Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 1246

SUPREME COURT OF INDIA
S. Abdul Nazeer, Abhay S. Oka, JJ.
Hariharan & Ors. – Appellants
Versus
Harsh Vardhan Singh Rao & Ors. – Respondents
Civil Appeal No. 9228 of 2022 (Arising out of Special Leave Petition (C) No.16161 of 2018) with Civil Appeal No. of 2022 [Arising out of S.L.P. (C) No. of 2022] [Diary No.12422 of 2022]
Decided On : 14-12-2022

Advocates appeared:
For the Parties : Mr. Vikramjeet Banerjee, Ld. ASG Mr. Shashank Bajpai, Adv. Mr. Raj Bahadur Yadav, AOR Mr. Huzefa Ahmadi, Sr. Adv. Ms. Aastha Mehta, Adv. Ms. Vishakha, Adv. Mr. Mishra Saurabh, AOR Ms. Prerana Mohapatra, Adv. Ms. Rita Jha, AOR Mr. Nidhesh Gupta, Sr. Adv. Ms. Pallavi Singh, Adv. Ms. Vriti Gujral, Adv. Ms. Japneet Kaur, Adv. Mr. V. K. Verma, AOR Mr. Rajat Srivastav, Adv. Dr. Sushil Balwada, AOR Mr. Rameshwar Prasad Goyal, AOR Mr. Satyavikram, Adv. Ms. Lekha G.V., AOR Mr. Shrutanjaya Bhardwaj, Adv. Ms. Shivani Vij, Adv. Mr. Zeeshan Diwan , AOR

IMPORTANT POINT
Seniority – Inter-se seniority between promotees and direct appointees – As far as posts of Income Tax Inspectors are concerned, principle of rota and quota or rotation of quota will apply.

Headnote:
Service Law – Seniority – Inter-se seniority between promotees and direct appointees – As far as posts of Income Tax Inspectors are concerned, principle of rota and quota or rotation of quota will apply – Posts of Income Tax Inspectors are being filled in by direct recruits and promotees in proportion already fixed – A roster will apply where points will be for direct recruits and promotees as per proportion fixed – If promotees are recruited in relevant recruitment year, but process of recruitment of direct recruits which commenced in same recruitment year could not be completed in same year, direct recruits appointed subsequently will have to be interspaced between promotees of same recruitment year – In such a case, it cannot be said that direct recruits were not available during recruitment year – Their appointment could not be made during same year, though process of appointment commenced in same year – But, if process of recruitment of direct recruits is completed in same recruitment year but an adequate number of candidates could not be selected, shortfall should be carried forward to next recruitment year – In such cases, candidates who are selected against shortfall vacancies will have to be bunched below promotees of earlier years – Unless such a procedure is followed, rotation of quota system will be defeated – Appropriate course of action will be to refer the question to a larger Bench – Directed accordingly. (Paras 20 and 35)
Result : Matter referred to Chief Justice of India for appropriate orders.

JUDGMENT :

ABHAY S. OKA, J.

1. 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.

2. 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

3. 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.

4. 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.

5. 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