2017 (4) TMI 1245

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....ered by Central Board of Direct Taxes looking to the proposal and other requirements which will take some more time and the Court expected that such seniority list may be finalized as far as possible by 15.10.2014 and the petition came to be disposed of. 2.1 Later on, Civil Application (for direction)No.6862 of 2016 in MCA No.1150 of 2016 in SCA No.7465 of 2014 was preferred by the writ petitioner of SCA No.7465 of 2014 on the ground that discriminatory treatment was meted out to the applicant and similarly situated persons in the State of Gujarat despite there being a clear order from the Apex Court in their favour (Union of India Vs. N.R.Parmar (supra)). An affidavit was submitted on behalf of the Department and status quo order was passed and the Court directing that status quo as on date, viz. 10.10.2016 to continue qua promotions from the cadre of ITOs to Assistant Commissioner of Income Tax (ACITs) and the case was adjourned on 15.11.2016. 2.2 Meanwhile, Original Application No.31 of 2017 was preferred by one of the aggrieved ITOs before the Central Administrative Tribunal, Ahmedabad Bench raising grievance against initiation of the process for promotion to the post of ....

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....based on conclusions and directions in the judgment in the case of Union of India Vs. N.R.Parmar (supra), since in the case of Rajiv Mohan, it appears that, contrary judgment was given than in the case of Union of India Vs. N.R.Parmar (supra) and the Principal CCIT, UP (West) sought clarification regarding the manner in which the seniority is to be re-cast and after processing file and seeking opinion of Department of Legal Affairs, it was decided finally that there would not be violation of any judgment in the case of Union of India Vs. N.R.Parmar (supra) and accordingly, time is consumed, but now as more than 200 posts are vacant in the cadre of ACITs for the vacancy year 2016-17, Department may be permitted to fill up such vacancies by granting promotions to eligible ITOs whose names are reflected in provisional seniority list for the list of seniority prepared in the year 2015. It is also submitted that in case if the Court is not inclined to vacate interim relief as prayed for, it can be modified by keeping posts in question vacant for aggrieved writ petitioners, otherwise not only administration but public interest would also suffer. 3. Learned Counsel for the Department h....

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....on of India & Ors., OA no.387 of 1999; Muneesh Rajani & Ors. vs. Union of India & Ors., OA no.964 of 1999) by a common order. In paragraph 7 of its order the CAT, Principal Bench, narrated the issues which came up for its determination as under: "7. The short question which is posed for our consideration is as to what is the precise date on which direct recruits can be considered for seniority vis-à vis the promotees. Whether it is (i) the date on which the vacancies have arisen; (ii) the date when the same have been notified by the department by sending requisitions to the Staff Selection Commission; (iii) the date on which selection by the Commission is made; (iv) the date when the selection is reported to the department; or (v) the date on which the direct recruit actually assumes office." 5.1 The answers given by the Apex Court to the above so recorded in the judgment read as under:- "28. The following conclusions have been drawn by us from the O.M. Dated 3.7.1986:- 28.1 If adequate number of direct recruits (or promotees) do not become available in any particular year, "rotation of quotas" for the purpose of determining seniority, would stop after the availa....

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....ted would get seniority of the year in which they are appointed "on substantive basis". 5.2 Then, the Apex Court examined the effect of OM dated 03.03.2008 on the subject of inter se seniority between direct recruits and promotee by raising the following questions: 43.1 Would the OM dated 3.3.2008 supersede the earlier OMs dated 7.2.1986 and/or 3.7.1986? 43.2 And, would the OMs dated 7.2.1986 and 3.7.1986 negate the OM dated 3.3.2008, to the extent that the same is repugnant to the earlier Oms (dated 7.2.1986 and 3.7.1986)?" 5.3 By undertaking the exercise in detail about subjects of both the Oms dated 07.02.1986 and 03.07.1986 vis-a-vis OM dated 03.03.2008 in para 52 held as under: "52. 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 origi....