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“  REPORTABLE  ”   

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     Nos.     7514-7515     OF     2005   

Union of India & Ors. …. Appellants

Versus

N.R. Parmar & Ors. …. Respondents

WITH

CIVIL     APPEAL     Nos.     3876-3880     of     2007   

Mukund Lal & Anr. …. Appellants

Versus

Pritpal Singh & Ors. …. Respondents

WITH

CIVIL     APPEAL     No.     7516     OF     2005   

Virendra Kumar & Ors. …. Appellants

Versus

Union of India & Ors. …. Respondents

WITH      

T.C.     (C)     No.     91     OF     2006   

Pritpal Singh & Ors. …. Petitioners

Versus

Union of India & Ors. …. Respondents

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WITH

TRANSFER     CASE     No......2012   (Arising     out     of     T.P.     (C)     No.     681     OF     2006   

Union of India & Ors. …. Petitioners

Versus

R.K. Bothra & Ors. …. Respondents

J     U     D     G     M     E     N     T   

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 and  

promotees are pitted on opposite sides.   

2. One of the matters in hand came to be considered by the Central  

Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter  

referred to as “the CAT, Ahmedabad”) 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 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 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 recommendations for the filling up direct recruit  

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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 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, 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 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 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  

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.     

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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 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 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 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 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. Union of India & Ors.), OA  

no.275 of 2002 (Bhanwar Lal Soni & 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  

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as “the CAT, Jodhpur”), to assail the seniority-list 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 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. 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 (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 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 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  

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2006.  As such, the facts recorded in the said case have been adverted to  

while passing the instant judgment.

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 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 Promotion Committee (hereinafter referred to  

as “the DPC”), whereas, those identified to be filled up by direct  

recruitment, were simultaneously referred to the  Staff 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 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 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 applications for appointment by  

way of direct recruitment, against vacancies of Income Tax Inspectors of  

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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 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  

21/28.1.1995 the SSC declared the result of the Inspectors of 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 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 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 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  

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impugned 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 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, 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  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 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 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.  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 copy of this order to comply with these directions.

3. In the circumstances of the case, there will be no order  as to costs.”

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On 10.9.1999 a clarificatory order was passed by the CAT, 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 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  order we have passed on the basis of the admission made by the  official respondents in their reply.  Now, the private 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 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 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  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 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-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 take up the stand whenever that  occasion arises.  But, we have not given any finding 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.”

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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  

“rota” principle.  On 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 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 can be  considered for seniority vis-à-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 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 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  

Bench, vide its order dated 23.2.2000 quashed the seniority-list dated  

8.2.1999 by holding as under:

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“8. In our judgment, for deciding the aforesaid controversy a  reference to the office memorandum of 7.2.1986 may usefully be  made.  In the earlier O.M. it has inter alia been provided as under:

…..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 promotion respectively in the Recruitment  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 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 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 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 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, 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 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 quota vacancies (as the case may  be) in the subsequent years.

ILLUSTRATION:

Where the Recruitment Rules provide 50% of the  vacancies of grade to be filled by promotion and the remaining  50% 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,  

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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 1. P1 9.   P1 2. D1 10. D1 3. P2 11. P2 4. D2 12. D2 5. P3 13. P3 6. D3 14. D3 7. P4 15. P4 8. P5 16. D4

17. P5 18. D5 19. D6 20. D7

It is not necessary to make a reference to the subsequent 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 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.  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 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 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  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 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  

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list on the basis of directions contained in this order.  The present  order will also apply to seniority list of UDCs which is the subject  matter of OA No.676/1999.

11. All the OAs stand disposed of on the above lines.  There shall,  however, be no order as to costs.”

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 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 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:

“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  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 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.

These writ petitions are disposed of with the aforementioned  observations and directions without any order as to costs.”

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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 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 (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 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 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 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).

(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 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 present application.

Accordingly, the OA is dismissed as withdrawn.”

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16. The Income Tax Department thereupon, issued another seniority list  

of Income Tax Inspectors, dated 17.7.2003, by 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 of  

2003 (C.P.S. Yadav & Anr. vs. Union of India & Ors.), OA no.2107 of 2003  

(Mahender Pratap & Ors. vs. Union of India & Ors.), OA No.124 of 2004  

(S.K. Puri-II & 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 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 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 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 rival parties,  

that none of the parties have assailed the vires of the office memoranda  

dated 7.2.1986 and 3.7.1986 (or for that matter, the clarificatory office  

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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  

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 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 promotees.  Paragraph 6 is  

being extracted hereunder:

“6. Relative     seniority     of     Direct     Recruits     and     Promotees  .

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 quotas of  vacancies reserved for direct recruitment and promotion respectively  in the Department Rules.”

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 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  

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recruits was based on the “quota” and “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 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  

modification introduced through the OM dated 7.2.1986 was to redress a  

situation wherein, vacancies of one of the sources were kept (or remained)  

unfilled during the process of selection, and the unfilled vacancies, had to  

be filled up through “later”  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 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  

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 being extracted hereunder in its  

entirety.

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“The 7 February, 1986.

Office     Memorandum   

Subject: General Principles for determining the seniority 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 Affairs O.M. No. 9/11/55-RPS  dated 22nd December 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 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  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 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 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     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 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    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 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    

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slots     for     being     filled     up     by     direct     recruits     of     later     years,     thereby     giving    them     unitended     seniority     over     promotees     who     are     already     in    position,     would     be     dispensed     with.     Thus,     if     adequate     number     of    direct     recruits     do     not     become     available     in     any     particular     year,    rotation     of     quotas     for     purpose     of     determining     seniority     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     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     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 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     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     determining     seniority     in     the     event     of    carry     forward,     if     any,     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 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 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 2. D1 10. D1 3. P2 11. P2 4. D2 12. D2 5. P3 13. P3 6. D3 14. D3 7. P4 15. P4 8. P5 16. D4

17. P5 18. D5 19. D6 20. D7

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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 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  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, 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     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 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.

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 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)

Since the OM dated 7.2.1986 would primarily constitute the determination  

of the present controversy, it is considered just 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 direct recruits and  

promotees (i.e., as contemplated by the OM dated 22.11.1959), namely,  

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“…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 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 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”  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.  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 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.  

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(b) The position expressed in the sub-paragraph (a) above, 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 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 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 “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”  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 examination or  

selection conducted for the recruitment year in which the vacancies had  

arisen.

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(c) For the vacancies remaining unfilled when the same were  

originally/first sought to be filled up, the slots available 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 concerned  

recruitment year.

(d) Paragraph 3 of the OM dated 7.2.1986 provided, the 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 expressing that, “The unfilled direct  

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 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 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  

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basis of rotation of quotas with reference to the 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 years, …over promotees who are (were) already in  

position, would be 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 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.   

(g) The illustration provided in paragraph 3 of the OM 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.

(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  

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  

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mentioned in the 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 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 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 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     vacancies     reserved     for     direct     recruitment     and    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     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 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     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  

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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 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 forward, if any, of direct  recruitment or promotion quota vacancies (as the case may  be) in     the     subsequent     year  .

ILLUSTRATION: Where the Recruitment Rules 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 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 1. P1 9. P1 2. D1 10. D1 3. P2 11. P2 4. D2 12. D2 5. P3 13. P3 6. D3 14. D3 7. P4 15. P4 8. P5 16. D4

17. P5 18. D5 19. D6 20. D7

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 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- reporting/suppressing the vacancies to be notified 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 relevant recruitment rules. Excess promotees, if any,  exceeding the share failing to the promotion quota based on  

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the corresponding figure, notified for direct recruitment would  be treated only as ad-hoc     promotees.”

(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 not become  

available 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 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 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, 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, 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.

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It is, therefore, apparent, that the 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.  This is indeed how it  

was intended, because the OM dated 3.7.1986 was only meant to  

“consolidate”  existing governmental instructions, on the subject of  

seniority.

22. Chronologically, it is necessary, at the present juncture to refer to an  

Office Note of the Department of Personnel and Training, Establishment  

(D) Section, dated 20.12.1999 (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 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 same is being reproduced  

hereunder:-

“Department of Personnel and Training  Estt.(D) Section

Ref. Preceding notes.

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 clear that the inter-se seniority of direct recruits  and promotees will have to be fixed by following the principle of  rotation of quotas prescribed for them in the recruitment rules  

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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 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     authority     has     not     been     able     to     fill    up     the     post     inspite     of     best     efforts     with     reference     to     the     requisition     for    the     particular     recruitment     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 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 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 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     necessary     that     the     DR     for     1987     vacancy     should     join     in     1987    itself.     It     would     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     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 a  year to be completed and if DR is to join in the same 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.

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 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/-

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(K. Muthu Kumar) Under Secretary

3357/DIR E 1/99 20/12

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.

Sd/- DIR (E-1) 21.12.99”

(emphasis is ours)

The logic and the process of reasoning, emerging from the O.N. 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, 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.  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, 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  

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arrange them with other appointees (from the alternative 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 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 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  

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  

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.9-10/ante that if     action     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     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     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    

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get     seniority     of     1986-1987.      This     applies     equally     to     DRs     as    well     as     promotees.      In     other     words,     if     such     DRs     of     1986-1987    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     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 stated  the concept of initiation of action for recruitment is 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 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, 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.10/ante  and this note.

In future, the Department of Revenue, if they want our  advice, refer such cases well in time (instead of making 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 Department  of Revenue.

Sd/-    (Under secretary)

2.2.2000.”

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, even if the  

examination for the said recruitment is held in a subsequent year, and the  

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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 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 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 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, 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 To,

The Chief Commissioner of Income Tax (CCA), CHANDIGARH

Subject: Fixation of inter-se seniority of DR and Promotee  Income Tax Inspectors in view of clarification  given by DOP&T in r/o OM dated 3.7.87

Sir,

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:

Point/querry raised Clarification Whether direct recruit ‘It is clarified by DOP&T  

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inspectors should be  given seniority of the  year in which selection  process initiated or  vacancy occurred  orotherwise

that Direct Recruits’  seniority vis-à-vis the  promotees is reckoned  from the year in which  they are actually  recruited.  DRs cannot  claim seniority of the  year in which the  vacancies had arisen.  The question of grant of  seniority to DRs of the  period when they were  not even in service does  not arise.’

3. The representations may please be disposed off  accordingly.

Yours faithfully,

Sd/-

Under Secretary to the Government of India”

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-à-vis promotees, would be determined with  

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 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, doubtful,  

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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 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 To

Chief Commissioner of Income Tax (CCA) CHANDIGARH

Subject: Fixation of inter-se seniority of DR and Promotee  Income tax Inspectors in view of 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  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,

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 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)

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Sub: Fixation of inter se seniority between Direct Recruits  (DR) and Promotee (PR) Inspectors of Income tax in  various charges of the Income tax Department –  regarding.

Sir,

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 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  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 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 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 &  Promotee Inspectors accordingly.

Yours faithfully,

Sd/-

Under Secretary (V&L)”

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  

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Personnel and Training.  It would be relevant to notice, that the position  

adopted 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 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 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 entirety:

“ New Delhi, dated the 3rd March, 2008

OFFICE     MEMORANDUM   

Subject: Consolidated instructions on seniority contained  in DOP&T O.M. No.22011/7/1986-Estt.(D) dated  3.7.1986 – Clarification regarding

The undersigned is directed to refer to this  Department’s consolidated instructions contained in O.M.  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  contains the following provisions:

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  

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shall be based on the quota of vacancies reserved for  direct recruitment and promotion respectively in the  Recruitment Rules.

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.

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     and    promotees     is     to     be     fixed     on     the     basis     of     the     rotation     of     quota     of    vacancies,     the     year     of     availability,     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     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     seniority     of     any     earlier     year     (viz.     year     of    vacancy/panel     or     year     in     which     recruitment     process     is    initiated)     but     should     get     the     seniority     of     the     year     in     which     they    are     appointed     on     substantive     basis.      The     year     of     availability    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     post/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 reopened.

5. Hindi version will follow.

Sd/-

Director (Estt.I)” (emphasis is ours)

The following conclusions, in our view, can be drawn from the OM dated  

3.3.2008:

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(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 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 declaration of the result/selection, 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 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.

(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”.

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 of Personnel and Training, would apply only prospectively.  

In this behalf it was pointed out, that the disputed seniority between rival  

parties before this Court was based on the appointment to the cadre of  

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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 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 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 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 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 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  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 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  

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of statutory 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 (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  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 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 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,  

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  

amendment/modification.  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 amendment was consciously carried out, with  

the object of remedying the inappropriateness of direct recruits of later  

years becoming senior to promotees with long years of service.  It is not  

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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, 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.  Paragraph 1 of the OM  

dated 3.7.1986, is being reproduced hereunder:

“ Dated 3.7.86

OFFICE     MEMORANDUM   

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  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    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 “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 which is contrary thereto.

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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:

“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 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 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.

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 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 unclear, doubtful, inexplicit or ambiguous aspect of an  

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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 preceding paragraph.  We have  

already analysed the true purport of the OM dated 7.2.1986 (in paragraph  

20 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  

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 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 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 “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  

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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”  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 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.  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  

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 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  

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  

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of J&K & Anr., (2000) 7 SCC 561; and Pawan Pratap Singh & Ors. v.  

Reevan Singh & Ors., (2011) 3 SCC 267.   

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 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 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 1990 which came to be filled up in the  

year 1991.  The controversy in Pawan Pratap Singh’s case (supra) was  

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 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, “when the language used  

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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 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.   

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.  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 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 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 the “rotation of quotas”  

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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 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 is declined.

      ……………………………………J.        (D.K. Jain)

      ……………………………………J.        (Jagdish Singh Khehar)

NEW DELHI; NOVEMBER 27, 2012

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