-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 426 OF 2003 Shaikh Meer Saliyam, Deputy Office, Superintendent (Level-II), Customs House, Mormugao Harbour, Mormugao-403803. (Registered Address) ...... Petitioner V e r s u s 1. Union of India, through the Commissioner of Customs & Panaji-Goa-403 001. 2. The Commissioner of Customs & Central Excise, Customs House, Panaji, Goa. 3. The Chief Commissioner of Customs & Central Excise, PMC Building, Tilak Road, Pune. 4. Smt. Olympia Vijaychandran, Preventive Officer, Preventice Department, Customs House, Mormugao Harbour, Mormugao 403 803. ...... Respondents Mr. M. S. Sonak, Advocate for the Petitioner. Mr. C. A. Ferreira, Asst. Standing Counsel for Respondent nos. 1 to 3. Mr. G. Vijaychandran, Advocate for Respondent no.4. CORAM: P. B. MAJMUDAR & N. A. BRITTO, JJ. DATE : 7 th January, 2009. -2- ORAL JUDGMENT (Per P. B. MAJMUDAR, J.) This petition is directed against the Judgment and Order passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai, in Original Application no.846/98. By its Order dated 30.05.2000, the Tribunal has dismissed the Original Application filed by the present Petitioner. 2. The Petitioner was originally appointed as a Sepoy in the Department w.e.f. 01.06.1976. Subsequently, he was promoted to the post of Lower Division Clerk in the year 1981 and was confirmed on the same post on 24.02.1982. He was promoted as Upper Division Clerk on adhoc basis and his appointment was regularized on the said post w.e.f. 14.07.1987. The petitioner was subsequently given adhoc appointment on the post of Tax Assistant vide Order dated 08.08.1990. The ministerial post of Upper Division Clerk and Stenographer-II are feeder grade for the purpose of promotion to the post of Inspector/Preventive Officer. It is the case of the petitioner that the post of Tax Assistant is also source for promotion to the post of Inspector/Preventive Officer. It is the case of the petitioner that he became eligible for the said promotion to the post of Inspector/Preventive Officer as per the Recruitment Rules w.e.f. 14.07.1992. It seems that for the purpose of regular promotion to the post of Tax Assistant, a Departmental Promotion Committee was constituted in the year 1995. The criteria for promotion to the said post is merit. Various candidates including the Respondent no.4 appeared before the Departmental Promotion Committee at the relevant time. However, the petitioner was not found meritorious for such promotion as his -3- ranking was much below and the respondent no.4 was found suitable for such promotion in the year 1995. It is the case of the petitioner that the respondent no.4, however, did not opt for such promotion and, therefore, no appointment could be made for the relevant year i.e. in the year 1995 even though selection process was conducted by Departmental Promotion Committee for filling the said post. The respondent no.4 even though was selected for the said post of Inspector of Central Excise, she did not opt for said promotion as she was interested in getting promotion to the post of Preventive Officer (Customs). Accordingly, no appointment was made so far as the post of Tax Inspector for the relevant year 1995 was concerned. Subsequently, in the year 1996, Departmental Promotion Committee again met for the purpose of selecting a person to the aforesaid post of Inspector of Central Excise and Preventive Officer (Customs). The case of the petitioner was not considered at that time on the ground that he had already crossed upper age limit of 45 years. 3. In the year 1995, Departmental Promotion Committee met for the purpose of promotion to the post of Inspector of Central Excise and Preventive Officer (Customs). Learned Counsel Mr. Ferreira, who is appearing for Union of India, submitted that at the relevant time, in the year 1995, four vacancies were notified for the post of Preventive Officer (Customs) and one of Inspector of Central Excise. It is further submitted by Mr. Ferreira that so far as the post of Inspector of Central Excise is concerned, since respondent no.4 had not opted for the same, that post could not be filled in and it remained vacant so -4- far as vacancy of 1995 is concerned. Subsequently, in 1996, Departmental Promotion Committee again met for the purpose of promotion to the post of Inspector of Central Excise and Preventive Officer (Customs). The claim of the petitioner was not considered on the ground that at that time he had crossed the age of 45 and, therefore, he was not eligible for the said post. The petitioner challenged the decision of the Departmental Promotion Committee before the Central Administrative Tribunal, Mumbai Bench in Original Application no. 846/98. The Tribunal found that as per the grading of the Departmental Promotion Committee, since the petitioner was far below it the ranking and since the Departmental Promotion Committee recommended promotion of only one candidate i.e. respondent no.4, that the petitioner was rightly not given promotion in the year 1995. Regarding non-consideration of the claim of the petitioner by the Departmental Promotion Committee so far as in the year 1996 is concerned, the Tribunal found that since the petitioner was age barred, his case was rightly not considered by the Departmental Promotion Committee. It is the aforesaid Order which is impugned in this Petition. 4. Learned Counsel Mr. Sonak appearing for the petitioner submitted that it is true that at the time when the Departmental Promotion Committee met for considering the promotion for 1995 vacancy, the petitioner's name was below in the list at serial 16 and since respondent no.4 was having higher ranking and was recommended by the Departmental Promotion Committee for promotion, the petitioner has no case so far as his -5- non selection/non promotion to the said post in the year 1995 is concerned. Learned Counsel further submitted that atleast when the Departmental Promotion Committee met in the year 1996, the claim of the petitioner should have been considered on merits and it was not proper not to consider his case only on the ground that he was age barred. Learned Counsel for the petitioner submitted that when the vacancy of 1995 remained unfilled, atleast when the Departmental Promotion Committee met in the year 1996, the claim of the petitioner should have been considered without rejecting the claim on the ground that he had already crossed 45 years as at the relevant time in year 1995, he was within age. Learned Counsel for the petitioner submitted that even otherwise there is a provision for relaxation of age and considering the fact that the petitioner was already in service and especially when he was already serving as Tax Assistant, it was a fit case in which relaxation should have been granted. Learned Counsel Mr. Ferreira, who is appearing for the Union of India, on the other hand, submitted that since the petitioner was not found suitable as per the recommendation of the Departmental Promotion Committee in the year 1995, he was not given promotion to the post of Inspector of Central Excise or the post of Preventive Officer (Customs). Mr. Ferreira however conceeded the fact that since the respondent no.4 had not joined as a Inspector of Central Excise in the year 1995, no other candidate was promoted at the relevant time and the post remained vacant and in the meanwhile the Departmental Promotion Committee again met in the year 1996 for a fresh selection. Learned Counsel, who is appearing for respondent no.4, submitted that at the relevant time, since respondent no.4 was found -6- more suitable, the Departmental Promotion Committee recommended her case for promotion but she was not interested to be promoted on the post of Inspector of Central Excise and she opted for the post of Preventive Officer (Customs), which post she is holding today. 5. We have heard the learned Counsel appearing for the parties. We have also gone through the Order of the Administrative Tribunal. It is not in dispute that so far as vacancy of Inspector of Central Excise is concerned, that vacancy could not be filled in the year 1995 because a candidate who was selected had not joined on the said post and the list was not operated further. In that view of the matter and in our view when the Departmental Promotion Committee again met in the year 1996, the claim of the petitioner was required to be considered for the aforesaid post. At that time, the vacancy which was already in existence in 1995 was also required to be taken into account as that vacancy was not filled in by the Department. It is not in dispute that in the year 1995, the petitioner was within age and since the post remained vacant at the time when the Departmental Promotion Committee met in 1996, in all fairness, the claim of the petitioner should have been also considered in the year 1996 as the post of 1995 remained vacant and in the year 1995, the petitioner was within age. The Tribunal has also not considered whether age relaxation powers were available and whether it was a fit case for granting such relaxation. Since the claim of the petitioner was required to be considered on the basis of available vacant post of 1995 as well as the question of whether any powers of age relaxation are available, we -7- remand the matter to the Tribunal to decide the said aspect afresh as to whether the petitioner was eligible to be promoted to the post of Inspector of Central Excise in the year 1996 on the basis of vacant post of 1995 as well as on the ground as to whether the age relaxation can be given to the petitioner for the vacancy of 1996 of the said post. We make it clear that we do not find any substance in the grievance of the petitioner that in the year 1995, his case was not properly considered for promotion as there is ample material on record to show that the petitioner was far below in the merit list when the Departmental Promotion Committee met in the year 1995. Even learned Counsel appearing for the petitioner conceded this aspect and restricted his argument only in connection with the vacancy which remained unfilled in the year 1995 as at that time, the petitioner was within age. The Tribunal shall accordingly decide the matter in the light of the observations made hereinabove and may also decide whether the petitioner's case could have been considered for the vacancy of 1995 for the post of Inspector of Central Excise as well as on the ground whether age relaxation could be given to the petitioner so far as selection process of the 1996 is concerned. The Tribunal may also accordingly decide the Original Application of the petitioner afresh. It is clarified that the Tribunal may decide the said question, of keeping in view the claim of the petitioner for the post of Inspector of Central Excise only as in the year 1995, the petitioner was within age and the vacancy of 1995 still remained unfilled. So far as the Order of the Tribunal in rejecting the claim of the petitioner regarding the non-selection in the year 1995, we uphold the said decision of the Tribunal as he was not found suitable for the said post in that -8- year. The claim of the petitioner to be considered for the post of Inspector of Central Excise in view of the observations made hereinabove. The Tribunal may take appropriate decision in accordance with law and within a period of four months from receipt of the writ from this Court. 6. The Petition is accordingly partly allowed to the aforesaid extent with no order as to costs. P. B. MAJMUDAR, J. N. A. BRITTO, J. arp/*