Priyanka vs Union Of India & Ors.

Per: Justice Sunil Thomas, Judicial Member -

The applicant herein had submitted application for the Combined Graduate Level Examination, 2012 conducted by the Staff Selection Commission for filling up the post of Income Tax Inspector in the Department of Income Tax under the Central Board of Direct Taxes. After the requisite test and interview, results were declared. The applicant stood selected. However, the result of the applicant and several other persons from different parts of the Country were withheld on grounds of alleged irregularities in the conduct of examination. OA No. 1654 of 2014 was filed by several applicants before the Principal Bench, New Delhi, challenging the notices issued to the applicant and other similarly situated persons and to direct Staff Selection Commission to declare the results. By order of the CAT, Principal Bench, notices were set aside and the Staff Selection Commission was directed to declare the results and to appoint the applicants therein. This was challenged before the High Court of Delhi in WP No. 9055 of 2014 which was dismissed. The respondents approached the Supreme Court in SLP No. 9019-9021 of 2015. The SLPs were ultimately dismissed. Results were published and Annexure A1 list is the result of the withheld candidates. Pursuant to it, the applicant was given by appointment order dated 12.6.2018 and was posted at Palakkad. As per Annexure A1, she was ranked at Sl. No. 221. According to the applicant, Annexure A3 circular of the DoP&T related to the inter se seniority. When draft seniority list Annexure A5 was published dated 13.11.2019, it was found that her juniors selected along with her were placed above her. However, she did not file any objection to the draft seniority list. According to the applicant she was on maternity leave during the said period. In 2021, a tentative list was published, a copy of which was Annexure A6. She submitted Annexure A7 representation disputing the seniority and her placement, claiming that though she belonged to 2012 batch, she was wrongly included against the vacancies for the recruitment year of 2017-2018. This representation was dismissed by Annexure A8 and Annexure A9 final list was published. She submitted Annexure A10 statutory appeal dated 7.2.2022. Seeking a direction to dispose of Annexure A10 statutory appeal, she approached this Tribunal by filing OA No. 85 of 2022. This Tribunal directed to dispose of Annexure A10 on merits. It was rejected by Annexure A13 order. Aggrieved by the above, the applicant has approached this Tribunal seeking to set aside Annexures A8 and A13 and seeking the following reliefs:

The respondents filed a reply statement traversing the various allegations in the reply statement. It was stated that Annexure A4 OM dated 3.7.1986 issued by the DoP&T relied on by the applicant confirm the rotation of quotas for the purpose of determining the seniority. It would take place only to the extent of available direct recruits and the promotee vacancies. Unfilled direct recruitment/promotion quota vacancies would be carried forward and added to the corresponding direct recruitment/promotion quota vacancies of the next year and to subsequent years wherever necessary. It was claimed that in view of this, the unfilled vacancy against the applicant has been carried forward and added to the corresponding direct recruitment vacancies of the next year and subsequently adjusted against the direct recruitment vacancies of the recruitment year 2017-2018. Hence, the placing of the applicant against the vacancy year 2017-2018 was in order. It was stated that when Annexure A5 draft seniority list was published and circulated, objections were called from every person. However, applicant did not raise any objection. It was also stated that the original results was declared by the SSC on 31.5.2013 and successful candidates were allotted their respective Departments in 2013. However, in relation to the additional/withheld results of CGLE, 2012, it was declared by the SSC on 15.1.2018, approximately 5 years after the declaration of the original result. Clarification was sought regarding the recruitment year against which 3 Tax Assistants of CGLE, 2011 were to be appointed. Staff Selection Commission suggested that they were not aware whether the vacancies of Tax Assistants were available pertaining to 2011 at that stage. Hence, the SSC advised to appoint them against the vacancies of the year 2011 otherwise against vacancies available in the subsequent years. It was further stated that SSC has not informed the CBDT about the selection of the applicant as Income Tax Inspector against direct recruitment quota vacancies for the recruitment year 2012-2013. SSC had not given any reason for withholding/delaying her result. In view of paragraph 2 of DoP&T OM dated 13.8.2021 the unfilled vacancy against the applicant was carried forward and added to the corresponding direct recruitment quota vacancies of the next recruitment year and subsequently adjusted against the direct recruitment vacancy for recruitment year 2017-2018. It was clear that the applicant was born in the cadre of Income Tax Inspector against the recruitment year 2017-2018. It was also stated that applicant has not impleaded the SSC in the OA who was a proper and necessary party in this regard and OA was hit by non-joinder of necessary party. It was stated that the claim that the applicant should be placed between one Arjun Krishna and Ranjeet Sharma was also not sustainable since both them joined the Department on November, 2013 and the applicant joined the Department only on 16.7.2018. Accordingly, it was claimed that the applicant was not entitled for any reliefs.

Heard the learned counsel for the applicant and the learned ACGSC who opposed the application.

At the outset, it is clarified that the substantial part of the pleadings and the relief sought are in relation to the placement of the applicant below one Arjun Krishna and Ranjeet Sharma. It was stated that in fact she should have been placed in between Arjun Krishna and Ranjeet Sharma. It was also stated that hence, her seniority was to be placed in accordance with rank in Annexure A1 select list, in accordance with clause 7(iv) of Annexure A3. The reliefs (ii) and (iii) sought were substantially on this premise. However, it is pertinent to note that the representations submitted by the applicant as Annexures A7 and A10 clearly indicates that her grievance was that though she was selected in the recruitment year 2012, she was appointed against the recruitment year 2017-2018 whereas her juniors in the common list have been placed above her. This seems to be the crux of the grievance of the applicant. Hence, the substantial part of pleadings in the Original Application are misplaced and beside the core issue, which should have been addressed. Even the prayers are confined to that of placement below the two named persons. It is also to be noted that in the OA much reliance has been placed on Annexure A3. Annexure A3 is the Office Memorandum issued by the DoP&T dated 13.8.2021 in the context of the decision of the Hon’ble Supreme Court in K. Meghachandra Singh & Ors. v. Ningam Siro & Ors. in Civil Appeal 8833-8835 of 2019 which essentially deals with the inter se dispute between direct recruits and the promotees. In the nature of the grievance set up by the applicant in Annexures A7 and A10, Annexure A3 has absolutely no relevance in the issue involved. However, since the basic issue involved is discernable, though with difficulty, from the pleadings, coupled with Annexures A7 and A10 which also forms part of the pleadings and since that issue has been replied by the respondents, we feel that notwithstanding the lack of pleadings and that the OA has been drafted on a totally different premise, we should address the core issue involved.

It is pertinent to note that Annexure A1 common list pertain to the recruitment year of 2012 of the withheld candidates. There is also no dispute that though select list was published in relation to the recruitment year of 2012 and the applicant stood selected, her appointment got delayed due to reasons beyond her control. It seems that OA No. 1654 of 2014 was disposed of by the Principal Bench, New Delhi and directed the Staff Selection Commission to declare the results. However, that was challenged by the respondents before the High Court and thereafter in SLP and the entire process of appointment of the applicant and others, got further delayed. Result was published much later and applicant was accommodated against the year 2017-2018. Consequently, the core issue that arises is whether notwithstanding the fact that the applicant stood qualified in the 2012 examination and was given due posting only in 2018 for reasons not attributable to her, can be denied her seniority along with persons, who were recruited along with her.

An identical issue in relation to the CGLE, 2012 came up before the Principal Bench in Sudesh v. Staff Selection Commission & Ors. (OA No. 930 of 2014). After holding that the notices issued to the applicants therein and the delay caused to them in their appointment cannot be accepted, the notices were quashed. Respondents were directed to declare the result of all the applicants in the OAs and to allocate them the service for which they have been found eligible, on the basis of merit, if they were found successful. It was clarified that while doing so, the respondents shall take action in full consonance with the Rules and instructions governing the subject while declaring the result. In another decision in Shishpal v. Staff Selection Commission & Ors. (OA No. 69 of 2015), Principal Bench, New Delhi, after setting aside the notices issued to the applicants directed the SSC to sent the applicants’ dossiers to the Department which would have allocated in keeping the merit and option of the applicants. It was further directed that the applicant, if eventually appointed, shall be given consequential seniority along with his batch-mates and pay fixation shall also be granted on notional basis with respect to his immediate junior in the said Department. It was directed that no back wages or arrears were required to be paid.

Relying on the above decisions, Principal Bench, New Delhi in Pradeep Kumar v. Union of India & Ors. (OA No. 3001 of 2017) followed the same directions. It went to the extent of directing that if it becomes necessary to create supernumerary post to accommodate the applicant, the respondents shall do so within the stipulated time. It was further directed that if the applicant was eventually appointed, he would be entitled for consequential seniority depending upon his merit.

The learned counsel for the applicant invited our attention to the decision of the Principal Bench in Shahid Idrisha & Ors. v. Union of India & Ors. (OA No. 341 of 2022) wherein exactly similar issue in relation to Combined Graduate Level Examination, 2012 in relation to the appointment to the Central Government Central Excise and GST Departments arose. Granting the same reliefs as in the decisions supra, and refuting the claim of the Department that no vacancies pertaining to the year 2012 was available for adjustment of these candidates, it was held that the candidates cannot be considered as belonging to 2012 vacancies for the purpose of determining their seniority. The competent authority was directed to pass order giving appropriate seniority to the applicants therein with effect from the date when the batch-mates joined the services pursuant to CGLE, 2012, strictly on notional basis. It was further directed that the applicants shall be entitled to all consequential benefits, but restricted to promotion and re-fixation of salary and other allowances. It was further clarified that they shall not have any claim to the arrears of such financial benefits as the award of the same shall be on notional basis.

The direction in Shahid Idrisha’s case (supra) was followed by this Bench in Kusum v. Union of India & Ors. in OA No. 310 of 2021 in relation to the recruitment to Central Board of Indirect Taxes and Customs in relation to the common examination of 2012.

Having considered the entire facts, we are inclined to follow our own order in OA No. 310 of 2021 which essentially rest on the decision of the Principal Bench in OA No. 341 of 2022. To this extent the OA is liable to be allowed. However, we are inclined to mould the relief by setting aside Annexures A8 and A13 thereby directing the competent authority among the respondents to pass orders giving appropriate seniority to the applicant with effect from the date of her batch-mates who joined the appropriate cadre under the respondents, in terms of merit position in CGLE, 2012 examination. This will be done on a notional basis. She would also be entitled for consequential benefits which would include promotion and re-fixation of her pay and other allowances. However, she will not have any claim to any arrears to such financial benefits as the award of the same is on notional basis. The entire process shall be completed and orders issued within three months from the date of receipt of a copy of this order.

The Original Application is allowed to the extent as above. No costs.