CIVIL WRIT JURISDICTION CASE No.14877 OF 2005 --- In the matter of an application under Article 226 of the Constitution of India. ---- 1. Rabindra Kumar Chaubey, son of Shri Rameshwar Chaubey, resident of Central Excise Range, Tisco 1, Near- General offices, Mohalla & P.O. Bistupur, District Jamshedpur. 2. Kapildeo Prasad, son of Shri C.D. Ram, resident of Mohalla- New Damaria, P.O. Anishabad, P.S. Gardanibagh, District Patna. 3. Akhilesh Kumar Singh, son of Shri Brajnandan Singh, resident of Mohalla and post office- Sonepur, Lakdi Bazar, District- Saran. 4. Ashok Kumar, son of Shri Ramswaroop Sharma, resident of Mohalla Paibigha, District Jahanabad, present resident of Qtr. No.1, New Type-II, Central Revenue Colony, Ashiaana Nagar, Patna- 25. 5. Vijay Kumar Shrivastava, son of Shri R.K. Prasad, resident of Central Excise Division No.2, K-3/60, H.S. Road, Telco Colony, Jamshedpur. 6. Sanjay Kumar Gupta, son of Shri Krishna Mohan Sahu, resident of Anuradha Sadan, West Ashok Nagar, Road No.1, Patna-20. 7. Sudesh Kumar, son of Shri J.K. Karan, resident of Central Excise Division No.2, K-360, H.S. Road, Telco Colony, Jamdhedpur. ------ --- Petitioners. -Versus- 1. Union of India, through the Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi. 2. Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, Jeevandeep Bhawan, Parliament Street, New Delhi. 3. Commissioner, Central Excise of Customs, Central Revenue Building, Beerchand Patel Path, Patna-1. 4. Additional Commissioner ( Personnel and Vigilance), Central Excise (Head Quarter), Central Revenue, Building, Beerchand Patel Path, Patna-1. 4(i) Central Administrative Tribunal, through Registrar . 2 (Respondents before the Central Administrative Tribunal)- Respondents First Set. 5. Amresh Chandra Sinha, son of late Biresh Chandra Sinha, resident of village- Phulwariya ( Chaudhary Tola, P.O. and P.S. Phulwaria, Barauni, District Begusarai, at present posted as T.A. at C. Ex ( H), Patna. 6. Pawan Kumar Shandilya, son of late Ram Ratan Sharma, resident of village Kohrampur, P.S. Motihani, District Begusarai, at present posted as T.A. at Central Excise Division, Muzaffarpur. 7. Suresh Kumar Sharma, son of Sri Jagdish Prasad, resident of village Sarai, P.s. Sahpur ( Danapur ), District Patna, at present posted as T.A. at Central Excise ( Headquarter office), Patna, District Patna. 8. Vikash Chandra, son of late Jagdish Chandra Prasad Ambastha, resident of village Baghmali, P.O. and P.S. Hazipur, District Vaishali, at present posted as T.A. at Central Excise ( H ), Patna. 9. Sheo Shankar Prasad, S/O Sri Sheodhar Ram, resident of village Madanpur ( Nautan), P.S. Narawan, District Sagar, at present posted as T.A. at C.Ex. Division, Muzaffarpur, District Muzaffarpur. ( Applicants before the Central Administrative Tribunal) -- Respondents Second Set. --------- For The Petitioners : Mr. Ashok Kumar Chaudhary, Adv. For Respondents 5 to 9 : M/S Gautam Bose, Sr.Adv. with Ratna Das and Ajay Kumar, Advocates. For Revenue (Central Excise) : Mrs. Archana Meenackshee and Mrs. Archana Sinha, Advocates. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA --------- Shiva Kirti Singh & Birendra Prasad Verma, JJ: Heard learned counsel for the petitioners, learned counsel for the Union of India, representing respondents no. 1 to 4, and 3 learned counsel representing the private respondents i.e. respondents no. 5 to 9. 2. This writ petition has been preferred by seven persons who at the relevant time were working in the cadre of Stenographer in the Department of Central Excise and Customs under the Patna Commissionerate . They have challenged order dated 10.02.2005 passed by the Central Administrative Tribunal, Patna Bench, Patna in O.A. No. 712/ 1997 whereby the learned Tribunal has held that the clarifications issued by the department of Central Excise, contained in Annexure-A/1 and A/2 before the Tribunal were contrary to the decision, contained in Annexure-3 dated 17.09.1997 and, accordingly, the Tribunal quashed Annexure A/1 and A/2 on the ground that Annexure-A/3 had superior force because it mentions that the decision therein had been taken in the name of the President of India. The Tribunal appears to have come to a further conclusion that by Annexure-A/3 only the cases of Upper Division Clerks ( U.D.C.) and Tax Assistants who belong to cadres different from the cadre of Stenographer had to be considered for filling up, by way of promotion, the 60 posts of Inspector which had been specially created by up-gradation of posts belonging to these two cadres with a view to tackle their problems of stagnation. Accordingly, the Tribunal directed the authorities to review the promotions given pursuant to clarifications, contained in Annexure- A/1 and A/2, so that cases of the applicants, i.e. private respondents herein may be considered for promotion in accordance with directives contained in Annexure-A/3 within a period of three months from the date of receipt/ production of Tribunal’s order. 3. On behalf of the petitioners it has been submitted that the relief granted by the Tribunal includes a direction to review promotions granted to these petitioners on the post of Inspector and hence such a 4 direction could not have been issued by the Tribunal without ordering for impleadment of the petitioners as party- respondents and without affording them an opportunity of hearing. Inter-alia, arguments were advanced also in respect of the merit of the decision taken by the Tribunal leading to quashing of Annexure-A/1 and A/2 on the basis of Annexure-A/3. 4. Learned counsel for the private respondents has submitted that since sixty upgraded posts belonged to the cadre of U.D.C. and Tax Assistants, the respondent officials and the Union of India had initially taken a correct decision that these upgraded posts had to be filled up only from the cadre from which the upgraded posts of Inspector had been created and such decision suffered from no illegality because the respondents had the power to relax the Central Rule of recruitment which requires consideration of cases of members of the cadre of Stenographers also for promotion to posts of Inspector. 5. In respect of grievance relating to order of the Tribunal being behind the back of the petitioners, the stand of the private respondents is that they had withdrawn their earlier case before the Tribunal bearing O.A. No. 573/ 1997 and at that stage the present O.A. No. 712 of 1997 was also before the Tribunal and hence the writ petitioners had knowledge of the present proceeding before the Tribunal and it was open for them to seek impleadment in order to safeguard their interest. It was further submitted that when by an earlier order dated 19th May, 2000, O.A. No. 712 of 1997 was dismissed by the Tribunal and the private respondents challenged that order before this Court through C.W.J.C. No. 9423 of 2000, in that writ petition the petitioners were also impleaded as private respondents and they should have appeared in that writ petition and claimed right of hearing before the Tribunal when the matter was finally remanded to the Tribunal by order dated 22.07.2002, 5 contained in Annexure-6. Thus the stand of the private respondents is that in spite of knowledge the petitioners avoided to get themselves impleaded before the Tribunal and now they should not be permitted to raise plea of natural justice only to get rid of the judgment of the Tribunal. 6. Learned counsel for the Union of India has referred to the counter-affidavit filed on behalf of respondents no. 1 to 4 which shows that these are in support of the view taken by the learned Tribunal to the effect that cases of members of cadre of Stenographer were not to be considered for filling up the 60 upgraded posts of Inspector. 7. When attention of learned counsel for the Union of India was drawn to a statement in an order dated 22.06.2006 issued by the Joint Commissioner ( P & V ) Central Excise, Patna, which has been annexed as Annexure-15 to the supplementary affidavit filed by the petitioners, there was no categorical reply as to what happened to the S.L.P. said to have been filed by Shri B.Raghu and others against an order of Andhra Pradesh High Court dated 02.03.2005 in Writ Petition No. 7963 of 2004, which, as per Annexure-15, was pending in the Hon’ble Supreme Court and the promotions granted to a large number of persons on the posts of Inspector including the petitioners, w.e.f. 07.12.2002 had been made subject to the outcome of the said S.L.P. as well as the outcome of the O.A. at hand i.e. O.A. No. 712 of 1997. However, learned counsel for the Union of India referred to paragraph-12 of the counter-affidavit of respondents 1 to 4 in which a stand was taken in the month of October, 2007 that the Ministry has directed through a letter dated 17.05.2006 to implement the order of the Hon’ble Andhra Pradesh High Court in W. P. No. 7963 of 2004. We would have liked to know the views of the Supreme Court in the S.L.P. which was pending earlier but the parties are unable to 6 assist us on that score. However, it would not be material in view of the order proposed to be passed. 8. We have considered seriously the grievance raised on behalf of the petitioners that no direction should have been given by the learned Tribunal for review of their promotions order without giving them an opportunity of hearing by asking the applicants before the Tribunal to implead them as party. From the interim order dated 06.11.1997 passed by the learned Tribunal and which is available at Annexure-B to the counter affidavit of respondents no. 5 to 9, it appears that the order to the effect that any promotion of U.D.C. shall be subject to the final decision in the O.A. was passed in O.A. No. 573 of 1997. Admittedly O.A. No. 573 of 1997 was withdrawn because on 17.12.1998 the applicants of that case who belonged to the cadre of Stenographer had received relief at the hands of the authorities. The order of this Court passed in C.W.J.C.No. 9423 of 200, as contained in Annexure-6, shows that nobody had appeared on behalf of the private respondents and only the official respondents no. 1 to 4 were heard because they were represented by the Additional Standing Counsel to the Central Government. 9. Having considered the rival submissions we are of the view that the Tribunal erred in granting relief by directing the authorities to review the promotion granted to the petitioners without giving them an opportunity of hearing even in representative capacity. 10. Learned counsel for the private respondents has placed reliance upon a recent Supreme Court judgment in the case of Rajiv Kumar & Anr. Vrs. Hemraj Singh Chouhan & Ors., reported in 2010 A.I.R. SCW 2238 in support of a proposition that no party can be permitted to approach directly the High Court and ask the High Court to decide issues as a Court of first instance when the dispute lies within the 7 jurisdiction of Central Administrative Tribunal. In that case same issues were sought to be raised by the appellants before the Apex Court who insisted before the High Court to their impleadment so that their cases could also be considered by the High Court. The High Court set aside the order of the Tribunal by considering the matter on its own merit with which the interveners were not satisfied and had preferred appeal before the Apex Court. In those facts and circumstances the Apex Court held that the appellants cannot be permitted to raise their grievance for the first time before the High Court because that jurisdiction had been vested in the Central Administrative Tribunal and, accordingly, the appeal was dismissed. In our considered view, the issue in the present case is different. Here the petitioners have made direct challenge to the order of the Tribunal and raised a grievance that the issue decided by the Tribunal and particularly relief granted by it directly infringes upon the promotion already granted to the petitioners and, therefore, they have claimed right of being heard by the Tribunal before passing of any order adverse to their interest. In our considered view, requirement of fairness and natural justice are in favour of the case of the petitioners that they should have been given an opportunity of hearing by the Tribunal before it could take a final decision one way or the other. 11. In view of the aforesaid discussion, without going into merits of the issues raised by the parties on merits , the impugned order of the Tribunal dated 10.02.2005, contained in Annexure-7, is set aside and the matter is remitted back to the Tribunal for passing a fresh order in accordance with law after hearing the parties, particularly the petitioners herein, if they approach the Tribunal with a copy of this order and a prayer for impleadment within eight weeks from today. In case the petitioners do so within the time indicated above, then the Tribunal will make such 8 persons party- respondents and after giving notice to other concerned parties, it shall decide the case expeditiously, preferably within a period of six months. It is expected from the counsel for the Union of India to apprise the learned Tribunal as to what decision was finally taken by the Supreme Court in S.L.P. arising out of decision of Hon’ble Andhra Pradesh High Court dated 02.03.2005 in Writ Petition No. 7963 of 2004 which is mentioned in the order of Joint Commissioner, dated 22.06.2006, contained in Annexure-15 to the supplementary affidavit. It goes without saying that the learned Tribunal shall take into consideration all the relevant decisions, including any decision of the Andhra Pradesh High Court and Apex Court, if found relevant. 12. The writ petition is allowed to the aforesaid extent only. No costs. ( Shiva Kirti Singh, J. ) ( Birendra Prasad Verma, J.) Patna High Court Dated the 12th July, 2010 BTiwary/ A.F.R.