IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 WP(C).No. 32860 of 2009(S) -------------------------- OA.728/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- K.P.DAMODARAN NAMBIAR, SUPERINTENDENT OF CENTRAL EXCISE (RETD.) REMYA, HOUSE NO.29/1801, PIPE LINE ROAD, KOTTOOLI, CALICUT-673016. BY ADV. SRI.V.RAJENDRAN SMT.K.S.SABITHA RESPONDENT(S): --------------- 1. UNION OF INDIA REPRESENTED BY THE REVENUE SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI-110001 2. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, C.R.BUILDINGS, MANANCHIRA, KOZHIKODE. 3. THE SECRETARY (REVENUE) GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI-110001. 4. THE CHIEF COMMISSIONER OF CENTRAL EXCISE KERALA ZONE, C.R.BUILDINGS, I.S.PRESS ROAD, ERNAKULAM. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX in WP(C)32860/2009 PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE JUDGMENT DATED 4.3.1983 IN W.A.NO.567/1983. EXT.P2 TRUE COPY OF THE ORDER DATED 21.5.1996 OF THE 4TH RESPONDENT. EXT.P3 TRUE COPY OF THE LETTER DATED 26.9.2001 OF THE FIRST RESPONDENT. EXT.P4 TRUE COPY OF THE LETTER DATED 8.5.2002 OF THE 2nd RESPONDENT. EXT.P5 TRUE COPY OF THE OFFICE MEMORANDUM DT. 4.11.1993 OF THE FIRST RESPONDENT EXT.P6 TRUE COPY OF THE REPRESENTATION DT.18.5.2002 OF PETITIONER TO CHIEF COMMISSIONER OF CENTRAL EXCISE. EXT.P7 TRUE COPY OF THE LETTER DT. 5.11.2002 OF THE CHIEF COMMISSIONER OF CENTRAL EXCISE. EXT.P8 TRUE COPY OF THE REPLY GIVEN BY THE 3rd RESPONDENT THROUGH THE MEMBER OF PARLIAMENT. EXT.P9 TRUE COPY OF THE REPRESENTATION DATED 12.8.2005 OF THE PETITIONER TO TH FIRST RESPONDENT. EXT.P10 TRUE COPY OF THE LETTER DATED 27.6.2006 OF THE 4TH RESPONDENT TO THE FIRST RESPONDENT. EXT.P11 TRUE COPY OF THE DOCUMENTS RECEIVED BY THE PETITIONER UNDER THE RTI ACT. EXT.P12 TRUE COPY OF THE O.A.NO.728 OF 2008 (WITHOUT ANNEXURE) EXT.P13 TRUE COPY OF THE M.A.NO.948 OF 2008 IN O.A.NO.728/2008 EXT.P14 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN M.A.NO.948/08 EXT.P15 TRUE COPY OF THE COPY OF THE REJOINDER FILED BY THE PETITIONER (WITHOUT ANNEXURE) EXT.P16 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN O.A.NO.728/2008 EXT.P17 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER. EXT.P18 TRUE COPY OF THE ORDER DATED 25.8.2009 IN O.A.NO.728/2008 RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE. P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- W.P.(C) No.32860 of 2009 ------------------------------- Dated this the 4th day of January, 2010 J U D G M E N T Raman, J. Petitioner aggrieved by the order passed by the Central Administrative Tribunal in O.A.No.728 of 2008, dated, 25.8.2009, has filed this writ petition, seeking to set aside the said order, Ext.P18 produced in this case, as also Exts.P4, P7 and P8, and also seeks direction to the second respondent to sanction stepping up of his pay with that of his junior Sri.Gokuldas Thachan, with effect from 1.1.1986 and to grant all consequential benefits. 2. Ext.P4 is dated 8.5.2002 is a proceeding of the Commissioner of Central Excise and Customs, Calicut Commissionerate, rejecting the representation made by the petitioner for stepping up of pay on par with Sri.Gokuldas Thachan, Superintendent. It was stated that Gokuldas Thachan W.P.(C) No.32860/2009 2 was junior to the petitioner in the grade of Inspector (OG) and he got promotion to the Grade of Inspector (SG) earlier to the petitioner under the reservation quota and his pay was fixed accordingly. So, when Gokuldas Thachan was promoted to the post of Superintendent, his pay was fixed on the basis of pay fixed in the cadre of Inspector (SG). In the case of the petitioner, he was not in the Grade of Inspector (SG) and he was only Inspector (OG) at the time of promotion as Superintendent, and the petitioner was drawing the scale of pay of Rs.550-990 only with effect from 3.7.1985, whereas, Gokuldas Thachan was drawing that scale much earlier from 18.9.1980, due to promotion under the reservation quota. As per Order No.27(2) (c) under FR 22, when a senior joins the higher post later than the junior for whatsoever reasons, senior cannot claim stepping up of pay at par with the junior. At any rate, stepping up of pay was once granted in favour of the petitioner on par with one Sri.T.S.Sreekumaran Nair, Inspector, with effect from 1.1.80, and no anomaly had arisen with reference to that junior. His contention based on Ext.P1 judgment was answered saying that W.P.(C) No.32860/2009 3 seniority in the cadre of Preventive Officer Gr-I is not required to be taken into consideration for promotion to the cadre of Superintendent in the Customs Department, but in the Central Excise Department, promotion to the cadre of Superintendent was only Inspector (SG) till 1.1.1986. Ext.P4, as stated earlier, was passed as early as in 2002 and the petitioner filed O.A. only in 2008, with a long delay. 3. Coming to Ext.P7, that is a proceeding issued by the Additional Commissioner (CCO), dated 5.11.2002, informing the Commissioner of Central Excise that the Chief Commissioner, Bangalore Zone, has concurred with the views of the Commissioner of Central Excise, Calicut, and Ext.P7 was passed on Ext.P6 appeal. There was no further statutory appeal against Ext.P7. But still the petitioner did not challenge that order by approaching the Central Administrative Tribunal, rather he was only making representations even after Ext.P7. Such representation being not statutorily in character, in matter of consideration of delay, one cannot lose sight of the fact that petitioner's approach to the statutory remedy available under law W.P.(C) No.32860/2009 4 was belatedly made. Ext.P8, however, was passed in the representation, informing the petitioner that if a senior joins the higher post later than the junior, for whatever reasons, whereby draws less pay than his juniors, in such cases, the senior cannot claim stepping up of pay at par with his junior. Gokuldas Thachan, though junior to the petitioner in the post of Inspector (OG) was promoted earlier against a reserved vacancy. 4. According to the petitioner, admittedly, Gokuldas Thachan was junior to the petitioner and he was accommodated in the reserved vacancy. He further contended that for the post of Inpsector (OG), when given a senior Grade (Selection Grade), no promotion as such is involved, and therefore, no reservation is applicable. Hence, according him, it was over looking his seniority that Gokuldas Thachan was given Selection Grade. If this was erroneous, there is no reason why the anomaly shall not be rectified by giving the same scale of pay on par with his junior. The Tribunal has, by Ext.P18 order impugned in this writ petition, no doubt held that at the relevant time, the post of Inspector (SG) was a promotion post to W.P.(C) No.32860/2009 5 Inspector (OG). Gokuldas Thachan belonging to a reserved category was promoted to the post of Inspector (SG) earlier than the applicant, as a result of which he was drawing more pay than the petitioner. 5. According to the petitioner, this observation, as though a promotion is involved while granting special grade, is contrary to the dictum laid down by this Court in Ext.P1 judgment. According to him, though Ext.P1 was considered in the case of a Preventive Officer in the Customs Department, the position is not different in the Central Excise Department. But in Ext.P4, the Commissioner has stated that the decision of the High Court cannot be made applicable to this case, since seniority in the cadre of Preventive Officer Gr-I is not required to be taken into consideration for promotion to the cadre of Superintendent, as far as the Customs Department is concerned, but in the case of Central Excise Department, promotion to the cadre of Superintendent was only from Inspector (SG) till 1.1.1986. However, we are not shown that this view taken by the Commissioner is wrong on facts and no materials are placed on W.P.(C) No.32860/2009 6 record to hold otherwise. Be that it may, even if the principle contained in Ext.P1 judgment is extended to the petitioner's case, as the promotion involved in this case and parity sought for for stepping up of pay is in the Central Excise Department, we still find no good reason to interfere with the order, Ext.P18, passed by the Central Administrative Tribunal for the following reasons. 6. It is true that in Ext.P1, it has been held while approving the judgment of the learned Single Judge, that the appointment to the Selection Grade Post is not by way of promotion. If the appointment is by way of promotion, it would follow that those who become Preventive Officers Grade I will be entitled to preferential claim for promotion to the cadre of Superintendents. But as conceded by all the parties, that position occupied by the officers in the Selection Grade is of no consequence for promotion to the cadre of Superintendents and that it is only the relative seniority in the cadre of Preventive Officers Grade I that is relevant for the purpose of promotion to the cadre of Superintendents. As such, there was no W.P.(C) No.32860/2009 7 adjudication required to hold that in case of promotion to the post of Superintendents, the position occupied by the officers in the Selection Grade is of no consequence. In case of Central Excise Department, as noticed in Ext.P4, it is stated otherwise. At any rate, Gokuldas Thachan was appointed in the Special Selection Grade in 1980 and the said post was abolished only in 1986. At no point of time, had the petitioner been appointed in the Selection Grade. Therefore, while effecting promotion to the post of Superintendent in 1992, though the petitioner and Gokuldas Thachan were working as Inspector (OG), the pay drawn by Gokuldas Thachan was higher than that of the petitioner, in view of his earlier appointment as Special Selection Grade. If no promotion is involved in the matter of appointment to the post of Selection Grade and if over looking the fact that Gokuldas Thachan was appointed to the Selection Grade in any reserved category is held to be wrong, then only the petitioner can be given necessary relief in the matter of stepping up of pay. The challenge made, by approaching the Central Administrative W.P.(C) No.32860/2009 8 Tribunal, in this regard was highly belated, besides Gokuldas Thachan is not made a party to the proceedings. 7. Though according to the counsel, Sri.V.Rajendran, appearing for the petitioner, submitted that he is not seeking any relief as against Gokuldas Thachan, necessarily, in order to mould the relief, if we accept the contention of the petitioner, we will have to state that Gokuldas Thachan was given wrong appointment to the post of Selection Grade, since appointment of Selection Grade did not involve any promotion. Such a finding cannot be entered into, in the absence of Gokuldas Thachan. That apart, the petitioner was given stepping up with effect from 1.1.1980 on par with one Sreekumaran Nair. If the petitioner wants to succeed to get a stepping up on par with scale of pay of Gokuldas Thachan, necessarily, a finding as stated above that Gokuldas Thachan was erroneously appointed to the Special Selection Grade, overlooking the seniority of petitioner has to be made and thereby he should be deemed as drawing a higher scale than that of Gokuldas Thachan, at the time of actual promotion to the post W.P.(C) No.32860/2009 9 of Superintendent, which we cannot at this belated stage do and also in view of the facts as stated earlier. The Tribunal, in paragraph 10 of the impugned judgment, has considered that there is no sufficient reason to condone the delay, but at the same time, considered the matter on merits as well. Hence, we have considered the writ petition both from the point of view of delay as well as on merits. But we are unable to agree with the contentions of the petitioner for the foregoing reasons, as stated above. In the circumstances, the writ petition fails, and is dismissed. P.R.RAMAN, JUDGE P.S.GOPINATHAN, JUDGE nj.