Supreme Court of India
UNION OF INDIA & ORS.versusN.R. PARMAR & ORS.
- Citation
- 2012 INSC 547
- Decided
- 27 November 2012
- Disposal
- Appeal(s) allowed
- Bench
- D K JAIN
Holding
Seniority of direct recruit Income Tax Inspectors is to be fixed from the date of initiation of the recruitment process (the recruitment year) under the quota/rota principle as laid down in OMs dated 7‑Feb‑1986 and 3‑July‑1986, and the later 2008 OM is to be ignored to the extent of conflict.
Summary
The case concerned the inter‑se seniority of Income Tax Inspectors appointed by promotion (promotees) and those recruited directly (direct recruits) for vacancies of the 1993‑94 year. The parties disputed whether seniority of direct recruits should be based on their actual appointment date, the date the vacancy arose, or the date the recruitment process was initiated. The Court examined a series of Office Memoranda (OM) dated 22‑Nov‑1959, 7‑Feb‑1986, 3‑July‑1986 and a later OM dated 3‑Mar‑2008, as well as various Office Notes and letters. It held that the OMs of 7‑Feb‑1986 and 3‑July‑1986, which embody the "quota" and "rota" principle, are binding and determine seniority based on the recruitment year (the initiation of the recruitment process), not the actual joining date. The later 2008 OM was deemed a clarification that conflicted with the earlier OMs and therefore ignored. Consequently, direct recruits must be inter‑spaced with promotees of the same recruitment year, and the promotees' claim for seniority based on actual appointment dates was rejected.
Issues considered
- The appropriate date for fixing seniority of direct recruit Income Tax Inspectors: actual appointment date, vacancy arising date, recruitment initiation date, or SSC recommendation date.
- Whether the Office Memorandum dated 7‑Feb‑1986 and its consolidation on 3‑July‑1986 modify the earlier 1959 principles and are binding.
- The effect of the Office Memorandum dated 3‑Mar‑2008 on the seniority rule and whether it supersedes the earlier OMs.
- The legal status of Office Notes and letters (e.g., 11‑May‑2004) in determining seniority.
Subjects
seniorityinter‑se senioritydirect recruitpromoteeIncome Tax Inspectorquota principlerota principleOffice Memorandumservice lawinterpretation of statutes
Judgment
(2012] 13 S.C.R. 555
UNION OF INDIA & ORS. A
v.
N.R. PARMAR & ORS.
(Civil Appeal Nos. 7514-7515 of 2005 etc.)
NOVEMBER 27, 2012
B
[D.K. JAIN AND JAGDISH SINGH KHEHAR, JJ.]
Service Law - Seniority - lnter-se-seniority - Between
direct recruit and promotee Income Tax Inspectors -
Applicability of 'quota' and 'rota' principle - Vacancies for the C
year 1993-94 required to be filled up by promotion as well as
direct recruitment - Simultaneously refeffed to Departmental
Promotion Committee and to Staff Selection Commission
respectively - Appointment of promotees prior to the direct
recruits as the selection process for direct recruits could not D
be completed within the recruitment year - Determination of
date of seniority of the direct recruits - Plea of promotees that
the date of seniority of the direct recruits should be from the
date of their actual appointment, primarily placing reliance on
Office Memorandum dated 7.2.1986 - Held: The date of E
seniority of direct recruits could not be the date of their actual
appointment, but would be the date of initiation of process of
recruitment - The general principles for determining inter se
seniority between promotees and direct recruits was provided
in the Office Memorandum dated 22.11.1959 - The Office F
Memorandum dated 7. 2. 1986 only introduced modification in
respect of the vacancies which could not be filled and were
carried forward and had to be filled later through a subsequent
process of selection - In the instant case, the advertised
vacancies were not carried forward vacancies - Direct recruits G
have to be interspaced with promotees of the same
recruitment year.
Interpretation of Statutes - When the language used in
555 H
556 SUPREME COURT REPORTS (2012] 13 S.C.R.
A a statute is unambiguous and on a plain meaning being given
to the words, the end result is neither arbitrary, nor irrational
nor contrary to the object of the statute, the words used should
be given effect to.
B The instant appeals and transferred cases, involved
the dispute of inter-se seniority between the direct recruit
and promotee income Tax Inspectors. The question to be
decided was whether determination of the seniority of the
direct recruits would be with reference to the date of their
actual appointment, or the date of arising of the direct
C recruit vacancies, or the date of initiation of the process
of recruitment, or the date when the Staff Selection
Commission made recommendations for filling up direct
recruit vacancies.
D The rival parties agreed that the seniority dispute was
liable to be determined on the basis of Office Memoranda
dated 7.2.1986 and 3.7.1986 issued by the Department of
Personnel and Training read with the clarificatory Office
Memoranda and Office Notes.
E
Allowing the appeals and the transferred cases, the
Court
HELD: 1. General principles for determining seniority
in Central services have been laid down in an annexure
F to an Office Memorandum dated 22.11.1959 issued by the
Government of India, Ministry of Home Affairs. Under the
OM dated 22.11.1959 inter se seniority between the
promotees and direct recruits was based on the "quota"
and "rota" principle. The OM dated 22.11.1959, was
G modified by an Office Memorandum dated 7 .2.1986,
issued by the Government of India, Department of
Personnel and Training. The modification introduced
through the OM dated 7.2.1986 was to redress a situation,
wherein vacancies of one of the sources were kept (or
H remained) unfilled during the process of selection, and
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 557
the unfilled vacancies, had to be filled up through "later'' A
examinations or selections. For the determination of
seniority, in the contingency wherein the process of
recruitment resulted in filling the vacancies earmarked for
the two sources of recruitment, the manner of
determining inter se seniority between promotees and 8
direct recruits, expressed in the OM dated 22.11.1959
remained unaltered. But where the vacancies could not
be filled up, and unfilled vacancies had to be filled up
"later" through a subsequent process of selection, the
manner of determining inter se seniority between C
promotees and direct recruits, was modified. The O.M.
dated 7 .2.1986, was followed by another Office
Memorandum issued by the Government of India,
Department of Personnel and Training, dated 3.7.1986.
The purpose of this O.M. was to "consolidate" existing
governmental orders on the subject of seniority. The D
position expressed in the O.Ms. dated 7 .2.1986 and
3. 7 .1986, on the subject of inter se seniority between
direct recruits and promotees, was absolutely identical.
[Paras 18, 19 and 21) [577-C-G-H; 578-B-E; 586-F; 590-B]
E
2. An Office Note of the Department of Personnel and
Training, Establishment (D) Section, dated 20.12.1999 was
issued. It was provided therein that only where the
appointing authority has not been able to fill up the
vacancies earmarked for direct recruits/promote~s. with F
reference to the requisition for a particular recruitment
year, inspite of its best efforts, the instructions contained
in O.M. dated 7.2.1986 would come into operation; and
that it was not necessary, that the direct recruits for
vacancies of a particular recruitment year, should join G
within the recruitment year (during which the vacancies
had arisen) itself. As such, the date of joining would not
be a relevant factor for determining seniority of direct
recruits. Initiation of action for recruitment within the
recruitment year would be sufficient to assign seniority H
558 SUPREME COURT REPORTS [2012] 13 S.C.R.
A to the concerned appointees in terms of the "rotation of
quotas" principle, so as to arrange them with other
appointees (from the alternative source), for vacancies of
the same recruitment year. Yet another Office Note dated
2.2.2000 provided that if the process of recruitment has
B been initiated during the recruitment year (in which the
vacancies have arisen) itself, even if the examination for
the said recruitment is held in a subsequent year, and the
result is declared in a year later (than the one in which
the examination was held), and the selected candidates
C joined in a further later year (than the one in which the
result was declared), the selected candidates would
entitled to be assigned seniority, with reference to the
recruitment year (in which the requisition of vacancies
was made). The words "initiation of action for
recruitment", and the words "initiation of recruitment
0 process", were explained to mean, the date of sending
the requisition to the recruiting authority. Ministry of
Finance, Department of Revenue issued letter dated
11.5.2004, whereby it was clarified that Direct Recruits'
seniority vis-a-vis the promotees is reckoned from the
E year in which they are actually recruited. They cannot
claim seniority of the year in which the vacancies had
arisen. By Another letter dated 27.7.2004, the application
of the clarification dated 11.5.2004 was directed to be
kept in abeyance till further orders. By yet another letter
F dated 8.9.2004, it was provided that the clarification given
in the letter dated 11.5.2004, would be ignored and the
seniority of direct recruits would be reckoned with
reference to the date of initiation of the process of
recruitment in their case. Office memorandum was issued
G by the Government of India, Department of Personnel
and Tr~ining, dated 3.3.2008 which was in the nature of
a "clarification", to the earlier consolidated instructions
on seniority, contained in the OM dated 3.7.1986. [Paras
22, 23, 24 and 25) (590-D; 591-C; 593-C-D-E-F; 595-G-H;
H 596-A-C-D; 597-A-C; 598-F-G; 600-A-B-D-G; 602-C]
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 559
3. The OM dated 7 .2.1986 is binding for the A
determination of the issues expressed therein, and the
same has the force of law. The OM dated 3.7.1986 is in
the nature of consolidatory instruction, whereby, all
earlier instructions issued from time to time were
compiled together. [Para 27] [605-B] B
4. The OM dated 3.3.2008 clearly propounds, a
manner of determining inter se seniority between direct
recruits and promotees, by a method which is
indisputably in conflict wUh the OMs dated 7.2.1986 and C
3.7.1986. A perusal of the OM dated 3.3.2008, however
reveals, that it was not the intention of the Department of
Personnel and Training to alter the manner of
determining inter se seniority between promotees and
direct recruits, as had been expressed in the OMs dated
7.2.1986 and 3.7.1986. The intention was only to "clarify" D
the earlier OIVi dated 3.7.1986 (which would implicitly
include the OM dated 7.2.1986). The OM dated 3.3.2008
has clearly breached the parameters and the ingredients
of a "clarification". Therefore, for all intents and purposes
the OM dated 3.3.2008, must be deemed to be non-est to E
the extent that the same is in derogation of the earlier OMs
dated 7.2.1986 and 3.7.1986. Thus, the OMs dated 7.2.1986
and 3.7.1986 would have an overriding effect over the OM
dated 3.3.2008 (to the extent of conflict between them).
And the OM dated 3.3.2008 has to be ignored/omitted to F
the extent that the same is in derogation of the earlier OMs
dated 7.2.1986 and 3.7.1986. [Para 29) [607-0-H]
Jagdish Ch. Patnaik and Ors. v. State of Orissa and Ors.
(1998) 4 SCC 456: 1998 (2) SCR 676; Suraj Prakash Gupta G
and s. V. State of J&K and Ors. (2000) 7 sec 561: 2000 (3)
SCR 807; Pawan Pratap Singh and Ors. v. Reevan Singh
and Ors. (2011) 3 sec 267: 2011 (2) SCR 831 -
distinguished.
5. The OM dated 3.3.2008 is neither in the nature of H
560 SUPREME COURT REPORTS [2012) 13 S.C.R.
A an "amendment" nor in the nature of a "modification".
Since the OM dated 3.3.2008, is a mere "consolidation"
or compilation of earlier instructions on the subject of
seniority, it is not prudent to draw any inferences
therefrom which could not be drawn from the earlier
B instruction/office memoranda being "consolidated" or
compiled therein, or which is contrary thereto. [Para 27]
[605-G-H; 606-A]
S.S. Garewal vs. State of Punjab (1993) 3 Suppl. 234 -
C relied on.
6. Reliance on the letter dated 11.5.2004, for the
determination of the present controversy, is liable to
outright rejection because the letter dated 11.5.2004
though styled as a "clarification", breaches both the
D essential ingredients of a "clarification". A perusal of the
letter dated 11.5.2004 also reveals, that it adopts a
pqsition in clear conflict with the one expressed in the
OMs dated 7.2.1986 and 3.7.1986, as well as, in the ONs
dated 20.12.1999 and 2.2.2000. That apart, the letter dated
E 11.5.2004 is liable to be ignored in view of two
subsequent letters of the Ministry of Finance, Department
of Revenue dated 27.7.2004 and 8.9.2004, wher~by
clarification was directed to be kept in abeyance till
further orders. [Para 24] [597-E-F-G; 598-8-E]
F
7. An office note has no legal sanction, and as such,
is not enforceable in law. Yet an office note is certainly
relevant for determining the logic and process of
reasoning which prevailed at the relevant point of time.
These would aid in the interpretation of the binding office
G memoranda, only when the language of the office
memoranda is ambiguous and where there is no conflict
between the two i.e., the office note and the office
memoranda sought to be interpreted. [Para 22] [590-D-F]
I
i
H 8. "When the language used in the sta~ute is
"
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 561
unambiguous and on a plain grammatical meaning being A
given to the words in the statute, the end result is neither
arbitrary, nor irrational nor contrary to the object of the
statute, then it is the duty of the court to give effect to the
words used in the statute because the words declare the
intention of the law making authority best". The various B
ONs and letters issued by the DOPT (referred to above)
do not leave room for any ambiguity. [Para 32] [609-C-E]
Jagdish Ch. Patnaik and Ors. v. State of Orissa and Ors.
(1998) 4 sec 456: 1998 (2) SCR 676 - relied on.
c
9. In the present cases, 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. In all the cases the advertised
vacancies were filled up in the original/first examination/ D
selection conducted for the same. None of the direct
recruit Income Tax Inspectors can be stated to be
occupying carried forward vacancies, or vacancies
which came to be filled up by a "later" examination/
selection process. The facts only reveal, that the E
examination and the selection process of direct recruits
could not be completed within the recruitment year itself.
For this, the modification/amendment in the manner of
determining the inter-se seniority between the direct
recruits and promotees, carried out through the OM dated F
7 .2.1986, and the compilation of the instructions
pertaining to seniority in the OM dated 3.7.1986, leave no
room for any doubt, that the "rotation of quotas" principle,
would be fully applicable to the direct recruits in the
present controversy. The direct recruits will therefore G
have to be interspaced with promotees of the same
recruitment year. In view of the above, the Civil Appeals,
the Transferred Case, as well as, the Transfer Case (filed
by the direct recruits and the Union of India) are allowed.
The claim of the promotees, that the direct recruit Income
H
562 SUPREME COURT REPORTS [2012] 13 S.C.R.
A Tax Inspectors, in the instant case should be assigned
seniority with reference to the date of their actual
appointment in the Income Tax Department is declined.
[Para 33] (609-F-H; 610-A-D]
Case Law Reference:
B
(1993) 3 Suppl. 234 Relied on Para 26
1998 (2) SCR 676 Distinguished Para 30
Relied on Para 32
c 2000 (3) SCR 807 Distinguished Para 30
2011 (2) SCR 831 Distinguished Para 30
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7514-7515 of 2005.
D
WITH
Civil Appeal No. 3876-3880 of 2007.
Civil Appeal No. 7516 of 2005.
E T.C. (C) No. 91 and 681 of 2006.
P.P. Malhotra, ASG, P. Vishwanatha Shetty, Arvind Varma,
Pallav Shishodia, Vikas Malhotra, Abhinav Mukherjee, Anil
Katiyar (for B.V. Balaram Das), A.K. Behera, Dr. Krishan Singh
Chauhan, Ajit Kumar Ekka, Adam Ambrose P., Chand Kiran,
F Vijay Kumar Paradesi, Ajay Sharma, Kiran, Sanjay Kumar
Singh, Syed I. Ibrahim, T. Mahipal, R.C. Kaushik, Kishan Datta,
Subramonium Prasad, Sobhit Tiwari, Pradeep Aggarwal, Lal
Pratap Singh and Ruchi Kohli for the appearing parties.
N.R. Parmar (in-person).
G
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, J. 1. The present
controversy is a dispute of inter se seniority between Income
Tax Inspectors of the Income Tax Department. Direct recruits
H and promotees are pitted on opposite sides.
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 563
[JAGDISH SINGH KHEHAR, J.]
2. One of the matters in hand came to be considered by A
the Central Administrative Tribunal, Ahmadabad Bench,
Ahmadabad (hereinafter referred to as "the CAT,
Ahmadabad") in R.C. Yadav & Ors. vs. Union of India & Ors.
(OA no.92 of 2003). The said Original Application had been
filed by direct recruits. Another Original Application, on the B
same subject matter, being OA no.123 of 2003 (N.R. Parmar
& Ors. vs. Union of India & Ors.) was filed by promotees. Both
the OA no.92 of 2003 and OA no.123 of 2003 were decided
by a common order dated 12.1.2004. In its determination the
CAT, Ahmedabad held, that seniority of direct recruits would c
have to be determined with reference to the date of their actual
appointment. The implicit effect of the aforesaid determination
was, that the date of arising of the direct recruit vacancies, or
the date of initiation of the process of recruitment, or the date
when the Staff Selection Commission had made
0
recommendations for the filling up direct recruit vacancies, were
inconsequential for determination of seniority of direct recruits.
3. The decision rendered by the CAT, Ahmedabad dated
12.1.2004 was assailed before the High Court of Gujarat at
Ahmedabad (hereinafter referred to as "the Gujarat High E
Court"), in Union of India & Ors. vs. N.R. Parma & Ors. (Special
Civil Appeal no.3574 of 2004). Direct recruits separately filed
Special Civil Application no.1512 of 2004 (Virender Kumar &
Ors. vs. Union of India & Ors.). The Gujarat High Court by its
order dated 17.8.2004, upheld the order of the CAT, F
Ahmedabad, dated 12.1.2004.
4. The Union of India assailed the order passed by the
Gujarat High Court dated 17.8.2004 before this Court, through
Civil Appeal nos.7514-7515 of 2005 (Union of India & Ors. vs.
N.R. Parmar & Ors.). Direct recruits have also separately raised G
a challenge to the order passed by the Gujarat High Court dated
17.8.2004, by filing Civil Appeal No.7516 of 2005 (Virender
Kumar & Ors. vs. Union of India & Ors.).
5. On the same subject, an identical controversy was
H
564 SUPREME COURT REPORTS [2012] 13 S.C.R.
A raised before the Central Administrative Tribunal, Principal
Bench, New Delhi (hereinafter referred to as "the CAT, Principal
Bench"). After a series of legal battles between the rivals, i.e.,
promotee Income Tax Inspectors and direct recruit Income Tax
Inspectors (details whereof are being narrated at a later
B juncture), the CAT, Principal Bench passed an order dated
22.9.2004. The aforesaid order of the CAT, Principal Bench
was assailed by direct recruit Income Tax Inspectors by filing
Writ Petition (C) nos.3446-49 of 2005 before the Delhi High
Court.
C 6. In Writ Petition (C) nos.3446-49 of 2005 a Division
Bench of the Delhi High Court on 2.3.2005, while issuing notice,
had stayed the impugned order passed by the CAT, Principal
Bench dated 22.9.2004. Mukund Lal (one of the applicants in
OA no.2107 of 2003, Mahender Pratap & Ors. vs. Union of
D India & Ors.), respondent no.9 in Writ Petition (C) nos.3446-
49 of 2005, filed an application for vacation of the interim order
passed by the Delhi High Court dated 2.3.2005 (whereby the
order of the CAT, Principal Bench dated 22.9.2004 had been
stayed). Since the application was not disposed of by the Delhi
E High Court within the time frame expressed in Article 226(3)
of the Constitution of India, Mukund Lal aforesaid, approached
this Court to assail the order dated 2.3.2005 by filing Civil
Appeal nos.3876-3880 of 2007. Since the subject matter of the
controversy in the aforesaid writ petitions was identical to the
F one raised in Civil Appeal nos.7514-7515 of 2005 (Union of
India & Ors. vs. N.R. Parma & Ors.) and Civil Appeal no.7516
of 2005 (Virender Kumar & Ors. vs. Union of India & Ors.),
the said writ petitions were transferred to be heard with the Civil
Appeals referred to hereinabove. On transfer to this Court, the
G aforesaid writ petitions were re-numbered as Transferred Case
(C) No.91 of 2006 (Pritpal Singh & Ors. vs. Union of India &
Ors.).
7. OA no.270 of 2002 (R.K. Bothra & Ors. vs. Union of
India & Ors.), OA no.271 of 2002 (G.R. Chalana & Ors. vs.
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 565
[JAGDISH SINGH KHEHAR, J.]
Union of India & Ors.), OA no.275 of 2002 (Bhanwar Lal Soni A
& Ors. vs. Union of India & Ors.), OA no.293 of 2002 (Ranjeet
Singh Rathore & Ors. vs. Union of India & Ors.),were filed by
promotee Income Tax Inspectors before the Central
Administrative Tribunal, Jodhpur Bench, Jodhpur (hereinafter
referred to as "the CAT, Jodhpur"), to assail the seniority-list 8
wherein direct recruit Income Tax Inspectors, though appointed
later, were placed higher in the seniority-list, i.e., above
promotee Income Tax Inspectors, merely because they
occupied vacancies of earlier years. The CAT, Jodhpur allowed
the claim of the promotee Income Tax Inspectors by a common C
order dated 8.9.2003. The order passed by the CAT, Jodhpur
dated 8.9.2003 was assailed before the High Court of
Judicature for Rajasthan at Jodhpur (hereinafter referred to as '
"the Rajasthan High Court") by filing four writ petitions (DBC
WP no. 785 of 2004, Union of India & Ors. vs. R.K. Bothra &
Ors.; DBC WP no.786 of 2004, Union of India & Ors. vs. 0
Banwari Lal Soni & Ors; DBC WP no. 787 of 2004, Union of
India & Ors. vs. Giriraj Prasad Sharma & Ors; DBC WP
no.788 of 2004, Union of India & Ors. vs. G.R. Chalana &
Ors.). The petitioners in the aforesaid writ petitions before the
Rajasthan High Court (i.e., Union of India) filed Transfer Petition E
(C) no.681 of 2006 under Article 139A(1) of the Constitution
of India, seeking the transfer of the aforesaid writ petitions to
this Court by asserting that the controversy raised therein was
identical to the one pending adjudication before this Court in
the Civil Appeals already mentioned above. Accordingly F
Transfer Petition (C) no.681 of 2006 was ordered to be tagged
with Civil Appeal nos.7514-7515 of 2005 (and other connected
matters).
8. Learned counsel for the rival parties are agreed, that
the legal issue involved in all the matters, referred to G
hereinabove which are tagged together for disposal, is the
same. During the course of hearing submissions came to be
advanced first of all in Transferred Case no.91 of 2006. As
such, the facts recorded in the said case have been adverted
to while passing the instant judgment. H
566 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 9. Appointment to the cadre of Income Tax Inspectors in
the Income-Tax Department is made by way of promotion, as
also, by direct recruitment in the ratio of 2:1 respectively, i.e.,
66-2/3 by promotion and 33-1/3 by direct recruitment. The
controversy in TC (C) no.91 of 2006 pertains to vacancies for
B the year 1993-94. The vacancies for the year 1993-94 which
were identified to be filled up by way of promotion were referred
to the Departmental Prqmotion Committee (hereinafter referred
to as "the DPC"), whereas, those identified to be filled up by
direct recruitment, v.(ere simultaneously referred to the Staff
C Selection Commission (hereinafter referred to as "the SSC").
10. Based on the recommendations made by the DPC,
the Income-tax Department promoted five persons from the
feeder cadre(s) (respondents 5, 7, 8, 10 and 11) as Income
Tax Inspectors on 30.8.1993. A day later, on 1.9.1993, one more
D person (respondent no.6) was similarly promoted as Income Tax
Inspector. Thereafter on 14.12.1993 yet another promotion (of
respondent no.9) was ordered, in the same manner. Likewise,
respondent no.12 was promoted as Income Tax Inspector on
8.9.1995. It is essential to emphasize, that all these promotions
E were ordered against promotee vacancies, identified for the
year 1993-94.
11. On the receipt of a requisition pertaining to the post
of Income Tax Inspectors from the Income Tax Department, the
SSC issued advertisements in May/June, 1993, inviting
F applications for appointment by way of direct recruitment,
against vacancies of Income Tax Inspectors of the year 1993-
94. To fill up these vacancies, the SSC held the Inspectors of
Central Excise and Income Tax Examination, 1993. All the
petitioners in TC (C) no.91 of 2006 responded to the aforesaid
G advertisement. The said petitioners, were in the first instance,
subjected to a written test conducted by the SSC in December,
1993. Thereafter, those who qualified the written examination,
were invited for an interview/viva-voce. All the petitioners
appeared for the viva-voce test conducted in October 1994. On
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 567
[JAGDISH SINGH KHEHAR, J.]
21/28.1.1995 the SSC declared the result of the Inspectors of A
Central Excise and Income-Tax Examination, 1993. The names
of the petitioners in TC (C) no.91 of 2006, figured in the list of
successful candidates. After verification of their character and
antecedents, and after they were subjected to a medical
fitness examination, the petitioners in TC (C) no.91 of 2006 B
were issued offers of appointment as Income Tax Inspectors
in the Department of Income Tax. All the petitioners joined the
cadre of Income Tax Inspectors between March and May, 1995.
12. In the interregnum, some promotee Income Tax
Inspectors were promoted to the next higher post of Income Tax C
Officer. Certain direct recruits who considered themselves
senior to the promoted Income Tax Officers, approached the
CAT, Principal Bench, seeking consideration for promotion to
the cadre of Income Tax Officers, from the date their juniors were
promoted as such. Reference in this behalf may be made to D
two Original Applications being K.C. Arora & Ors. vs. Union
of India & Ors (OA no.1478 of 1995) and J.S. Tanwar & Ors.
vs. Union of India & Ors. (OA no.1899 of 1995). In the
pleadings of the aforesaid two original applications, it was
acknowledged by the official-respondents, that the impugned E
promotions in the aforesaid two original applications, had been
made on purely adhoc basis, as the seniority list of the cadre
of Income Tax Inspectors had not by then been finalized. It was
also mentioned therein, that after the seniority-list is finalized,
the official-respondents would review the promotions already F
made, and if necessary, a review DPC would also be
convened. During the pendency of the aforesaid two original
applications, the Income Tax Department issued a seniority list
of the cadre of Income Tax Inspectors on 8.2.1999. The
aforesaid factual-position was brought to the notice of the CAT, G
Principal Bench, whereupon, the aforesaid two original
applications came to be disposed of with the following
directions on 8.9.1999:
"6. In the result, both the OAs are disposed of as follows:
1. As admitted in the counter reply mentioned above and H
568 SUPREME COURT REPORTS [2012] 13 S.C.R.
A in view of the seniority list dt.8.2.1999 the official
respondents are directed to make promotions strictly in
terms of the seniority list dt.8.2.1999. They must arrange
a review DPC to consider the claim of the applicants for
promotion. In case, the applicants are found fit and suitable
B for promotion by the review DPC then on the basis of the
said seniority list, the applicants shall be granted
promotion from the date their juniors got promotion. The
applicants should get seniority over the juniors in case they
are found suitable for promotion. However, the applicants
c will not be entitled to any monetary benefits. In such a case,
the applicants' pay may be fixed notionally from the dates
of their deemed retrospective promotion. However, the
applicants will not be entitled to any actual arrears of
monetary benefits till the date of actual order of promotion.
D The actual monetary benefits are prospective, only from the
date of order of promotion and consequent date of
assuming charge.
2. In the circumstances of the case, the official respondents
are granted three months time from the date of receipt of
E copy of this order to comply with these directions.
3. In the circumstances of the case, there will be no order
as to costs."
On 10.9.1999 a clarificatory order was passed by the CAT,
F Principal Bench. A relevant extract, of the aforesaid clarificatory
order, is being reproduced hereunder:
"2. But, on reconsideration and on second thought, we feel
that there is no necessity to allow this M.A. and to recall
our order dt.8.9.99 for the simple reason that our order will
G not prejudice the case of the private respondents in any
way. What we have stated in our order dt.8.9.1999 is that
the official respondents should strictly enforce the seniority
list dt.8.2.99 and then on that basis hold review DPC and
consider the claim of the applicants for promotion. This
H order we have passed on the basis of the admission made
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 569
[JAGDISH SINGH KHEHAR, J.]
by the official respondents in their reply. Now, the private A
respondents are contending that the seniority list
dt.8.2.1999 has been challenged by the applicants in OA
676/99 and other cases and there is a stay order granted
by the Delhi High Court in C.W. No.3468/99 staying the
official respondents holding a review DPC on the basis B
of the impugned seniority list dt.8.2.1999.
3. We may place it on record that we have not considered
the correctness and legality of the impugned seniority list
dt.8.2.1999. We have simply directed the administration
to follow the latest seniority list as admitted by the official C
respondents in their reply. We may also place it on record
that we have not expressed any opinion on the correctness
or legality of the seniority list dt.8.2.1999. We have simply
directed the Administration to follow the latest seniority list
which they have issued and considers the case of the D
applicants for promotion. If the seniority list itself is in
dispute and its correctness is challenged by other officials,
then naturally the department will not be able to take any
decision unless the seniority list is upheld by the Tribunal.
If there is any such stay order granted by any Tribunal or E
High Court, then naturally our direction in our order
dt.8.9.1999 will be subject to such directions or stay orders
passed by any Tribunal or any High Court. We also place
on record that we have not expressed any opinion whether
the promotion of private respondents was regular or ad- F
hoc, but only referred to the contentions in the reply
statement without giving a finding on that point. If the
private respondents feel that their promotions were
regular, then it is for them to 1ake up the stand whenever
that occasion arises. But, we have not given any finding G
on that disputed question of fact. In view of this
clarifications issued by us, there is no necessity to allow
the M.A. or recall our order dt.8.9.1999.
4. In the result, the M.A. No.1938/99 is disposed of subject
to above observations. No order as to costs." H
570 SUPREME COURT REPORTS [2012) 13 S.C.R.
A 13. Some direct recruits again approached the CAT,
Principal Bench by filing Original Application no.2307 of 1999
(Sanjeev Mahajan & Ors. vs. Union of India & Ors.) alleging,
that while drawing the seniority list dated 8.2.1999, the
Department of Income ·Tax had not applied the "quota" and
B "rota" principle. O.n 23.2.2000, the CAT, Principal Bench
disposed of OA no.2307 of 1999, and other connected original
applications (Krishan Kanahiya & Ors. vs. Union of India, OA
No.676 of 1999; H.P.S Kharab & Ors. vs. Union of India &
Ors., OA no.387 of 1999; Muneesh Rajani & Ors. vs. Union
c 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
D can be considered for seniority vis-a-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
E 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."
During the course of hearing of the aforementioned original
applications, it was acknowledged by the rival parties, that the
F questions under consideration had to be determined with
reference to instructions contained in two office memoranda
dated 7.2.1986 and 3.7.1986, issued by the Department of
Personnel & Training (hereinafter referred to as the "DoPT").
Based on the aforesaid office memoranda, the CAT, Principal
G Bench, vide its order dated 23.2.2000 quashed the seniority-
list dated 8.2.1999 by holding as under:
"8. In our judgment, for deciding the aforesaid Gontroversy
a reference to the office memorandum of 7.2.1986 may
usefully be made. In the earlier O.M. it has inter alia been
H provided as under:
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 571
[JAGDISH SINGH KHEHAR, J.]
..... the relative seniority of direct recruits and A
promotees shall be determined according to
rotation of vacancies between the direct recruits and
the promotees, which will be based on the quota of
vacancies reserved for direct recruitment and
promotion respectively in the Recruitment B
Rules ......
.. .. .. .. .. the present practice of keeping vacant
slots for being filled up by direct recruits of later
years, thereby giving them unintended seniority over
promotees who are already in position, would be C
dispensed with.
Thus, if adequate number of direct recruits do
not become available in any particular year, rotation
of quotas for the purpose of determining seniority
0
would take place only to the extent of the available
direct recruits and the promotees. In other words,
to the extent direct recruits are not available, the
promotees will be bunched together at the bottom
of the seniority list below the last position upto which E
it is possible to determine seniority, on the basis of
rotation of quotas with reference to the actual
number of direct recruits who become available.
The unfilled direct recruitment quota vacancies
would, however, be carried forward and added to
the corresponding direct recruitment vacancies of F
the next year (and to subsequent years where
necessary) for taking action for direct recruitment for
the total number according to the usual practice.
Thereafter, in the year while seniority will be
determined between direct recruits and promotees, G
to the extent of the number of vacancies for direct
recruits and promotees as determined according to
the quota for the year, the additional direct recruits
selected against the carried forward vacancies of
the previous year would be placed on en bloc below H
S72 SUPREME COURT REPORTS (2012] 13 S.C.R.
A the last promotee for direct recruit (as the case may
be), in the seniority list based on the rotation of
vacancies for the year. The same principle holds
good for determining seniority in the event of carry
forward, if any, of direct recruitment or promotion
B quota vacancies (as the case may be) in the
subsequent years.
ILLUSTRATION:
Where the Recruitment Rules provide 50% of the
c vacancies of grade to be filled by promotion and
the remaining SO% by direct recruitment, and
assuming there are ten vacancies in the grade
arising in each of the years 1986 and 1987 and that
two vacancies intended for direct recruitment,
remain unfilled during 1986 and they could be filled
0
during 1987. The seniority position of the
promotees and direct recruits of these two years will
be as under:
1986 1987
E 1. P1 9. P1
2. 01 10. 01
3. P2 11. P2
4. 02 12. 02
F
S. P3 13. P3
6. 03 14. 03
7. P4 1S. P4
G 8. PS 16. 04
17. PS
18. 05
19. 06
H
20. 07
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 573
[JAGDISH SINGH KHEHAR, J.]
It is not necessary to make a reference to the subsequent A
office memorandum of 3.7.1986 as the same is nothing
but a repetition of the instructions contained in the office
memorandum dated 7.2.1986.
9. We have heard the learned counsel appearing for the
contending parties at considerable length and we are of 8
the view that as far as inter se seniority is concerned, the
same has to be based on the vacancies arising for a
particular year. Thereafter, the seniority has to be
determined on the basis of rota quota rule which has been
illustrated in the aforesaid illustration contained in the O.M. C
of 7.2.1986. As far as direct recruits are concerned, the
crucial date on which they have to be considered will be
the date when the Staff Selection Commission makes the
selection of direct recruits. Hence the date of forwarding
the dossier of direct recruits by the Commission to the D
department, date of actual joining or taking over charge
by the direct recruit would all be irrelevant. It would be the
date on which the Staff Selection Commission makes the
selection of the direct recruits that will be the material date
for fixing the seniority. This would avoid injustice being E
done on account of administrative delays, i.e., delay in
matter of issue of orders of appointment and posting and
of actual taking over of charge. Similar will be the position
in regard to promotees. It will be the date on which the
promotee is selected for promotion by the departmental F
promotion committee. Hence the date on which the
promotee actually assumes charge of the promotional post
similarly will be relevant. The seniority list which is
impugned in the present proceedings, it appears, has not
followed the instructions which we are not issuing in the G
present order.
10. In the circumstances, the said seniority list is hereby
quashed and set aside. Respondent no.3 is directed to
recast the seniority list on the basis of directions contained
H
574 SUPREME COURT REPORTS [2012] 13 S.C.R.
A in this order. The present order will also apply to seniority
list of UDCs which is the subject matter of QA No.6761
1999.
11. All the OAs stand disposed of on the above lines.
There shall, however, be no order as to costs."
B
14. Direct recruit Income Tax Inspectors, assailed the
interpretation placed by the CAT, Principal Bench, on the office
memorandum dated 7.2.1986 (in its order dated 23.2.2000),
by filing a number of writ petitions (Civil Writ Petition No.460
C of 2000, Sanjiv Mahajan & Ors. vs. Union of India & Ors; Civil
Writ Petition No.670 of 2002, Pankaj Saxena vs. Union of
India & Ors.; Civil Writ Petition No.7356 of 2000, Chief
Commissioner of income Tax vs. Sanjiv Mahajan & Ors; Civil
Writ Petition No.5549 of 2001, Kamal Khanna & Ors. vs.
Union of India & Ors.) before the Delhi High Court. The
D aforesaid writ petitions were disposed of by the Delhi High
Court by a common order dated 25.9.2002, whereby, the order
dated 23.2.2000 passed by the CAT, Principal Bench, was set
aside with the following observations:
E "23. Having regard to the fact that the judgment of the
learned Tribunal is absolutely cryptic and no cogent or
valid reason has been assigned in support thereof, and
as the contentions raised before the Tribunal as also
before us have not been considered at all, we are of the
opinion that for determination of the crucial questions
F
where for, it may be necessary, for the parties to adduce
further evidence, the matter may be remitted back to the
learned Tribunal for consideration of the matter afresh and
the parties may bring on record such other or further
materials as may be directed by the learned Tribunal. The
G impugned judgment is, therefore, set aside. However,
having regard to the facts and circumstances of the case,
we would request the learned Tribunal to consider the
desirability of disposing of the matter as expeditiously as
possible.
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 575
[JAGDISH SINGH KHEHAR, J.]
These writ petitions are disposed of with the A
aforementioned observations and directions without any
order as to costs."
15. Consequently, the matters referred to above went back
to the CAT, Principal Bench for re-adjudication. During their
pendency before the CAT, Principal Bench, an additional B
affidavit dated 12.3.2003 was jointly filed by the official-
respondents. In the aforesaid additional affidavit it was, inter
alia, pleaded as under:
"Para 4
c
(a) .....
(b) The respondent has since obtained the advice of the
Central Board of Direct Taxes and the Deptt. of Personnel
and Training which is the nodal Ministry for promulgation
and monitoring of the relevant rules and regulations, issuing D
Office Memorandums and the clarifications thereof. Based
on the advice of the DOP&T there has been a change in
the stand taken by the respondent before this Hon'ble
Tribunal and as such, an application for amendment was
made before the Hon'ble Delhi High Court which allowed E
the application and has also taken note of the same in its
judgment dt.25.9.2002. In view of the revised position, the
seniority list dt.8.2.1999 was not in conformity with the
clarifications provided by the DoP&T with reference to its
O.M. Dt.7.2.1986 and 2.7.1986. Relevant extracts based F
on the DoP&T's O.M. dt.7.2.1986 and 3.7.1986 and the
clarifications furnished by that department which formed
part of the application for amendment of the writ petition
which was filed before the Hon'ble Delhi High Court is
annexed (Annexure R-1). G
(c) to (q) "
The applicants before the CAT, Principal Bench were direct
recruits. They were satisfied with the latest position adopted
by the official respondents before the CAT, Principal Bench H
576 SUPREME COURT REPORTS [2012) 13 S.C.R.
A through the additional affidavit dated 12.3.2003. They therefore,
chose not to press their applications any further. The CAT,
Principal Bench passed the following order on 26.4.2003:
"Learned counsel for the applicants, keeping in view the
amended reply dated 12.3.2003, does not press the
B present application.
Accordingly, the OA is dismissed as withdrawn."
16. The Income Tax Department thereupon, issued another
seniority list of Income Tax Inspectors, dated 17.7.2003, by
C following the "quota" and "rota" principle prescribed in the office
memoranda dated 7.2.1986 and 3. 7.1986. The aforesaid
seniority-list was assailed by promotee Income Tax Inspectors
before the CAT, Principal Bench, through OA no.2068 of2003
(C.P.S. Yadav & Anr. vs. Union of India & Ors.), OA no.2107
D ·of 2003 (Mahender Pratap & Ors. vs. Union of India & Ors.),
OA No.124 of 2004 (S.K. Puri-I/ & Anr. vs. Union of India &
Ors.). The CAT, Principal Bench, by a common order dated
22.9.2004 allowed the claim preferred by the promotee Income
Tax Officers, and as such, quashed the seniority list dated
E 17.7.2003. The direct recruit Income Tax Inspectors, who were
respondents in the original applications referred to above,
assailed the order passed by the CAT, Principal Bench, dated
22.9.2004, before the Delhi High Court by filing Writ Petition
(C) No.3446-49 of 2005 (Pritpal Singh & Ors. vs. Union of
F India & Ors.). As already mentioned hereinabove, the aforesaid
writ petitions were transferred to this Court and assigned TC
{C) no.91 of 2006.
17. During the course of hearing, learned counsel for the
rival parties agreed, that the seniority dispute between the
G promotee and direct recruit Income Tax Inspectors of the
Income Tax Department was liable to be determined on the
basis of office memoranda dated 7.2.1986 and 3.7.1986, read
with the clarificatory office memoranda and office notes. It is
important to notice, before embarking upon the claim of the
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 577
[JAGDISH SINGH KHEHAR, J.)
rival parties, that none of the parties have assailed the vires of A
the office memoranda dated 7.2.1986 and 3.7.1986 (or for that
matter, the clarificatory office memoranda/office notes). It is
therefore apparent, that the dispute between the rival parties
is nothing but, the true and correct interpretation of the office
memoranda dated 7.2.1986 and 3. 7.1986, read with 8
clarificatory office memoranda and office notes. It is therefore,
that the matter in hand is being examined in the light of the
aforesaid office memoranda.
18. General principles for determining seniority in Central
services are shown to have been laid down in an annexure to C
an office memorandum dated 22.11.1959 issued by the
Government of India, Ministry of Home Affairs (hereinafter
referred to as "the OM dated 22.11.1959"). Paragraph 6 of the
annexure, referred to above, laid down the manner of
determining inter se seniority between direct recruits and o
promotees. Paragraph 6 is being extracted hereunder:
"6. Relative seniority of Direct Recruits and
Promotees.
The relative seniority of direct recruits and of promotees E
shall be determined according to the rotation of vacancies
between direct recruits and promotees which shall be
based on the quotas of vacancies reserved for direct
recruitment and promotion respectively in the Department
Rules."
F
It is apparent from the above extract of the OM dated
22.11.1959, that the "quota" between promotees and direct
recruits was to be read into the seniority rule. The OM also
provided for a definite rotation of seniority points ("rota")
between promotees and direct recruits. The rotation provided G
for was founded on the concept of rotation of quotas between
promotees and direct recruits. It is therefore apparent, that
under the OM dated 22.11.1959 inter se seniority between the
promotees and direct recruits was based on the "quota" and
H
578 SUPREME COURT REPORTS [2012] 13 S.C.R.
A "rota" principle. The same has been meaningfully described as
"rotation of quotas" in some of these instruments.
19. The aforesaid prescription of the manner of
determining inter se seniority between the direct recruits and
promotees, determined through the OM dated 22.11.1959, was
B modified by an office memorandum dated 7.2.1986, issued by
the Government of India, Department of Personnel and Training
(hereinafter referred to as, "the OM dated 7.2.1986"). The I
modification introduced through the OM dated 7.2.1986 was
to redress a situation wherein, vacancies of one of the sources
C were kept (or remained) unfilled during the process of selection,
and the unfilled vacancies, had to be filled up through "later'1
examinations or selections. For the determination of seniority,
in the contingency wherein the process of recruitment resulted
in filling the vacancies earmarked for the two sources of
D recruitment, the manner of determining inter se seniority
between promotees and direct recruits, expressed in the OM
dated 22.11.1959 remained unaltered. But where the vacancies
could not be filled up, and unfilled vacancies had to be filled
up "later" through a subsequent process of selection, the
E manner of determining inter se seniority between promotees
and direct recruits, was modified.
20. Since it is the case of the rival parties before us, that
the OM dated 7.2.1986 is the principal instruction, on the basis
whereof the present controversy is to be settled, the same is
F being extracted hereunder in its entirety.
"The 7 February, 1986.
Office Memorandum
Subject: General Principles for determining the seniority
G of various categories of persons employed in Central
Services.
As the Ministry of Finance etc. are aware, the General
Principles for determination of seniority in the Central
Services are contained in the Annexure to Ministry of Home
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 579
[JAGDISH SINGH KHEHAR, J.]
Affairs O.M. No. 9/11/55-RPS dated 22nd December A
1959. According to Paragraph-6 of the said Annexure, the
relative seniority of direct recruits and promotees shall be
determined according to rotation of vacancies between the
direct recruits and the promotees, which will be based on
the quota of vacancies reserved for direct recruitment and B
promotion respectively in the Recruitment Rules. In the
Explanatory Memorandum to these Principles, it has been
stated that a roster is required to be maintained based on
the reservation of vacancies for direct recruitment and
promotion in the Recruitment Rules. Thus where c
appointment to a grade is to be made 50% by direct
recruitment and 50% by promotion from a lower grade, the
inter-se seniority of direct recruits and promotees is
determined on 1:1 basis.
2. While the above mentioned principle was working D
satisfactorily in cases where direct recruitment and
promotion kept pace with each other and recruitment could
also be made to the full extent of the quotas as prescribed,
in cases where there was delay in direct recruitment or
promotion, or where enough number of direct recruits or E
promotees did not become available, there was difficulty
in determining seniority. In such cases. the practice
followed at present is that the slots meant for direct recruits
or promotees. which could not be filled up. were left vacant.
and when direct recruits or promotees became available F
through later examinations or selections. such persons
occupied the vacant slots, thereby became senior to
persons who were already working in the grade on regular
basis. In some cases, where there was short-fall in direct
recruitment in two or more consecutive years, this resulted G
in direct recruits of later years taking seniority over some
of the promotees with fairly long years of regular service
already to their credit. This matter had also come up for
consideration in various Court Cases both before the High
Courts and the Supreme Court and in several cases the H
580 SUPREME COURT REPORTS [2012] 13 S.C.R.
A relevant judgement had brought out the inappropriateness
of direct recruits of later years becoming senior to
promotees with long years of service.
3. This matter, which was also discussed in the National
Council has been engaging the attention of the
B Government for quite some time and it has been decided
that in future. while the principle of rotation of quotas will
still be followed for determining the inter-se seniority of
direct recruits and promotees. the present practice of
keeping vacant slots for being filled up by direct recruits
c of later years. thereby giving them unitended seniority over
promotees who are already in position. would be
dispensed with. Thus. if adeqllate number of direct recruits
do not become available in any particular year. rotation of
quotas for purpose of determining seniority would take
D place only to the extent of the available direct recruits and
the promotees. In other words, to the extent direct recruits
are not available. the promotees will be bunched together
at the bottom of the seniority list. below the last position
upto which it is possible to determine seniority on the basis
E of rotation of quotas with reference to the actual number
of direct recruits who become available. The unfilled direct
recruitment quota vacancies would, however. be carried
forward and added to the corresponding direct recruitment
vacancies of the next year (and to subsequent years where
F necessary) for taking action for direct recruitment for the
total number according to the usual practice. Thereafter,
in that year while seniority will be determined between
direct recruits and promotees, to the extent of the number
of vacancies for direct recruits and promotees as
determined according to the quota for that year, the
G
additional direct recruits selected against the carried
forward vacancies of the previous year would 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
vacancies for that year. The same principle holds good in
H
UNION OF INOIA & ORS. v. N.R. PARMAR & ORS. 581
[JAGOISH SINGH KHEHAR, J.]
determining seniority in the event of carry forward. if any. A
of direct recruitment or promotion quota vacancies (as the
case may be) in the subsequent years.
Illustration:
Where the Recruitment Rules provide 50% of the 8
vacancies in a grade to be filled by promotion and the
remaining 50% by direct recruitment, and assuming there
are 10 vacancies in the grade arising in each of the years
1986 and 1987 and that 2 vacancies intended for direct
recruitment remained unfilled during 1986 and they could C
be filled during 1987, the seniority position of the
promotees and direct recruits of these two years will be
as under:
1986 1987
1. P1 9. P1 0
2. 01 10. 01
3. P2 11. P2
4. 02 12. 02
E
5. P3 13. P3
6. 03 14. 03
7. P4 15. P4
8. PS 16. 04 F
17. P5
18. 05
19. 06
G
20. 07
4. In order to help the appointing authorities in determining
the number of vacancies to be filled during a year under
each of the methods of recruitment prescribed, a Vacancy
H
582 SUPREME COURT REPORTS [2012] 13 S.C.R.
A Register giving a running account of the vacancies arising
and being filled from year to year may be maintained in
the proforma enclosed.
5. With a view to curbing any tendency of under-reporting/
suppressing the vacancies to be notified to the concerned
B authorities for direct recruitment, it is clarified that
promotees will be treated as regular only to the extent to
which direct recruitment vacancies are reported to the
recruiting authorities on the basis of the quotas prescribed
in the relevant recruitment rules. Excess promotees, if any,
c exceeding the share falling to the promotion quota based
on the corresponding figure, notified for direct recruitment
would be treated only as ad-hoc promotees.
6. The General Principles of seniority issued on 22nd
December. 1959 referred to above. may be deemed to
D
have been modified to that extent.
7. These orders shall take effect from 1st March 1986.
Seniority already determined in accordance with the
existing principles on the date of issue of these orders will
E not be reopened. In .respect of vacancies for which
recruitment action has already been taken, on the date of
issue of these orders either by way of direct recruitment
or promotion, seniority will continue to be determined in
accordance with the principle in force prior to the issue of
this O.M.
F
8. Ministry of Finance etc. are requested to bring these
instructions to the notice of all the Attached/Subordinate
Offices under them to whom the General Principles of
Seniority contained in O.M. dated 22.12.1959 are
G applicable within 2 week as these orders will be effective
from the next month.
Sd/- Joint Secretary to the Govt. of India"
(emphasis is ours)
H Since the OM dated 7.2.1986 would primarily constitute the
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 583
[JAGDISH SINGH KHEHAR, J.]
determination of the present controversy, it is considered just A
and appropriate to render an analysis thereof. The following
conclusions are apparent to us, from a close examination of
the OM dated 7.2.1986:
(a) Paragraph 2 of the OM dated 7.2.1986 first records
the existing manner of determining inter se seniority between 8
direct recruits and promotees (i.e., as contemplated by the OM
dated 22.11.1959), namely, "... the slots meant for direct recruits
or promotees, which could not be filled up, were left vacant, and
when direct recruits or promotees become available through
later examinations or selections, such persons occupied the C
vacant slots, (and) thereby became senior to persons who were
already working in the grade on regular basis. In some cases,
where there was shortfall in direct recruitment in two or more
consecutive years, this resulted in direct recruits of later years
taking seniority over some of the promotees with fairly long D
years of regular service to their credit.. .. ". The words, "when
direct recruits or promotees become available through later
examination or selections", clearly connotes, that the situation
contemplated is one where, there has been an earlier
examination or selection, and is then followed by a "later" E
examination or selection. It is implicit, that in the earlier
examination or selection there was a shortfall, in as much as,
the available vacancies for the concerned recruitment year could
not all be filled up, whereupon, further examination(s) or
selection(s) had to be conducted to make up for the shortfall. F
In the instant situation, the earlier OM dated 22.11.1959
contemplated/provided, that slots allotted to a prescribed
source of recruitment which remained vacant, would be filled
up only from the source for which the vacancy was reserved,
irrespective of the fact that a candidate from the source in G
question became available in the next process of examination
or selection, or even thereafter. In other words the "rotation of
quotas" principle was given effect to in letter and spirit under
the OM dated 22.11.1959, without any scope of relaxation.
(b) The position expressed in the sub-paragraph (a) above, H
584 SUPREME COURT REPORTS [2012] 13 S.C.R.
A was sought to be modified by the OM dated 7.2.1986, by
providing in paragraph 3 thereof, that the earlier • ... principle
of rotation of quotas would still be followed for determining the
inter se seniority of direct recruits and promotees ... " except
when the direct recruit vacancies were being • ... filled up by
B direct recruits of later years .. .". Read in conjunction with
paragraph 2 of the OM dated 7.2.1986, the words "... direct
recruits of later years .. ." must be understood to mean, direct
recruits who became available through "later" examination(s)
or selection(s). Essentially the "later" examination(s) or
c selection(s) should be perceived as those conducted to fill up
the carried forward vacancies, i.e., vacancies which could not
be filled up, when the examination or selection for the
concerned recruitment year was originally/ first conducted. This
change it was clarified, was made to stop direct recruits of
0 "later" years, from gaining " ... unintended seniority over
promotees who are already in position .. .", as High Courts and
the Supreme Court had • ... brought out the
inappropriateness .. ." thereof. It is therefore apparent, that the
OM dated 7.2.1986 partially modified the "rotation of quotas"
E principle in the determination of inter se seniority originally
expressed in the OM dated 22.11.1959. The OM dated
7.2.1986, provided that the "rota" (rotation of quotas) would be
adhered to " ... only to the extent of available direct recruits and
promotees .. .", i.e., for promotee and direct recruit vacancies
which could be filled up through the original/first process of
F examination or selection conducted for the recruitment year in
which the vacancies had arisen.
(c) For the vacancies remaining unfilled when the same
were originally/first sought to be filled up, the slots available
G under the "rota" principle under the OM dated 22.11.1959,
would be lost to the extent of the shortfall. In other words, the
"rotation of quotas" principle would stop operating after, " ... the
last position upto which it is (was) possible to determine
seniority on the basis of rotation of quotas ... ", for the
H concerned recruitment year.
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 585
[JAGDISH SINGH KHEHAR, J.]
(d) Paragraph 3 of the OM dated 7.2.1986 provided, the A
manner of assigning seniority to vacancies carried forward on
account of their having remained unfilled in the original/first
examination or selection process. The change contemplated
in the OM dated:7.2.1986, referred to hereinabove, was made
absolutely unambiguous by exi>ressing that, "The unfilled direct B
quota vacancies would ... be carried forwarded and added to
the corresponding direct recruitment vacancies of the next
year.... .", It is therefore apparent, that seniority of carried
forward vacancies would be determined with reference to
vacancies of the recruitment year wherein their selection was c
made, i.e.; for which the "later" examination or selection was
conducted.··
. (e) The OM dated 7.2.1986 formulated the stratagem to
be followed, where adequate number of vacancies in a
recruitment year could not be filled up, through the examination D
or selection conducted therefor. The OM provided, •... to the
-extent "direct recruits are not available, the promotees will be
bunched together at the bottom of the seniority ·list, below the
last position upto which it is (was) possible to determine the
seniority on the basis· of rotation of quotas with reference !o the E
actual number of direct recruits who become available.. .".
. (f) Paragraph 3 of the OM dated 7.2.1986 further
postulated, that the modification contemplated therein would be -
applied prospectively, and that, • ... the present practice of
keeping vacant slots for being filled up" by direct recruits of later F
years, .•. over promotees who are (were) already in position,
would rbe dispensed with ... •. It is therefore apparent, that the
slots assigned to a particular source of recruitment, would be
relevant for determining inter se seniority between promotees
and direct recruits, to the extent the vacancies could successfully G
be filled up (and the unfilled slots. would be lost) only for
vacancies which arose after the OM dated 7.2.1986, came to
be issued.·
,.1 .. · . .
(g) .The illustration. provided. in paragraph 3 of the OM
,
H
586 SUPREME COURT REPORTS (2012] 13 S.C.R.
A dated 7.2.1986 fully substantiates the analysis of the OM dated
7.2.1986 recorded in the foregoing sub-paragraphs. In fact, the
conclusions drawn in the foregoing sub-paragraphs have been
drawn, keeping in mind the explanatory illustration narrated in
paragraph 3 of the OM dated 7.2.1986.
B (h) In paragraph 6 of the OM dated 7.2.1986 it was
asserted, that the general principles for determining seniority
in the OM dated 22.11.1959 were being "modified" to the extent
expressed (in the OM dated 7.2.1986). The extent of
modification contemplated by the OM dated 7.2.1986 has
C already been delineated in the foregoing sub-paragraphs. Para
6 therefore leaves no room for any doubt, that the OM dated
22.11.1959 stood "amended" by the OM dated 7.2.1986 on the
issue of determination of inter se seniority between direct
recruits and promotees, to the extent mentioned in the
D preceding sub-paragraphs. The said amendment was
consciously carried out by the Department of Personnel and
Training, with the object of remedying the inappropriateness of
direct recruits of "later" examination(s) or selection(s) becoming
senior to promotees with long years of service, in terms of the
E OM dated 22.11.1959.
21. The O.M. dated 7.2.1986, was followed by another
Office Memorandum issued by the Government of India,
Department of Personnel and Training, dated 3. 7.1986
(hereinafter referred to as, "the O.M. dated 3.7.1986"). The
F purpose of the instant O.M., as the subject thereof suggests,
was to "consolidate" existing governmental orders on the
subject of seniority. Paragraphs 2.4.1 to 2.4.4 of the O.M. dated
3. 7.1986 dealt with the issue of inter se seniority between the
direct recruits and promotees. The same are accordingly being
G reproduced hereunder:-
"2.4.1 The relative seniority of direct recruits and of
promotees shall be determined according to the
rotation of vacancies between direct recruits and
promotees which shall be based on the quota of
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 587
[JAGDISH SINGH KHEHAR, J.]
vacancies reserved for direct recruitment and A
promotion respectively in the Recruitment Rules.
2.4.2 If adequate number of direct recruits do not become
available in any particular year. rotation of quotas
for the purpose of determining seniority would take
8
place only to the extent of the available direct
recruits and the promotees.
In other words, to the extent direct recruits are not
available the promotees will be bunched together
at the bottom of the seniority list below the last c
position upto which it is possible to determine
seniority, on the basis of rotation of quotas with
reference to the actual number of direct recruits who
become available. The unfilled direct recruitment
quota vacancies would. however. be carried D
forward and added to the corresponding direct
recruitment vacancies of the next year (and to
subsequent years where necessary) for taking
action for direct recruitment for the total number
according to the usual practice. Thereafter in that E
year while seniority will be determined between
direct recruits and promotees, to the extent of the
number of vacancies for direct recruits and
promotees as determined according to the quota
for that year, the additional, direct recruits selected
against the carried forward vacancies of the F
previous year would 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
vacancies for that year. The same principle holds
good for determining seniority in the event of carry G
forward, if any, of direct recruitment or promotion
quota vacancies (as the case may be) in the
subsequent year.
ILLUSTRATION: Where the Recruitment Rules
H
588 SUPREME COURT REPORTS [2012] 13 S.C.R.
A provide 50% of the vacancies of a grade to be filled
by promotion and the remaining 50% by direct
recruitment, and a assuming there are ten
vacancies in the grade arising in each of the year
1986 and 1987 and that two vacanCies intended for
B direct recruitment remain unfilled during 1986 and
they could be filled during 1987, the seniority
position of the promotees and direct recruits of
these two years will be as under:
1986 1987
c 1. P1 9. P1
2. 01 10. 01
3. P2 11. P2
0 4. 02 12. 02
5. P3 13. P3
6. 03 14. 03
7. P4 15. P4
E 8. P5 16. 04
17. P5
18. 05
19. 06
F
20. 07
2.4.3 In order to help the appointing authorities in
determining the number of vacancies to be filled
during a year under each of the methods of
G recruitment prescribed, a Vacancy Register giving
a running account of the vacancies arising and
being filled from year to year may be maintained
in the proforma enclosed.
2.4.4 With a view to curbing any tendency of under-
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 589
[JAGDISH SINGH KHEHAR, J.]
reporting/suppressing the vacancies to be notified A
·to the concerned authorities for direct recruitment,
it is clarified that promotees will be treated as
regular only to the extent to which direct recruitment
vacancies are reported to the recruiting authorities
on the basis of the quotas prescribed in the B
relevant recruitment rules. Excess promotees, if any,
exceeding the share failing to the promotion quota
based on the corresponding figure, notified for
direct recruitment would be treated only as ad-hoc
promotees."
c
(emphasis is ours)
The following conclusions have been drawn by us from the O.M.
dated 3.7.1986:-
(a) If adequate number of direct recruits (or promotees) do 0
not become avaHable in any particular year, "rotation of
quotas" for the purpose of determining seniority, would stop
after the available direct recruits and promotees are
assigned their slots for the concerned recruitment year.
(b) To the extent direct recruits were not available for the E
concerned recruitment year, the promotees would be
bunched together at the bottom of the seniority list, below
the last position upto which it was possible to determine
seniority, on the basis of rotation of quotas. And vice versa.
(c) The unfilled direct recruitment quota vacancies for a F
recruitment year, would be carried forward to the
corresponding direct recruitment vacancies of the next
year (and to subsequent years, where necessary). And
vice versa. In this behalf, it is necessary to understand two
distinct phrases used in the OM dated 3.7.1986. Firstly, G
the phrase "in that year" which connotes the recruitment
year for which specific vacancies are earmarked. And
secondly, the phrase "in the subsequent year", which
connotes carried forward vacancies, filled in addition to,
H
590 SUPREME COURT REPORTS [2012] 13 S.C.R.
A vacancies earmarked for a subsequent recruitment year.
(d) The additional direct recruits selected, against the
carried forward vacancies of the previous year, would be
placed en-bloc below the last promotee. And vice versa.
It is, therefore, apparent, that the position expressed in the
B
O.Ms. dated 7.2.1986 and 3.7.1986, on the subject of inter
se seniority between direct recruits and promotees, was
absolutely identical. This is indeed how it was intended,
because the OM dated 3.7.1986 was only meant to
"consolidate" existing governmental instructions, on the
c subject of seniority.
22. Chronologically, it is necessary, at the present juncture
to refer to an Office Note of the Department of Personnel and
Tr~ining, Establishment (D) Section, dated 20.12.1999
D (hereinafter referred to as, "the O.N. dated 20.12.1999").
Undoubtedly, an office note has no legal sanction, and as such,
is not enforceable in law. Yet an office note is certainly relevant
for determining the logic and process of reasoning which
prevailed at the relevant point of time. These would aid in the
E interpretation of the binding office memoranda, only when the
language of the office memoranda is ambiguous. Ofcourse,
only where there is no conflict between the two i.e., the office
note and the office memoranda sought to be interpreted. In the
aforesaid background, and for the aforesaid limited purpose,
reference is being made to the O.N. dated 20.12.1999. The
F same is being reproduced hereunder:-
"Department of Personnel and Training
Estt.(D) Section
Ref. Preceding notes.
G
It is not clear whether the instructions contained in
our O.M. dated 07.02.1986 has been interpreted correctly.
It is clarified that on a perusal of our O.M. dated
22.12.1959 read with our O.M. dated 07.02.1986 it will be
H clear that the inter-se seniority of direct recruits and
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 591
[JAGDISH SINGH KHEHAR, J.]
promotees will have to be fixed by following the principle A
of rotation of quotas prescribed for them in the recruitment
rules subject to the condition that the rotation as per quota
will be made only upto the actual number of DRs/
Promotees available and to the extent direct recruits/
promotees do not become available in any recruitment B
year the promotees or the direct recruits as the case may
be will be bunched together at the bottom of the seniority
list. In other words. only where appointing authoritv has not
been able to fill up the post inspite of best efforts with
referenc_e to the requisition for the particular recruitment c
year in question. the instructions contained in O.M. dated
07.02.1986 will come into operation as will be clear from
para 5 thereof. For example, if the quota in the Rrs and
DR and promotee is fifty-fifty and if the UPSC has
recommended only 2 DRs against the three vacancies of D
a particular recruitment year, say 1987 for which requisition
was sent to them in 1987 and even if both the DRs had
joined in 1988 the inter-se seniority of DRs and promotees
may be fixed in the ratio of 1:1 upto the number of DRs
available i.e. the first four places in the seniority list will be
assigned alternatively to DR and promotee, the 5th in the E
seniority list which would have normally gone to DR will not
go to the promotee because of the non-availability of DR
and the 6th will in any case go to promotee. But for the
instructions contained in our O.M. dated 07.02.1986, the
5th place would have been kept reserved for the DR as F
and when it is actually filled by DR, even if it takes a few
years. However, after the issue of our O.M. dated
07.02.1986, it is no longer kept vacant but is assigned to
the promotee who is available. It is not necessarv that the
DR for 1987 vacancy should join in 1987 itself. It would G
suffice if action has been initiated for 1987 DR vacancies
in 1987 itself. This is because. in a case of direct
recruitment. if the administrative action in filling up the post
by DR takes more than a year or so the individual cannot
H
592 SUPREME COURT REPORTS [2012] 13 S.C.R.
A be held responsible for such administrative delay and
hence it would not be appropriate to deprive him of his due
seniority for delay on the part of administration in
completing his selection by direct recruitment. In fact
ordinarily the process of direct recruitment takes more than
B a year to be completed and if DR is to join in the ~ame
year for getting seniority of that year then no DR will get
seniority of the same year because as already stated the
DR process takes more than a year. Hence, as already
stated initiation of action for recruitment in sufficient.
c It is not clear whether our O.M. of 07.02.1986 has been
interpreted correctly on the above line by the Deptt. of
Revenue. Hence the above position may be suitably
incorporated in the para-wise comments prepared by them
and it may be modified accordingly. Subject to this, the
D parawise comments appear to be generally in order. It is
however for the Department of Revenue to ensure the
correctness of the factual position mentioned therein.
Deptt. of Revenue may please see.
Sd/-
E (K. Muthu Kumar)
Under Secretary
3357/DIR E 1/99
20/12
F Dir (E-1)
The clarification given above needs to be adhered to as
we have been consistently advising on the aforesaid lines.
Any other interpretation of the relevant instructions would
be illogical.
G Sd/-
DIR (E-1)
21.12.99"
(emphasis is ours)
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 593
[JAGDISH SINGH KHEHAR, J.]
The logic and the process of reasoning, emerging from the O.N. A
dated 20.12.1999, as they appear to us, are analysed below:-
(a) Only where the appointing authority has not been able
to fill up the vacancies earmarked for direct recruits/promotees,
with reference to the requisition for a particular recruitment year,
B
inspite of its best efforts, the instructions contained in O.M.
dated 7 .2 .1986 will come into operation.
(b) It is not necessary, that the direct recruits for vacancies
of a particular recruitment year, should join within the
recruitment year (during which the vacancies had arisen) itself. c
As such, the date of joining would not be a relevant factor for
determining seniority of direct recruits. It would suffice if action
has been initiated for direct recruit vacancies, within the
recruitment year in which the vacancies had become available.
This is so, because delay in administrative action, it was felt, D
could not deprive an individual of his due seniority. As such,
initiation of action for recruitment within the recruitment year
would be sufficient to assign seniority to the concerned
appointees in terms of the "rotation of quotas" principle, so as
to arrange them with other appointees (from the alternative E
source), for vacancies of the same recruitment year.
23. Following the ON dated 20.12.1999, the Department
of Personnel and Training, Establishment (D) Section,
examined the issue in yet another Office Note dated 2.2.2000
(hereinafter referred to as "the ON dated 2.2.2000"). Just like F
the earlier ON dated 20.12.1999, the instant ON dated
2.2.2000 also has no legal sanction, and as such, is not
enforceable in law. But just like the earlier office note, the instant
ON dated 2.2.2000 would also be relevant in determining the
logic and process of reasoning which prevailed at the relevant G
point of time. This would aid in the interpretation of binding
office memoranda, only where the language is ambiguous, and
only if there is no conflict between the two (the office note and
the office memoranda, sought to be interpreted). In the aforesaid
H
594 SUPREME COURT REPORTS [2012] 13 S.C.R.
A background, and for the aforesaid limited purpose, reference
is also being made to the ON dated 2.2.2000. The same is
being extracted hereunder:
"Department of Personnel & Training
Estt. (D) Section
B
Notes from p.17/ante may please be seen with
reference to our earlier note on Pp.9-10 ante.
With reference to 'X' on p.18 and 'Y' on p.19/ante, it
will be clear from our note on Pp.9-1 O/ante that if action
c for the Recruitment Year 1986-1987 has been initiated at
any time during that Recruitment Year even if the exam is
held in 1988 and the results are declared in 1989 and the
candidate join only in 1990, since the action for recruitment
was initiated in 1986-1987 itself merely because the
D process of recruitment took so long for which the
candidates cannot be blamed and since the responsibility
for the delay in completing the process of recruitment
squarely lies with the administration. it would not be
appropriate to deprive the candidates of their due seniority
E of 1986-87. Consequently. if action was initiated during the
Recruitment Year 1986-1987 even if it culminates in the
joining by the selected candidates only in 1990, they will
get seniority of 1986-1987. This applies equally to DRs as
well as promotees. In other words. if such DRs of 1986-
F 1987 ultimately join in 1990 yet they will be rotated with
promotees of 1986-87.
As regards point (1) on page 19/N, it is clarified that
"initiation of action for recruitment/initiation of recruitment
process" would refer to the date of sending the requisition
G to the recruiting authority for a particular Recruitment Year
in,question.
Points (2) & (3) are the concern of Estt.(B).
As regards point (4), it is clarified that as already
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 595
[JAGDISH SINGH KHEHAR, J.]
stated the concept of initiation of action for recruitment is A
applicable equally to direct recruits and promotees.
As regards point (5), it may be stated that even if
DOPT is also one of the respondents, it is for the
Administrative Ministry/Department who are concerned
8
with the persons involved in the CAT court case to take
necessary action on behalf of DOPT also. In any case, our
comments are already contained in our earlier note as well
as this note. It is for the Administrative Ministry/Department
to incorporate them suitably in the counter reply. Hence, C
the counter reply on Pp.159-175/Cor. May be suitably
modified in the light of our advice on Pp.9-10/ante as
already advised at 'X' on p.1 O/ante and this note.
In future, the Department of Revenue, if they want our
advice, refer such cases well in time (instead of making D
such reference at the eleventh hour) to enable us to
consider the matter in its proper perspective without any
time constraint.
Estt.(B) may please see for comments on points (2)
and (3) on Pp.19-20/ante before the ·file is returned to E
Department of Revenue.
Sd/-
(Under secretary)
2.2.2000." F
The logic and process of reasoning emerging from the ON
dated 2.2.2000, as is apparent to us, is being analysed below:
(a) If the process of recruitment has been initiated during
the recruitment year (in which the vacancies have arisen) itself, G
even if the examination for the said recruitment is held in a
subsequent year, and the result is declared in a year later (than
the one in which the examination was held), and the selected
candidates joined in a further later year (than the one in which
H
596 SUPREME COURT REPORTS [2012] 13 S.C.R.
A the result was declared), the selected candidates will be entitled
to be assigned seniority, with reference to the recruitment year
(in which the requisition of vacancies was made). The logic and
reasoning for the aforesaid conclusion (expressed in the ON
dated 2.2.2000) is, if the process of direct recruitment is
B initiated in the recruitment year itself, the selected candidate(s)
cannot be blamed for the administrative delay, in completing
the process of selection.
(b) The words "initiation of action for recruitment", and the
words "initiation of recruitment process", were explained to
C mean, the date of sending the requisition to the recruiting
authority.
24. Having examined the matter thus far, it is necessary
to refer to the Ministry of Finance, Department of Revenue's,
D letter dated 11.5.2004 (hereinafter referred to as, "the letter
dated 11.5.2004"). The aforesaid letter is being reproduced
below:
"New Delhi, the 11th May, 2004
E To,
The Chief Commissioner of Income Tax (CCA),
CHANDIGARH
Subject: Fixation of inter-se seniority of DR and
F Promotee Income Tax Inspectors in view of
clarification given by DOP&T in r/o OM
dated 3.7.87
Sir,
G I am directed to refer to your letter F.No.CC/CHD/
2003-04/935 dated 4.12.2003 on the above subject and
to say that the matter has been examined in consultation
with DOP&T and necessary clarification in the matter is
given as under:
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 597
[JAGDISH SINGH KHEHAR, J.]
Point/querry raised Clarification A
Whether direct recruit 'It is clarified by DOP&T that
inspectors should be given Direct Recruits' seniority vis-
seniority of the year in a-vis the promotees is
which selection process reckoned from the year in
B
initiated or vacancy which they are actually
occurred orotherwise recruited. DRs cannot claim
seniority of the year in which
the vacancies had arisen.
The question of grant of
seniority to DRs of the c
period when they were not
even in service does not
arise.'
3. The representations may please be disposed off o
accordingly.
Yours faithfully,
Sd/-
Under Secretary to the Government of India"
E
A perusal of the letter dated 11.5.2004 reveals, that it adopts
a position in clear conflict with the one expressed in the OMs
dated 7.2.1986 and 3.7.1986, as well as, in the ONs dated
20.12.1999 and 2.2.2000. In the aforesaid letter dated
11.5.2004 it was sought to be "clarified", that the seniority of
direct recruits vis-a-vis promotees, would be determined with
F
reference to the year in which the direct recruits are appointed.
And further, that direct recruits cannot claim seniority with
reference to the year in which the vacancies against which they
are appointed had arisen. In our considered view reliance on
the letter dated 11.5.2004, for the determination of the present G
controversy, is liable to outright rejection. This is so because,
the letter dated 11.5.2004 has been styled as a "clarification"
(see heading in right hand column). One of the essential
ingredients of a clarification is, that it "clarifies" an unclear,
H
598 SUPREME COURT REPORTS (2012) 13 S.C.R.
A doubtful, inexplicit or ambiguous aspect of an instrument. A
"clarification" cannot be in conflict with the instrument sought to
be clarified. The letter dated 11.5.2004 breaches both the
essential ingredients of a "clarification" referred to above. That
apart, the letter dated 11.5.2004 is liable to be ignored in view
B of two subsequent letters of the Ministry of Finance, Department
of Revenue dated 27.7.2004 and 8.9.2004. The letter dated
27.7.2004 is reproduced hereunder:
"New Delhi, the 27th July, 2004
c To
Chief Commissioner of Income Tax (CCA)
CHANDIGARH
Subject: Fixation of inter-se seniority of DR and
Promotee Income tax Inspectors in view of
D clarification given by DOP&T in r/o OM
dated 3.7.86.
Sir,
I am directed to refer to Board's letter of even number
E dated 11.5.2004 on the above subject and to request that
the application of this clarification may be kept in abeyance
till further orders.
Yours faithfully,
F Sd/-
Under Secretary to the Government of India"
A perusal of the letter dated 27. 7.2004 reveals, that the
allegedly clarificatory letter dated 11.5.2004, had been kept in
G abeyance. The second letter dated 8.9.2004 (referred to
above) is also being reproduced below:
"New Delhi, the 8th September, 2004
To
Al CCITs(CCA)
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 599
[JAGDISH SINGH KHEHAR, J.]
Sub: Fixation of inter se seniority between Direct A
Recruits (DR) and Promotee (PR) Inspectors of
Income tax in various charges of the Income tax
Department - regarding.
Sir,
B
I am directed to say that a number of OAs/WPs are
pending/under adjudication in the various benches of CAT
and High Courts on the above subject. The Board has
been taking a consistent stand in all those cases that the
policy as laid down in Sanjeev Mahajan's case (pertaining C
to CCIT, Delhi Charge), which was finalized in consultation
with DOP&T and the Ministry of Law would prevail and that
seniority of DRs would be reckoned with reference to date
of initiation of recruitment process in their case.
2. Subsequently on a query raised by CCIT, Chandigarh D
on an issue relating to the treatment to be given to the
promotee Inspectors, who would face reversion on account
of refixation of seniority as per DOP&T/Ministry of Law's
advice, the Board issued a clarification vide letter of even
number, dated 11.5.2004, which created an adverse E
situation before the Gujarat High Court in a related case.
As such this clarification was held in abeyance vide letter
dated 27.07.2004 till further orders.
3. The matter has been reexamined and it has been
decided that the stand taken/finalized by the Board in the F
case of Sanjeev Mahajan would hold good in future also
and all the cases on the issue would be handled/defended
in the light of clarification submitted in that case.
4. All CCITs(CCA) are accordingly requested to take
necessary action in the matter of fixation of seniority of DRs G
& Promotee Inspectors accordingly.
Yours faithfully,
Sd/-
Under Secretary (V&L)"
H
600 SUPREME COURT REPORTS [2012] 13 S.C.R.
A A perusal of the letter dated 8.9.2004 reveals, that the
clarification given in the letter dated 11.5.2004, would be
ignored in favour of the position adopted in Sanjeev Mahajan's
case, in consultation with the Department of Personnel and
Training. It would be relevant to notice, that the position adopted
B in Sanjeev Mahajan's case, referred to in the letter dated
8.9.2004 was, that seniority of direct recruits would be reckoned
with reference to the date of initiation of the process of
recruitment in their case. In the aforesaid view of the matter,
the letter dated 11.5.2004 is bound to be disregarded and
C excluded from consideration not only because it does not
satisfy the legal parameters of a "clarification", but also
because, it is deemed to have been superseded by the
subsequent letters dated 27.7.2004 and 8.9.2004.
25. Reference necessarily needs to be made to yet
D another office memorandum issued by the Government of India,
Department of Personnel and Training, dated 3.3.2008
(hereafter referred to as, "the OM dated 3.3.2008"). In view of
the emphatic reliance on the OM dated 3.3.2008, during the
course of hearing, the same is reproduced hereunder, in its
E entirety:
New Delhi, dated the 3rd March, 2008
OFFICE MEMORANDUM
Subjec: Consolidated instructions on seniority
contained in DOP&T O.M. No.22011/7/1986-
F
Estt.(D) dated 3. 7.1986 - Clarification
regarding
The undersigned is directed to refer to this
Department's consolidated instructions contained in O.M.
G No.22011/7/1986-Estt.(D) dated 3.7.1986 laying down the
principles on determination of seniority of persons
appointed to services/posts under the Central
Government.
2. Para 2.4.1 and 2.4.2 of the O.M. dated 3.7.1986
H contains the following provisions:
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 601
[JAGDISH SINGH KHEHAR, J.]
2.4.1 The relative seniority of direct recruits and of A
promotees shall be determined according to the
rotation of vacancies between direct recruits and
promotees, which shall be based on the quota of
vacancies reserved for direct recruitment and
promotion respectively in the Recruitment Rules. B
2.4.2 If adequate number of direct recruits does not
become available in any particular year, rotation of
quotas for the purpose of determining seniority
would take place only to the extent of available direct
recruits and the promotees. C
3. Some references have been received seeking
clarifications regarding the term 'available' used in the
preceding para of the OM dated 3.7.1986. It is hereby
clarified that while the inter-se seniority of direct recruits
D
and promotees is to be fixed on the basis of the rotation
of quota of vacancies. the year of availabilitv. both in the
case of direct recruits as well as the promotees. for the
purpose of rotation and fixation of seniority, shall be the
actual year of appointment after declaration of results/
selection and completion of pre-appointment formalities as E
prescribed. It is further clarified that when appointments
against unfilled vacancies are made in subsequent year
or years. either by direct recruitment or promotion. the
persons so appointed shall not get senioritv of any earlier
year (viz. year of vacancy/panel or year in which recruitment F
process is initiated) but should get the senioritv of the year
in which they are appointed on substantive basis. The year
of availabilitv will be the vacancy year in which a candidate
of the particular batch of selected direct recruits or an
officer of the particular batch of promotees joins the posU G
service.
4. Cases of seniority already decided with reference to
any other interpretation of the term 'available' as contained
in O.M. dated 3.7.1986 need not be reopenec'.
H
602 SUPREME COURT REPORTS [2012] 13 S.C.R.
A 5. Hindi version will follow.
Sd/-
Director (Estt.I)"
(emphasis is ours)
The following conclusions, in our view, can be drawn from the
· B OM dated 3.3.2008:
(a) The OM dated 3.3.2008 is in the nature of a
"clarification", to the earlier consolidated instructions on
seniority, contained in the OM dated 3.7.1986 (referred to and
C analysed, in paragraph 21 above).
(b) The term "available" used in para 2.4.2 in the OM dated
3.7.1986 has been "clarified" to mean, both in case of direct
recruits as well as promotees, for the purpose of fixation of
seniority, would be the actual year of appointment " ... after the
o declaration of the resulUselection, i.e., after the conclusion of
the selection process, and after the " ... completion of the pre-
appointment formalities ... " (medical fitness, police verification,
etc.).
(c) As per the OM dated 3.7.1986, when appointments are
E made against unfilled vacancies in subsequent year(s), the
persons appointed would "not" get seniority with reference to
the year in which the vacancy arose, or the year in which the
recruitment process was initiated, or the year in which the
selection process was conducted.
F
(d) As per the OM dated 3.3.2008, when appointments are
made against unfilled vacancies in subsequent year(s), the
persons appointed would get seniority of the year in which they
are appointed "on substantive basis".
G 26. Before examining the merits of the controversy on the
basis of the OM dated 3.3.2008, it is necessary to examine one
related submission advanced on behalf of the direct recruits. It
was the contention of learned counsel, that the OM dated
.3.3.2008 being an executive order issued by the Department
H of Personnel and Training, would apply only prospectively. In this
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 603
[JAGDISH SINGH KHEHAR, J.)
behalf it was pointed out, that the disputed seniority between A
rival parties before this Court was based on the appointment
to the cadre of Income Tax Inspectors, well before the OM dated
3.3.2008 was issued. As such, it was pointed out, that the same
would not affect the merits of controversy before this Court. We
have considered the instant submission. It is not possible for B
us to accept the aforesaid contention advanced at the hands
of the learned counsel. If the OM dated 3.3.2008 was in the
nature of an amendment, there may well have been merit in the
submission. The OM dated 3.3.2008 is in the nature of a
"clarification". Essentially, a clarification does not introduce c
anything new, to the already existing position. A clarification,
only explains the true purport of an existing instrument. As such,
a clarification always relates back to the date of the instrument
which is sought to be clarified. In so far as the instant aspect
of the matter is concerned, reference may be made to the
0
decision rendered by this Court in S.S. Garewal vs. State of
Punjab, (1993) 3 Suppl. 234, wherein this Court had observed
as under:
"8 ..... In the alternative, it was urged that the order
dated April 8, 1980 could only have prospective operation E
with effect from the date of issue of the said order and the
sub-roster indicated by the said order could be given effect
to only from that date and on that basis the first post
reserved for Scheduled Castes should go to Balmikis or
Mazhabi Sikhs and on that basis also respondent No. 3 F
was entitled to be placed against point No. 7 in the 100-
point roster and Shri G.S. Samra against point No. 9 in
the said roster.
9. From a perusal of the letter dated April 8, 1980, we find
that it gives clarifications on certain doubts that had been G
created by some Departments in the matter of
implementation of the instructions contained in the earlier
letter dated May 5, 1975. Since the said letter dated April
8, 1980 is only clarificatory in nature, there is no question
of its having an operation independent of the instructions H
604 SUPREME COURT REPORTS [2012] 13 S.C.R.
A contained in the letter dated May 5, 1975 and the
clarifications contained in the letter dated April 8, 1980
have to be read as a part of the instructions contained in
the earlier letter dated May 5, 1975. In this context it may
be stated that according to the principles of statutory
B construction a statute which is explanatory or clarificatory
of the earlier enactment is usually held to be retrospective.
(See: Craies on Statute Law, 7th Ed., p.58). It must,
therefore, be held that all appointments against vacancies
reserved for Scheduled Castes made after May 5, 1975
c (after May 14, 1977 in so far as the Service is concerned),
have to be made in accordance with the instructions as
contained in the letter dated May 5, 1975 as clarified by
letter dated April 8, 1980. On that view, the appointment
of Shri Bal want Rai in 1979 has to be treated to be an
appointment made under the said instructions and
D
operation of these instructions cannot be postponed till
April 8, 1980 ....."
In view of the above, it is not possible for us to accept that the
OM dated 3.3.2008, would only apply prospectively. We are
E also satisfied, that the OM dated 3.3.2008 which is only a
"clarification" of the earlier OM dated 3.7.1986, would relate
back to the original instrument, namely, the OM dated 3. 7.1986.
27. We shall now endeavour to examine the effect of OM
dated 3.3.2008 on the subject of inter se seniority between
F direct recruits and promotees. Would the OM dated 3.3.2008
supersede the earlier OMs dated 7.2.1986 and/or 3. 7.1986?
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)? In our view,
G what needs to be kept in mind while determining an answer to
the aforesaid queries is, that the OM dated 7.2.1986 is in the
nature of an amendmenUmodification. The Department of
Personnel and Training consciously "amended" the earlier OM
dated 22.11.1959, by the later OM dated 7.2.1986. The said
H amendment was consciously carried out, with the object of
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 605
[JAGDISH SINGH KHEHAR, J.]
remedying the inappropriateness of direct recruits of later years A
becoming senior to promotees with long years of service. It is
not the case of any of the parties before us, that the OM dated
7 .2.1986, has ever been "amended" or "modified". It is therefore
imperative to conclude, that the OM dated 7.2.1986 is binding
for the determination of the issues expressed therein, and that, B
the same has the force of law. The OM dated 3.7.1986 is in
the nature of consolidatory instruction, whereby, all earlier
instructions issued from time to time were compiled together.
This is apparent, not only from the subject of the aforesaid OM
dated 3.7.1986, but also, the contents of paragraph 1 thereof. c
Paragraph 1 of the OM dated 3.7.1986, is being reproduced
hereunder:
"Dated 3.7.86
OFFICE MEMORANDUM
D
Subject: SENIORITY - consolidated orders on
The undersigned is directed to say that instructions
have been issued by this Department from time to time
laying down the principles for determining seniority of
persons appointed to services and posts under the Central E
Government. For facility of reference. the important orders
on the subject have been consolidated in this office
memorandum. The number and date of the original
communication has been quoted in the margin so that the
users may refer to it to understand fully the context in which F
the order in question was issued."
(emphasis is ours)
It is therefore clear, that the OM dated 3.3.2008 is neither in
the nature of an "amendment" nor in the nature of a G
"modification". Since the OM dated 3.3.2008, is a mere
"consolidation" or compilation of earlier instructions on the
subject of seniority, it is not prudent to draw any inferences
therefrom which could not be drawn from the earlier instruction/
office memoranda being "consolidated" or compiled therein, or H
606 SUPREME COURT REPORTS [2012] 13 S.C.R.
A which is contrary thereto.
28. It is relevant to notice, that there is a marginal note
against paragraph 2.4.2 in the OM dated 3.7.1986. The
aforesaid marginal note is being extracted hereunder:
B "DOPT No.35014/2/80-Estt(D) dt.7.2.86"
Therefore, paragraph 2.4.2 must be deemed to have been
recorded in the consolidating OM, on the basis of the OM dated
7.2.1986. The instant assertion has been made on account of
it having been expressly mentioned in the opening paragraph
c of the OM dated 3.7.1986 (extracted above), that the number
and date of the original communication has been quoted in the
margin, so that the user may refer to it, to understand fully the
context in which the order in question was issued. Therefore,
for all intents and purposes the OM dated 3.3.2008 is with·
D reference to the OM dated 7.2.1986. It is for this reason, that
while debating the exact purport of the OM dated 3.3.2008, it
has been our endeavour to examine the same, with reference
to the earlier OMs dated 7.2.1986 and 3.7.1986, which were
inter alia "consolidated" in the OM dated 3.3.2008.
E 29. A perusal of the OM dated 3.3.2008, would reveal, that
a reference to paragraphs 2.4.1 and 2.4.2 of the OM dated
3.7.1986, has been made therein. Thereupon, the meaning of
the term "available" used in paragraph 2.4.2 of the OM dated
3. 7.1986, is statedly "clarified". In view of the conclusion drawn
F in the foregoing paragraph, the said clarification must be
deemed to be with reference, not only to the OM dated
3.7.1986 but also the OM dated 7.2.1986. We have already
noticed, in an earlier part of the instant judgment, the essential
ingredients of a "clarification" are, that it seeks to explain an
G unclear, doubtful, inexplicit or ambiguous aspect of an
instrument, which is sought to be clarified or resolved through
the "clarification". And that, it should not be in conflict with the
instrument sought to be explained. It is in the aforesaid
background, that we will examine the two queries posed in the
H preceding paragraph. We have already analysed the true
608 SUPREME COURT REPORTS [2012] 13 S.C.R.
A Having so concluded, it is natural to record, that as the position
presently stands, the OMs dated 7.2.1986 and 3.7.1986 would
have an overriding effect over the OM dated 3.3.2008 (to the
extent of conflict between them). And the OM dated 3.3.2008
has to be ignored/omitted to the extent that the same is in
8 derogation of the earlier OMs dated 7.2.1986 and 3.7.1986.
In the light of the conclusions recorded hereinabove, we are
satisfied that the OM dated 3.3.2008 is not relevant for the
determination of the present controversy.
30. Besides the interpretation of the relevant OMs issued
C by the DOPT, learned counsel representing the promotees
placed reliance on some judgments of this Court in order to
press their contention, that seniority for direct recruits could not
be determined with reference to a date preceding the date of
their recruitment. In so far as the instant aspect of the matter is
D concerned, reliance was placed on Jagdish Ch. Patnaik & Ors.
v. State of Orissa and others, (1998) 4 SCC 456; Suraj
Prakash Gupta & Ors. v. State of J&K & Anr., (2000) 7 SCC
561; and Pawan Pratap Singh & Ors. v. Reevan Singh & Ors.,
(2011) 3 sec 267.
E 31. The seniority rule applied in Jagdish Ch. Patnaik's
case (supra) has been extracted in paragraph 24 of the said
judgment. The seniority rule in question, inter alia expressed,
that seniority would be determined with reference to the date
of recruitment. In Suraj Prakash Gupta's case (supra), the
F relevant seniority rule was extracted in paragraph 53 which
provided, that seniority would be determined with reference to
the date of first appointment. The rule itself expressed that the
words "date of first appointment" would mean the date of first
substantive appointment against a clear vacancy. In Pawan
G Pratap Singh's case (supra) the question which arose for
consideration, related to determination of inter se seniority
between two sets of direct recruits. The first set comprised of
vacancies advertised in 1987 which came to be filled up in
1994, and the second set comprised of vacancies of the year
H 1990 which came to be filled up in the year 1991. The
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 607
[JAGDISH SINGH KHEHAR, J.]
purport of the OM dated 7.2.1986 (in paragraph 20 A
hereinabove). We have also recorded our conclusions with
reference to the OM dated 3. 7.1986 wherein we have duly
taken into consideration the true purport of paragraph 2.4.2
contained in the OM dated 3. 7.1986 (in paragraph 21
hereinabove). The aforesaid conclusions are not being B
repeated again for reasons of brevity. We have separately
analysed the effect of the OM dated 3.3.2008 (in paragraph 26
of the instant judgment). It is not possible for us to conclude that
the position expressed in the earlier office memoranda is
unclear, doubtful, inexplicit or ambiguous. Certainly not on the c
subject sought to be clarified by the OM dated 3.3.2008. A
comparison of the conclusions recorded in paragraph 20 (with
reference to the OM dated 7.2.1986) and paragraph 21 (with
reference to OM dated 3.7.1986) on the one hand, as against,
the conclusions drawn in paragraph 26 (with reference to OM
0
dated 3.3.2008) on the other, would lead to inevitable
conclusion, that the OM dated 3.3.2008 clearly propounds, a
manner of determining inter se seniority between direct recruits
and promotees, by a method which is indisputably in conflict
with the OMs dated 7.2.1986 and 3.7.1986. Ofcourse, it was
possible for the Department of Personnel and Training to E
"amend" or "modify" the earlier office memoranda, in the same
manner as the OM dated 7.2.1986 had modified/amended the
earlier OM dated 22.11.1959. A perusal of the OM dated
3.3.2008, however reveals, that it was not the intention of the
Department of Personnel and Training to alter the manner of F
determining inter se seniority between promotees and direct
recruits, as had been expressed in the OMs dated 7.2.1986
and 3. 7.1986. The intention was only to "clarify" the earlier OM
dated 3.7.1986 (which would implicitly include the OM dated
7.2.1986). The OM dated 3.3.2008 has clearly breached the G
parameters and the ingredients of a "clarification". Therefore,
for all intents and purposes the OM dated 3.3.2008, must be
deemed to be non-est to the extent that the same is in
derogation of the earlier OMs dated 7.2.1986 and 3.7.1986.
H
UNION OF INDIA & ORS. v. N.R. PARMAR & ORS. 609
[JAGDISH SINGH KHEHAR, J.]
controversy in Pawan Pratap Singh's case (supra) was A
conspicuously different from the controversy in hand. In view of
the fact that the seniority rules, as also the factual matrix in the
cases relied upon was substantially at variance with the
relevant OMs dated 7.2.1986 and 3.7.1986 (which are the
subject of interpretation in so far as the present case is B
concerned), as also the facts of the cases in hand, it is
apparent, that the judgments relied upon by the learned counsel
are inapplicable to determine the present controversy.
32. One finds attracted to the observations recorded in
Jagdish Ch. Patnaik's case (supra) wherein it was observed, c
"when the language used in the statute is unambiguous and on
a plain grammatical meaning being given to the words in the
statute, the end result is neither arbitrary, nor irrational nor
contrary to the object of the statute, then it is the duty of the court
to give effect to the words used in the statute because the D
words declare the intention of the law making authority best".
We are of the view that the aforesaid observations are fully
applicable to the present controversy. We may add that the
various ONs and letters issued by the DOPT (referred to
above) do not leave room for any ambiguity. E
33. 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. F
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 original/
first examination/selection conducted for the same. None of the
direct recruit Income Tax Inspectors herein can be stated to be G
occupying carried forward vacancies, or vacancies which came
to be filled up by a "later" examination/selection process. The
facts only reveal, that the examination and the selection process
of direct recruits could not be completed within the recruitment
H
610 SUPREME COURT REPORTS [2012) 13 S.C.R.
A year itself. For this, the modification/amendment in the manner
of determining the inter-se seniority between the direct recruits
and promotees, carried out through the OM dated 7.2.1986,
and the compilation of the instructions pertaining to seniority
in the OM dated 3.7.1986, leave no room for any doubt, that
B the "rotation of quotas" principle, would be fully applicable to
the direct recruits in the present controversy. The direct recruits
herein will therefore have to be interspaced with promotees of
the same recruitment year.
34. In view of the above, the Civil Appeals, the Transferred
C Case, as well as, the Transfer Case (filed by the direct recruits
and the Union of India) are hereby allowed. The claim of the
promotees, that the direct recruit Income Tax Inspectors, in the
instant case should be assigned seniority with reference to the
date of their actual appointment in the Income Tax Department
D is declined.
K.K.T. Appeals & transferred Cases allowed.
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