HARIHARAN & Ors. v. HARSH VARDHAN SINGH RAO & Ors.

From the Judgment and Order dated 11.05.2018 of the High Court of Gujarat at Ahmedabad in Special Civil Application No.3212 of 2018. With Diary No.12422 of 2022. Vikramjit Banerjee, ASG, Huzefa Ahmadi, Nidhesh Gupta, Sr. Advs., Ms. Aastha Mehta, Ms. Vishakha, Sharukh Alam, Mishra Saurabh, Anmol Chandan, Shashank Bajpai, Ayush Anand, Sughosh Subramaniam, Abhishek Singh, Prashant Sinha, Siddhartha Sinha, Raj Bahadur Yadav, Ms. Pallavi Singh, V. K. Verma, Ms. Vriti Gujral, Tarun Verma, Rajat Srivastav, Ms. Japneet Kaur, Ms. Rita Jha, Ms. Pallavi Singh, Sameer Singh, Ms. Neelam Singh, Dr. Sushil Balwada, J. P. N. Shahi, Ms. J. Kiran, Rameshwar Prasad Goyal, Advs. for the appearing parties. A B C D E F G H 946 SUPREME COURT REPORTS [2022] 9 S.C.R. A Satyavi Kram, Ms. Lekha G.V., Zeeshan Diwan, Shrutanjaya Bhardwaj, Jasir Aftab, Advs. For the Intervenors. The Judgment of the Court was delivered by ABHAY S. OKA, J. B C D E F G H

Leave granted in Special Leave Petition (C) No.16161 of 2018. Delay in filing Special Leave Petition (C) Diary No.12422 of 2022 is condoned and leave is granted in the said Special Leave Petition as well.

In Civil Appeal arising out of SLP (C) No.16161 of 2018, the appellants who are original respondents nos.11 to 14 before the High Court of Gujarat, have challenged the judgment and order dated 11th May 2018 passed by a Division Bench of the High Court of Gujarat on a writ petition under Article 226 of the Constitution of India filed by respondents nos.1 to 18. FACTUAL ASPECTS IN CIVIL APPEAL ARISING OUT OF S.L.P.(C) NO.16161 OF 2018

Few factual details will have to be noted. The dispute is a typical dispute between promotees and direct appointees over inter-se- seniority. Here, the dispute is about the posts of Inspectors in the Income Tax Department in the State of Gujarat. On 7th February 1986 and 3rd July 1986, Office Memoranda (for short, ‘OM’) were issued by the Ministry of Personnel, Public Grievances and Pension. Both the OMs record that the principle of rotation of quota will be followed for determining the inter-se-seniority of promotees and direct recruits. It is mentioned therein that when direct recruits are not available, the promotees would be bunched together at the bottom of the seniority list below the last position up to which it is possible to determine seniority on the basis of rotation of quota with reference to the actual number of direct recruits who become available. It is provided therein that the unfilled direct recruitment quota vacancies would be carried forward and added to the corresponding direct recruitment vacancies of the next year. It is also provided that these additional direct recruits selected against the carried forward vacancies of the previous year, should be placed en bloc below the last promotee or direct recruit, as the case may be, in the seniority list based on the rotation of quota for that year. Prior to these two OMs, there was an OM dated 22nd November 1959, which provided for fixing the seniority of direct recruits and promotees based on the rotation of quota. HARIHARAN & ORS. v. HARSH VARDHAN SINGH RAO & ORS. [ABHAY S. OKA, J.] 947

In the facts of the case, we may note here that the relevant Recruitment Rules of 1969 provided that the quota of departmental promotees and direct recruits to the posts of Inspector will be 2:1. There is no dispute that the rule of rotation of quota or rota and quota is applicable for fixing their inter-se-seniority. On 7th February 2000, Office Note was issued by the Department of Personnel and Training (for short, ‘DoPT’). By the said office note, it was directed that if the examination is not held in the vacancy year, the seniority of the vacancy year cannot be granted to direct recruits. There was a further clarificatory OM issued on 3rd March 2008 by DoPT, which clarified that when the appointment against unfilled vacancies is made in subsequent years either by direct recruitment or promotion, the persons so appointed shall not get seniority of the earlier year. However, they should be given the seniority of the year in which they were appointed on a substantive basis.

On 26th June 2009, the Chief Commissioner of Income Tax, Ahmedabad filled in 53 posts of Income Tax Inspectors by promotion on the basis of the recommendations of the Departmental Promotion Committee (DPC). By a communication dated 20th November 2009, the Chief Commissioner of Income Tax, Ahmedabad forwarded a requisition for making appointments to 46 direct posts (35 current and 11 carried forward) enclosing therewith the details in the prescribed proforma. The DoPT by the letter dated 15th January 2010 granted NOC for 482 vacancies in the grade of Income Tax Inspector. Accordingly, by a letter of the same date, the Department of Revenue of the Ministry of Finance forwarded the said NOC to the Secretary of the Staff Selection Commission (SSC). However, the examination for recruitment was not conducted to fill up the vacant posts of Income Tax Inspectors for the recruitment year 2009-10 in the same year.

On 25th May 2014, a draft seniority list of the Income Tax Inspectors for the State of Gujarat was issued and on the basis of the draft seniority list, the final seniority list was issued on 29th May 2014. Further, on 7th September 2016, a modified seniority list of the Income Tax Inspectors in the cadre of the Gujarat region was issued. In the said list, the direct recruits of CGLE-2010 were interspaced with promotees of the year 2009-10. There were several representations made against the said seniority list by the promotee candidates. On 17th January 2018, CBDT issued a clarification stating that insofar as the fixing of inter-se- seniority of CGLE-2010 direct recruits with promotee officers was concerned, the direct recruits may be interpolated with the promotees of the same recruitment year in accordance with OMs issued on 3rd July 1986 and 4th March 2014. The said clarification was communicated by CBDT to all Principal Chief Commissioners of Income-Tax. On the basis of the said clarification, a revised seniority list dated 13th February 2018 was published. As per the said seniority list, the direct recruits recruited against vacancies of the year 2009-10 were interspaced with the promotees of the recruitment year 2010-11. Respondents nos.1 to 18 who were direct recruits, filed a writ petition before the High Court of Gujarat for challenging the said seniority list dated 13th February 2018. A prayer was made in the writ petition for setting aside the clarification dated 17th January 2018 and the consequent seniority list dated 13th February 2018. A consequential prayer was made for restoring the seniority list dated 7th September 2016. By the impugned judgment, the seniority list dated 13th February 2018 was quashed and the seniority list 1 2012 (13) SCC 340 A B C D E F G H HARIHARAN & ORS. v. HARSH VARDHAN SINGH RAO & ORS. [ABHAY S. OKA, J.] 949 of 7th September 2016 was restored with a clarification that only those direct recruits who were eligible and qualified in the recruitment year 2009-10, shall be interspaced with 53 promotees who were promoted vide DPC dated 29th June 2009.

On 13th July 2018, notice was issued in the Special Leave Petition no.16161 of 2018 which is the subject matter of the present Civil Appeal and by an interim order, the status quo as of that date was ordered to be maintained. The appellants who were respondents in the writ petition before the High Court, are the promotees who were promoted vide DPC dated 29th June 2009. SUBMISSIONS IN BRIEF

Mr. Huzefa Ahmadi, the learned senior counsel appearing for the appellants firstly submitted that the decision of this Court in the case of N. R. Parmar1 has been overruled by a larger Bench of three Hon’ble Judges of this Court in the case of K. Meghachandra Singh & Ors. v. Ningam Siro & Ors.2 on 19th November 2019. However, it was clarified that the decision will apply prospectively. His submission is that a recruitment year is a calendar year and not a financial year. The learned senior counsel submitted that in the present case, the advertisement for recruitment was not issued in the year 2009 and the examination was conducted in 2010. He pointed out that in the case of N.R. Parmar1, the advertisement was issued in the same recruitment year in which vacancies arose. He pointed out that a requisition was sent on 21st January 2010 to SSC for 482 vacancies of Income Tax Inspectors for 2009-10. However, in the next requisition letter dated 22nd November 2010 which was for CGLE-2010, carried forward vacancies (482) of 2009-10 were mentioned. This requisition was made for total 844 vacancies which included even vacancies of the recruitment year 2010-11. Based on the observations made in paragraph 33 of the decision in N. R. Parmar’s case1, the learned senior counsel would submit that in terms of the said decision, the vacancies arising during a particular year, should be reported in the same year and the advertisement for recruitment should also be published in the same year. He urged that in the present case, all these conditions have not been fulfilled.

Inviting our attention to the decision of this Court in the case of K. Meghachandra2, he submitted that now this Court has categorically 2 2020 (5) SCC 689 A B C D E F G H 950 SUPREME COURT REPORTS [2022] 9 S.C.R. A B C D E F G held that the seniority of direct recruits will be reckoned only from the date of appointment and not from the stage when the requisition for their appointment was sent. The learned senior counsel also pointed out that CBDT by the letter dated 27th May 2019 clarified that in view of subsequent decision of the High Court of Delhi, the decision in the case of N.R. Parmar1 shall be implemented prospectively with effect from 27th November 2012. The learned senior counsel also pointed out that when there was no advertisement and no requisition issued for the vacancies of the year 2009, the vacancies of the year 2009 were combined in CGLE-2010. Therefore, relative merit of selected candidates cannot be determined for assigning the seniority in different recruitment years, the reason being that there was only one merit list of CGLE-2010. He also pointed out that the final position of vacancies was intimated to SSC for the first time by the letter dated 27th October 2010. Therefore, the direct recruits who were recruited on the basis of CGLE-2010 from the quota of earlier year, cannot be interspaced between the promotees of the year 2009. He submitted that now seniority cannot be disturbed after lapse of eleven or twelve years.

Mr. Nidhesh Gupta, the learned senior counsel appearing for respondents nos.1 to 5, 7, 8, 10 to 13, 15 to 18 and 29 to 39 firstly submitted that even the decision in the case of K. Meghachandra2 protects the case of the said respondents (direct appointees) as it is specifically observed that the decision will apply prospectively and it will not affect inter-se-seniority fixed on the basis of the decision of this Court in the case of N. R. Parmar1.

He pointed out that this Court in the case of K. Meghachandra2 held that seniority cannot be granted from the date when the candidate was not born in the cadre. He submitted that it is a well settled position of law that the said principle does not apply when the seniority is to be determined in accordance with rotation of vacancies between direct recruits and promotees based on quota of vacancies reserved for both the categories. He relied upon the decision of a Constitution Bench of this Court in the case of Mervyn Coutindo & Ors. v. Collector of Customs, Bombay & Ors3. He submitted that in the said decision, the Court upheld rotational system of fixing seniority. He submitted that attention of the Bench of three Hon’ble Judges which decided the case of K.Meghachandra2 was not invited to the case of Mervyn Coutindo3. H 3 1966 (3) SCR 600 HARIHARAN & ORS. v. HARSH VARDHAN SINGH RAO & ORS. [ABHAY S. OKA, J.] 951 He would, therefore, submit that the decision of this Court in the case of K. Meghachandra2 is per incuriam. He submitted that the object of rotational system of fixing seniority is to blend the talent with experience and to augment the efficiency. He submitted that as held by this Court in the case of Hon’ble Punjab & Haryana High Court at Chandigarh v. State of Punjab & Ors.4, seniority has to be determined on the basis of roster and not on the basis of the date of joining of a particular stream. He pointed out that in the judgment of this Court in the case of Arvinder Singh Bains v. State of Punjab & Ors.5,it was held that making the date of joining as the basis for determining seniority would lead to discretion in the hands of the Government and the possibility of misuse. The reason being that selection process of promotees is shorter as compared to that of direct recruits. Therefore, injustice to the direct recruits cannot be compounded by relegating them below the direct recruits.

He relied upon various OMs starting from OM dated 3rd July 1986 till OM dated 13th August 2021, which clearly provide for seniority to be determined according to the rotation of vacancies. The learned senior counsel submitted that though a case is sought to be made out that a recruitment year is a calendar year and not a financial year, even the appellants have proceeded on the footing that it is the financial year. He relied upon several documents in that behalf.

He submitted that the relevant year for determining seniority is the year in which recruitment requisition is sent. He pointed out the letter dated 20th November 2009 enclosing therewith the requisite proforma for requisition of Income Tax Inspectors which clearly included 35 current and 11 carried forward vacancies of the direct appointees. He pointed out that the subsequent letter addressed to the Secretary of SSC is of 21st January 2010 which was issued in recruitment year 2009- 10 itself which included vacancies of 2009-10. Even the advertisement was issued in recruitment year 2009-10, as the same was issued on 30th January 2010. He would, therefore, submit that the recruitment year in the present case was 2009-10. He submitted that segregation of vacancies for 2009-10 and 2010-11 was already done as is apparent from the seniority list dated 7th September 2016.

He submitted that OM dated 7th February 1986 cannot be applied and the same will apply when there is an earlier examination or