecruitment was being carried out by the Staff SelectionCommission, it will have no reflection on the claim of thesepetitioners, the direct recruits, because the vacancies for the year2009-2010 was sent on 21.01.2010, which is within therecruitment year and even an advertisement was issued by theStaff Selection Commission on 30[th] of January, 2010, indicatingthe vacancy position as per requisition, dated 21.01.2010, whichare before 31.03.2010, the date the recruitment year ends. If this be so, then on the basis of conduct and declaration ofresults by including more vacancies, which may have arisen across the county, does not in any manner cast any doubt or raises anyquestion mark with regard to the recruitment for the year 2009-2010. N.R. Parmar’s case has made this position very clear inparagraph 34.1 and 34.2 of the decision. The ratio enunciated inthe above-noted paragraphs are further fortified and expand in theconcluding paragraphs of the judgement, which are paragraph 52and 53. Since those paragraphs have significance for theadjudication of the present case, they too are reproducedhereinbelow: “52. Having interpreted the effect ofthe OMs dated 07.02.1986 and 03.07.1986(in paras 25 to 29 hereinabove), we aresatisfied, that not only the requisition butalso the advertisement for direct recruitmentwas issued by SSC in the recruitment year inwhich direct recruit vacancies had arisen.The said factual position, as confirmed bythe rival parties, is common in all mattersbeing collectively disposed of. In all thesecases the advertised vacancies were filled upin the original / first examination / selectionconducted for the same. None of the directrecruit Income Tax Inspectors herein can bestated to be occupying carried-forwardvacancies, or vacancies which came to befilled up by a “later” examination / selectionprocess. The facts only reveal that theexamination and the selection process of direct recruits could not be completed withinthe recruitment year itself. For this, themodification / amendment in the manner ofdetermining the inter se seniority betweenthe direct recruits and promotees, carried outthrough the OM dated 07.02.1986, and thecompilation of the instructions pertaining toseniority in the OM dated 03.07.1986, leaveno room for any doubt, that the “rotation ofquotas” principle would be fully applicableto the direct recruits in the presentcontroversy. The direct recruits herein willtherefore have to be inter-spaced withpromotees of the same recruitment year. 53. In view of the above, the civilappeals, the transferred case, as well as, thetransfer case (filed by the direct recruits andthe Union of India) are hereby allowed. Theclaim of the promotees, that the direct recruitIncome Tax Inspectors, in the instant caseshould be assigned seniority with referenceto the date of their actual appointment in theIncome Tax Department is declined.” It is further urged on behalf of the petitioners that the CentralAdministrative Tribunal somehow got carried away by thearguments of the promottee Inspectors that since the examinationwas held in the later part of the year 2010 and results declaredthereafter, therefore, the direct recruits need to be treated as havingbeen considered and recommended for the year 2010-2011 and not2009-2010. The stand taken by the applicants before the CAT, whoare respondents now, was that nobody can be appointed or given benefit of seniority even before being borne on the cadre. Thelogic of the respondents is that since the direct recruits results weredeclared in the year 2011 after the recruitment year, therefore, theycannot be treated to have been recommended or appointed in theyear 2009-2010. Reading of paragraph 17 of the order of theTribunal gives reflection on the mind set, which prevailed upon theTribunal to interfere with the seniority list in favour of thepromotees. Based on the ratio of the decision of N.R. Parmar’s case(supra), the Ministry of Personnel, Public Grievances & Pension,Department of Personnel and Training, Government of Indiaissued an office memorandum, dated 4[th] of March, 2014. The saidOM is Annexure – 11 to the writ application. The Court getstempted to reproduce the relevant part of the OM, because theMinistry of Personnel has in a very pointed manner explained theessence of the N.R. Parmar’s judgement. Paragraph 5 of the OM,dated 04.03.2014 is reproduced for ready reference. “5. The matter has been examined inpursuance of Hon'ble Supreme CourtJudgement on 27.11.2012, in Civil AppealNo. 7514-7515/2005 in the case of N.R.Parmar vs. UOI & Ors in consultation withthe Department of Legal Affairs and it hasbeen decided, that the manner of determination of inter-se-seniority of directrecruits and promotees would be as under: a) DoPT OM No. 20011/1/2006-Estt.(D) dated 03.03.2008 is treated as non-existent/withdrawn ab initio; b) The rotation of quota based on theavailable direct recruits and promoteesappointed against the vacancies of aRecruitment Year, as provided in DOPT O.M.dated 07.02.1986 / 03.07.1986, wouldcontinue to operate for determination of interse seniority between direct recruits andpromotees; c) The available direct recruits andpromotees, for assignment of inter seseniority, would refer to the direct recruitsand promotees who are appointed against thevacancies of a Recruitment Year; d) Recruitment year would be the yearof initiating the recruitment process against avacancy year; e) Initiation of recruitment processagainst a vacancy year would be the date ofsending of requisition for filling up ofvacancies to the recruiting agency in the caseof direct recruits; in the case of promoteesthe date on which a proposal, complete in all-respects, is sent to UPSC/ChairmanDPC forconvening of DPC to fill up the vacanciesthrough promotion would be the relevantdate.(emphasis supplied) c) The available direct recruits andpromotees, for assignment of inter seseniority, would refer to the direct recruitsand promotees who are appointed against thevacancies of a Recruitment Year; d) Recruitment year would be the yearof initiating the recruitment process against avacancy year; e) Initiation of recruitment processagainst a vacancy year would be the date ofsending of requisition for filling up ofvacancies to the recruiting agency in the caseof direct recruits; in the case of promoteesthe date on which a proposal, complete in all-respects, is sent to UPSC/ChairmanDPC forconvening of DPC to fill up the vacanciesthrough promotion would be the relevantdate.(emphasis supplied) f) The initiation of recruitment processfor any of the modes viz. direct recruitmentor promotion would be deemed to be the initiation of recruitment process for the othermode as well; g) Carry forward of vacancies againstdirect recruitment or promotion quota wouldbe determined from the appointments madeagainst the first attempt for filling up of thevacancies for a Recruitment Year; h)Theaboveprinciplesfordetermination of inter se seniority of directrecruits and promotees would be effectivefrom 27.11.2012, the date of Supreme CourtJudgement in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar Vs.UOI & Ors. I) The cases of seniority already settled with reference to the applicableinterpretation of the term availability, ascontained in DoPT O.M. dated07.02.1986/03.07.1986 may not be reopened.” After having heard learned counsel for the petitioners, theprivate-respondents, i.e., the promotee officers, as well as thelearned Additional Solicitor General, representing the Union ofIndia, so far as the factual aspect is concerned, there does not seemto be much of confusion that there was only an examination heldby Staff Selection Commission that was the examination in theyear 2010. But it is also established that there was no cancellationof the examination for the recruitment year 2009-2010. No doubt,for certain reasons, the examination for the year 2009-2010 couldnot be held in the recruitment year, i.e., till 31[st] of March of the year, but that makes no difference so far as the recruitment year isconcerned and in this case 2009-2010, because the requisition forthe 10 vacancies for the Patna region was already sent on21.01.2010 and even and advertisement in this regard was issuedon 30[th] of January, 2010. If that is so, then in terms of N.R. Parmar’s case (supra), itmakes no difference as to when the examination was held or whenthe result was declared. We are satisfied that the process of recruitment by sending therequisition for filling up the posts for the year 2009-2010 wasinitiated in the recruitment year 2009-2010 and mere delay inconduct of the examination or declaration of results cannot wishaway or wipe off the recruitment year 2009-2010. It makes nodifference as to when the examination was held or when the resultswere declared and recommendation made. It has to relate back tothe recruitment year 2009-2010, especially when the requisitionwas sent on 21.01.2010 and even the advertisement was issued bythe Staff Selection Commission on 30.01.2010. For the purposes of records, it is further certified that merelybecause more vacancies were notified subsequently and the StaffSelection Commission conducted the examination in the secondhalf of the year 2010, the recruitment of the direct recruits, will not become year 2010-2011, but will remain recruits of the year 2009-2010. For the purposes of records, it is further certified that merelybecause more vacancies were notified subsequently and the StaffSelection Commission conducted the examination in the secondhalf of the year 2010, the recruitment of the direct recruits, will not become year 2010-2011, but will remain recruits of the year 2009-2010. To sum up, the Tribunal seems to be in error and this errorwas caused because they somehow conjured that the examinationfor the recruitment year 2009-2010 was canceled and thatexamination was held for the year 2010-2011. A fact notestablished either from records or pleadings. Because of the abovefactual finding, the Tribunal made further mistake by reaching aconclusion that no process for initiation of recruitment for the year2009-2010 was taken and since examination was held in thesecond half of 2010, therefore, the direct recruits cannot be giventhe benefit of appointment or seniority for the year 2009-2010. We are sorry to record that even though in paragraph 17, theTribunal has taken note of the essence of N.R. Parmar’s case(supra), especially what had been declared by the Hon'ble ApexCourt in paragraph 34.1 and 34.2, but still the Tribunal proceededon a wrong factual premise and reached a totally erroneousconclusion. There was no occasion, therefore, to interfere with theseniority list dated 29.07.2016, where seniority was given to thedirect recruits of 2009-2010 and which was the correct decision totake by the department, keeping in mind the N.R. Parmar’s case (supra), the Office Memorandum, dated 04.03.2014 and even thedepartmental clarification issued earlier. But, obviously, effort wasmade to misrepresent the facts and then take advantage of thesame, especially by the promotee officers. The writ application, therefore, stands allowed. Theimpugned order, dated 10.10.2017, passed by the CentralAdministrative Tribunal, Patna Bench, Patna in O.A. No. 223 of2017 and 356 of 2017, stands quashed. Consequence thereof, theseniority list, dated 29.07.2016, stands restored. (Ajay Kumar Tripathi, J) skm/- AFR/NAFRAFRCAV DATEUploading Date06.02.2018Transmission Date ( Nilu Agrawal, J)