By TIOL News Service

AHMEDABAD, AUG 15, 2017: THE issue before the Bench is - Whether unreasonable inaction on the part of Department in not revising the final seniority list of the ITO cadre and granting promotion to junior officers on adhoc basis, is arbitrary and hence violative to Article 14 of Constitution of India. YES is the verdict.

Facts of the case

The petitioners are serving in the Income Tax Department for years. At present all these petitioners are working as ITO and are claiming promotion from the post of ITO to the post of ACIT. On the one hand the Department was not revising the seniority list in the cadre of ITO as per the decision of the Supreme Court in the case of N R Parmar and on the other hand the department continued to operate the seniority list pre N R Parmar decision and were filling up the post in the cadre of ACIT by way of promotion on ad hoc basis. Some of the petitioners approached the Central Administrative Tribunal which disposed of the said OA and issued certain directions inter alia to finalise the new seniority list in accordance with the Parmar decision after considering the 150 objections within a period of one month. Department did not comply with the directions issued by the Tribunal and therefore, the petitioners preferred Contempt Petition before the Tribunal which was dismissed. One of the applicant preferred Special Civil Application before the Court. After taking note of the submission made by the counsel for the Department that entire seniority list will have to be considered by the CBDT and looking to the proposal and other requirement which will take some more time, the Division Bench disposed of the Special Civil Application by observing that it is expected that such seniority list may be finalized as far as possible by 15.10.2014. Department did not comply with the order passed by the Division Bench. Some of the petitioners preferred Contempt Petition before the Court to take appropriate action against the department. Even during the pendency of the Contempt Petition, the Department on one had did not comply with the earlier orders and did not prepare and finalize the seniority list, however on the other hand continued to fill up the post of ACIT on ad hoc basis. Therefore, one Civil Application was submitted for restraining the department from giving promotion to the post of ACIT on ad hoc basis. Division Bench of this Court passed order that t he status quo as on date be continued qua promotions from the cadre of Income Tax Officers to Assistant Commissioner of Income Tax. In Miscellaneous Civil Application, Division Bench relying upon the statement on oath of the Chairperson, CBDT, granted time to the department to revise the seniority list in the cadre of ITO upto 27.07.2017. Some of the petitioners again approached the Central Administrative Tribunal making the grievance against the respondent as to the inaction on the part of the respondent in initiating the process of permission to the post of ACIT on the basis of the seniority list. Tribunal did not entertain the said OA in view of the order passed by the Division Bench of this Court by which, the Division Bench passed order of status quo with respect to the post of ACIT. Hence, present Special Civil Applications.

On appeal, the HC held that,

++ the decision of the Supreme Court in the case of N R Parmar was rendered in the year 2012 and thereafter department was required to take immediate steps and/or required to take steps within the reasonable time to revise the seniority list in the cadre of ITO. There is no justification at all at least from 2013-14. There is total inaction on the part of the department either deliberately and / or willfully and / or for some other reasons, but the fact remains that for number of years no steps are taken to revise the seniority list in the cadre of ITO. At this stage, it is required to be noted that earlier the Central Administrative Tribunal in OA No. 145 of 2013 in its order dated 19.09.2013 issued the directions directing the department to revise the seniority list. However, for considerable long time, the department failed to comply with the said direction. The delay right from 2014 and even thereafter has not been explained. Therefore, there is a total inaction on the part of the department in not revising the seniority list in the cadre of ITO, which the department is bound to revise as per the decision of the Supreme Court in the case of N R Parmar. Inaction on the part of the Department has as such affected the rights of the respective petitioners to consider their case for promotion to the post of ACIT. The respective petitioners while serving in the department shall have the legitimate expectations at least to consider their case for promotions to the next post i.e. ACIT, more particularly when the juniors to them have got the promotion may be on ad hoc basis;

++ the legitimate expectations of the petitioners of being considered for promotion have been defeated by the act of the department (inaction on the part of the department). Unreasonable inaction on the part of the department in not revising the seniority list in the cadre of ITO has stood in the way of the petitioners chances of promotion from being fairly considered when it is due for such consideration and the delay has made them ineligible for such consideration. Not only that indemnify granting of promotion to the post of ACIT on ad hoc basis to some of the juniors has resulted into discriminatory treatment which is violative of Article 14 of the Constitution of India. Considering the draft revised seniority list, it appears that those who would juniors in the seniority list if prepared on the basis of the decision of the Supreme Court in the case of N.R. Parmar, some of them are already promoted as ACIT on ad hoc basis. The Department is bound to perform its duty diligently, by not revising the seniority list in the cadre of IT, which the Department is bound to revise as per the decision of the Supreme Court in the case of N.R. Parmar, the same can be termed as even arbitrary and even mala fide;

++ accordingly, all these petitions are disposed of by directing the Department to finalize the revised seniority list in the cadre of ITO within a period of 8 weeks from today without fail. As already ordered earlier, till the revised seniority list in the cadre of ITO as per the decision of the Supreme Court in the case of N R Parmar is finalized and the cases of the respective petitioners are considered for promotion to the post of ACIT, as already ordered earlier the respondents are restrained from filling up the post of ACIT on promotion on ad hoc promotion by operating the select list pre N. R. Parmar decision. In any case, the aforesaid exercise shall be completed and the revised seniority list in the cadre of ITO be finalized within a period of two months from today as stated above, and immediately, thereafter case of the respective petitioners be considered for promotion to the post of ACIT forthwith.

(See 2017-TIOL-1561-HC-AHM-SERVICE)