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Judgment
ORDER
Per: Hon’ble Shri Sangam Narain Srivastava, Member (A)
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act for assailing the Order dated 31st May, 2014 (Annexure- A-1) and 30th May, 2014 (Annexure- A-2) and for declaration that the applicant is Central Administrative Tribunalentitled to be placed above the persons appointed after 29th October, 2007 and for fixing the seniority treating the applicant as direct recruit for vacancy year 2002-2003 to 2005-2006.
Facts leading to this application are that the applicant was appointed as District Savings Officer on 19th July, 2000 in the office of National Savings Organisation in Department of Economic Affairs. On 19th December, 2003, National Savings Organization (NSO) declared the applicant along with some other employees’ surplus and the redeployment directions were issued vide Annexure-A-3 and Annexure- A-4.
It is further alleged that the applicant joined the Income Tax Department as Inspector on 29th October, 2007 as Direct Recruit against the vacancy for the recruitment year 2002-03 to 2005-06 by the appointment order dated 31st October, 2007 (Annexure- A-5). Since the applicant was declared surplus, his date of appointment for determining seniority and promotion as Direct Recruit in I.T. Department Central Administrative Tribunalhas to be taken from the recruitment year 2002-03 to 2005-06. The applicant was available for appointment in Income Tax Department from 19th December, 2003 when he was rendered surplus. The applicant is required to be treated on par with the Direct Recruitee who had joined department through Staff Selection Commission (SSC) because his appointment is in Direct Recruitment Quota for the Recruitment Year 2002-03.
It is further averred that the applicant passed the examination for Income Tax Officers (ITO) on 28th December, 2011 and he has been working as ITO since 06th April, 2014. However, the seniority list prepared while granting promotion shows the applicant’s name much below his juniors who were appointed after the applicant.
He contends that for the seniority list of Income Tax Officers for the year 2013-14 and 2014-15, his name is shown at serial no. 257 instead of serial no. 66 as the applicant being a direct recruit for the vacancy year 2002-03 to 2005-06 and direct recruits who had joined after him are shown senior to him. The applicant’s name is shown with Central Administrative Tribunalthe promotees which is against the Rules as the applicant is a Direct Recruit for the Recruitment Year 2002-03 to 2005-06 and above all the other persons. Person at serial no. 66 is junior to the applicant and the applicant should be placed before him. There is no basis for treating the applicant against the vacancy of 2007-08 when the recruitment of the applicant was for the vacancy of recruitment year 2002-03 to 2005-06.
The applicant further avers that he made representation dated 25th April, 2014 narrating all these facts vide Annexure-A-8. Since no response was received, he filed Original Application No. 270/2014 wherein this Tribunal vide its order dated 06th May, 2014 directed the respondents to decide the representation of the applicant. The applicant contends that his representation came to be rejected vide order dated 30th May, 2014 by the respondents which is impugned in this OA.
Respondents issued fresh circular dated 31st May, 2014 wherein again the name of the applicant was shown along with the promotees instead of Direct Recruitee for the Central Administrative Tribunalyear 2007-08 and below his juniors. He has, therefore, filed this OA seeking following reliefs:-
“a)This Hon’ble Tribunal be pleased to quash and set aside the orders dated 31.05.2014 and 30.05.2014 as Annexure “A-1” and Annexure “A-2” issued by the Respondents;
b)This Hon’ble Tribunal be pleased to hold and declare that the applicant is entitled to be placed above the persons who are appointed after 29.10.2007 in the seniority and promotion list.
c)This Hon’ble Tribunal be pleased to direct the Respondents to fix the seniority of the Applicant properly as set out in the present Original Application as the Applicant being a direct recruit for the Vacancy year 2002-2003 to 2005-2006 instead of the Respondent No. 4 or any other person who has joined/appointed after the Applicant i.e. after 29.10.2007;
d)Any other order as this Tribunal may deem fit and proper in the facts and circumstances of the case.
e)The cost of the application may be directed to pay.”
Respondents filed their reply. They contend that the applicant was declared surplus and has been adjusted in the Income Tax Department. The applicant cannot be granted seniority prior to the date of joining in Income Tax Department since he is a surplus from NSO. The principles on the basis of which the applicant has been granted seniority is based on the DoPT OM dated 03rd July, 1986 (Annexure- R-1). Admittedly, the applicant has been Central Administrative Tribunalrecruited in the year 2007 i.e. on 29th October, 2007. Therefore, the question of showing him above the direct recruits of the year 2007 does not arise. He is clearly an appointee against the vacancies of the year 2007.
They further contend that the seniority has been granted to the applicant in the post of Inspector from the date of his joining. Seniority list post 2007 was issued in the rank of Inspector for the first time on 08th June, 2011 (Annexure- R-2). This seniority list shows that the applicant figures at serial no. 1 and has been granted seniority from the year 2007 itself. Therefore, the applicant is estopped from claiming revision of his seniority at this belated stage after a period of more than 7 years. Therefore, the impugned order dated 30th May, 2014 needs no interference.
The claim of the applicant that he joined Income Tax Department against the vacancy meant for the year 2002-03 to 2005-06 has no basis. The appointment letter dated 31st October, 2007 (Annexure- A-5) of the applicant shows that he was posted in the existing vacancy of the Inspector in the office of Addl. C.I.T.(HQ) with effect from 29th Central Administrative TribunalOctober, 2007.
The respondents contend that the applicant has been treated as a direct recruit Inspector against the existing vacancy of Inspector at the time of his joining. Surplus employees are not entitled to the benefit of past services rendered in the previous organization for the purpose of their seniority in the organization. Such employees are to be treated as fresh entrants in matter of their seniority, promotions, etc., vide para 4.3.1 of the DoPT OM dated 03rd July, 1986 (Annexure- R-1). They, therefore, prayed for the dismissal of the application.
Applicant filed rejoinder. No new point has been raised in the rejoinder. It is repetition of allegations made in the OA.
We have heard learned counsel for the applicant and learned counsel for the respondents. Learned counsel for the applicant has submitted written arguments also.
In the written arguments, learned counsel for the applicant contends that after the applicant was declared surplus i.e. on 19th December, 2003. The DoPT vide its letter Central Administrative Tribunal dated 19th April, 2007, addressed a letter to the CBDT, New Delhi for retaining 50 vacancies of direct recruit Inspectors in the Annual Direct Recruitment plan of Recruitment Years 2002-03 to 2005-06 for redeployment of surplus staff as per an enclosed list. Applicant’s name appeared at serial no. 24 of the said list. The applicant joined service on 29th October, 2007 with Income Tax Department as Income Tax Inspector. There was no recruitment between the years 2002-03 to 2005-06 on account of government policies. There were 759 vacancies for this period. All the direct recruits selected through the SSC, joined the Income Tax Department in the year 2009. The earliest one joined on 19th January, 2009 at serial no. 66 (Annexure- A-1). The recruitment year is to be considered as the year in which the direct recruits have joined service. As per DoPT OM dated 13th August, 2021, the actual year of appointment both in the case of direct recruits and promotees, would be reckoned as the year of availability for the purpose of rotation and fixation of inter se seniority. Therefore, the year of joining service of the applicant was the year 2007. The successful candidates of the vacancies for Recruitment Year 2002-03 to 2005-06 selected through the SSC were placed in the year 2009 as per their date of joining service.
He further contended that in terms of Rule 4(2)(i) of the CCS (Redeployment of Surplus Staff) Rules, 1990, the surplus staff nominated by the Cell shall enjoy first priority for appointment against a vacancy, after the disabled defence services personnel. The Income Tax Department while finalizing the seniority list for the Recruitment Year 2007-08 vide letter dated 08th June, 2011, placed the applicant at serial no. 1 in the seniority list for Recruitment Year 2007-08 (Annexure- R-2).
It is further contended in the written arguments that the direct recruits selected for the vacancies against Recruitment Year 2002-03 to 2005-06 joined in the year 2009 and, therefore, were placed in the Recruitment Year 2009-10 as per rules mentioned above, as per their availability. The applicant has no grievance till this stage.
The controversy started with the Order dated 12th April, 2014 (Annexure- A-7) where, following the decision of the Hon’ble Supreme Court in the case of N.R. Parmar Central Administrative Tribunalversus Union of India in Civil Appeal Nos. 7514-7515 of 2005 dated 27th November, 2012, the DoPT vide OM dated 04th March, 2014 decided that the year of initiating the recruitment process, shall be considered as the recruitment year for the purpose of deciding the seniority. Based on this decision and DoPT’s OM, the seniority list for the Recruitment Year 2007-08 decided as per earlier order dated 08th June, 2011 stood cancelled. The direct recruits for Recruitment Year 2002-03 to 2005-06 were placed in Recruitment Year 2006-07, being the year in which the recruitment process was initiated. And, therefore, the applicant is the sole person to be considered for the Recruitment Year 2002-03 to 2005-06. The respondents have failed to consider these facts. The applicant made representation on 25th April, 2014 (Annexure- A-8). The respondents rejected his representation and thus, the applicant has filed this OA.
We have given thoughtful consideration to the submissions made by the learned counsel for the applicant.
From the submissions made through oral arguments and in written arguments, it is seen that the applicant is seeking the seniority on the basis of the vacancy year. In support of this submission, he has placed reliance on the letter of the DoPT to the Central Board of Direct Taxes (CBDT). He has invited our attention to the subject which states “Annual Direct Recruitment Plan of Recruitment Years 2002-03 to 2005-06 -Redeployment of Surplus Staff.” This letter pertains only to the transfer of surplus staff under redeployment by the Central (Surplus Staff) Cell in this Department, against the posts of Inspector, Income Tax in the Department of CBDT. This letter further states that the appointment of the officials nominated will be subject to rules and instructions regarding redeployment of surplus employees. It does not anywhere indicate that his seniority is to be counted on the basis of the vacancy year. Another argument was that as per Rule 4(2)(i) of the CCS (Redeployment of Surplus Staff) Rules, 1990, the surplus staff nominated by the cell shall enjoy first priority for appointment against a vacancy, after the disabled defence services personnel.
This Rule only states that if there is a vacancy, Central Administrative Tribunalthe surplus staff will have the first priority of appointment. It cannot be linked to the vacancy for determination of seniority especially now when N.R. Parmar (supra) has been overruled by K. Meghachandra Singh & Ors. versus Ningam Siro & Ors. in Civil Appeal No. 8833-8835 of 2019 (Supreme Court). It is settled principle of law that seniority commences from the date of joining and not from the date of vacancy because no one can be given seniority when he was not even born in cadre. Case of N.R. Parmar (supra) cannot be made applicable to the applicant. Though CCS (Redeployment of Surplus Staff) Rules, 1990 nowhere say as to how seniority is to be fixed in respect of the surplus staff viz-a-viz the direct recruits, the respondents have themselves treated the applicant as a Directly Recruited Inspector candidate. To this extent, there is no dispute. Rule 6(4)(a) of the CCS (Redeployment of Surplus Staff) Rules states that the surplus employees shall have no claim to count his past services including the one rendered in the post of his provisional redeployment towards fixation of seniority in the post in which he has been adjusted. This clearly shows that his seniority begins from the date on which he has joined organization in which he is adjusted. In these circumstances, the argument of learned counsel that applicant’s appointment is against vacancy and it should be related back to the year of vacancy does not have any force. However, as stated supra, he will have to be allowed seniority at least from the date on which he has joined the new organization i.e., Income Tax Department in the cadre of Inspector i.e., considering his date of joining of 29th October, 2007. This will be also in consonance with the later judgement of the Hon’ble Supreme Court in the case of K. Meghachandra Singh (supra), which has held thus:
“31.…..The law so declared in Ashok Kumar Srivastava (supra) being the one appealing to us, is profitably extracted as follows:
24.The learned Senior Counsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are produced below:
“45.(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. . . . . . . . . . . . . . . . . . . . . .
45.(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority Central Administrative Tribunalcannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.”
xxx xxx xxx
40.…….These three judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under Service Jurispudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in J.C. Patnaik (Supra)….
Learned counsel for the applicant placed reliance on the case of Geetha V.M. & Ors. versus Rethnasenan K. & Ors. in Civil Appeal Nos. 3994-3997 of 2024 (Supreme Court). This decision of the Hon’ble Supreme Court is not applicable to the facts of the case at hand. There was dispute between the original employees of Directorate of Medical Education (DME) and absorbed employees of Directorate of Health Services (DHS) in the respective cateogries of DME i.e. absorbed employees. The Hon’ble Supreme Court held thus:-
“51.In conclusion, we can observe that in furtherance to the conscious policy decision of the Government, abolition of dual control system was inevitable, therefore, bifurcation of DHS and DME was directed based on the recommendations. The employees existing in DHS were absorbed in DME along with posts and lien. In the present case, in terms of the G.O. (P) No. 548/2008/H&FWD dated 25.10.2008, particularly Rule 8 of Appendix I, seniority of the absorbed employee cannot be disturbed applying the proviso of Rule 27(a) of KS&SS Rules. Learned Senior counsel representing the State has supported the said view pointing out that while forming the policy for transfer by way of Appendix I, II and III, the Government never intended to forgo the seniority of the employees in any class, category and grade existing in service of DHS and absorbed in DME. Therefore, the Government has specifically mentioned in Rule 8 of Appendix I that the seniority of such employee shall be ‘maintained’ as per Rule 27(a) and 27(c) of Part II of KS&SS Rules giving due weightage to the service rendered by them in DHS while absorbing in DME.
52.In totality of facts as discussed, the inescapable conclusion that can be drawn is that the transfer of appellants – absorbed employees was by way of absorption as per the policy decision of the Government of Kerala and it would not fall within the purview of proviso to Rule 27(a) of KS&SS Rules. The appellants exercised the option for absorption by transfer from DHS to DME in line with the policy decision taken by Government of Kerala and not on their own volition. Such being the situation, it cannot be considered as a case of transfer based on voluntary choice or own request. Their seniority and inter-se seniority shall be maintained as per Rule 27(a) and 27(c) of Part II of KS&SS Rules read with clarificatory letter dated 24.04.2010 with reference to Rule 8 of Appendix I to G.O. dated 25.10.2008. The question as framed by us in paragraph 30 is answered accordingly.”
From this decision of Hon’ble Supreme Court in the case of Geetha V.M. (supra), it is seen that the issue is totally different. It is not the case of surplus staff being adjusted in another department.
Having regard to what is discussed hereinabove, Central Administrative Tribunalwe are of the considered opinion that the seniority of the applicant cannot be counted from the year/date of vacancy. It has to be counted from the date on which the applicant joins the services in CBDT. In this view of the matter, we allow the prayer of the applicant that he is required to be placed above the persons who are joined/appointed after 29th October, 2007 in the seniority list of Inspector. The respondents are directed to grant the applicant seniority from 29th October, 2007 as a Direct Recruit Inspector within a period of six months from the date of receipt of a certified copy of the order.
The Original Application is allowed to the extent indicated above and is, accordingly, disposed of.
Pending MAs, if any, stand closed.