- (1.) It is stated by the learned counsel that the special leave petition has become infructuous. It is accordingly dismissed. CAs Nos. 12410-17 of 1996 and SLP (C) No. 19683 of 1997
(2.) This batch of appeals and special leave petition are directed against the orders of the Central Administrative Tribunal (for short "the Tribunal") in different cases but the point involved is one and the same. Some of these matters relate to the seniority of the employees in the Income Tax department and some others relate to the seniority of the employees of the central Excise Department. In all these cases the seniority of the employees was being determined in accordance with the office memorandum (OM) dated 22-12-1959 issued by the Government of India, Ministry of Home affairs. The applications before the Tribunal having been filed challenging the validity of the proviso to para 4 as well as proviso to para 5 of the OM, on consideration of the submissions made by the parties, the Tribunal has struck down the aforesaid two provisos and hence the Income Tax Department as well as the Central Excise Department have preferred appeals before this court. In the impugned judgments, the Tribunal has come to the conclusion that the appointments having been made in accordance with the rules providing for substantive appointment, the proviso indicating that the date of confirmation should be the basis of inter se seniority, is unconstitutional and must be held to be arbitrary as has already been held by this Court in the case of Direct Recruit Class II Engg. Officers'assn. v. State of Maharashtra' (for short "direct Recruit case"). At this stage it would be appropriate to extract paras 4 and 5 of the OM dated 22-12-1959: "4.Direct recruits. Notwithstanding the provisions of para 3 above, the relative seniority of all direct recruits shall be determined by the order of merit in which they. are selected for such appointment, on the recommendations of UPSC or other selecting authority, person appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection: provided that whefe persons recruited initially on temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment, seniority shall follow the order of confirmation and not the original order of merit. Promotees. (i) The relative seniority of persons promoted to the various grades shall be determined in the order of their selection for such promotions: provided that where persons promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their promotion, seniority shall follow the order of confirmation and not the original order of merit. (ii) Where promotions to a grade are made from more than one grade the eligible persons shall be arranged in separate lists in the order of their relative seniority in their respective grades. Thereafter, the Departmental promotion Committee shall select persons for promotion from each list up to the prescribed quota and arrange all the candidates selected from different lists in a consolidated order of merit which will determine the seniority of the persons on promotion to the higher grade. "
(3.) The learned Additional Solicitor General appearing for the Income Tax department and Mr Malhotra, the learned Senior Counsel appearing for the excise Department contended before us that the question of confirmation being linked with seniority as per the proviso could not have been held to be arbitrary or irrational since confirmation is made by the authority on the basis of the suitability and efficiency of the person concerned and as such in the efficient administration of the service the confirmation has a vital role and, therefore, the proviso to para 4 and proviso to para 5 of the aforesaid OM could not have been held to be arbitrary. It was also further contended that the decision of this Court in the Constitution Bench decision in Direct recruit case must be applied to the facts of that case and could not have been made applicable for testing the validity of the OM which is in vogue since 1959. The learned Additional Solicitor General also further urged that the said OM having been allowed to operate since 1959, the seniority already determined prior to the impugned decisions of the Tribunal should not have been unsettled and the judgments should have been allowed to operate prospectively only and in fact the Union of India has already issued an OM to that effect on 4-11-1992 and para 4 of that OM unequivocally indicates that the seniority already determined according to the existing principles on the date of issue of this order will not be reopened. Even if in some cases seniority has already been challenged or is in dispute it will continue to be determined on the basis of the principle already existing prior to the date of issue of this order.;