Full Judgment
Shekhar Agarwal, Member (A)
1. This O.A. has been filed seeking the following relief:-
“(A) By an appropriate Order or Direction the respondents be directed to prepare/recast the seniority list dated 26.04.2010 as per the judgment dated 27.11.2012 of the Apex Court in the case of N.R. Parmar before effecting any further promotion to the post of Income Tax Officers. Further, the seniority list of Inspectors under the covering letter dated 26.04.2010 be declared as defunct and inoperative immediately on the pronouncement of the judgement of the Honble Apex Court on 27.11.2012.
(B) By an appropriate Order or Direction the respondents be directed to recast/modify the seniority list dated 26.04.2010 as per the judgment dated 27.11.2012 of the Apex Court in the case of N.R. Parmar within a time frame and place the applicants at the appropriate place in that seniority list with all consequential benefits.
(C) That respondents be directed to conduct Review DPCs based on the said recast seniority list of Inspectors within a specified time frame.
(D) The action of the respondents in issuing the letter dated 23.05.2013 based on the now defunct seniority list dated 26.04.2013 be declared as null and void and be quashed with all its consequences.
(E) Any other order or direction, which this Honble Tribunal deems fit and proper in the facts and circumstances of the case, may kindly be passed in favour of the applicants.
2. While admitting this O.A. the following interim order was passed on 30.05.2013:-
“In the meantime respondents are directed not to hold any DPC for further promotion to the posts of Income Tax Officer on the basis of impugned seniority list dated 26.04.2010 till the next date of hearing.”
3. Subsequently, through MA-1928/2013 certain private respondents were impleaded as parties in this case. Through MA-1927/2013 same private respondents have made the following prayer:-
“In view of the submissions made above, the Applicants herein humbly pray that this Honble Tribunal may graciously be pleased to allow this Application and vacate the order of stay dated 30.5.2013 passed in O.A. No. 1854/2013, in the interest of justice.
AND/OR
Pass any other such order(s)/direction(s), which this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case and in the interest of justice.”
4. Arguing on behalf of misc. applicants Sh. Ajesh Luthra, learned counsel stated that the O.A. has been filed by directly recruited Income Tax Inspectors who were appointed in the year 2008 on the basis of results of Combined Graduate Level Examination, 2005 declared in the year 2008 whereas the present misc. applicants are promotee Income Tax Inspectors who were regularly promoted to this post in the year 2006-07. These officers had already put in about 2 years of service as Income Tax Inspectors before the applicants of this O.A. were appointed. He went on to state that the vacancies against which these direct recruit Inspectors were appointed had not arisen in 2005 as only 5 vacancies had been reported to SSC in that year. It was only subsequently that on 20.11.2006 481 new posts of Income Tax Inspectors were created and were reported to SSC on 04.12.2006. Thus even after Apex Courts judgment dated 27.11.2012 in the case of N.R. Parmar and Ors. Vs. UOI and Ors. is implemented the misc. applicants will remain senior to the applicants of this O.A.
5. Arguing for vacation of the interim order Sh. Luthra, relied on the judgment of Hon. Bombay High Court in Writ Petition No. 8381/2011 (Sh. Chowallor Vincent Joseph Vs. All India Income Tax SC/ST Employees Welfare Federation and Others) in which the following has been observed:-
“1. it is further to be seen that the Tribunal has also directed the government not to make any promotions till that O.M. is implemented. In our opinion, it is highly debatable whether the Tribunal could have issued a direction restraining the Government from making promotions because it may result in keeping the posts vacant and that will adversely affect the administration.
2. However, the Tribunal, as observed above, has also directed the Government of India not to effect the promotions. In our opinion, issuing such direction would be against the public interest because it may result in keeping the posts vacant. It will result in adversely affecting the administration. In this view of the matter, therefore, in our opinion, it would be appropriate to issue ad-interim order in terms of prayer clause(c). However, if any promotions are made during the pendency of the petition, that shall be subject to the result of this petition and the personnel promoted shall be intimated so”.
Further, he relied on Apex Courts order dated 07.05.2013 in I.A.No.3 in SLP(Civil) No. 5859/2012 in which following has been observed:-
“xxx In our opinion, there is absolutely no justification for stalling the promotion of some of the officers of the department. The elements of irreparable injury, balance of convenience and public interest are not in favour of grant of stay.”
5.1 Learned counsel further argued that the Tribunal while considering the grant of interim stay must take into account the elements of irreparable injury, balance of convenience and public interest. All these are not in favour of the OA applicants. Learned counsel stated that the decision of CBDT to affect these promotions is based on the advice of DoPandT, the relevant portion of which is reproduced hereunder:-
“The implementation or otherwise, of decision of Honble Supreme Court is being processed in a separate file.
As per the instructions on the subject, the administrative demand can consider regular promotion on the basis of existing last circulated and finalized seniority list. The administrative demand in the note in para 9 on page 41-N/ante has stated that in case the Honble Supreme Courts judgment is implemented, the seniority list of Inspectors/ITO from the year 1985-86 till date, for different commissionerate will have to be reviewed/prepared. Thereafter, all India seniority/eligibility list of ITOs for promotion to ACIT will have to be prepared for holding review DPC/DPC. This is a time consuming process and 678 posts of ACIT, in view of functional consideration of CBDT, cannot be kept vacant for such a long time. The administrative department may consider holding of the regular DPC for promotion from the post of ITO to UPSC for the year 2012-13 for which proposal has been sent to UPSC in consultation with Department of Legal Affaors. However, the promotion of these officers shall be subject to revision of the seniority list of Inspectors/ITO, if any, while implementing the Honble Supreme Court judgment in N.R. Parmar case.”
5.2 He also stated that N.R. Parmars case will not be of any help to the applicants of this O.A. for determination of their seniority. According to him, the Apex Court has clearly mentioned in its order that the direct recruits ‘herein and ‘present controversy. Since the applicants of this O.A. were not before the Apex Court who were concerned with the direct recruits of 1993-94, this judgment may not apply to them as they are not similarly placed.
6. Arguing for official respondents Sh. R.N. Singh stated that if this interim order is allowed to continue many posts of Income Tax Officer will remain unfilled. This he stated was not in public interest as revenue collection is likely to be adversely effected by these vacancies. He stated that implementation of Apex Courts direction in the case of N.R. Parmar (supra) is likely to take considerable time since it involved revisiting of the DPCs held since 1986. On being asked to give a time frame, he stated that in another O.A. the official respondents have filed an affidavit stating that implementation of the decision in N.R. Parmars case (supra) is likely to take one more year. Sh. Singh further argued that the Apex Court had itself not fixed any time limit for implementation of its judgment nor had it restrained the official respondents from making promotions on the basis of seniority list circulated on 26.04.2010. In fact, the Apex Court during pending of SLP Nos. 9182-9185 of 2005 had itself given liberty to the official respondents to make promotion on the basis of this list, which has been prepared in accordance with the judgment of Honble Gujarat High Court. He argued that when Apex Court itself has not restrained the official respondents in any manner this Tribunal cannot go beyond the order of the Apex Court.
6.1 Sh. Singh, learned counsel also stated that this very Bench of the Tribunal vide their order dated 22.08.2013 passed on MA-1724/2013 in OA-2041/2013 pertaining to the Superintendents of CBEC had vacated the interim stay and given liberty to the official respondents to make promotions. Further, he argued that Jodhpur Bench of this Tribunal while dealing with same case pertaining to MP and Chattisgarh Circule had finally disposed of the O.A. No. 531/2013 on 22.07.2013 by passing the following order:-
“3. The respondents have filed their detailed reply. In para 17 of their reply they have categorically stated as under:
17. To take care of the interest of the aggrieved applicants, the Honble Tribunal is hereby assured that the promotion orders to the post of ITO shall be passed only after incorporating the following rider:
The promotion of these officers shall be subject to revision of the seniority of Inspectors/Income-tax Officers, if any, consequent to implementation of Honble Supreme Court judgment dated 27.11.2012 in N.R. Parmar case and other similar cases on the matter pending, if any, in various court including the present Original Application.”
It is pertinent to mention that the CBDT itself has followed the same line of action while releasing the promotion orders to the post of Assistant Commissioner of Income Tax by incorporating in the promotion order the aforementioned order.”
6.2 Sh. Singh also relied on the judgment of Honble Punjab and Haryana High Court in the case of Sukhdev Singh Sidhu Vs. State of Punjab, 2003(4) SLR 12 in which the following observations have been made:-
“24. In our opinion, before passing an interim order which had the effect of frustrating the process of selection in its entirety, the Tribunal was duty-bound to consider the important issues relating irreparable injury and public interest and its failure to do so has the effect of vitiating the impugned order.
25. We are further of the view that in such matter, the Tribunal is required to consider not only the interest of the parties but also the larger interest of service as also the element of public interest. An order of the Court or Tribunal stalling the process of recruitment or promotion has adverse impact on the entire cadre. At times, such an order jeopardises the functioning of the department and affect the morale of the service. Therefore, the Court and the Tribunals should be loath to pass interim orders like the one impugned in these petitions.
26. In Ranbir Chandra v. Union of India and others, 1978(2) S.L.R. 340, a Division Bench of Delhi High Court made a lucid exposition of law on the subject of interim orders in relation to a case involving challenge to the appointment made on the post of Commissioner of Income-tax. While dealing with the issue of irreparable injury and balance of convenience, the Division Bench observed as under:-
“IRREPRABLE INJURY.
No direct injury, much less an irreparable one could be shown to be caused to any of the persons filing the writ petition by the impugned order the said order enabled the Government to appointment the appellant to the post of a Commissioner of Income-tax. Whether any of the persons filing the writ petition would be affected by it is doubtful. The promotion to the post of Income-tax Commissioner is by Selection and on merit. The refixation of seniority of the appellant which placed him above some persons previously above him does not mean that by the mere gain in seniority the appellant was entitled to be appointed as a Commissioner of Income-tax. The appointment could be made only by selection. It is not known which and if so how many of the persons filing the writ petition would be selected for appointment to the post of a Commissioner of Income-tax. They could only urge that the appellant was made senior to them. They could not urge, however, that selection was made on the basis of seniority Assuming that some of the persons filing the writ petition would also be selected as Commissioners of I.T. and would be junior to the appellant because of the earlier promotion of the appellant based on the impugned order, it cannot be said that this would be the result of the impugned order. On the contrary, it would be the result of the eligibility of the appellant to be considered for selection. That eligibility was given to him sheerly by considerations of justice. The first principle in entertaining a writ petition and in granting relief is to redress injustice and to advance the cause of justice. The facts are such that injustice had been done to the appellant. The redressing of such injustice was not meant to harm the interests of others. Any fate, it cannot be said to cause any injustice to the writ petitioners. The extraordinary powers of this Court under Article 226 should not be exercised unless considerations of justice demanded.”
Sh. R.N. Singh, learned counsel also stated that the interim order dated 30.05.2013 has been obtained by the applicants of O.A. on the basis of wrong facts. This will be clear from the order itself in the middle of first para of which it has been observed that Gujarat, MP and Chattisgarh regions have already revised their respective seniority lists in terms of the judgment of Apex Court but the same has not been done by Delhi Region. According to Sh. Singh this information given by the OA applicants to the Tribunal was totally false as all Commissionerates of Income Tax of the country are bound by DoPandT instructions which provide that whenever a Court order is received, Ministry of Law and DoPandT should be consulted to decide future course of action. According to Sh. Singh in view of these binding instructions, it was not possible for any “Commissionerate” of Income Tax to revise the seniority list on their own.
Thus, on the basis of these arguments Sh. Singh prayed that the interim orders be vacated.
7. Arguing for applicants of the OA Sh. A.K. Behera, learned counsel strongly opposed the vacation of the interim orders. According to him, such restraining orders have been passed by different Benches of this Tribunal. He produced before us a copy of the Hyderabad Bench order dated 15.05.2013 passed in OA-598/2013, the operative para of which reads as follows:-
“On the face of it, it appears that it will be in order to issue an interim order restraining the respondents from going ahead with the DPC based on the impugned seniority list dated 20.02.2013 for promotion to the post of Income Tax Officers and to direct them to first rectify the impugned seniority list. Accordingly, interim order is passed.”
He also produced a copy of the order of the Bombay Bench of this Tribunal passed in OA-234/2013 dated 03.05.2013 in which the following order has been passed:-
“2. The interim prayer is therefore, made to direct the respondents not to hold any DPC for further promotion to the post of Income Tax Officers without implementing the directions given by the Honble Supreme Court in the N.R. Parmar case. The respondent shall file a short reply within two weeks on the question of IR.
3. IR is granted for two weeks.”
He further argued that the orders of the Tribunal for grant of interim relief have been upheld by the Honble High Court of Gujarat through their order in Special Civil Application No. 12352 of 2013 passed on 12.08.2013 whereby the Honble High Court have refused to vacate the stay and directed the Tribunal to take up the OA for final disposal expeditiously. He further stated that the Jabalpur Bench order cited by the official respondents cannot be held to be binding on the Tribunal as it was passed without going into the merits of the case. In this regard he relied on the judgment of Honble Supreme Court in the case of Municipal Corporation of Delhi Vs. Gurnam Kaur, (1989) 1 SCC 101, in para-11 the following has been observed:-
“Pronoucements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Dass case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incurium when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. Explains the concept of sub silentio at p. 153 in these words:
A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decided in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.”
8. We have heard the parties and have perused the material on record.
9. The interim order granted in this case was an ex-parte order granted on the basis of submissions made by the applicants of the OA. Now the official respondents and private respondents have appeared in this case and have argued that by stalling promotions irreparable injury will be caused to those persons whose promotions have been stalled by the interim orders and many of them may retire without getting promotions. They also argued that these interim orders are also not in the interest of Government work as many important posts will remain unmanned seriously affecting revenue collection. They further argued that this Court has sufficient powers to reverse these promotions and protect the interest of the applicants of the OA if reversion of those promoted becomes necessary after refixation of seniority on the basis of N.R. Parmars case.
10. On the other hand, the OA applicants counsel stated that promotions can be made only on the basis of a settled seniority list. Since the respondents do not have one, they should not be allowed to go ahead with promotions which will result in multiplicity of litigation.
11. It is not disputed that the seniority list of 26.04.2010 on the basis of which the respondents seek to make promotion is not final since the final list has now to be prepared on the basis of Apex Court judgment in the case of N.R. Parmar, on the basis of which 20.04.2010 list was prepared has not been upheld by the Apex Court. Therefore, when the final list is prepared as per the directions of the Apex Court, seniority of many of the persons included in this list is likely to under go a change. Consequently, if promotions are allowed to be made on the basis of this list, there is no doubt that subsequently many of the promoted persons may have to be reverted. This may lead to multiplicity of litigation as has been contended the OA applicants.
12. On the other hand, there is merit in the contention of the official respondents that government work will be seriously affected if promotions are stalled as many posts of ITOs which are crucial to revenue collection, would remain vacant and untilled. Learned counsel for the official respondents had stated that 141 ITOs had recently been promoted as Assistant Commissioners resulting in as many vacancies of ITOs. Learned counsel for the applicants Sh. Behera, however, disputed this and said that only 2 out of these 141 officers promoted belonged to Delhi region. Thus, the vacancies arising as a result of these promotions were only 2 in Delhi Region. Sh. Luthra, however, stated that vacancies had arisen on account of other reasons as well such as retirement, resignation, deputation etc. Whatever the exact number of vacancies, it cannot be denied that if promotions are stalled, a large number of posts would remain unfilled. Therefore, the element of public interest is definitely in favour of the respondents.
13. The contention of the official respondents was that this Tribunal was bound by the judgment of a Coordinate Bench at Jodhpur which had in a similar case finally disposed of the OA with the directions quoted above in para 6.1. Sh. Behera responded to this by citing the Apex Courts judgment in the case of Municipal Corporation of Delhi Vs. Gurnam Kaur (supra) in which it had been laid down that pronouncements of law which are not part of the ratio decideni are classed as obiter dicta and are not authoritative. We agree with the applicants counsel that since the Jodhpur Bench had passed the order relied upon by the respondents without going into the merits of the case at the preliminary stage itself, we cannot be bound by it as laid down by the Honble Supreme Court in the above cited case. However, by the same logic we also cannot be bound by the judgment of Honble Gujarat High Court relied upon by the applicants as that was also passed at preliminary stage without going into the merits of the case.
13.1 Learned counsel for the official respondents had drawn our attention to our order dated 22.08.2013 passed in MA-1724/2013 in OA-2041/2013 pertaining to a similar case in CBEC by which we had vacated the interim stay and given liberty to the official respondents to make promotions. However, during arguments it was pointed out that the facts of that case were different inasmuch as in that case the respondents had prima facie established that no harm would be caused to the applicants of that case by allowing promotions. This was established by showing that restructuring had taken place in the CBEC and as a one time measure all vacancies existing at the time of restructuring had been transferred to promotion quota. Thus, the applicants who had come through an examination held after restructuring were unlikely to get seniority above the respondents who were sought to be promoted, even after fixation of seniority as per N.R. Parmars case. In the instant case, no such restructuring of the department had taken place nor had all the posts been diverted to promotion quota. Further, it was also not disputed that atleast 5 vacancies were reported to SSC for 2005 examination. Thus, direct recruits appointed against these vacancies could have a claim over the promotees who were promoted in the year 2006-07. Thus, this case is different from the OA-2041/2013 in which our order dated 22.08.2013 was passed.
14. The fact which is not in dispute by the parties on both sides is that the judgment of the Apex Court in the case of Union of India and Ors. Vs. N.R. Parmar and Ors (N.R. Parmars case for short) pronounced on 27.11.2012 has become final and it has to be implemented. The directions contained in the said judgment are that the ‘direct recruits herein will, therefore, have to be interpersed with promotees of the same recruitment year. Consequently, ‘the claim of the promotees that the direct recruits 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. But the dispute between the parties is that while the official Respondent holds that they are free to operate the earlier seniority list prepared on the basis of the actual dates of appointments of both the promotees and direct recruits plea, which has already been declined by the Apex Court vide N.R. Parmars judgment, the contention of the Applicants is that no such promotions can be made based on the said seniority list which has become defunct with the issuance of the aforesaid judgment.
15. Now we have to go back to N.R. Parmars case for the proper appreciation of the aforesaid contentious issue. It has arisen from the common order dated 12.01.2004 of the Ahmedabad Bench of this Tribunal in OA 92/2003 (R.C. Yadav and Ors.) and OA 123/2003 (N.R. Parmar and Ors.) filed by the Direct Recruits and promotees Income Tax Inspectors respectively. The Ahmedabad Bench held that the seniority of the direct recruits was required to be determined with reference to the date of their actual appointment only. The said order was assailed by the Union of India before the Gujarat High Court (UOI and Ors. Vs. N.R. Parmar). The direct recruits have also assailed the said decision before the Gujarat High Court separately (Virender Kumar and Ors Vs. UOI and Ors). The High Court vide its order dated 17.08.2004 upheld the aforesaid order of the Tribunal. The Union of India, not satisfied by the judgment of the Gujarat High Court, again filed Civil Appeal No.7514-7515 of 2005 (UOI and Ors Vs. N.R. Parmar and Ors.) before the Apex Court. During the pendency of the said SLP, the Principal Bench of this Tribunal has also held the same view in OA No. 2107/2003 on 22.09.2004 but the High Court of Delhi stayed it vide its order dated 02.03.2005 in CWP 3446-47 of 2005 against which one of the promotee private respondents approached the Apex Court vide Civil Appeal No.3876-3880.2007. Thereafter, the said Writ Petition itself was transferred to the Apex Court vide T.C. No.91/2006. The controversy in the said petition pertained to the vacancy year 1993-94. While some of the vacancies for the Income Tax Inspector under the promotion quota of that year were filled up in the same year (on 30.08.1993, 1.09.1993 and 14.12.1993) from the feeder cadre on the recommendations of the DPC, the direct recruit vacancies were only referred to SSC and on its recommendation, the selected candidates could join only between March to May, 1995.
16. In the interregnum, some of the promotee Income Tax Inspectors were also promoted as Income Tax Officers on ad hoc basis pending finalization of the seniority list of Income Tax Inspectors. Direct Recruits challenged the said promotions vide OA 1478/1995 and connected cases before this Tribunal. During its pendency, the Respondent-Department issued the seniority list of Income Tax Inspectors on 08.02.1999. Thereafter, this Tribunal disposed of those OAs vide common order dated 08.09.1999 to hold a Review DPC in accordance with the aforesaid seniority list dated 08.02.1999 and to consider the promotion of the applicants therein also within three months. However, the said seniority list was under challenge in another OA No. 676/1999. Later, the Honble High Court of Delhi vide CWP No. 3468/1999 stayed the aforesaid seniority list dated 08.02.1999. During the pendency of the said Writ Petition, some direct recruits Income Tax Inspectors have approached the Principal Bench of the Tribunal in OA 2307/1999 and OA 676/1999 and the Tribunal, vide common order dated 23.02.2000, quashed and set aside the aforesaid seniority list dated 08.02.1999 holding that the material date for fixing the seniority of the direct recruits shall be the date on which the Staff Selection Commission makes the selection. However, the High Court of Delhi vide its judgment dated 25.09.1992 in WP(C) 460/2000 and connected cases set aside the aforesaid order of this Tribunal dated 23.02.2000 but remitting the case to this Tribunal for re-consideration. While re-considering the issue, the official respondents changed its earlier stand on the issue purportedly under the advice of their nodal agencies, namely, the Central Board of Direct Taxes and the Deptt. of Personnel and Training that the seniority list dated 08.02.1999 was not in conformity with DOPandTs OMs dated 07.02.1986 and 02.07.1986. Since the said shift in stand was in favour of the direct recruits, the applicants in the said OA being direct recruits did not press for it any further and withdrew the same. Thereafter, the respondent-Income Tax Department issued the seniority list dated 17.07.2003. Now the promotees have assailed the said seniority list vide OA 2068/2003 and connected cases and this Tribunal vide common order dated allowed the claim of the promotees and quashed and set aside the seniority list dated 17.07.2003. The Direct Recruits challenged the aforesaid order of this Tribunal before the High Court of Delhi vide CWP No.3446-49/2005 which had been later transferred to the Apex Court as TC(C) 91/2006(supra). Meanwhile, the Jodhpur bench of this Tribunal vide its common order dated 08.09.2003 in OA No. 270/2002 etc. upheld the stand of the promotees but the Union of India assailed the same before the Rajasthan High Court vide WP No.785/2004 and connected case but they were also transferred to the Apex Court vide Transfer Petition No.(C) 681/2006. Thereafter, the Apex Court clubbed all those cases together as the legal issue involved in all of them was the same. As an interim measure, vide order dated 20.03.2006, the Apex Court also allowed implementation of the judgment and order passed by the Gujarat High Court subject to the outcome of the SLPs.
17. In the meantime, the Respondents through SSC advertised the vacancy for the year 2005-06 but after the written examination, interview etc., the Applicants could join only in the year 2008-09. Meanwhile, as the Apex Court passed aforesaid interim order dated 20.03.2006 in N.R. Parmars case (supra), the Respondents issued a proposed seniority list dated 26.04.2010 for implementing the judgment of the Gujarat High Court subject to the outcome in N.R. Parmars case (supra). Finally, when the Apex Court took N.R. Parmars case (supra) for hearing, it was agreed to by the parties that the seniority dispute between the promotees and direct recruit Income Tax Inspectors of the Income Tax Department is to be determined on the basis of the OM Nos. 07.02.1986 and 03.07.1986 issued by the Government in this regard whose vires have not been challenged by any one. Consequently, the Apex Court vide its judgment dated 27.11.2012 held that the only dispute was with regard to the true and correct interpretation of the aforesaid OMs. After having interpreted the effect of the aforesaid OMs, the Apex Court came to the conclusion that since the examination and the selection process of direct recruits could not be completed within the respective recruitment year itself, the rota-quota principle would be fully applicable to the direct recruits in the present controversy and, therefore, the direct recruits herein will have to be interspaced with promotees of the same recruitment year. Accordingly, the claim of the promotees that the direct recruits Income Tax Inspectors, in the instant case should not be assigned seniority with reference to the date of their actual appointment in the Income Tax Department has been declined. Thereafter, the Respondents, in implementation of the aforesaid order in N.R. Parmars case (supra), issued the draft seniority list of Income Tax Inspectors vide their letter dated 24.01.2013 addressed to all Commissioners inviting representations, if any, on or before 28.02.2013. In spite of the aforesaid deadline, the respondents have not issued the final seniority list to promote the Income Tax Inspectors as Income Tax officers in accordance with the directions of the Apex Court in N.R. Parmars case. Instead, vide the impugned Annexure A-1 letter dated 23.05.2013, the Chief Commissioner of Income Tax, Delhi has again initiated the process for promotion of Income Tax Inspectors appointed w.e.f. 01.03.1986 as Income Tax Officers, based on the seniority list dated 26.04.2010 circulated vide their letter dated 26.04.2010. For that purpose, the vigilance clearance in respect of 100 Income Tax Inspectors appointed from 05.11.1993 to 20.03.2007 have been called for, with the stipulation that the eligibility list thus prepared is based on seniority list which is subject to direction of Board with regard to the implementation of the Apex Courts judgment dated 27.11.2012 in N.R. Parmars case (supra). The Direct Recruit Income Tax Inspectors have challenged the aforesaid letter dated 23.05.2013 and the seniority list dated 26.04.2010 in this OA.
18. In our considered view, the aforesaid decision of the Respondents to go ahead with the promotion of the Income Tax Inspectors as Income Tax Officers based on the earlier seniority list which is in violation of the principle laid down by the Apex Court in N.R. Parmars case (supra) is nothing short of blatant violation of law and, therefore, it cannot be permitted. Their submission that their action to go ahead with the promotion as aforesaid is “subject to the implementation of the Supreme Courts judgment dated 27.11.2012 in N.R. Parmars case” is also absolutely misplaced. One can understand that when a seniority list is under challenge and if the Court has not stayed it or the Court itself has permitted to operate it, the same can be operated subject to the outcome of the petition which is pending. In this case also, the Apex Court has earlier allowed the Respondents to go ahead with the promotion of Income Tax Inspectors to the post of Income Tax Officers based on the judgment of the Gujrat High Court on provisional basis till the case of N.R. Parmar was decided. But once the Supreme Court has pronounced its final judgment in the said case and held that the judgment of the Gujrat High Court is bad in law, no process for promotion can be initiated in violation of the directions contained therein. Therefore, it is quite illogical and irrational to say that they are going ahead with the promotion based on the principle which has been declined by the Apex Court again stating that it is subject to the implementation of the very same judgment. The respondents are duty bound to ensure that the law laid down by the Apex Court is implemented in its letter and spirit and it is not violated. It is for the same reason that this Tribunal, on the initial day of hearing of this case itself has restrained the Respondents from holding any DPC based on the impugned seniority list dated 26.04.2010. It is a well settled position that once the relief sought by the party in a petition has been granted by the Apex Court, its compliance is warranted from the date by the party against whom it is passed or from the date he acquires knowledge of the said order unless it has been modified or varied by the said Court. In the case of the orders of other courts, the compliance is warranted in similar matters unless they are modified in review or stayed by the appropriate higher courts. In this case also, it is seen that Chief Commissioner of Income Tax, Gujrat and Bhopal had initiated action for compliance of Apex Courts judgment in N.R. Parmars case by preparing a provisional seniority list and circulating the same on 24.01.2013 and 11.03.2013 respectively. However, no such action appears to have been taken by CCIT of New Delhi.
19. In view of the above facts and circumstances, we are of the considered view that it is the official respondents own making that inspite of the Apex Court has pronounced its judgment in N.R. Parmars case way back on 27.11.2012, many posts of Income Tax Officers still remain unfilled. Therefore, their submission that if the aforesaid stay is allowed to be continued, they will not in a position to promote Income Tax Inspectors as Income Tax Officers and the collection of Revenue for the Govt. will affect adversely has also no merit. In fact, the respondents themselves have taken six months to even call for the vigilance clearance of the Income Tax Inspector for promotion to the grade of Income Tax Officers during the recruitment year 2013-2014 based on the seniority list dated 26.04.2010. Their further submission that since the seniority position of the Income Tax Inspectors from the year 1986 has to be reviewed and that is reason why there is delay in implementation of the Apex Court judgment has also no merit. As already observed, in implementation of the judgment of the Apex Court, Gujrat and Bhopal Zone have already circulated the draft seniority list way back on 24.01.2013 and 11.03.2013 respectively. Similarly, official respondents in this case should also have initiated steps to prepare final seniority list. They have not done so. On the contrary, the submission of learned counsel for the respondents, on instructions from the departmental representative present in the court, is that it may take even one more year and the grievance, if any, of the applicants will arise only as and when the final seniority list is issued. In our considered view, such an attitude of the respondent is callous, indifferent, illegal and arbitrary. We are, therefore, not inclined to modify our order dated 30.05.2013 by which the respondents were restrained from making further promotions to the post of Income Tax Officer on the basis of impugned seniority list dated 26.04.2010. This order will continue till the final disposal of this O.A. MA No.1927/2013 is dismissed being devoid of merit.
20. Further, it is seen that though the notice in this case was issued to the respondents on 30.05.2013, the official Respondents have filed only a short reply on 21.08.2013 for the purpose of vacating the stay order passed by this Tribunal on the said date even though there was no direction to them to do so. Considering the urgency of the case, they should have filed the detailed reply so that the case could be finally disposed of. Since the learned counsel for the Respondents insists for more time to file the detailed reply, in the interest of justice, let the same be done within two weeks from the date of receipt of a copy of this order. The private Respondents 4-8 have already filed their reply. The Applicant may file rejoinder, if any, within 2 weeks after he gets a copy of the detailed reply from the official Respondents.
21. List for possible final disposal of this case under the head “Ready for Hearing” on 28.10.2013.
22. We are also making it clear that we are not expressing any opinion on the merits of this O.A.