TaxTMI 
TaxTMI 
2017 (8) TMI 613
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....eniority list Pre N. R. Parmar (supra)decision of the Hon'ble Supreme Court. It is also required to be noted at this stage that even in the year 2013 the Central Administrative Tribunal and thereafter in the year 2014, the Division Bench of this Court directed to prepare the revised seniority list as per the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) and thereafter even Contempt Proceedings were initiated and the directions were issued, till date the seniority list in the cadre of ITO has not been revised as per the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) which has been rendered as far as back in the year 2012 and therefore, the respective petitioners have no other alternative but to approach this Court by way of present Special Civil Applications making the grievance about inaction on the part of the department in not revising the seniority list in the cadre of ITO by following the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra)and consequently in not granting the promotion to the petitioners to the post of ACIT. 3.0. The facts leading to the present petitions in nutshell are as u....
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.... seniority and the department in proper utilisation of their employees force shall be finalised if the time factor is expeditiously kept as proposed and directed. 11. The learned counsel for applicant would like to clarify that paragraphs 33 of the Apex Court in the case of N R Parmar are of crucial in nature. We do not propose to do so. We can only assert that whatever the Hon'ble Apex Court has decided, is the law of the land. We do not have power to add to it, subtract from it or clarify it. 12. At this point of time, the learned counsel for respondents pointed out that in fact in OA Nos. 145/2013 and 146/13, they have not actually invited objections and therefore, the Board will issue a preliminary notification to this effect within one week from today and such affected officers shall be given three weeks from today to file their objections. The same committee after the earlier exercise is over shall consider this objection also in the light of Parmar Judgment and give a report to the CC or the Board as the case may be within one month from today. The report shall be sent to the Central Board of Direct Tax by the CC or if it is a committee appointed by the Board directl....
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.... submitted one Civil Application (For Direction) No.6862 of 2016 restraining the department from giving promotion to the post of ACIT on ad hoc basis. That after hearing the learned counsel for the department, the Division Bench of this Court passed the following order on 10.10.2016. "Mrs. Bhatt, learned advocate for the respondent nos.1 and 2, seeks time for placing on record affidavit of the concerned respondent to overcome the technical plea raised that the said respondent has not filed any affidavit. Mrs. Bhatt, learned advocate, indicated that though on earlier occasion the statement was made, now Court may pass appropriate order, as the statement was enuring till the affidavit was filed. On 12.09.2016, this Court passed the following order; Mrs. Mauna M. Bhatt, learned advocate for the respondent seeks time and invites the court's attention to the order dated 3.8.2016 and in all fairness submits that the said statement shall continue till the affidavit is filed on the next date of hearing. At the request of learned advocate Mrs. Mauna Bhatt, the matter is adjourned to 20th September, 2016. The statement made by Mrs. Mauna Bhatt, learned advocate for the respondent sh....
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....at pursuant to above, the details were called for from AD VI Section of CBDT. The said Section has intimated the tentative time frame of six months by which, the decision of the Hon'ble Supreme Court in the case of N.R. Parmar is intended to be complied with in the cadre of ITO. The time frame given by ADVI, Section of CBDT is as under : Action to be taken by the Board Expected time to be taken A draft All India interse Seniority List of Income Tax Officers will be prepared interpolating all the seniority list of ITOs. 2 months (Appx.) The draft Seniority List will be published on the Departmental website seeking comments/objection of the stakeholders, if any. 1 month (Appx.) To address the objection/comments so received in the Draft All India interse Seniority List ITOs. 2 months (Appx.) Preparation of Final All India interse Seniority List of ITOs after implementation of N.R.Parmar 1 months (Appx.) 4. In view of the above, it is humbly submitted that the respondents are making all possible efforts to complete the said exercise and therefore, there is no willful inaction on their part, so as warrant action in the present proceedings. 3.6. That relyi....
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....y before the returnable date. 5. Direct service is permitted." 3.8. That thereafter, the Department preferred Civil Application No.4296 of 2017 in Special Civil Application No.4720 of 2017 with a request to vacate the interim relief granted earlier, granted vide order dated 03.03.2017. That all these petitions came up for admission hearing for admission hearing before the Division Bench of this Court on 04.04.2017 along with aforesaid Civil Application No.4269 of 2017 and while issuing the Rule in all these petitions and continuing the adinterim relief granted earlier and while dismissing the Civil Application No.4269 of 2017, the Division Bench passed the detail speaking order running into 14 pages, which reads as under: "1. Heard learned Advocates for the parties. 2. In this writ petition filed by the writ petitioner, the basic grievance is about nonimplementation of the judgment delivered by the Apex Court in the case of Union of India & Ors. Vs. N.R.Parmar & Ors, reported in (2012) 13 SCC, 340 [Per : Hon'ble Mr. Justice J.S.Khehar][as His Lordship then was] and statement made by learned Counsel appearing for the Income Tax Department before a Division Bench of this C....
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....or seniority vizaviz promotees. 2.3 In spite of decision rendered by the Apex Court on 27.11.2012 and more than 4 years and 4 months have passed, yet the respondents have not finalized all India seniority list of ITOs as directed and accordingly, reliefs are claimed in this petition to restrain the respondents from operating tentative provisional seniority list of ITOs for promotion to the posts of ACITs on ad hoc basis. 2.4 On 03.03.2017, this Court issued notice making it returnable on 22.03.2017, whereby the respondents were restrained from taking further steps pursuant to the communications dated 22.12.2016 and 14.02.2017 to prepare the panel for the vacancies of the year 201617 for promotion to the posts of ACITs. It is pertinent to note that MCA (for contempt) No.1150 of 2016 filed in SCA No.7465 of 2014, came to be decided on 14.03.2017 by which certain paras of additional affidavit dated 27.01.2017 filed therein by the respondent Department came to be reproduced and relying on that, interim relief granted in that application came to be vacated. 2.5 On the strength of above order dated 14.03.2017 passed in contempt proceedings, Civil Application (for vacating interim r....
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....ose of prayer to vacate the interim relief. Further, learned Counsel for respondent No.5 has taken us through the judgment in the case of Union of India Vs. N.R.Parmar (supra) and submitted that conclusions and directions were reached in the above decision based on the questions fell for consideration before the Apex Court and our attention is drawn to questions that fell into consideration and answers given by the Apex Court. Accordingly, it is submitted that delay, if any, on the part of the Department is because of administrative reasons which shall not come in the way of respondent No.5, who is otherwise eligible and in zone of consideration for promotion to the post of ACIT. 5. Having heard learned counsel for the parties, it is necessary to refer to para 15 of the above judgment, which reads as under: 15. Some direct recruits again approached the CAT, Principal Bench by filing Original Application no.2307 of 1999 (Sanjeev Mahajan & Ors. vs. Union of India & Ors.) alleging, that while drawing the seniority list dated 8.2.1999, the Department of Income Tax had not applied the quota and rota principle. On 23.2.2000, the CAT, Principal Bench disposed of OA no.2307 of 1999, an....
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....of the previous year, would be placed enbloc below the last promotee. And vice versa. 40. The following conclusions, in our view, can be drawn from the OM dated 3.3.2008: 40.1 The OM dated 3.3.2008 is in the nature of a clarification, to the earlier consolidated instructions on seniority, contained in the OM dated 3.7.1986 (referred to and analysed, in paragraph 21 above). 40.2 The term available used in para 2.4.2 in the OM dated 3.7.1986 has been clarified to mean, both in case of direct recruits as well as promotees, for the purpose of fixation of seniority, would be the actual year of appointment &after the declaration of the result/selection, i.e., after the conclusion of the selection process, and after the completion of the preappointment formalities& (medical fitness, police verification, etc.). 40.3 As per the OM dated 3.7.1986, when appointments are made against unfilled vacancies in subsequent year(s), the persons appointed would not get seniority with reference to the year in which the vacancy arose, or the year in which the recruitment process was initiated, or the year in which the selection process was conducted. 40.4 As per the OM dated 3.3.2008, when appo....
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....r for redressal his grievance about noncompliance of conclusions and directions issued in the case of Union of India Vs. N.R.Parmar (supra), undisputed fact remains that though 4 years and 4 moths have passed, yet no final, common all India level seniority list of ITOs is prepared. The excuse on the part of the Department about administrative constraints which have come in their way and seeking opinion of the Department of Legal Affairs about the situation which had arisen after decision in the case of Rajiv Mohan being contrary to the judgment in the case of Union of India Vs. N.R.Parmar (supra) and clarification sought in this regard by the Principal CCIT, UP (West), according to us prima facie would not only be misconceived but meritless inasmuch as, the decision rendered in the case of Rajiv Mohan was qua grievance raised by an individual, which had no apparent conflict with the law laid down by Their Lordships in the case of Union of India Vs. N.R.Parmar (supra). Baring vague assertions about delay based on above case in the application for vacating interim relief, no other ground appears. The Department has tried to take shelter under duties to be performed for collection of ....
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....earned advocate has appeared on behalf of the respondent department. 5.0. Ms. Shah, learned counsel for the respective petitioners has vehemently submitted that as such inaction on the part of the respondent in not revising the seniority list in the cadre of ITO which is required to be revised as per the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) is deliberate, willful, arbitrary and discriminatory and violation of Article 14 of the Constitution of India. 5.1. It is submitted by Ms. Shah, learned counsel for the respective petitioners that it is an admitted position and not even disputed by the learned counsel for the department that department is required to revise the seniority list in the cadre of ITO considering the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra). It is submitted that on one hand and despite the fact that decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) is rendered in the year 2012 and even thereafter also number of orders are passed by the learned Tribunal as well as this Court, the seniority list in the cadre of ITO has not been revised till date. It is submitted that on....
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.... ITO to the cadre of ACIT for the vacancy year 201415. It was submitted before the learned Tribunal that DPC is proposing to consider the officer in the cadre of ITO for promotion to the post of ACIT on the basis of the seniority list that was in vogue prior to the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra). It is submitted that the OA came to be allowed by the learned Tribunal vide judgment and order dated 17.06.2016 and respondents were directed to consider the case of the original applicant for ad hoc promotion to the cadre of ACIT for the vacancy year 201516 in the meeting of the DPS scheduled to be held on 20.06.2016, irrespective of the ranking in the seniority list in the preN. R. Parmar or postN. R. Parmar. It is submitted that department has accepted and implemented the said judgment and order passed by the learned Tribunal in OA No.376 of 2015 and said Jatashanker Meena has been granted the promotion on ad hoc basis to the post of ACIT. It is submitted that however in the case of the petitioners, the case of the petitioners are not considered for promotion to the post of ACIT even on ad hoc basis. 5.6. Ms. Shah, learned counsel for the re....
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....respective petitioners for promotion to the post of ACIT even on ad hoc basis either on the basis of draft revised seniority list or irrespective of ranking the seniority list in the preN R Parmar (Supra) decision or postN R Parmar (Supra) decision as has been done in the case of one Jatashanker Meenaapplicant of OA No. 376 of 2015. 6.0. Ms. Mauna Bhatt, learned counsel for the department has tried to justify the delay in not revising and / or finalizing the seniority list as per the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra). It is submitted that after the decision of the Hon'ble Supreme Court in the case of N R Parmar (supra) which was rendered in the year 2012, it is true that the department was required to revise the seniority list. However, before that the department was also required to revise the seniority list in the cadre of Inspector which was feeder cadre and therefore, it took time. It is submitted that thereafter the department had already now started process of revising the seniority list in the cadre of ITO and the draft revised seniority list has been prepared and published in the month of May 2017 and the objections are invited....
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.... ITO their right to consider their case for promotion from the post of ITO to ACIT has been affected. Learned counsel for the respondent Department is not at all disputing that the Department is not required to revise the seniority list in the cadre of ITO as per the decision of the Hon'ble Supreme Court in the case of N R Paramr (Supra). However, it is the case on behalf of the department that as now the process for revising the seniority list in the cadre of ITO as per the decision of the Hon'ble Supreme Court in the case of N R Paramr (Supra) has already commenced / begun and some more time is likely to be taken, it is requested to grant some more time to the department to complete the process of revise the seniority list in the cadre of ITO and in the meantime to permit the department to fill up the post of ACIT (Promotional Post) on ad hoc basis by operating seniority list which the department was operating i.e. preN. R. Parmar (supra) decision. 7.1. However, it is required to be noted that the decision of the Hon'ble Supreme Court in the case of N R Paramr (Supra) was rendered in the year 2012 and thereafter department was required to take immediate steps and / o....
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....was passed on 14.03.2017, even the draft revised seniority list came to be published by the department in the month of May 2017 only. The delay right from 2014 and even thereafter has not been explained. Therefore, there is a total inaction on the part of the department in not revising the seniority list in the cadre of ITO, which the department is bound to revise as per the decision of the Hon'ble Supreme Court in the case of N R Paramr (Supra). Inaction on the part of the Department has as such affected the rights of the respective petitioners to consider their case for promotion to the post of ACIT. The respective petitioners while serving in the department shall have the legitimate expectations at least to consider their case for promotions to the next post i.e. ACIT, more particularly when the juniors to them have got the promotion may be on ad hoc basis. 7.2. At this stage, few decisions of the Hon'ble Supreme Court on legitimate expectations are required to be referred to and consider. In the case of Ramchandra Dayaram Gawande vs. Union of India reported in 1996(10) SCC 420, the Hon'ble Supreme has observed that though no employee has a right to promotion, but h....
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....rted in (1993) 3 SCC 499, the Hon'ble Supreme has observed and held that mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of nonarbitrariness, a necessary concomitant of the rule of law. It is further observed by the Hon'ble Supreme Court in the said decision that every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. 8. Applying the law laid down by the Hon'ble Supreme Court in the aforesaid decisions to the facts of the case on hand inaction on the part of the department in not revising the seniority list in the cadre of ITO has affected the right of the petitioners to consider their case for promotion. The legitimate expectations of the petitioners of being considered for promotion have been defeated by the act of the department (inaction on the part of the department). Unreasonable inaction on the part of the department in not revising the s....
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....ty list which can be said to be in vogue and just contrary to the decision of the Hon'ble Supreme Court in the case of N.R. Parmar (supra). However they do not want to give promotion to the petitioners even on ad hos basis by operating draft revised seniority list. The aforesaid stand on the part of the Department is absolutely unfair. At this stage, it is required to be noted that as such some what similar orders came to be passed by the Central Administrative Tribunal in the case of one Jatashanker Meena in OA No. 376 of 2015 who was similarly situated to that of petitioners and the Tribunal directed the Department to consider his case for promotion to the post of ACIT irrespective of the ranking in the seniority list in the preN. R. Parmar or postN. R.Parmar and to give him ad hoc promotion and to consider his case for promotion on ad hoc basis. It is reported that the Department has accepted the said decision and thereafter considered the case of Shri Jatashanker Meena and he has been granted promotion to the post of ACIT on ad hoc basis. However, so far as petitioners are concerned, the Department is not agreeable for the aforesaid and therefore, the action of the responde....