1. Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.1052 of 2010
M.A.Nos.2410, 2415, 2427, 2428, 2562 and 2594 of 2010
This, the 2nd day of November 2010
Hon’ble Shri Justice V.K. Bali, Chairman
Hon’ble Shri L.K. Joshi, Vice Chairman (A)
Hon’ble Shri Shanker Raju, Member (J)
1. Vikas Keraba Suryawanshi,
S/o Sh. Keraba K. Suryawanshi,
Dy. Commissioner of Income Tax,
R/0 A-15, A-Block, Pragati Vihar Hostel,
Near Jawaharlal Nehru Stadium, Lodhi Estate,
New Delhi.
2. Ms. Richa Gaharwar,
W/o- Sh. Sanjay Kumar Singh,
Dy. Commissioner of Income Tax,
R/0- L-202, Ratnagiri Apartment,
Kaushambi, Ghaziabad,
Uttar Pradesh.
3. Saroj Kumar Dubey,
S/o Sh. Ram Swarup Dubey,
Dy. Commissioner of Income Tax,
R/0 B-107, Pandara Road, New Delhi.
4. Sanjay Kumar Yadav,
S/o Shri Dharam Raj Yadav,
Dy. Commissioner of Income Tax,
R/0 L-302, Ratnagiri Apartment,
Kaushambi Ghaziabad, Uttar Pradesh.
5. M. Rajan,
S/o Late Sh.S. Muthaih Ram,
Dy. Commissioner of Income Tax
Addressed At- Old Tamil Nadu House,
Kautilya Marg, Chanakyapuri, New Delhi.
6. Zeenia Handa,
D/O- Sh.P.K.Goel,
Dy.Director of Income Tax,
R/0 5124, B-7, Vasant Kunj,
New Delhi.

2. 7. Prasahant Kumar Jha,
S/0 Sh. Hari Kumar Jha,
Dy.Commissioner of Income Tax
R/o DDA, Flats, Mayapuri,
New Delhi.
8. Vimal Anand,
S/0 Shri Ramanand Dass,
Under Secretary (TPL-11), CBDT,
R/0 L-902, Ratnagiri Apartment,
Kaushambi, Ghaziabad, Uttar Pradesh.
9. Amol Kumar Bharadwaj,
S/o Sh.Parmanand Sharma,
Under Secretary (ITJ), CBDT,
Addressed At- Room No. 702,
HUDCO Vishala,
Bhikaji Cama Place, New Delhi.
10. Pushpendra Singh Chaudhary,
S/0 Sh.Murlidhar Chaudhary,
Under Secretary (A & PAC-I), CBDT,
R/0 L-702, Girnar, Kaushambi, Ghaziabad,
Uttar Pradesh.
11. Rajesh Kumar,
S/o Shj. Budh Sain,
Dy. Commissioner of Income Tax,
R/0-6016/2,Pocket-6B, Sector-D,
Vasant Kunj, New Delhi.
12. Suresh Sivanandan,
S/o Sh. G. Sivanandan,
Dy. Commissioner of Income Tax,
R/0 B-9/6390, Vasant Kunj,
New Delhi.
13. Solgy Jose Kottram,
S/o Sh. K.A.Thomas,
Dy. Commissioner of Income Tax,
R/o- 3N, Applevilla, Shanthinagar,
Kakkanad, Cochin-30, Kerala.
14. Anjula Jain,
D/o Sh. S.C. Jain,
Dy. Commissioner of Income Tax,
R/0 808, Ahicon Apartment, Sector-3,
Vaishali, Ghaziabad, Uttar Pradesh.
15. Vivek Anand Ojha,

3. S/o Sh. J.K.Ojha,
Under Secretary (TPL-1), CBDT,
R/0- L-702, Ratnagiri Apartment,
Kaushambi, Ghaziabad,
Uttar Pradesh. Applicants
(Shri Vijay Hansaria and Shri Maninder Singh, Senior Advocates (Shri R K Singh and Ms. Sneha Kalita,
Advocates with them) for applicants
Versus
1. Union of India,
Represented by the Secretary to
the Government of India,
Department of Revenue, Miistry of Finance,
New Delhi.
2. The Chairman,
Central Board of Direct Taxes (CBDT),
Department of Revenue, North Block, New Delhi.
3. Department of Personnel & Training,
Through its Secretary,
Government of India, North Block,
New Delhi.
4. Union Public Service Commission,
Through its Chairman,
Shahjahan Road, New Delhi.
5. Joint Secretary (Admn.),
Central Board of Direct Taxes,
Department of Revenue, North Block,
New Delhi.
6. Shri S.K.Mehra S/o Sh. P.N.Mehra,
Dy. Commissioner of Income Tax,
R/0 40/110, C.R.Park,
New Delhi-110019
7. Shri R.K.Mehra S/o Sh.Jugal Kishore,
Dy.Commissionder of Income Tax,
R/0 B-242, IInd Floor, Chitaranjan Park,
New Delhi-110019. Respondents
(Shri Parag Tripathi, ASG (Shri V.S.R.Krishna and Shri R.N. Singh Shri Vaibhav Joshi, Advocates with
him) for Union of India)
(Ms. Alka Sharma, Advocate for UPSC)

4. (Shri P.P.Khurana, Senior Advocate (Shri K.K. Khurana and Shri A.K. Mehta, Advocates with him) for
applicants in M.A. Nos. 2428 and 2452 of 2010)
(Shri B. Balaji, Advocate for applicants in MA 2415/2010)
(Applicant in person in MA 2427/2010)
(Shri A.K. Behera and Ms. Jasmine Ahmed, Advocates for private respondent Nos. 6 & 7)
(Shri R.K. Shetty, Advocate for private respondent No.8)
(Shri Devesh Singh, Advocate for applicant in MA 2562/2010)
O R D E R
Shri Shanker Raju:
Correctness of law laid down by the Ahmedabad Bench of the Tribunal in Shri Sanjeev
Pugalia & others v. Union of India & others (OA-417/2005) decided on 26.2.2007, insofar as
following the rota rule is concerned, contained in Rule 9 (iii) of Indian Revenue Service Rules 1988
(hereinafter referred to as Rules) maintaining 1:1 ratio in the seniority between the promotees and
direct recruits as well as correctness of the directions in Prabhakant Ayodhya Prasad & others v.
Union of India & others, 2003 (1) SLJ 317 CAT holding validity of relaxation on quota rules and
observing that rota rule cannot be relaxed in the backdrop of wide ramifications on the issue of
seniority as large number of Indian Revenue Officer (Income Tax) (for short IRS) being involved, has
been referred before the Full Bench for a clear and authoritative pronouncement on the subject.
2. At the outset, we may mention that the Constitution Bench of Apex Court in Prafulla Kumar
Das & others v. State of Orissa & others, 2004 SCC (L&S) 121 has held that seniority is not a
fundamental right but is merely a civil right. It is also held by the Apex Court in a three-Judge Bench
decision in Bimlesh Tanwar v. State of Haryana & others, 2003 (2) SC SLJ 119 that the seniority is to
be determined in absence of rule by Executive instructions and for want of both, Court may evolve
fair and just principle for determination of seniority in the facts and circumstances of the case.
3. The factual matrix of the present case, in brief, is relevant to be highlighted. A perennial list
of seniority between direct recruits and promotees has resurrected in respect of officers of IRS
(Income Tax). A gist of statutory rule, i.e., the Rules framed under proviso to Article 309 of the
Constitution of India in 1988 indicates that the IRS was constituted as a Service with duty post
included in the various grades of Service, as reflected in Schedule I appended to the Rules, which
from the lowest rung of the hierarchy creates designation of Assistant Commissioner, Income Tax
(ACIT) (Junior Scale) with the eligibility criteria for the promotees. This selection on promotion has to
be made on merit. Insofar as the relative seniority of the members of the Service appointed to the
Grade in initial constitution is concerned, it is to be determined by relative seniority, obtaining
immediately before the date of commencement as per Rule 8 of the Rules. However, the seniority of
the persons appointed to the grade of ACIT (Junior Scale) shall be determined on a rota system as
per Rule 9 (iii) of the Rules whereby the relative seniority between the promotees and direct
recruits, shall be arranged in the ratio of 1:1 to be operated as per the maintained roster in the
following manner:
a) Promotee,
b) Direct recruit,

5. c) Promotee;
d) Direct recruit and so on
Rule 10 of the Rules, as regards inter-se-seniority other than the initial grade, i.e., senior scale of
Junior Administrative Grade (JAG), Senior Administrative Grade (SAG) and higher grade, shall have to
be determined in order of position in respective lists of promotees and those who have been
promoted even earlier selection would rank senior to those promoted on the basis of subsequent
selection. Rule 15 of the Rules enjoins the Government in consultation with the Union Public Service
Commission (UPSC) a jurisdiction to relax any provision of the Rules in respect of class or category
but by recording reasons.
4. In nutshell, quota rota rule has been followed with the promotees among the Income Tax
Officers (ITOs) and direct recruit Assistant Commissioners being arranged in the ratio of 1:1. Though
it is not disputed that in the nomenclature of seniority list, no list has ever been published but a civil
list has been issued by the official respondents whereby the particulars of all the officers of IRS with
their service particulars have been indicated. This list was operated for the purposes of seniority list
and a disclaimer was appended to the extent that the list published shall not be treated as an
authentic document for seniority.
5. Before the Tribunal in Prabhakant Ayodhya Prasad (supra), an issue was raised by 1991
batch officers challenging relaxation made by the official respondents under Rule 15 of the Rules
whereby the quota rule was relaxed and the promotees have been inducted on diversion of 176
vacancies meant for direct recruits. The Tribunal has ruled that as there has been no relaxation to
the seniority rule, grant of en block seniority to the promotees against 176 vacancies was not in
accordance with rules. A direction was issued to regulate the seniority as per para (iii) of sub-rule (3)
of Rule 9 of the Rules and to follow the provisions of the said rule for all subsequent batches.
Accordingly, the said OA was disposed of. However, no seniority list was thereafter issued in
compliance thereof.
6. An order passed by the Ministry of Finance on 31.8.2001 in consultation with the
Department of Personnel & Training and UPSC is the bone of contention and subject matter of
challenge whereby in exercise of creation of additional posts in Income Tax Department pursuant to
cadre restructuring, giving one time relaxation in the Rules, the quota rule was relaxed to the extent
of diverting the direct recruitment quota to the promotees and a decision to fill up 993 posts by
promotion of ITOs Group B. Out of these vacancies, 484 vacancies were utilized for the vacancy year
2000-01 and 509 vacancies for 2001-02 and as a result of the same, the impleaded respondents-ITOs
were promoted as ACIT junior scale in 2001-02 respectively.
7. Before the Ahmedabad Bench of the Tribunal in Sanjeev Pugalia (supra), direct recruit IRS
officers, appointed on the basis of Civil Service Examination 2001, have assailed grant of en block
seniority to the promotees over and above them and have also assailed for want of relaxation of
rota rule violation of Rule 9 (iii) of the Rules. The matter was heard and their challenge to the
relaxation of quota by the respondents vide order dated 31.8.2001 was dismissed as barred by
latches and with regard to seniority, the OA was held to be pre-mature, as no specific order of inter-
se-seniority has been put to challenge.
8. Before the Principal Bench, the present OA, which has been placed before this Full Bench, is
filed on the basis of a proposed action by the official respondents whereby through several
communications, i.e., 26.9.2009 and 1.10.2010, deficient ACRs were directed to be completed in
cadre of ACIT officers of 2000-01 batch for the purposes of holding DPC to the grade of Joint
Commissioner, Income Tax (JCIT) for the year 2000-01. A challenge has been made regarding non-

6. finalization of seniority of the officers of 2000 batch following 1:1 ratio as per the Rule 9 (iii) of the
Rules with a further direction against the official respondents to be restrained from effecting any
promotion in the grade of JCIT. On 5.4.2010, promotion to be made to the post of JCIT was made
subject to the final outcome. During the course of hearing, MAs for impleadment have been filed by
the affected parties, including direct recruits of yesteryears and promotees. However, on 16.9.2010,
the Division Bench of this Tribunal, taking note of the recruitment rules and decisions in Sanjeev
Pugalia (supra) and Prabhakant Ayodhya Prasad (supra), observed that before the Ahmedabad
Bench in Sanjeev Pugalia (supra) the plea was to follow the recruitment rules regarding seniority to
the ratio of 1:1 between promotees and direct recruits and also the correctness of decision in
Prabhakant Ayodhya Prasad (supra) whereby despite holding the validity of relaxation of quota it has
been observed that rota rule could not be relaxed. In the backdrop of wide ramifications on the issue
of seniority as large number of IRS officers are involved and also to have an authentic
pronouncement on the law and to lay down the correct law, accordingly matter is referred to the
Full Bench with the reference, which is under examination.
9. We could have answered the reference as to the correctness of the order passed by the
Tribunal but as the lis is between two factions of employees under one employer, to prevent any
disharmony and discontentment, we have considered the grievance raised in the OA by the direct
recruits, which is directed against the civil list treated by the official respondents as a seniority list. In
judicial review, we proceed to adjudicate the issue as to whether the civil list is to be treated as a
seniority list, and if not, what would be the methodology apt in law to publish a seniority list as an
obligation on the official respondents as per the statutory rules?
10. Shri Vijay Hansaria, learned senior counsel submitted that as per the rules, quota and rota
being two different aspects, the power of relaxation has been exercised by the official respondents
to relax the quota rule by diverting the direct recruitment vacancies towards the promotee quota
but as there has been no express relaxation of the rota rules, assignment of seniority by bunching
the seniority over and above the direct recruits would be in contravention of Rule 9 (iii) of the Rules.
It is stated that the methodology of publishing a draft seniority list with an opportunity to the
concerned and then dealing with the objections and publishing the seniority list is a condition
precedent for effecting the promotions.
11. The learned senior counsel also added that the published civil list has a disclaimer whereby it
has not been treated to be an authentic document for seniority. As such, the official respondents are
duty bound by their own decision, which cannot now be projected contrary, which would amount to
approbating and reprobating simultaneously. Learned senior counsel further stated that if the rota
rule has not been expressly relaxed by recording reasons under Rule 15 of the Rules by a positive act
in consultation with the UPSC and DOPT, the seniority has to be maintained in the ratio of 1:1 and
deemed relaxation cannot be construed. It is added that since the inception of IRS no seniority list
has been issued and this practice cannot partake the character of rule, which would amount to a
violation of Rule 9 (iii) of the Rules. Accordingly referring to the decision in Prabhakant Ayodhya
Prasad (supra), which has attained finality, it is stated that the relaxation of rota rule since being
answered in negative, the official respondents are bound by it.
12. Learned senior counsel in continuation of his assertion as to finality arrived at in the case of
Prabhakant Ayodhya Prasad (supra) has produced before us the decision of High Court of Gujarat at
Ahmedabad in Special Civil Application Nos.2600 and 2601 of 2001, decided on 16.8.2001 titled
Prabhakant Ayodhya Prasad v. Union of India, which was challenged by the aggrieved parties. The
principles enunciated by the High Court are relevant to the extent of relaxation of rota rule and
seniority to be operated as per the statutory rules. The matter was remanded back to the Tribunal
on 16.8.2001 with a direction to re-determine the issue of seniority, vis-`-vis, relaxation in rota rules,

7. which when re-decided by the Tribunal, in Special Leave Application No.7491/2002 filed by the
parties, Rule DB has been made on 21.10.2002. Learned senior counsel invokes the doctrine of
merger by relying upon the decision of the Apex Court in Kunhayammed & others v. State of Kerala
& another, (2000) 6 SCC 359 to contend that the writ petition, which has been admitted and has
been rendered infructuous on 4.12.2009 with liberty to the parties to approach the Court in case of
any difficulty amounts to affirming the decision of the Tribunal, which now cannot be overruled by
the Full Bench and holds the precedent value whereby as a consequence, it is incumbent upon the
official respondents to prepare the seniority list strictly in accordance with the rota rule of 1:1
enshrined under Rule 9 (iii) of the Rules.
13. Learned senior counsel Shri Hansaria relied upon the decisions of Apex Court in S.G.
Jaisinghani v. Union of India & others, AIR 1967 SC 1427, Bishan Sarup Gupta v. Union of India &
others, (1973) 3 SCC 1 and Bishan Sarup Gupta & others v. Union of India & others, (1975) 3 SCC 116
to contend that rota rule has to be followed even if the quota rule is relaxed. It is stated that the
seniority has to be operated strictly in accordance with the rules despite diversion of vacancies to
the promotees. The position of direct recruits should have to be maintained.
14. On the other hand, Shri Parag Tripathi, learned ASG with him Shri VSR Krishna and Shri R N
Singh, learned counsel appearing for official respondents, Shri P P Khurana, learned senior counsel,
Shri R K Shetty, learned counsel and Shri A K Behera, learned counsel appearing for impleaded
respondents as also Ms. Alka Sharma, learned counsel appearing for UPSC have raised a preliminary
objection as to limitation by contending that as the order dated 31.8.2001 has not been assailed and
the civil list being operated even in effecting promotions of the applicants, the settled position
cannot now be unsettled. One of the objections raised is also regarding non-impleadment of
necessary parties.
15. The official respondents have also, through their affidavits filed on 18.10.2010 and
20.10.2010, took a stand that the civil list has a consistent past practice being operated, and,
therefore, the said civil list has to be treated as seniority list and for the applicants, who are not
eligible as per the rules, sufficient vacancies have been kept unfilled, which would be utilized for
them to be considered for promotion in future whenever the turn of the applicants arrives for such
consideration.
16. Learned ASG has also insisted on answering the reference put forth by the Division Bench
and has endeavored to show by relying upon the decision of Apex Court in A. Janardhana v. Union of
India & others, (1983) SCC 601 that the seniority has been operated even in the civil list as per the
recruitment rules. It is further prayed that reference may be given in their favour and declare the
civil list as a seniority with dismissal of the claim of the applicants in the OA.
17. To buttress his plea, Shri P P Khurana, learned senior counsel has relied upon the following
decisions:
i) S.G. Jaisinghani v. Union of India & others, AIR 1967 SC 1427 (supra)
ii) Bishan Sarup Gupta v. Union of India & others, (1973) 3 SCC 1 (supra)
iii) Bishan Sarup Gupta & others v. Union of India & others, (1975) 3 SCC 116 (supra)
(iv) N.K. Chauhan & others v. State of Gujarat & others, (1977) 1 SCC 308,
v) A. Janardhana v. Union of India & others, (1983) 3 SCC 601,
vi) O.P. Singla & another v. Union of India & others, (1984) SCC 450,
vii) G.S. Lamba & others v. Union of India & others, (1985) SCC 604,
viii) Direct Recruit Class II Engineering Officers Association v. State of Maharashtra & others,
(1990) 2 SCC 715

8. ix) State of Bihar & others v. Akhouri Sachindra Nath & others, AIR 1991 SC 1244
x) Prafulla Kumar Swain v. Prakash Chandra Mishra & others, 1993 Supp (3) SCC 181; and
xi) Central Engineering Service Class I (DR.) Association & others v. Union of India & others, 156
(2009) DLT 300 (DB)
18. We have carefully considered the rival contentions of the parties and perused the
departmental records as also the written submissions furnished to us.
19. Before adverting to the issue, we may mention that we are of the view in a lis between two
groups of employees under the control of one employer, the role of employer has to be of an
amicus, which has to balance the rights of both sides, act fairly in the circumstances, avoid
discontentment and heart burning among the employees.
20. In a Full Bench reference, where the Division Bench either takes a contrary view in
disagreement to an existing order passed by any coordinate Bench or referring the matter to have
authoritative pronouncement on the issue and law involved in the case, Rule 50 of Central
Administrative Tribunal Rules of Practice, 1993 provides methodology for hearing of the Full Bench
cases but nothing precludes the Full Bench in a judicial review to adopt an approach where an
academic exercise has to be avoided and substantial justice is to be imparted to the parties. It is no
more res integra as per the Constitution Bench decision in L.Chandra Kumar v. Union of India &
others, (1995) 1 SCC 400 that despite a scrutiny jurisdiction of the High Court over the Tribunal, it is
conferred with the power under Articles 226 & 227 of the Constitution of India, a supervisory
authority over the administrative authorities, as held by this Tribunal in Delhi Veterinary Association
v. Shri M.S. Gill and Shri N.R. Ranganathan, Full Bench Judgments (Volume 3) 1991-1994 page 297.
Though the reference put before us by a Division Bench refers to correctness of the decision in
Prabhakant Ayodhya Prasad (supra) but the substantial lis is regarding seniority of direct recruits and
promotees in IRS (Income Tax). We are more concerned as a duty cast to resolve the aforesaid
dispute with the background whether civil list is a seniority list or not, and to set right the house of
the official respondents in order and to bring harmony between two cadres in administrative
exigencies for smooth functioning of the Income Tax Department, which has an onerous duty to
serve this country in public interest.
21. The duty of the Court, as defined in Sneh Gupta v. Devi Sarup & others, (2009) 6 SCC 194, is
to prevent injustice to any of the parties to the litigation and this jurisdiction cannot be exercised to
allow the proceedings to be used to work as a substantial injustice. Though it goes without saying as
a trite law that while in exercise of statutory power vested in administrative authorities, it should be
exercised within the four corners of statute with application of mind without favouritism, partisan
on fair and equitable basis, as held by the Apex Court in V.K. Ashokan v. Asstt. Excise Commissioner
& others, (2009) 14 SCC 85.
22. In a judicial review, an administrative action by the State whether quasi judicial or
administrative, if is opposed to the concept of fairness, which is a facet of equality, the same would
be amenable to challenge if it is so irrational and is unreasonable not to pass the test of a common
reasonable prudent man. As such, the doctrine of equality and methodology would be attracted and
fair play requires administrative action to be in consonance with the statutory rules with
reasonableness, as held by the Apex Court in Man Singh v. State of Haryana & others, (2008) 12 SCC
331.
23. It is also trite in law that when promotions to the higher grades are time bound, non-
functional based on seniority, the condition precedent for effecting promotions, is that a valid

9. seniority list as per the statutory rules is cast and thereafter promotions are effected, as held in
Mansoor Ahmed v. State of J & K, (2009) 4 SCC 544, that if the seniority is not settled, no promotion
could be effected. The seniority, which has been held by the Constitution Bench decision of Apex
Court in Prafulla Kumar Das (supra) is neither a fundamental right nor a vested right but being a civil
right in Bimlesh Tanwars case (supra), it is held to be operated as per recruitment rules in vogue in
consonance with rules, failing which the executive instructions would come in operation and if not
then it is left to the discretion of the Court to evolve the fair and just principle for determining the
principle of seniority.
24. Insofar as the objection as to non-impleadment of necessary parties, which are likely to be
affected by the outcome, is concerned, first of all what is being challenged by the applicants before
us is an omission on part of the official respondents to follow the statutory rules by preparing the
seniority list apt in law and secondly in representative capacity once the promotees have been
impleaded as parties, principle of natural justice since complied with, the objection has no legs to
stand and is accordingly overruled.
25. Insofar as another preliminary objection as to non-challenge of an order dated 31.8.2001
whereby the quota rule has been relaxed is concerned, as the quota rule has not been challenged
and what has been prayed for in this OA is for drawl of seniority list following the rota rules even if
there is no challenge to an order dated 31.8.2001, yet the relief in the present form gives rise to a
different cause of action to the applicants, for which the OA filed cannot be agitated on this
objection, which stands overruled.
26. As regards the limitation, in Sanjeev Pugalia’s case (supra), on the issue of non-challenge to
the order dated 31.8.2001 a finding recorded that the OA is barred by delay and latches, may not
hold good in the instant OA, as what has been challenged in the instant OA is non-settling the
seniority and also the stand of the official respondents by treating civil list as a seniority list. In the
said case, a categorical finding as to no seniority list being issued by the official respondents, which
they were duty bound as per Prabhakant Ayodhya Prasad (supra), gives a recurring and continuing
cause of action to the applicants to assail any act of the official respondents whereby the seniority
list has not been issued as per the methodology laid down under the statutory rules. The cause of
action has also arisen to the applicants whereby acting on the civil list, which admittedly has been
ruled not be a seniority list by the Tribunal as well as a disclaimer to this effect, which is based for
effecting the promotions, shall not render the present proceeding as barred by latches and delay.
27. Initially in the counter reply official respondents have failed to take a stand as to civil list
being treated as a seniority list, rather an evasive reply has been filed as to settled seniority list being
treated as unsettled at the belated stage. However, at a later stage on 20.10.2010, an additional
affidavit has been filed by the official respondents where a stand as to civil list being the seniority list
was taken, which has been objected to by the learned senior counsel for applicants.
28. The stand taken by the official respondents, as reflected through additional affidavit dated
20.10.2010, does not appear to be correct, as we find merit in the contention raised by the learned
senior counsel for the applicants that the civil list itself contains a disclaimer as regards to it being a
seniority list, and on the face of it, the stand taken that the same is a seniority list cannot be
accepted.
29. UPSC through Ms. Alka Sharma, learned counsel took a stand basing on Article 315 of the
Constitution and OM dated 10.4.1989 of the DOPT to contend that DPCs are being held by having
inputs like seniority list and have washed-off their hands on the issue of seniority list by taking a
stand that the OA being in administrative nature, is related to the Department of Revenue.

10. 30. Having not taken any stand as to civil list is a seniority list, the claim was also not propagated
before another Bench of the Tribunal in Sanjeev Pugalia (supra), yet we find on record an affidavit
filed by respondent 2 on 18.10.2010 where an accepted position has been reflected that the civil list
published from time to time is also used as a seniority list and disclaimer was for an abundant
caution. However, no specific rebuttal to applicants’ plea that civil list is not a seniority list has been
made. However, the additional affidavit filed by Shri VSR Krishna, learned counsel on 20.10.2010
reflected the position of unfilled vacancies with a view that the applicants, who are not eligible
would be considered as and when their turn comes and their litigation is unfounded. However, this
has been rebutted by Shri Hansaria, learned senior counsel by placing relying on the Note appended
to Schedule II of the Rules whereby if an officer is appointed to any post and Service, all persons
senior to him shall have to be considered irrespective of their eligibility. In our considered view, till
the time the issue regarding seniority on publication of seniority list and after following due process
of law is resolved by issuance of a final seniority list, it would be very difficult to foresee and pre-
determine the juniority and seniority of the direct recruits, vis-a`-vis promotees and in such an
event, if a junior person to the applicants on the basis of unsettled seniority gets promotion to a
higher rank, applicants have a fundamental right under the Constitution of India to be fairly and
equitably considered for promotion as per the Note appended to Schedule II and in this view of the
matter, regarding fundamental right of promotion, we base our conclusion on the decision of the
Apex Court in Union of India & another v. Hemraj Singh Chauhan & others, 2010 (3) SCALE 272.
31. We could have ourselves adjudicated as to the seniority granted to the parties before us,
which would have been the end of the matter. However, in judicial review the duty cast upon the
official respondents cannot be usurped by us by assuming the role of administrative authorities.
Accordingly, we refrain from doing so in the interest of justice. When seniority is an important facet
of service jurisprudence, it is a condition precedent in cases where promotions are time bound and
on non-functional basis on the seniority of the feeder category. As a general practice under service
jurisprudence, as experience on the basis of different service rules promulgated in the Departments
and Ministries and from perusal of catena of decisions on seniority, the correct methodology of
settling the seniority involves a process of consisting of various stages, which starts from assigning
the seniority and arranging a tentative list and thereafter calling objections from the concerned
members of Service, their objections are dealt with and thereafter a final seniority list is issued,
which has to be acted upon for effecting another condition of service of these employees, i.e., their
consideration for promotion to the higher grades. Applying the above to the civil list issued by the
official respondents and more particularly in the backdrop of disclaimer when the Department itself
not taking a stand to treat the civil list as a seniority list, the official respondents in their counter
affidavit have taken an additional ground to justify their contradictory stand of treating the civil list
as a seniority list, could not supplement their justification and rather in the light of decision of Apex
Court in Hindustan Petroleum Corporation Ltd. v. Dairus Shapur Chenai & others, (2005) 7 SCC 627,
such a pleading or justification cannot substitute the reasons of decision. It is very unfortunate that
being custodian and as an employer of both the categories before us, Government should have
acted fairly, reasonably, without favouritism, bias and should have taken a clear and transparent
stand. Whereas in the counter reply of the official respondents there is no whisper as to civil list
being a seniority list and their endeavor to supplement it by an additional reply speaks volume about
their stand.
32. In an executive action, the act of the administrative authority should be fair, legitimate,
above board and non-discriminatory without any bias, favouritism or nepotism. Arbitrariness cannot
be brought in their action being custodian of law, as ruled by the Apex Court in Zenit Mataplast v.
State of Maharashtra & others, 2009 (12) SCALE 432. Though as a trite law the proposition of law
that administrative actions cannot go in conflict with the statutory provisions need not be described

11. in detail, yet the official respondents in this case have created this anomalous situation by not
drawing a seniority list, which ultimately has caused discontentment and heart burn among the
direct recruits and promotees, which ultimately affects the Government in administrative exigencies.
Despite an important task entrusted to these IRS officers, they are mentally and physically involved
in this litigation to assert their individual rights. Though the Courts are meant for redressal of
grievance but it is equally settled that a lis when could be avoided the process should be adopted by
the Court by drawing apt methodology, ways and means to amicably resolve the issue.
33. The civil list published is not exclusively for seniority. It is a directory of officers of different
grades with their particulars, including transfers and postings and in case of any discrepancy or
mistake in any of the incorporated information relating to the officers, the same is sought to be
corrected on a representation but the redressal is not immediate. It will be corrected only after the
next civil list is published. As a legal fiction, we cite an example where assuming the civil list to be a
seniority list on publication, seniority has not been found to be in accordance with the rules and
promotions are being made by holding the DPC, in such an event, the correction in the seniority list
would not take place till the next civil list is published and meanwhile promotions are held. This
would amount to keeping in light our presumptive citation that a draft civil list has been made the
basis of promotions, which is a concept alien to the service jurisprudence.
34. The Apex Court in Union of India & another v. P.K. Roy & others, AIR 1968 SC 850, while
examining the gradation list, which forms basis of promotion, laid down a methodology in a
Constitution Bench, which overrides any other decision of the lower coram under Article 141 of the
Constitution, whereby a preliminary draft seniority list is prepared as per the statutory rules and on
publication representations are invited by the affected persons and on consideration of the
representations, a final seniority list is to be published. The aforesaid view was also taken by the
three-Judge Bench in Prabhakant Ayodhya Prasad (supra), where the denial of opportunity to the
officers to make representation against the gradation list has been held to be invalid in law.
35. The aforesaid ratio decidendi mutatis mutandis applies to the seniority list on an analogy
and the pre-requisite for preparation of final seniority list to be followed by the official respondents.
The published civil list, by no stretch of imagination and even by applying the test of a common
reasonable prudent man, shall not be treated as a seniority list. Perhaps the official respondents,
when it has not been pointed out on judicial intervention to them that the civil list is not a seniority
list, have perpetuated this illegality in the past. However, we being the judicial fora cannot shut our
eyes to such an illegality in view of the Article 14 of the Constitution. The question before us is
whether the issue gathered from the rival contentions is to treat the civil list where statutory rules
are followed to place the officers on both sides in appropriate places, cannot be countenanced
unless there is a seniority list against which, on its draft, an opportunity is accorded to the applicants
and other categories and on dealing with the objections a final seniority list issued. The task of
preparing the seniority as per Rule 9 (iii) of the Rules being the prerogative of the departmental
authorities, we would not interfere in that arena to substitute our own views. When a duty is cast
upon the administrative authorities to act as per the apt methodology and as per the statutory rules,
acting contrary to that methodology, would be an exercise de hors the rules and constitute an
illegality.
36. Having arrived at the above conclusion, we are also not oblivious of the right of promotees,
who after dint of their hard work when approaching their superannuation, would be jeopardized by
the above process and deprived of their actual promotion under the guise of DOPT rules, which does
not allow the actual promotion to the retirees. DPC has also been held and panels have been
formed, which were placed before us in a sealed cover. Their right shall also be protected as the

12. delay in promotion is caused because of pending litigation before the Tribunal in a Division Bench
and thereafter before the Full Bench. In the event the seniority list is finalized, in case the promotees
are found within the zone of consideration and eligible for promotion, irrespective of their
retirement, we protect their right by directing the official respondents that in such an event the
promotions would relate back with all consequences.
37. When the matter was before the Division Bench, an order was passed that the promotions if
made during pendency of the OA would be subject to the decision thereof. Later, vide order dated
20.9.2010, the Full Bench ordered that the DPC may go on but the result thereof be put in a sealed
cover to be shown to the Tribunal. The order aforesaid, it appears during the course of arguments,
has been treated by the official respondents as if an order of stay. We do not wish to comment
anything on the view taken by the official respondents in that regard. Suffice it may, however, to
mention that considering the order aforesaid to be that of stay, no promotions have been made as
yet, and if that be so, there would be no harm if promotions are not made within the time as
mentioned hereinafter, particularly, when the rights of the promotees, even if they are to retire
during the interregnum, have been taken care of.
38. Resultantly, we answer the reference as follows:
The official respondents shall, within a period of two weeks by applying the Rules, draw the
seniority list and thereafter two weeks time will be allowed to the affected parties to represent. The
official respondents, on receipt of the representation(s) within further two weeks’ time thereafter,
finalize the representation(s) and also the seniority list, which shall be published and thereafter they
are at liberty as per the seniority position to hold the DPC associating UPSC. In such an event, law
shall take its own course. Meanwhile, the promotions effected by the DPC held by the official
respondents shall not be acted upon and as per the settled final seniority list, claim of the
promotees specifically shall be considered for promotion and those who have retired during this
interregnum shall, if found fit on empanelment, be accorded the promotions with all consequences.
The time limit laid down by us is to be scrupulously and meticulously followed on strict basis.
39. By answering the reference aforesaid, we have substantially dealt with the grievance raised
by the applicants in the OA, as such, keeping in light the time bound directions issued by us, it will be
an exercise in futility to send the case back to the Division Bench. Accordingly, OA stands disposed of
in the above terms. No costs.
( Shanker Raju ) ( L.K. Joshi ) ( V. K. Bali )
Member (J) Vice Chairman (A) Chairman
/sunil/