Page No.# 1/12 GAHC010267512023 2025:GAU-AS:1048-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) No.7111 of 2023 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI – 110001. 2. THE CENTRAL BOARD OF DIRECT TAXES, REPRESENTED BY ITS CHAIRMAN, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI – 110001. 3. THE MEMBER (P&V), THE CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI – 110001. 4. THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, NER, GUWAHATI, 1ST FLOOR, AAYKAR BHAWAN, GUWAHATI – 781005. … .. Petitioners -Versus- SHRI CHANCHAL NAG, SON OF LATE SWADESH RANJAN NAG, JOINT COMMISSIONER OF INCOME TAX, GROUP A SERVICE RANGE 3, GUWAHATI. … ..Respondent – BEFORE – HON’BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON’BLE MR. JUSTICE KAUSHIK GOSWAMI For the Petitioner(s) : Mr. K. Gogoi, Central Govt. Counsel. For the Respondent(s) : Dr. G.J. Sharma, Advocate. Ms. K. Bhattacharyya, Advocate. Page No.# 2/12 Date of Hearing : 22.01.2025. Date of judgment : 30.01.2025. J UDGMENT & O RDER (CAV) (Vijay Bishnoi, CJ) Heard Mr. K. Gogoi, learned Central Government Counsel appearing for the petitioners. Also heard Dr. G.J. Sharma, learned counsel appearing for the sole respondent. 2. This writ petition is preferred by the petitioners being aggrieved with the order dated 04.08.2017 passed by the Central Administrative Tribunal, Guwahati Bench, Guwahati (hereinafter to be referred as the “Tribunal”) in O.A. No.63/2017, whereby the Tribunal disposed of the Original Application preferred on behalf of the respondent directing the petitioners herein to antedate the promotion of the respondent to the cadre of Assistant Commissioner of Income Tax and Joint Commissioner of Income Tax from the date his juniors stood promoted and also to consider him for further promotion on the basis of provisional seniority, as and when DPC takes place. The operative portion of the impugned order is reproduced herein-below:- “11. In view of the imminent retirement of the applicant on 31.10.2017, if the respondents are not able to finalize the all India inter-se seniority of the ITOs, the applicant will not be able to get the benefit of the judgment of the Hon’ble Supreme Court in the case of N.R. Parmar (supra) and in that case he will suffer irreparable loss. Accordingly, the respondents are directed to antedate the promotion of the applicant to the cadre of ACIT and JCIT from the date his junior stand promoted and also consider him for further promotion as and when DPC takes place on the basis of provisional seniority. The applicant has specifically quoted the name of Sri Shubhra Jyoti Bhattacharjee along with whom he has claimed promotion to ACIT and JCIT. Since in the written statement the respondents have not controverter his prayer vis-à-vis Sri Subhra Jyoti Bhattacharjee, the respondents are Page No.# 3/12 directed to issue orders accordingly for antedating promotion of the applicant vis-à-vis Sri Bhattacharjee. The exercise shall be complied with, as expeditiously as possible, but not later than the date of retirement of the applicant, that is 31.10.2017. Needles to mention that all the conditions put forward in the order of the CAT, Ernakulam Bench dated 15.12.2015 passed in O.A. 180/403/2015 will also apply ipso facto in this case.” 3. Brief facts and events necessary for adjudication of this writ petition are that the respondent was initially appointed as Inspector of Income Tax. However, later on he was promoted to the post of Income Tax Officer w.e.f. 16.12.1994 (recruitment year 1994-95). He was further promoted on the post of Assistant Commissioner of Income Tax w.e.f. 03.07.2007 and further promoted on the post of Joint Commissioner of Income Tax w.e.f. 01.04.2016. 4. In the meantime, a question came up before the Hon’ble Supreme Court as to whether seniority of the direct recruited Inspectors should be counted from the year in which the selection process is initiated, or vacancy occurred, or from the date they are actually appointed or recruited. The Hon’ble Supreme Court in Union of India & Ors. -Vs- N.R. Parmar & Ors., reported in (2012) 13 SCC 340, while interpreting the Office Memorandum dated 22.11.1959 issued by the Government of India, Ministry of Home Affairs; Office Memorandums dated 07.02.1986; 03.07.1986 and 03.03.2008 issued by the Government of India, Department of Personnel & Training and several office notes has concluded that the directly recruited Inspectors of Income Tax are entitled to be assigned seniority from the date of initiation of the recruitment process, which means the date of sending the requisition to the recruiting authority. 5. Pursuant to the judgment rendered by the Hon’ble Supreme Court in N.R. Parmar (supra) on 27.11.2012, the Department of Personnel & Training Page No.# 4/12 issued an Office Memorandum dated 04.03.2014, wherein the principle that inter-se seniority between the direct recruits and promotees would be determined on the rotation of quota based on available direct recruits and promotees, who are appointed against the vacancies of the recruitment year, was reiterated. In the said Office Memorandum, it was further clarified that the recruitment year would be the year of initiating the recruitment process against the vacancy year, which would be the date of sending the requisition for filling up the vacancies to the recruiting agency. The Office Memorandum dated 04.03.2014 has clarified that the seniority of Income Tax Inspectors would depend on the date of initiation of recruitment process and not on the date of actual appointment. However, in the Office Memorandum dated 04.03.2014, it was also clearly provided that the cases of seniority already settled with reference to the applicable interpretation of the term “availability” as contained in the Office Memorandum(s) dated 07.02.1986/03.07.1986, may not be reopened. 6. Be that as it may, the Income Tax Department has started revising the seniority of the Income Tax Officers and initially the Principal Chief Commissioners of the Income Tax, who are the cadre controlling authorities of their zones, held the review DPCs and forwarded the revised seniority list of the Income Tax Officers of the respective zones to the Income Tax Board (hereinafter to be referred as the “Board”). 7. The Board was supposed to prepare an All India inter-se seniority list of the Income Tax Officers on the basis of the zonal seniority list after deciding the objections, if any, filed. The Principal Commissioner of Income Tax of North East Region has also revised the seniority of the respondent along with the other Page No.# 5/12 Officers of the North East Region by holding review DPC and forwarded it to the Board. 8. It is an admitted case that the Board had not finalized the All India inter-se seniority list of Income Tax Officers till the respondent approached the Tribunal. It is to be noticed that with the holding of the review DPC by the Principal Commissioner of Income Tax of North East Region, the respondent was assigned seniority in the Grade of Income Tax Officer from 10.01.1994 (recruitment year 1993-94) instead of 16.12.1994 (recruitment year 1994-95). 9. The respondent approached the Tribunal contending that since he has been assigned seniority from 10.01.1994 in the Grade of Income Tax Officers, in the review DPC, his seniority is also to be revised for the post of Assistant Commissioner of Income Tax and Joint Commissioner of Income Tax and onwards and he should be provided antedated promotions on the posts of Assistant Commissioner of Income Tax and Joint Commissioner of Income Tax and onwards. It was also claimed by the respondent that one Officer, namely, Shubhra Jyoti Bhattacharjee, was earlier placed at serial No.8 in the seniority list of Income Tax Officers. However, with the review DPC, his promotion to the post of Income Tax Officers was also antedated and he was placed in the recruitment year 1992-93 and as such, he has vacated the position of serial No.8. It is contended that now the respondent fits in place of Shubhra Jyoti Bhattacharjee and, therefore, his seniority is also liable to be antedated for the posts of Assistant Commissioner of Income Tax and Joint Commissioner of Income Tax and onwards. 10. The petitioners took a stand before the Tribunal that the antedated promotion of the respondent, to the posts of Assistant Commissioner of Income Page No.# 6/12 Tax and Joint Commissioner of Income Tax, by holding a review DPC is not feasible unless All India inter-se seniority of Income Tax Officers is finalized. It was specifically contended before the Tribunal on behalf of the petitioners that the antedated promotions would be granted to the respondent on the post of Assistant Commissioner of Income Tax and Joint Commissioner of Income Tax only after finalization of the All India inter-se seniority of Income Tax Officers. 11. The Tribunal, after hearing the counsel for the parties and after considering the material available on record and relying on a decision of the Central Administrative Tribunal, Ernakulam Bench dated 15.12.2015 passed in O.A. No.403/2015 disposed of the Original Application with certain directions, which have already been taken note of in the earlier part of this judgment. 12. When the directions given by the Tribunal have not been implemented, the respondent has filed a contempt petition before the Tribunal, which is still pending consideration before it. 13. In the meantime, the Delhi High Court in Ms. Veena Kothavale -Vs- Union of India & Ors. and another connected writ petition, reported in 2018 SCC OnLine Del 6712 has ruled that the decision of the Hon’ble Supreme Court rendered in N.R. Parmar (supra) would be applicable prospectively and the seniority position of the employee settled prior to the date of decision of N.R. Parmar (supra), i.e. 27.11.2012, is not liable to be interfered with. The SLP against the decision of the Delhi High Court rendered in Ms. Veena Kothavale (supra) has been dismissed by the Hon’ble Supreme Court vide order dated 16.05.2018 in SLP No.11905-11906/2018. 14. Armed with the judgment of the Delhi High Court, the petitioners filed a review petition before the Tribunal in the year 2019 seeking review of the Page No.# 7/12 impugned order dated 04.08.2017. The said review petition came to be dismissed by the Tribunal vide order dated 08.06.2020 holding that in absence of any provision under the Administrative Tribunals Act, 1985 and the Central Administrative Tribunal (Procedure) Rules, 1987, delay in filing the review petition cannot be condoned. A writ petition being WP(C) No.3034/2021 filed against the order dated 08.06.2020 (passed in review application preferred on behalf of the petitioners before the Tribunal) has also been dismissed by this Court vide order dated 27.03.2023. 15. In the meantime, a three Judges Bench of the Hon’ble Supreme Court in K. Meghachandra Singh & Ors. -Vs- Ningam Siro & Ors., reported in (2020) 5 SCC 689 has revisited the decision of the Hon’ble Supreme Court rendered in the case of N.R. Parmar (supra), which was delivered by 2(two) Judges Bench and has overruled the said decision. At the same time, it has been made clear that the decision in K. Meghachandra Singh (supra) will not affect the inter-se seniority already fixed based on N.R. Parmar (supra) and the same are protected. Relevant paragraph of the decision of K. Meghachandra Singh (supra) is reproduced hereunder: “40. The Judgment in N. R. Parmar relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1965. We also feel that N.R. Parmar had incorrectly distinguished the long-standing seniority determination principles propounded in, inter-alia, Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456, Suraj Prakash Gupta v. State of J&K & Ors., (2000) 7 SCC 561 and Pawan Pratap Singh & Ors. Vs. Reevan Singh & Ors, (2011) 3 SCC 267. These three judgments and several others with like enunciation on the law for 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 Page No.# 8/12 opinion, the law on the issue is correctly declared in Jagdish Ch. Patnaik and consequently we disapprove the norms on assessment of inter se seniority, suggested in N. R. Parmar. Accordingly, the decision in N.R. Parmar is overruled. However, it is made clear that this decision will not affect the inter se 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.” 16. At this stage, now the petitioners have filed this writ petition assailing the validity of the order dated 04.08.2017 passed by the Tribunal contending that in view of the decision of the Delhi High Court rendered in Ms. Veena Kothavale (supra) and later on by the Hon’ble Supreme Court in K. Meghachandra Singh (supra), whereby the decision of the N.R. Parmar (supra) has been overruled, the directions given by the Tribunal in the impugned order cannot be implemented. It is also contended on behalf of the petitioners that though initially the petitioners had started the exercise of assigning seniority to the Income Tax Officers as per the directions given by the Hon’ble Supreme Court in N.R. Parmar (supra), however, later on, when the Delhi High Court observed that the judgment of N.R. Parmar (supra) would apply prospectively and the seniority positions of the Income Tax Officers prior to the date of the decision of N.R. Parmar (supra) are not liable to be interfered with and since with the dismissal of the SLP preferred against the judgment of the Delhi High Court, the petitioners have stopped the process of re-determining the seniority of the Income Tax Officers and all the orders issued in this regard have been withdrawn and the earlier positions, regarding the seniority of the Income Tax Officers are restored, the impugned order passed by the Tribunal based on the principle laid down in the case of N.R. Parmar (supra) cannot be implemented. Page No.# 9/12 It is also contended on behalf of the petitioners that now since the judgment passed by the Hon’ble Supreme Court in N.R. Parmar (supra) has already been overruled in K. Meghachandra Singh (supra), the impugned order passed by the Tribunal on the basis of N.R. Parmar (supra) case is not liable to be sustained. 17. Per contra, learned counsel appearing for the respondent has vehemently opposed the writ petition and has argued that since there is an inordinate delay of around 7(seven) years, the writ petition is liable to be dismissed on the ground of delay only. It is also contended that, as a matter of fact, the petitioners before the Tribunal have not refuted the claim of the respondent of antedated seniority on the posts of Assistant Commissioner of Income Tax and Joint Commissioner of Income Tax but have agreed to it while contending that the antedated seniority would be given to the respondent after finalization of the All India inter-se seniority list of the Income Tax Officers by the Board. It is submitted that it is more or less a consent order and on this ground also the petitioners cannot challenge the impugned order. The learned counsel appearing for the respondent has further submitted that recently the Hon’ble Supreme Court in Hariharan & Ors. -Vs- Harsh Vardhan Singh Rao & Ors. [Civil Appeal arising out of SLP (C) No.16161/2018], while taking into consideration the argument advanced by one of the parties before it that the judgment of the Hon’ble Supreme Court rendered in K. Meghachandra Singh (supra) is per incuriam because the binding decision of the Constitution Bench of the Hon’ble Supreme Court rendered in Mervyn Coutindo & Ors. -Vs- Collector of Customs, Bombay & Ors., reported in 1966 (3) SCR 600 as well as another decision of the Hon’ble Supreme Court rendered in M. Subba Reddy & Anr. -Vs- A.P State Road Page No.# 10/12 Transport Corporation & Ors., reported in (2004) 6 SCC 729 were not placed for consideration at the time of considering the case of K. Meghachandra Singh (supra), has accordingly referred the matter to be decided by a larger Bench of 5(five) Hon’ble Judges, the same cannot be applied in the facts of the present case. The learned counsel for the respondent has, therefore, prayed that the writ petition may kindly be dismissed. 18. Heard the learned counsel appearing for the parties and perused the material available on record. 19. The facts which are not in dispute are that though the respondent was assigned seniority in the Grade of Income Tax Officers from 10.01.1994 instead of 16.12.1994 but that was not final and remained provisional because the All India inter-se seniority list of the Income Tax Officers was not finalized by the Board till the decision of the Delhi High Court in Ms. Veena Kothavale (supra) was delivered, wherein it has been held that the judgment of N.R. Parmar (supra) would apply prospectively and the seniority positions settled prior to N.R. Parmar (supra) are not liable to be interfered with. The decision of the Delhi High Court in Ms. Veena Kothavale (supra) has been affirmed with the dismissal of the SLP by the Hon’ble Supreme Court and later on the Hon’ble Supreme Court in K. Meghachandra Singh (supra) has overruled the decision of the N.R. Parmar (supra). The Delhi High Court in Ms. Veena Kothavale (supra) in categorical terms has stated that the settled seniority cannot be unsettled as it may lead to various complications. Relevant paragraphs of the judgment rendered by the Delhi High Court in Ms. Veena Kothavale (supra) are reproduced hereunder: “59. As we have already observed, the administrative wisdom has always been to preserve the settled seniority whenever there has been a Page No.# 11/12 change in the rule position/applicable principle, and the changed rule/ principle that affects seniority is invariably made prospective in its operation. This administrative wisdom is in consonance with the well-settled legal principle that settled seniority should not be allowed to be unsettled. Since the decision of the Supreme Court in N.R. Parmar (supra) is silent on the aforesaid aspect, in our considered view, the reasonable manner of application of the said decision - which would advance the cause of justice, would be to treat the OM dated 03.03.2008 as nullified/ quashed from and on the date of the said decision, i.e. 27.11.2012, and to preserve the settled seniority position drawn up by application of the said OM dated 03.03.2008 till the date of the decision in N.R. Parmar (supra). 60. …… 63. Pertinently, even though the decision N.R. Parmar(supra) does not state that the said decision would be applicable only from the date on which it was rendered, the OM dated 04.03.2014 states that ‘principles for determination of inter se seniority of direct recruits and promotees’ which are contained in the OMs dated 07.02.1986/03.07.1986, ‘would be effective from 27.11.2012, the date of the Supreme Court judgment in Civil Appeal No.7514-7515/2005 in the case of N.R. Parmar Vs. UOI'’. Thus, even as per the OM dated 04.03.2014, the decision in N.R. Parmar(supra) was sought to be given effect to from the date of the said decision, i.e. 27.11.2012. The consequence of the application of the OM dated 04.03.2014, in our view, is that the seniority positions as settled up to the date of decision of N.R. Parmar (supra), were treated as final. 64. …… 65. …… 72 Though there is no doubt that after the issuance of O.M. dated 04.03.2014, unless the Statutory Rules provided otherwise, the inter se seniority of direct recruits and promotees in future cases has to be fixed with reference to date of initiation of the process of recruitment, but the same cannot be stretched to such an extent so as to permit the employer department to reopen the already settled Seniority Lists, which were not under challenge in any proceedings whatsoever. In our view, to hold otherwise would lead to administrative chaos, as by using the said methodology the respondents and, in fact, any employer across the country, governed by the DOP&Ts O.M would be free to reopen the seniority of employees, which may have been settled years ago. This could not have been the intent of the decision of the Supreme Court in N.R. Parmar (supra), Page No.# 12/12 or the DOP&Ts O.M dated 04.03.2014. 73. In these circumstances, we are of the considered view that the decision in N.R. Parmar (supra) cannot be used by the respondents to unsettle the settled seniority position of the petitioner in the cadre of the DLC.” 20. As we have already noted that the judgment rendered by the Hon’ble Supreme Court in the case of N.R. Parmar (supra) has already been overruled in K. Meghachandra Singh (supra) and, accordingly, the order of the Tribunal based on the principle laid down in N.R. Parmar (supra) cannot be sustained. 21. It is true that the decision of the Hon’ble Supreme Court in K. Meghachandra Singh (supra) has now been referred to a larger Bench in Hariharan (supra) but till date the judgment rendered in K. Meghachandra Singh (supra) has neither been overruled nor modified and still holds the field and, therefore, it cannot be overlooked. 22. In view of the above discussion, the impugned order dated 04.08.2017 passed by the Tribunal in O.A. No.63/2017 is set aside. 23. However, there will be no order as to costs. JUDGE CHIEF JUSTICE Comparing Assistant