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Income Tax Appellate Tribunal, 11TH FLOOR, LOK NAYAK BHAWAN
W.P No.51545/2019 C/W W.P. No.868/2021
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF MAY, 2022 PRESENT THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR
AND THE HON’BLE MRS. JUSTICE M.G. UMA
WRIT PETITION No.51545 OF 2019 C/W WRIT PETITION No.868 OF 2021 (S-CAT)
IN W.P. No.51545 OF 2019
BETWEEN :
GOVERNMENT OF INDIA REP. BY ITS SECRETARY MINISTRY OF LAW AND JUSTICE DEPARTMENT OF LEGAL AFFAIRS 4TH FLOOR, A-WING SHASTRI BHAWAN NEW DELHI-110 001
THE PRESIDENT INCOME TAX APPELLATE TRIBUNAL 11TH FLOOR, LOK NAYAK BHAWAN KHAN MARKET NEW DELHI-110 003
THE DEPARTMENT OF PERSONNEL AND TRAINING GOVERNMENT OF INDIA NORTH BLOCK CENTRAL SECRETARIAT
W.P No.51545/2019 C/W W.P. No.868/2021
2 NEW DELHI-110 001 REP. BY SECRETARY ... PETITIONERS
(BY SHRI. M.B. NARAGUND, ASG A/W SHRI. M.N. KUMAR, CGSC)
AND :
SRI. INTURI RAMA RAO S/O LATE INTURI SUBBA RAO AGED ABOUT 53 YEARS OCC: ACCOUNTANT MEMBER INCOME TAX APPELLATE TRIBUNAL SECOND AND THIRD FLOOR GOLDEN JUBILEE BUILDING, FKCCI KEMPEGOWDA ROAD BENGALURU-560 009 RESIDING AT FLAT NO.604 BLOCK-1, NAGARJUNA MEADOWS PHASE-II, DODDABALLAPURA MAIN ROAD YELAHANKA BENGALURU-560 064 ... RESPONDENT
(BY SHRI. CHALLA KODANDARAM, SENIOR ADVOCATE FOR SMT. KRISHMA NEDUNGADI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE JUDGMENT AND ORDER DATED 20.03.2019 MADE IN ORIGINAL APPLICATION NO.170/00238/2018, BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH AT ANNX-A.
IN W.P. No.868 OF 2021
BETWEEN :
INTURI RAMA RAO S/O LATE INTURI SUBBA RAO AGED ABOUT 53 YEARS E-601, EKTA CALIFORNIA SOCIETY
W.P No.51545/2019 C/W W.P. No.868/2021
3 NIBM-UNDRI ROAD,UNDRI MAHARASTRA ... PETITIONER
(BY SHRI. CHALLA KODANDARAM, SENIOR ADVOCATE FOR SMT. KRISHMA NEDUNGADI, ADVOCATE)
AND :
GOVERNMENT OF INDIA REP. BY ITS SECRETARY MINISTRY OF LAW AND JUSTICE DEPARTMENT OF LEGAL AFFAIRS 4TH FLOOR, A-WING SHASTRI BHAWAN NEW DELHI-110 001
THE PRESIDENT INCOME TAX APPELLATE TRIBUNAL 11TH FLOOR, LOK NAYAK BHAWAN KHAN MARKET NEW DELHI-110 003
THE DEPARTMENT OF PERSONNEL AND TRAINING GOVERNMENT OF INDIA NORTH BLOCK CENTRAL SECRETARIAT NEW DELHI-110 001 REP. BY SECRETARY ... RESPONDENTS
(BY SHRI. M.B. NARAGUND, ASG A/W SHRI. M.N. KUMAR, CGSC)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO 1) ISSUE A WRIT OF CERTIORARI OR ORDER OR DIRECTION QUASHING THE ORDERS DATED 20.03.2019 ANNEXURE F AND ANNEXURE G DATED 03.12.2019 PASSED IN THE ORIGINAL APPLICATION NO. 170/00238/2018 AND M.A. NO.170/00605/2019 IN O.A. NO.170/00238/2018 BY THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALORE BENCH TO THE EXTENT OF THE DIRECTION THAT THE NAME OF THE PETITIONER SHALL BE PLACED IN THE NEXT POSITION AFTER THE LAST PERSON APPOINTED
W.P No.51545/2019 C/W W.P. No.868/2021
4 IN THE SENIORITY LIST PERTAINING TO THE SELECT LIST DATED 22.09.2005, DULY DECLARING THAT THE DIRECTION TO THE SAID EXTENT AS ILLEGAL. 2. DIRECT THE RESPONDENTS TO PLACE THE NAME OF THE PETITIONER IN THE SENIORITY LIST OF THE MEMBERS OF THE INCOME TAX APPELLATE TRIBUNAL BETWEEN SL.NO.32 AND 33 AND 3. GRANT OTHER CONSEQUENTIAL BENEFITS AND PASS ANY OTHER ORDER OR DIRECTION.
THESE WRIT PETITIONS, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 19.04.2022 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, P.S.DINESH KUMAR. J, PRONOUNCED THE FOLLOWING:-
ORDER
Government of India, Ministry of Law and Justice and the applicant before the CAT have filed these writ petitions challenging the orders dated March 20, 2019 passed by the CAT1 in O.A. No.170/00238/2018 and M.A. No.170/00605/2019.
For the sake of convenience, parties shall be referred as per their status in the CAT.
We have heard Shri. M.B.Nargund, learned Addl. Solicitor General, Shri. Chella Kodandaram, learned Senior Advocate.
1 Central Administrative Tribunal
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Brief facts of the case are, Government of India, Ministry of Law and Justice, Department of Legal Affairs, vide Notification dated January 22, 2005, invited applications for 22 posts of Members to Income Tax Appellate Tribunal2 throughout India. The Selection Board recommended 18 candidates in the main list consisting of 7 candidates for the post of judicial members and 11 candidates for the post of Accountant Member. Two candidates each for Judicial Member and Accountant Member were placed in the wait-list. Applicant was one of the wait-listed candidates for the post of Accountant Member. The same was placed before the Appointment Committee of the Union Cabinet. The Cabinet approved all 16 appointments of Accountant Members and instructed the Law Ministry to amend the recruitment rules for making further appointments to the ITAT.
2 ITAT
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The Revenue Bar Association filed W.P. No.8288/2007 before Madras High Court, seeking a direction to implement the Select List dated 22.09.2005 and the Madras High Court issued the said direction. The said order was challenged in SLP(C)No. 13681/2007 and the same was dismissed vide order dated August 17, 2007.
Applicant and another wait-listed candidate Shri. B. Krishna Mohan approached the CAT, Hyderabad and another candidate by name Shri. P.K. Kedia, wait-listed for Accountant Member also filed an O.A. before CAT, Mumbai. All three cases were heard by the CAT, Principal Bench, Delhi and a direction was issued to consider their cases against vacant posts in ITAT. The said order was challenged before the Delhi High Court contending inter alia that their cases would be considered after recruitment rules were amended as suggested by
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7 the ACC3. The Delhi High Court rejected the said contention and directed that the three wait-listed candidates be appointed as Members of the ITAT. The order passed by the Delhi High Court was challenged in Civil Appeal No.6567-6569/2010. The Hon'ble Supreme Court of India allowed the said appeals and set-aside the order passed by the CAT and Delhi High Court.
The applicant found that without amending the Rules, appointments were being made to the post of Member, ITAT. He filed a writ petition under Article 32 of the Constitution of India registered as W.P.(C) No.202/2013. The Hon'ble Supreme Court of India allowed the said writ petition and directed consideration of applicant’s case within 30 days from the date of disposal. The applicant was appointed on March 13, 2005 with effect from April 9, 2015.
3 Appointment Committee of the Cabinet
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Applicant submitted several representations to consider his notional seniority and consequential benefits from the date of the Select List i.e., September 22, 2005 and the same were not considered. Applicant filed the instant O.A. No. 238/2018 before CAT, Bengaluru with a prayer inter alia to direct the respondents therein to consider his representations and to restore his seniority with consequential benefits. The CAT vide order passed in the O.A., has held that the applicant is eligible to be kept in the seniority and he shall be placed in the select position after the last person was appointed in the Selection List. Thereafter, applicant filed a Misc. application seeking a clarification that petitioner’s name shall be placed in the Select List dated 22.09.2005 between Shri. Vijay Paul Rao, Judicial Member and Shri. George George K., Judicial Member and to fix the pay with effect from October 2007, on notional
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9 basis. The said Misc. application has been disposed of with a clarification that applicant would be eligible to be considered in the first list of selection and the seniority benefits would be granted except the salary for the period which he had not worked.
Shri. M.B. Naragund, learned Additional Solicitor General submitted that: • the CAT failed to notice that applicant was not in the Select List of 22.09.2005, but he was in the wait-list; • the applicant was appointed as Accountant Member on March 13, 2015. As per Sub-Rule
(1) of Rule 10 of the Recruitment Rules, applicant has no right to claim refixation of seniority and consequential benefits from August 31, 2007, on which day, the ACC approved the appointment of 16 candidates in the Select List.
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10 10. In substance, the learned ASG has argued that applicant was appointed in 2015 and therefore, he is not entitled for the seniority and other benefits from the date of approval of the Select List.
Shri. Chella Kodandaram, learned Senior Advocate submitted that the applicant’s case has been decided in W.P.(C) No.202/2013 by the Hon'ble Supreme Court of India. He submitted that Rule 10 of ITAT Member (Recruitment and Conditions of Service) Rules, 1963, provides for fixation of Seniority as per the date of appointment. However, applicant had been deprived of the appointment against a clear vacancy. He has been appointed as per the directions of the Apex Court against the General category vacancy. Therefore, applicant is entitled for his seniority. In support of
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11 his contention, he has relied upon para 3 in Ms. Neelima Shangla Vs. State of Haryana and others4.
We have carefully considered rival contentions and perused the records.
Undisputed facts of the case are, applicant’s candidature was kept in the wait-list. His specific case is that though the ACC had directed to amend the 1963 Rules, respondents were making appointments to the post of Member, ITAT. Hence, he filed a writ petition under Article 32 of the Constitution of India. A copy of the order in W.P.(C) No.202/2013 dated September 23, 2014 is placed on record as Annexure-A4. The prayer made in the said writ petition is, inter alia for a direction against Union of India and others to appoint applicant as an Accountant Member of ITAT in lieu of selections already made and/or to issue appropriate order for
4 (1986)4 SCC 268
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12 enforcement of its order dated September 17, 2009 in SLP (C) 13681/2011. The operative portion of the order of the Apex Court reads as follows: “We, therefore, allow this writ petition and direct consideration of the case of the petitioner for appointment on the basis of his position in the Waiting List against one of the two vacancies that had arisen on account of two of the candidates in the merit list not having been granted the vigilance clearance. This will be done by the concerned Authority within 30 days from the date of receipt of a copy of this order. The writ petition shall stand disposed of in the above terms.” (Emphasis Supplied) 14. Thus, it is clear that the direction by the Apex Court is for consideration of applicant’s case for appointment on the basis of his position in the wait-list. The said direction has been complied with. This means, applicant ought to have been appointed by operating the wait-list. If that is done,
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13 he is entitled to be placed at the end of the list of candidates in the Select List who have joined the service.
Shri. Chella Kondandaram is right in his submission that applicant’s case has been decided by the Apex Court.
In the facts and circumstances of this case and the clear directions of the Apex Court in W.P.(C) 202/2013, the elaborate arguments advanced by the learned Addl. Solicitor General with reference to Rule 10 are unnecessary. Once applicant has been appointed pursuant to the directions of the Apex Court, ‘in his position in the waiting list’, he shall be entitled for consideration of notional seniority and other consequential benefits. He shall be placed at the end of the last person appointed in the Select List. He shall be entitled for
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14 pay only from the date of his assuming charge, which the CAT has rightly granted.
In view of the above, both these writ petitions must fail and they are accordingly dismissed. No costs.
Sd/- JUDGE
Sd/- JUDGE
SPS