V * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : November 30, 2010 Judgment Pronounced on: December 03, 2010 + W.P.(C) 1824/2008 UOI & ANR. Petitioner Tlirough: |V|r.A.S.Ciiand[niol<, ASG with Mr.R.V.Sinha and Ivir.A.S.Singh, Advocates. versus SUNIL UKE Respondent Through: None. % CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG. I. For orders, see W.P.(C) No.1762/2008. PRADEEP NANDRAJOG, J. DECEMBER 03, 2010 dk/mm SIDDHARTH MRIDUL, J. 1} Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : November 30, 2010 Judgment Pronounced on: December 03, 2010 + W.P.(C) 1762/2008 UOl & ORS. Petitioner Through: |vir.A.S.Chanclhiol<, ASG with [vir.R.V.Sinha and Mr.A.S.Singh, ^ Advocates. versus P.R.CHANDRASEKHARAN& ORS. Respondent Through: |vlr.C.Harishanl<ar and Mr.S.Sunii, Advocates for R-1. l^r.J.LGupta, Senior Advocate with Ms.Nidhi Gupta, Advocate for R-3. Mr.Satish Kumar, Advocate for R-7, 8,9,11,21, 23 and 39. W.P.(C) 1824/2008 UOl & ANR. Petitioner Through: Ivir.A.S.Chandhiol<, ASG with Ivjr.R.V.Sinha and Mr.A.S.Singh, Advocates. versus f SUNILUKE Respondent ^ Through: None. W.P.(C) 4718/2008 UOl & ORS. Petitioner Through: Mr.A.S.Chandhiok, ASG with Mr.R.V.Sinha and Mr.A.S.Singh, Advocates. versus C.P.SRIVASTAVA & ORS. Respondent Through: Mr.C.Harishankar and; Mr.S.Sunii, Advocates for R-1. Mr.J.L.Gupta, Senior Advocate with Ms.Nidhi Gupta, Advocate for R-3. Mr.Satish Kunnar, Advocate for R-7, WP(C) No.1762/08,1824/08,4718/08&7419/08 Page1 of24 8,9,11,21, 23 and 39. W.P.(C) 7419/2008 P.S.PRUTHI & ORS. Petitioner Tlirough; jVjr.J.L.Gupta, Senior Advocate witli Ivis.lSiidhiGupta, Advocate versus P.R.CHANDRASEKHARAN& ORS. Respondents Through: |Vir.C.Harishani<ar and Ivir.S.Sunii, Advocates for R-1. ivir.A.S.Chandhiok, ASG with iVir.R.V.Sinha and Ivir.A.S.Singh, (1^ Advocates for R-4 to 8. Mr.Satish Kunnar, Advocate for R-7, 8,9,11,21, 23 and 39. . CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SIDDHARTH MRIDUL 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG. I. ^ 1. The litigating parties are directly appointed officers in the 50% quota allocable to posts in Grade VI Group A Service under the Customs and Excise Department of the Government of India. The inter-se battle being fought by them pertains to promotions to the post of Deputy Collector now renamed as joint Commissioner. For a better understanding, the cadre structure of posts in Group A of the 'Indian Customs & Central Excise Group A Services' may be noted in a tabular form. The same is as under:- WP(C) No.1762/08,1824/08,4718/08&7419/08 Page2of24 f k } 9^ Grade Previous nomenclature Present nomenclature Grade VI (Junior Time Scale) Assistant Collector Assistant Commissioner Grade V (Senior Time Scale) Assistant Collector • Deputy Commissioner Grade IV (Junior Administrative Scale) Deputy Collector Joint Commissioner Grade III (Non-functional Selection Grade of Junior Administrative Grade) Additional Collector Additional Commissioner of Customs & Central Excise Grade II (Senior Administrative Grade) Collector Commissioner of Customs & Central Excise Grade 1 Principal Collector Ctiief Commissioner of Customs St Central Excise 2. It may be noted that appointnrient within Group A Sen/ices is 100% by promotion and to the lowest post in Group A i.e. the post of Assistant Collector now redesignated. as Assistant Commissioner the method of appointment is 50% by promotion and 50% by direct recruitment. Senior-most officers in Group B are eligible for promotion as Assistant Commissioner and Superintendents of Central Excise Group. B, Superintendents of Customs Group B and Customs Appraisers Group B from the feeder channel. 3. Three Original Applications being OA No.2456/2003, OA No.2072/2004 and OA No. 362/2005 filed by Shrl Sunil Uke, Shrl P.R.Chandrasekharan and Shrl C.P.Srivastava, respectively have been allowed by the Central Administrative Tribunal vide Impugned order dated 29'*^ March, 2007, holding in the concluding paragraph 19 of the order as under:- "19. After considering the rival contentions of parties and on perusal of records as well as In view of discussion made herein above, we do not find WP(C) No.1762/08,1824/08,4718/08&7419/08 Page3 of24 I justification in respondents' stand taken in their reply. On the other hand, we find weighty reasons and justification in the contention raised by applicants. Accordingly, OAs are allowed and we hold as follows: (a) Vide order dated 13.08.1990, the Hon'ble Supreme Court directed respondents to fill up 157 posts of Deputy Collectors on the basis of "selection on merit" by constituting appropriate DPC from the list of officers within the zone of consideration and further observed that promotions so effected would be subject to "review as a sequel to such further or final orders that may be made in these matters." (b) While disposing of the said writ petitions on 22.11.1996, M\ India Federation of Central Excise vs. Union of India & Ors. (1997) 1 SCC 520, the aforesaid interim order was neither varied nor modified. On the other hand, para 19 of said judgment would show that Government was directed to "rearrange their inter- se seniority and promotions of respective direct recruits and promotees within their quota and consequential promotions in further higher services." (c) The Government was directed only to rearrange their inter-se seniority and not to disturb the. manner of promotion and sequence in which promotions orders were issued particularly of direct recruit Assistant Collectors, later re-designated as Assistant Commissioners. (d) The vacancies against which the applicants were promotedwere priorto the year 2002. Paragraph5 of ^ . the DOP&T OM dated 08.02.2002 specifically states that the said 0ivi "shall come into force from the date of its issue". In the circumstance, DPC held later while considering the officials was not justified to implement and follow the said Oivi. (e) Impugned orders vide which respondents issued notification dated 03.05.2002 as well as rejecting applicants' representation are quashed and set aside. (f) Respondents are directed to re-convene the DPC particularly for the next higher posts for which earlier DPCs had been held after 22.11.1996 i.e. the date when the Hon'ble Supreme Court pronounced the WP(C) No.1762/08,1824/08,4718/08&7419/08 Page4of24 t aforesaid judgment in Ail India Federation of Central Excise case, without taking recourse to OM dated 08.02.2002 and as per the DOPT's OM of 10.04.1989 and regulate the promotions accordingly with all consequential benefits." 4. The Union of India has filed the three out of four captioned petitions challenging the said connmon decisions of the Tribunal disposing of three Original Applications. The aggrieved private respondents have filed the fourth Writ Petition being WP(C) No.7419/2008. For convenience we would be referring to the facts pertaining to the Original Application filed by P.R.Chandrasel<haran and for purposes of illustration would be referring to P.S.Pruthi the first writ petitioner of WP(C) No.7419/2008, as agreed to by learned counsel for the parties; and needless to state the said facts are common to the Original Applications filed by Sunil Ul<e and C.P.Srivastava. 5. . The challenge before the Tribunal was to an order dated 3.5.2002 as also an order dated 17.10.2002; the first being a Presidential Order pertaining to 'Indian Customs & Central Excise Service' officers who were officiating on ad-hoc basis as i Joint Commissioner of Customs and Central Excise (Junior %• Administrative Grade) notifying that they stood regularly appointed as Joint Commissioners on regular basis with effect from the date of commencement of the panel year; the second being an order rejecting the representation of Shri.P.R.Chandrasekharan regarding seniority in the grade of Joint Commissioner as notified in the order dated 03.05.2002. 6. The origin of the instant dispute has its source to a seemingly unrelated event of the past. The seniority of the feeder cadre i.e. Superintendents of Central Excise Group B, Superintendents of Customs Group B and Custom Appraisers Group B was in dispute and as a result it impacted the WP(C) No.1762/08,1824/08,4718/08&7419/08 Page5of24 2p promotions to be effected from the three feeder cadre posts; and in turn the seniority in Group A - Grade VI posts was affected. 7. The issue of seniority on promotion of the Officers in the three feeder cadre posts was the subject matter of various writ petitions,which were pending in the Supreme Court and the first one being WP(C) No.4532-33/1978. Thereafter two writ petitions filed in the year 1988 and one in the year 1990 got tagged on to the said writ petition. WP(C) No.4532-33/1978 challenged the existing rule for promotion and the two writ petitions which were V filed in the year 1988 questioned the new rules which were promulgated in the year 1987. 8. As a result of non-finalization of the seniority list of the three feeder cadre services and the same having resultant impact as noted hereinabove, promotions to the post of Joint Commissioner (Grade IV) in Group A hitherto-fore called Deputy Collector could not be effected due to interim orders passed by the Supreme Court. Two Interim Applicationsbeing lA No.6/1990 and lA No.7/1990 were filed in WP(C) 4532- 33/1978 praying for modification of the interim orders, which appear to have been passed from time to time, were filed in ^ which Union of India informed the Court that 157 posts of Deputy Collector i.e. in Grade IV of Group A were vacant having serious effect on the collection of revenue and thus it was prayed that the Union of India be permitted to fill up the said posts and for which the Supreme Court was beseeched to pass appropriate directions. Moved by the pathetic cries of the Union of India, the Supreme Court disposed of both interim applications vide order dated 13.8.1990; noting in para 3 that the learned Additional Solicitor General submitted that some reasonable basis though ad-hoc and subject to the final result required to be evolved to fill-up these posts in the larger WP(C) No.1762/08,1824/08,4718/08&7419/08 Page6of24 interest of administration. Vide order dated 13.8.1990, the Supreme Court permitted filling up of 157 posts of Deputy Collectors by effecting promotions on the basis of selections on merit after constituting appropriate Departmental Promotion Committee, so however, that out of the said 157 posts, 57 posts are filled up by officers who are promotees from the feeder line in Group B posts and 100 by directly recruited officers. It was further directed that while so doing it would be ensured that no promotee to the cadre of Assistant Collector (Grade VI post in Group A) will find a place in the list higher than that of an officer directly recruited as Assistant Collector before the promotee and that the promotions would be purely ad-hoc and shall be subject to review as a sequel to such further or final orders as may be made in this regard. This was followed by another order dated 06.08.1991 in which the Supreme Court noted that though DPCs' were constituted , and recommendations received, promotions were not made to fill-up 157 posts of Deputy Collectors on ad-hoc basis and finding no justification for the Union of India in not effecting ad-hoc promotions directed needful to be done within 15 days. In the concluding para of the order dated 6.08.1991 the Supreme Court clarified; 'since the assessment by the DPC is oniy to facilitate the ad-hoc promotion and these promotions themselves are liable to be reviewed pursuant to the final decision on the merits of the pending case, the deliberations of the DPCs' shall not be held conclusive against any person in the event of such review of promotions and that all the promotions will be subject to the final result of the pending cases'. 9. Relevant would it be to note; and this fact is germane to the controversy which we need to decide, that the Supreme Court had permitted, though as an ad-hoc measure, promotions to be effected and had made it clear that the same was an WP(C) No.1762/08,1824/08,4718/08&7419/08 Page7of24 •> interim arrangement, but liad clearly directed that the promotions should be on the basis of selections on merit and the reason for this appears to be that the Recruitment Rule in question which was in vogue when the interim orders were passed, vide Serial No.20, clearly mandated that appointment to Grade IV posts shall be made by promotion on the principle of Selection on Merit of officers in Grade IV of the service and the contemporaneous Office Memorandum dated 10.03.1989 stipulated the benchmark 'Good' with further clarification that officers graded as 'Outstanding' would rank en-block senior to those who were graded as 'Very good' and officers graded as 'Very good' would rank en-block senior to those who are graded as 'Good' and within same grading would maintain their inter-se seniority as per the feeder post. The result was that ad-hoc promotions made were upon the DPCs' assessing the directly recruited officers as also the promotee officers with reference to merit and with those who achieved 'Outstanding' being placed above those who achieved 'Very good', who in turn were placed above those whp achieved 'Good'. Though the recommendations of the DPC are not before us, but evidenced from the fact that P.R.Chandrasekharan, Sunil Uke and C.P.Srivasatava are litigating being aggrieved by the Presidential Order dated 3'"'' May, 2002, though junior to the writ petitioners of W.P.(C) 7419/2008, in the Promotional Order issued on 23.5.1991 were placed higher in ranking. 10. On 23'"^ May, 1991 an order was issued promoting Assistant Collectors to the post of Deputy Collector, clearly informing that the promotions were on officiating basis. 100 directly recruited officers holding the post of Assistant Collector were listed at seriatim and 36 promoteeofficersholdingthe post of Assistant Collector were listed at seriatim for further promotion. The names of Shri C.P.Srivastava, Shri WP(C) No.1762/08,1824/08,4718/08&7419/08 Page8of24 P.R.Chandrasekharan and Shri Sunil Like were shown at Serial No.19, 22 and 62 respectively in the list of 100 directly recruited officers. That of Shri P.S.Pruthi is at Serial No.29. 11, The inter-se seniority dispute amongst the officers of the three feeder cadre services i.e. Superintendents of Central Excise Group B, Superintendents of Customs Group B and Customs Appraisers Group B, pending since 1978 was decided by the Supreme Court on 22.11.1996; the decision being reported as All India Federation of Central Excise vs. UOI & Ors. (1997) 1 see 520 in which the Supreme Court upheld the V' decision of the Competent Authority to allocate posts in the combined seniority to the persons holding posts in the three cadre posts in the ratio 6:1:2 for Superintendents of Central Excise Group B, Superintendents of Customs Group B and Customs Appraisers, respectively. The proposal that the rotation would be first six vacancies to Superintendents of Central Excise, the seventh to Superintendents of Customs and the eighth and ninth to the Customs Appraisers was also accepted. Rule 18(2) of the Indian Customs & Central Excise Service Group A Rules 1987 which was under challenge and pertained to the / inductionin Grade VI posts of Group AServiceswas directedto be amended to incorporate as aforenoted. All ad-hoc promotions made from time to time were directed to be reviewed. In para 18 and 19 of the decision the Supreme Court observed as under:- "18. As stated above, we find that the above modified proposal is just, fair and equitable and accordingly we direct the Union of India to amend the impugned Rules so far as Group 'A' Service is concerned. Review all post 1979 ad hoc promotions to the post of Senior Superintendent/Assistant Collector in the promote quota in the light of the present proposal, redetermine the respective placement of the promotee officers in the combined Group 'A' seniority list and regularize accordingly the posts of ad hoc promotions. WP(C) No,1762/08,1824/08,4718/08&7419/08 Page 9of24 ;2 u -J 19. In Group 'A' Service of tlie Customs and Excise Department, 50% of tine cadre strength are filled by direct recruitment through Union Public Service Commission and the balance 50% are filled through promotion from Group 'B' cadres. Group 'B' Officers when promoted to Group 'A' Service, obviously have no right to occupy more than 50% of their prescribed quota. It would, therefore, be Incumbent upon the Government to rearrange or regularize the seniority list in Group 'A' Service keeping the inter-se quota of the direct recruits and promotees intact and should not allow either to get any promotion in excess of their quota. The ad hoc promotions given to Group 'B' Officers in Group 'A' Service, pursuant to interim orders of this Court, would not, therefore, have any effect or prejudice the interests or rights of the direct recruits of Group 'A' Service while rearranging the seniority in Group 'A' Service as indicated in the judgment. It would, therefore, be of necessity that the Government should rearrange their inter-se seniority and promotions of the respective direct recruits and promotees within their quota and consequential promotions in further higher services. Their seniority be arranged accordingly." 12. Providence had ordained that litigation would continue and indeed It has. The Union of India took excessive time to re- workout the promotions in the 50% promotee quota in Group A Service after amending Rule 18(2) of the Indian Customs & Central Excise Service Group A Rules 1987 to bring the Rule in conformity with the ratio to be maintained, as per the decision of the Supreme Court, inter-se the three feeder cadre posts and seniority to be re-drawn as accepted by the Supreme Court. The list could be re-drawn somewhere in the year 2002 and by then an Office Memorandum dated 08.02.2002 came into existence superseding the Office Memorandum dated 10.03.1989. In regard to posts where mode of promotion was 'selection' (selection-cum-seniority and selection by merit) the guidelines prescribed were that for Group A posts the benchmark shall be WP(C) No.1762/08,1824/08,4718/08&7419/08 Page10of24 / 'Very Good' and for the lower grades it would be 'Good'. The Office Memorandunn in question, it is but apparent, made a significant departure from the previous. Those who were 'Outstanding' and 'Very Good' came at par and all of them had to be clubbed together with inter-se seniority being the same as per the seniority in the feeder post. The ones who achieved the benchmark 'Good' could earn no promotion. Relevant would it be to note, we say so for the reason an argument was advanced, that the Office Memorandum dated 08.02.2002 was prospective and contemplated amendment to the Service Rules, evidenced by para 5 and 6 of the Office Memorandum, which two paragraphs read as under: "5. The instructions contained in this Office Memorandum shall coriie into force from the date of its issue. . 6. Ministries/Departments are requested to give wide circulation to these revised instruction for general guidance in the matter so that immediate steps are taken to amend the Service Rules/Recruitment Rules of various services/post/grades so as to appropriately incorporate the mode of promotion as 'selection' (in accordance with these instructions) in place of 'selection by merit' and 'selection-cum-seniority' (as was hitherto prescribed by the aforementioned OM dated March 27, 1997) as the case may be. The powers to amend Service Rules/Recruitment Rules in this regard are delegated to the Ministries/Departments, DOPT need not be consulted to carry, out the required amendments." 13. Treating the promotions effected on officiating basis pursuant to the Office Order dated 23.05.1991 as an interim measure and for the reason the seniority list (integrated) of Superintendents in the Customs, Excise and Custom Appraisers was revised and promotions allocable to their 50% quota in the promotional post in the lowest rung i.e. Grade VI in Group A WP(C) No.1762/08,1824/Q8,4718/08&7419/08 Page11of24 were effected and thereafter a revised seniority list of the promotees and direct recruits in Grade VI posts in Group A was drawn up, the Departnient reconstituted Departnnental Promotion Committee and with reference to the year-wise vacancies for the panel year 1986-87 till the panel year 1991-92 and drew up fresh panel and since by then the Office Memorandum dated 08.02.2002 had come into force, at the •PCs', the benchmark for promotion considered was 'Very Good' and all those who achieved the benchmark were promoted retaining their seniority in the feeder post. Relevant would it be V to note that the panel was re-drawn from amongst the eligible promotee and direct recruit officers and zone of consideration was restricted with reference to the vacancies in each panel year. The result was that Shri P.S.Pruthiearned a promotionto the post of Deputy Collectorfor the panel year 1987-88 and was placed at Serial No.ll. Shri C.P.Srivastava and Shri P.R.Chandrasekharan could earn the promotion pertaining to the panel year 1989-90 and were placed at Serial No.8 and 40, respectively. Shri Sunil Like could earn a promotion for the panel year 1990-91and found a placeat Serial No!43. Aforesaid stands reflected in the order dated 3.5.2002 notifying appointment on regularbasisas JointConimissioners. ^ 14. It is thus apparentthat Shri P.S.Pruthibecameseniorto Shri ) C.P.Srivastava, who in turn became senior to Shri P.R.Chandrasekharan and in turn who became senior to Shri Sunil Uke. 15. It may be noted that for the various panel years, vacancies filled up were as under:- Panel Year No. of vacancies. 1986-87 11 1987-88 11 1988-89^ 10 1989-90 57 1990-91 67 WP{C)No.l762/08,1824/08,4718/08&7419/08 Page12of24 i 1991-92 35 16. Shri P.R.Chandrasekharan filed a representation questioning liis seniority being affected. In a nutshell he claimed that the promotions effected vide order dated 23rd May 1991 were on the basis of scrutiny by a DPC with selection being the criteria followed as per the then existing Office Memorandum dated 10.03.1989 and that the issue of promotion of the direct recruited officers in Grade VI of Group A posts could not be undone. He questioned the seniority of directly recruited officers who had been promoted under said Office Order being now undone. Additionally he pleaded that the year-wise vacancy had to be filled up as per the Rules and executive instructions in vogue for the panel year in question and thus he questioned the criteria for promotion being adopted as per the Office Memorandum dated S'*" February 2002. He highlighted that the vacancy panel were for the panel years 1986-87 till 1991-92. Lastly, he submitted that the Office Memorandum dated 8'^ February 2002, vide paragraph 5 thereof, was clearly and demonstratively prospective in its operation and in the alternative he pleaded, with reference to para 6 of the Office Memorandum dated 08.02.2002, that the same required the Recruitment Rule to be amended for which he highlighted that the existing Rule 20 of the Indian Customs and Central Excise Service Group A Rules 1987, which provided the principle of 'selection on merit' to be adopted for promotion to Group A posts in the service was not amended even till when the DPC met in the year 2002. He thus pleaded seniority of the directly recruited officers who were promoted as Deputy Collectors to be re-drawn with reference to the merit position as drawn by the DPC which met in the year 1991 and pursuant to the recommendations whereof the Promotional Order dated 23.05.1991 was issued. The representation was rejected vide WP(C) No.1762/08,1824/08,4718/08&7419/08 Page13 of24 order dated 17.10.2002 informing liim tlnat the DPC which met in iViarch 2002 was bound to follow the instructions issued by DOPT. 17., It may be noted that the Rejection Order dated 17.10.2002 does not highlight the issue, but as pleaded by the writ petitioners of W.P.(C)7419/2008 in para 4(xi), with reference to its Office Memorandum dated 08.02.2002, DOPT had clarified as under: "It is clarified that the hianner of assessment as prescribed in this Department's Office Memorandum dated 8.2.2002 will be required to be observed by all original DPCs held on or after 8.2.2002 (including for preparation year-wise panels, where the DPCs could . not meet in the relevant years). It is further clarified that ad-hoc promotions made due to non-finalization of seniority list in the feeder grade, are not to be compared with promotions ordered pursuant of an original DPC. Normally a DPC is held to make regular promotions after finalization of. the seniority list and in such