Prakash Chandra Chauhan V. Union of India

SCA/16209/2019

AI Insights

The case involves Prakash Chandra Chauhan, a petitioner who challenged the promotion process within the Income Tax Department, which was based on an older seniority list from 2015, despite a revised list being issued on 5.2.2018 following the Supreme Court's decision in N.R. Parmar case. The petitioner argued that the department's action of reverting to the 2015 list was illegal and violated principles of natural justice and equality under Articles 14 and 16 of the Constitution. The High Court of Gujarat, after examining the submissions and relevant legal precedents, agreed with the petitioner and issued a restraining order against the implementation of the 2015 seniority list.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 700280 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 03-12-2019
• Assessment Year: misc
• Other Referred Cases: Union of India and others Vs. N.R.Parmar, Ms. Veena Kothawale Vs. Union of India, K. Meghachandra Singh & Ors Vs. Ningam Siro & Ors
• Laws Referred To: Articles 226 and 227 of the Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: MAUNA BHATT
• Assessee Lawyers: M S TRIVEDI
• Keywords: Central Administrative Tribunal; Income Tax Officer; Mandamus; Promotion; Seniority list; N.R. Parmar case
• Section: OA 295/2019

Judgement Text

"C/SCA/16209/2019 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 16209 of 2019 ========================================================== PRAKASH CHANDRA CHAUHAN S/O LATE NARAYANLAL CHAUHAN Versus UNION OF INDIA ========================================================== Appearance: MR MS TRIVEDI(939) for the Petitioner(s) No. 1 DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 1,2,3 MRS MAUNA M BHATT(174) for the Respondent(s) No. 4 ========================================================== CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE DR.JUSTICE A. P. THAKER Date : 03/12/2019 ORAL ORDER (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) 1. Heard learned advocates for the parties. 2. The present petition is filed under Articles 226 and 227 of the Constitution of India with following prayers: “(A) Your Lordships may be pleased to allow this petition. (B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions to quash and set­aside the impugned order passed by the Learned Tribunal dated 16.9.2019 in OA 295/2019. (C) Pending hearing and final disposal of this petition, by way of interim relief, the respondents may be restrain for the operation, implementation and execution of order dated 16.9.2019 in OA 295/2019 passed by the Learned Tribunal and the respondents may be directed to follow,implement the post N.R.Parmar All India Inter se Seniority List in the cadre of ITOs circulated on 8.2.2018 for promotion to the Page 1 of 12 C/SCA/16209/2019 ORDER post of ACITs for the vacancy year 2019. (D) Such other and further relief(s) as may be deemed just and proper in view of the facts and circumstances of the case may be granted.” Thus, what is under challenge is the non­ granting of proper interim relief in the Original Application No.295/2019 filed by the present petitioner before the Central Administrative Tribunal (CAT), Ahmedabad, wherein the petitioner assailed the action of the respondents for making preparatory provisions for promoting Officers of the earlier seniority list of 2015, which came to be revised on 5.2.2018 based upon misconception that it was permissible to the department to do so. The Tribunal after hearing the Counsels passed an order making the promotion if any to be effected, would be subject to result of the Original Application. It is the Order of not granting appropriate interim relief despite the glaring facts and provisions of law provided cause of action for filing the present petition under Articles 226 and 227 of the Constitution of India. 3. The facts shorn of undue details and required for appreciating the controversy in the present case, as could be gathered from the Memo of Petition and accompanied documents, deserve to be set out as under. Page 2 of 12 C/SCA/16209/2019 ORDER 3.1. The petitioner joined the respondent department as Direct Recruit Inspector of the Income Tax, who came to be promoted to the post of Income Tax Officer (ITO). The controversy for determining the Seniority in the department ultimately got settled after the pronouncement of judgment in case of Union of India and others Vs. N.R.Parmar reported in (2012) 13 SCC 340. Based thereupon, the concerned Seniority List of ITO which was enured since 2015 list, was revised as per the direction issued by Supreme Court in the decision in case of N.R.Parmar (Supra) and revised seniority list saw the light of the day on 5.2.2018. The petitioner is figuring in the said seniority list thus the beneficiary of revised seniority list. He, therefore, was legitimately expecting the promotion, as and when the process for promotion, was to be undertaken. The department issued a communication originating from North Zone, New Delhi to Principal Chief Commissioner of Income Tax. This communication was indisputably and clearly indicative of the department action of falling back upon the seniority list of 2015, ignoring the seniority list of 5.2.2018, which was promulgated as a result of decision of N.R. Parmar (Supra). The plausible explanation could be said to be found in the decision rendered by Delhi High Court in case of Ms. Veena Kothawale Vs. Union of India in Page 3 of 12 C/SCA/16209/2019 ORDER WP (C) 3087/2016 rendered on 22.1.2018 whereunder, as per the say of the Counsel for the respondents, decision of N.R. Parmar (Supra) said to have been prospective. The petitioner being aggrieved on account of the attempt to ignore the seniority list of 5.2.2018 and inviting clearance for the Officers who were senior only as per the seniority list of 2015, affecting the Officers of 2018, preferred Original Application 295/2019 inter alia praying for appropriate direction and order so that the respondent may not ignore the seniority list, which has not been over­ruled or subjected to any scrutiny by any Court of law i.e. seniority List of 5.2.2018. In the proceedings of Original Application, despite there being a specific prayer by way of interim relief restraining respondents from reviving and operating of 2015 seniority list, the Tribunal granted relief of only making the promotion if any, is made subject to final outcome of the Original Application and, as it is stated hereinabove, gave rise of filing of the present petition. 4. The learned advocate appearing for the petitioner invited the Court's attention to the decision of N.R. Parmar (Supra) as well as that of Delhi High Court and submitted that in no way the department was permitted to ignore the Page 4 of 12 C/SCA/16209/2019 ORDER seniority list of 5.2.2018. The communication impugned indisputably indicated that the department's attempt to fall back upon the seniority list of 2015, was hampering and thwarting the promotion consideration of those who are figuring in seniority list of 5.2.2018 without the seniority list being disturbed in any manner and, therefore, the action of the respondent was, on the face of it, violated not only Articles 14 and 16 but indicated the utter disregard to the principle of law and an attempt to over­rule the process of law. 5. The learned advocate appearing for the respondent submitted that the judgment rendered by Delhi High Court in case of Ms. Veena Kothawale (Supra) was rendered on 22.1.2018 and based thereupon it was decided to act thereupon as it clearly stated that N.R. Parmar (Supra) direction was to be operative prospectively and at that time the decision in case of K. Meghachandra Singh & Ors Vs. Ningam Siro & Ors, rendered in Civil Appeal No.8833­8835 of 2019, had not been pronounced. Now, of course, the said judgment though expressly over­ruled N.R.Parmar (Supra) saves the seniority fixed based thereupon and, therefore, the department is awaiting instructions from the concerned Department in Govt. of India. Page 5 of 12 C/SCA/16209/2019 ORDER 6. We have heard the counsels for the parties and perused the papers. The following indisputable aspects emerged which deserve to be set out for appreciating the controversy as under: (1) The decision in case of N.R. Parmar (supra) was acted upon and in accordance therewith the seniority list of 2015 in the department was revised and new seniority list i.e. revised seniority list of ITO was promulgated on 5.2.2018. This aspect is absolutely not disputed by any one, meaning thereby, the seniority list of 5.2.2018 has not been disturbed nor has the same being sought to be revised in any manner. As against this, the seniority list of 2015 can be said to be no more in existence as on date as upon replaced by revised seniority list of 5.2.2018. (2) The decision of Delhi High Court in case of Ms. Veena Kothawale (Supra) rendered on 22.1.2018, has not been resulted into any exercise undertaken for revising or reviewing the seniority list of 5.2.2018. In other words, the seniority list of 5.2.2018 shall enure as on date has not been taken for review in accordance with law by any authority and as on date the said list is in Page 6 of 12 C/SCA/16209/2019 ORDER operation. The observation made in Para­70 of the decision of Delhi High Court rendered in case of Ms. Veena Kothawale (Supra) are as under: “70. The principle, that the law declared by the Supreme Court always has retrospective effect, and is applicable to all cases – irrespective of the stage of their pendency (because it is assumed that what is declared by the Supreme Court was, in fact, the law from the very inception), would have to harmonized with the equally well­established principle that settled seniority in a service, should not be allowed to be unsettled. In the present case, the inter se seniority of the parties was not all under challenge right from 2010. No dispute relating to inter se seniority was pending when the decision in N.R.Parmar (supra) was rendered. As there was no pending challenge to the Seniority List, in our view the decision of Supreme Court in the case of N.R. Parmar (supra), could not be made applicable to the present case. As we have already observed, the O.M. Dated 04.03.2014, the in fact shows that the application of the decision in N.R.Parmar (supra) was made applicable prospectively by the government. We have considered the judgments relied upon by the learned counsel for the respondents laying down the concept of retrospective overruling by courts. That proposition is not disputed by any of the parties and hence we are not making any reference to the same. In our view, the facts and circumstances of this case, the said principles does not come to the aid of respondent No.5.” (3) When N.R.Parmar (Supra) decision of Supreme Court is implemented and it has been resulted into promulgation of the seniority list of 5.2.2018, there could not have been any direction in law for overlooking the Page 7 of 12 C/SCA/16209/2019 ORDER same, be it implied or explicit. In other words, even if there was a judgment of Delhi High Court interpreting the N.R.Parmar (Supra) judgment of Supreme Court to be prospective, the same in its own, would not cloth any authority for overlooking the seniority list of 5.2.2018 as if the said seniority list was subject matter of scrutiny and it was over­ruled. The Court hasten to add here that the said seniority list has never been the subject matter of scrutiny and no Officer figuring thereunder were invited to show as to why the same shall not be revised. In other words, without following principle of natural justice, naturally the same could not have been admitted to be revised when the revision of seniority list of 5.2.2018 was not even in an offing or admitted, there was a clear attempt on the part of the department in issuing directions for considering the Officer of 2015 list, which had given cause of action to the petitioner to move appropriate forum i.e. Central Administrative Tribunal. (4) Recent judgment of Supreme Court rendered in case of K. Meghachandra Singh & Ors Vs. Ningam Siro & Ors (Supra), para­40 contains the observation of Supreme Court Page 8 of 12 C/SCA/16209/2019 ORDER which deserves to be set out as under: “40. The Judgment in N.R.Parmar (Supra) relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1995. We also feel that N.R.Parmar (Supra) had incorrectly distinguished the long­ standing seniority determination principles propounded in, inter­alia, J.C.Patnaik (Supra), Suraj Prakash Gupta & Ors. vs. State of J&K & Ors. And Pawan Pratap Singh & Ors vs. Reevan Singh & Ors (Supra). These three judgments and several others with like emunciation on the law of determination of seniority makes it abundantly clear that under Service Jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in J.C.Patnaik (Supra) and consequently we disapprove the norms of assessment of inter­se seniority, suggested in N.R. Parmar (Supra). Accordingly, the decision in N.R.Parmar is overruled. However, it is made clear that this decision will not affect the inter­se seniority already based on N.R.Parmar and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/ the date of advertisement.”(emphasis supplied) (5) Thus, now there is no scope of any controversy so far as the seniority list of 5.2.2018 is concerned as the Supreme Court even while overruling N.R. Parmar (Supra) has observed that the resultant seniority list was not to be disturbed based upon the said ruling. Page 9 of 12 C/SCA/16209/2019 ORDER (6) It is required to be noted at this stage that the Petitioner made the following prayer in Original Application No.295 of 2019: “8. RELIEFS SOUGHT: (A) … (B) That the Hon'ble Tribunal further be pleased to quash and set aside action of the respondents to follow, operate and implement the inter se seniority list of the cadre of ITOs­ circulated vide letter dated 1.9.2015 of the respondents for adhoc promotion to the post of ACIT for the vacancy year 2019 vide letter dated 27.8.2019 of the respondents. (C) That, the Hon'ble Tribunal further be pleased to direct that respondents to operate, implement the inter se seniority of All India Seniority List in the cadre of ITOs dated 5.2.2018 for adhoc promotion to the post of ACIT for the vacancy year 2019. (emphasis supplied) (D) … 9. INTERIM ORDER, IF ANY, PRAYED FOR: Pending hearing and final disposal of this petition by way of interim relief the respondents may be restrain from implementing the seniority list of ITOs dated 1.9.2015 (Annexure A/1) and may be directed to consider the case/ claim of the applicant for promotion to the post of ACIT for the vacancy year 2019 as it was directed to consider in case of J.L.Meena vs. Union of India, vide order dated 17.6.2016 in OA 376/2015.”(emphasis supplied) If the interim prayer was not granted and the present relief rendered, the promotion that may be effected, may be subject to final outcome of the Original Application, would be in our view, amounting to permitting the respondent no.2 to Page 10 of 12 C/SCA/16209/2019 ORDER carry out their exercise, which on the face of it was unjustified, illegal and deserves to be deprecated. 7. Against the aforesaid factual indisputable backdrop of these facts, the Court is called upon to examine the challenge to the judgment based upon the aforesaid law position. Ordinarily, this Court is at loath to entertain the petition when the petitions are filed against denying total interim relief or refusal of not granting relief as sought for in the petition. “Subject to result” is again ordinarily in Service Prudence, viewed as a relief which leaves some room to the authority so that their functioning may not come to halt. In case if any case pleadings were made, then also one could have appreciated non­granting of appropriate relief. 8. The factual scenario as it obtained when the Tribunal was called upon to pass order in the nature of interim order, and today when clouds have been dispersed, a question arise whether still respondents could be permitted to proceed with their exercise of making on adhoc appointment ignoring the seniority list of 5.2.2018, the answer is emphatic “No”. The exigency of service may warrant adhoc appointment or adhoc promotion but then also in case when Page 11 of 12 C/SCA/16209/2019 ORDER validly promulgated seniority list is in operation, the employer cannot be permitted to overlook the same and hence the present petition is supported by the present facts and law, both, which would persuade this Court to pass an order restraining the respondent from falling back upon the seniority list of 2015, which in our view, does not exist when it was revised by way of seniority list of 5.2.2018. Therefore, when the Supreme Court has also said that the seniority list is not to be disturbed in the recent judgment rendered in N.P.Parmar (supra), the observation has no more good law, the seniority list is not to be disturbed and, therefore, we are of the view that the petition is required to be disposed of as we are of the view that the respondent shall be restrained from implementing any exercise or undertaking any exercise ignoring the seniority list of 5.2.2018, till the final disposal of the Original Application No.295 of 2019 pending before the Tribunal. With these observations, we dispose of this petition. No order as to costs. (S.R.BRAHMBHATT, J) (A. P. THAKER, J) SAJ GEORGE Page 12 of 12 "