-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO. 990 OF 2009 1. Ravindra Singh Bhati, age 43, ) Appraising Officer, Flat No. 904, Godavari, ) Customs Colony, Powai, Mumbai, presently posted ) Appraising Officer, New Custom House,Ballard Estate, ) Mumbai ) 2. Ramesh S. Sawant, age 59, ) Dy. Commissioner, 310, Darshana Apartments, ) 90 feet Road, Sane Guruji Nagar, Mulund (East), ) Mumbai-400 181 ) presently posted as Dy. Commissioner, Central Excise, ) Kalyan Division III, Dyneshwar Prasad Building, ) 1st floor, Murbad Road, Kalyan (West)-421 301 ) 3. I. Vikraman, Age 57, Asstt. Director, ) 604, Monical, Andheri Kurla Road, Andheri (East) ) Mumbai-400 069, presently posted Asstt. Director, ) Directorate of Enforcement, Mumbai Zonal Office, ) 2nd floor, Mittal Chamber, Nariman Point, ) Mumbai-400 023. ) 4. Anil Choudhry (SC), age 42, Appraising Officer, ) Flat No. B-806, Aster Building, Dosti Acres, ) Wadala (East), Mumbai, presently posted ) Appraising Officer Group-II-B, Appraising Group, 1st floor ) Old Building, New Custom House, Ballard Estate, ) Mumbai. ) 5. Vinay Kumar Arya, age 40, Appraising Officer, ) Flat No. A-401, Karan Versova, Andheri (West), ) Mumbai-400 061, presently posted Appraising Officer, ) Post Clearance Audit, New Custom House, Ballard ) Estate, Mumbai. ) 6. Hemant Kumar Tantia, Appraiser, ) J-103, Maheshwari Nagar, Kondivita, MIDC, ) Andheri (East), Mumbai-400 093 )..Petitioners -2- versus 1. Union of India through Ministry of Law & ) Justice, Aaykar Bhavan, New Marine Line, ) Mumbai-400 020 ) 2. Revenue Secretary, Department of Revenue, ) Ministry of Finance, Central Board of Excise and Customs, ) North Block, New Delhi-110 001 ) 3. The Chairman, Central Board of Excise and Customs, ) Ministry of Finance, Department of Revenue, North ) Block, New Delhi-110 001 ) 4. The Commissioner of Customs (General), New Customs ) House, Ballard Estate, Mumbai-400 001 ) 5. M.N. Dhar, presently posted as Additional Commissioner ) of Customs, Sahar, Mumbai. ) 6. A. J. Verma, Deputy Commissioner of Customs, ) Jawahar Nehru Custom House, Nhava Sheva, ) Raigad-400 707 ) 7. A.K. Singh, Asstt. Director, Enforcement Directorate, ) Nariman Point, Mumbai-400 021 ) 8. Mohammed Altaf, Appraiser,New Custom House, ) Ballard Estate, Mumbai ) 9. Dr. Sudesh Sheoran, Appraiser, New Custom House, ) Ballard Estate, Mumbai. ) 10. H.C. Verma, Appraiser, New Custom House, ) Ballard Estate, Mumbai. ) 11. All India Customs Officers (Direct Recruit Appraisers) ) Association. ).Respondents Mr. Shreehari Aney, Senior Advocate, instructed by Mr. R.G. Walia, for the petitioners. Mr. M.I. Sethna with Mr. J. B. Mishra for respondent Nos. 1 to 4. -3- Mr. Mahesh Jethmalani, Senior Advocate, instructed by Mr. Sandeep V. Marne, for respondent Nos. 8 and 9. Mr. C.U. Singh, Senior Advocate, instructed by Mr. Sandeep V. Marne, for respondent No. 11. None for respondent Nos. 5, 6, 7 and 10. WITH WRIT PETITION (LODGING) NO. 1006 OF 2009 The Bombay Customs Appraising Officer’s Association ) New Custom House, Bombay-400 038 through its Joint ) Secretary Shri Ajay Arya, Working as Appraiser, ) New Custom House, Ballard Estate, Mumbai-400 038 )..Petitioner versus 1. M.N. Dhar, presently posted as Additional Commissioner ) of Customs, Sahar, Mumbai. ) 2. A. J. Verma, Deputy Commissioner of Customs, ) Jawahar Nehru Custom House, Nhava Sheva, ) Raigad-400 707 ) 3. A.K. Singh, Asstt. Director, Enforcement Directorate, ) Nariman Point, Mumbai-400 021 ) 4. Mohammed Altaf, Appraiser,New Custom House, ) Ballard Estate, Mumbai ) 5. Dr. Sudesh Sheoran, Appraiser, New Custom House, ) Ballard Estate, Mumbai. ) 6. H.C. Verma, Appraiser, New Custom House, ) Ballard Estate, Mumbai. ) 7. All India Customs Officers (Direct Recruit Appraisers) ) Association. ) New Custom House, Ballard Estate, ) Mumbai-400 038 ) 8. Union of India through Ministry of Law & ) Justice, Aaykar Bhavan, New Marine Line, ) -4- Mumbai-400 020 ) 9. Revenue Secretary, Department of Revenue, ) Ministry of Finance, Central Board of Excise and Customs, ) North Block, New Delhi-110 001 ) 10. The Chairman, Central Board of Excise and Customs, ) Ministry of Finance, Department of Revenue, North ) Block, New Delhi-110 001 ) 11. The Commissioner of Customs (General), New Customs ) House, Ballard Estate, Mumbai-400 001 ).Respondents Mr. J.P. Cama, Senior Advocate, instructed by Mr. R.G. Walia, for the petitioner. Mr. Mahesh Jethmalani, Senior Advocate, instructed by Mr. Sandeep V. Marne, for respondent Nos. 4 and 5. Mr. M.I. Sethna with Mr. J. B. Mishra for respondent Nos. 8 to 11. Mr. C.U. Singh, Senior Advocate, instructed by Mr. Sandeep V. Marne, for respondent No. 7. None for respondent Nos. 1 to 3 and 6. WITH WRIT PETITION (LODGING) NO. 1133 OF 2009 1. Union of India, through the Ministry of Finance ) Department of Revenue, Central Board of Excise and ) Customs, having its office at North Block, ) New Delhi-110 001 ) 2. The Chairman, Central Board of excise and Customs, ) Ministry of Finance, Department of Revenue, North Block, ) New Delhi-110 001 ) 3. The Commissioner of Customs (General) ) New Custom House, Ballard Estate, Mumbai-400 001 ).Petitioners versus -5- 1. M.N. Dhar, presently posted as Additional Commissioner ) of Customs, Sahar, Mumbai. ) 2. A. J. Verma, Deputy Commissioner of Customs, ) Jawahar Nehru Custom House, Nhava Sheva, ) Raigad-400 707 ) 3. A.K. Singh, Asstt. Director, Enforcement Directorate, ) Nariman Point, Mumbai-400 021 ) 4. Mohammed Altaf, Appraiser,New Custom House, ) Ballard Estate, Mumbai ) 5. Dr. Sudesh Sheoran, Appraiser, New Custom House, ) Ballard Estate, Mumbai. ) 6. H.C. Verma, Appraiser, New Custom House, ) Ballard Estate, Mumbai. ) 7. Sanjay Vasant Parelkar ) Age 58, Deputy Commissioner, 201, Omkar Customs ) Co-op. Hsg. Soc, Plot No. 5, Part 161-A, Juhu Versova ) Link Road, Andheri (West), Mumbai-400 053, ) presently posted Dy. Commissioner, Chief ) Commissioner’s office, Central Excise Building, ) 115, M.K. Road, Churchgate, Mumbai-400 020 ) 8. Ramesh S. Sawant, age 59, ) Dy. Commissioner, 310, Darshana Apartments, ) 90 feet Road,Sane Guruji Nagar, Mulund (East) ) Mumbai-400 081, presently posted Dy.Commissioner, ) Central Excise, Kalyan Division III, Dyneshwar Prasad ) Building, 1st floor, Murbad Road, Kalyan (West)-421 301 ) 9. I. Vikraman, age 57, ) Asstt. Director, 604, Monical, Andheri (East), ) Mumbai-400 069 presently posted as Asstt. Director, ) Directorate of Enforcement, Mumbai Zonal Office, ) 2nd floor, Mittal Chamber, Nariman Point, ) Mumbai-400 021. ) 10. Ravindra Singh Bhati, Appraising Officer, ) CFS Mulund, Mulund, Mumbai. ) -6- 11. Anil Choudhary (SC), Appraising Officer, ) 1st floor, Old Building, New Custom House, ) Ballard Estate, Mumbai. ) 12. Vinay Kumar Arya, Appraising Officer, ) Drawback Recovery Cell, Appraising Group, 1st floor, ) New Custom House, Ballard Estate, Mumbai. ) 13. Hemant Kumar Tantia, Appraiser, ) J-103, Maheshwari Nagar, Kondivita, ) MIDC, Andheri (E), Mumbai-400 093 ) 14. All India Customs Officers (Direct Recruit Appraisers) ) Association, New Custom House, Ballard Estate, through ) Its Hon. President Mr. Y.K. Sharma, Joint Director, ) Risk Management Division, Mumbai. ) 15. Bombay Customs Appraising Officers Association, ) 3rd floor, Old Bldg., New Custom House, Ballard Estate, ) Mumbai. ).Respondents Mr. M.I. Sethna with Mr. J. B. Mishra for the petitioners. Mr. Mahesh Jethmalani, Senior Advocate, instructed by Mr. Sandeep V. Marne, for respondent Nos. 4 and 5. Mr. Shreehari Aney, Senior Advocate, instructed by Mr. R.G. Walia, for respondent No. 10. Mr. C.U. Singh, Senior Advocate, instructed by Mr. Sandeep V. Marne, for respondent No. 14. None for respondent Nos. 1 to 3, 6 to 9 and 11 to 13. CORAM: P.B. MAJMUDAR & R.M. SAVANT, JJ. Judgment reserved on: 3 rd July, 2009 Judgment pronounced on: 14 th July, 2009 -7- JUDGMENT: (Per P.B. Majmudar, J.) 1. Since common point is involved in all these writ petitions, all these writ petitions are being disposed of by this common judgment. It is agreed by the learned counsel appearing for the parties that these matters can be disposed of finally at the admission stage itself. Hence Rule. Learned counsel appearing for respective respondents waive service of Rule. 2. The present petitions symbolise the unending fight regarding seniority between promotees and direct recruits. The bone of contention is the seniority in in the post of Appraiser. 3. The challenge in these writ petitions is to the order dated 1st May, 2009, passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai, in Original Application No. 360 of 2008. 4. The Original Application before the Central Administrative Tribunal, (hereinafter referred to as “the Tribunal”) Mumbai, was preferred by six direct recruit Appraisers challenging the letter dated 3rd June, 2008, issued by the Department of Revenue, Ministry of Finance, by which it has been decided to re- draw a fresh seniority list of Officers in the grade of Customs Appraisers. According to the direct recruits, the attempt on the part of the Union of India to -8- redraw a fresh seniority list is unjust, illegal and arbitrary. It is the case of the applicants that they were directly recruited as Appraisers and some of them as of date are promoted the post of Additional Commissioner. According to the applicants, the seniority list of the applicants and other service conditions are governed by the Recruitment Rules, 1961, as amended from time to time particularly by the Rules of 1988. As per the Rules, the quota for the percentage of posts to be filled by direct recruitment is specifically provided. In the case of promotees, it cannot be more than 50 per cent. On 12th November, 1997 the respondents issued a seniority list which was against the quota rules . Challenge was made to the aforesaid seniority list by some of the direct recruits before the Mumbai Bench of the Tribunal by filing Original Application No. 855 of 1998. The Tribunal partly allowed the said application on 18th June, 2006 by quashing and setting aside the said seniority list. Against the order of the Tribunal, the promotees approached this Court by filing a writ petition. In the said writ petition no interim relief is granted. The said writ petition is as yet pending. 5. It is also the case of the applicants before the Tribunal that the draft seniority list dated 30th June, 2004 as well as a final seniority list dated 16th December, 2004 was challenged before the Madras Bench of the Tribunal. The Madras Bench of the Tribunal upheld the seniority list dated 16th December, 2004. The said order of the Tribunal was upheld by the Madras High Court and -9- an appeal filed against the said order of the Madras High Court was dismissed by the Supreme Court. Thus the seniority list dated 16th December, 2004 is concerned, the same has attained finality. 6. It is the case of the applicants that the final seniority list dated 16th December, 2004 and the draft list dated 28th April, 2005 of the Appraisers appointed on or after 1st January, 1988 was circulated. The said seniority lists were challenged before the Madras Bench of the Tribunal in Original Application Nos. 408, 419 and 566 of 2005. The order dated 9th August, 2005 passed by the Madras Bench of the Tribunal reads thus: “For all the above reasons, the seniority list dated 16.12. 2004 cannot be questioned since it is made subject to the outcome of the Writ Petition No. 4855 of 2004 pending before the Mumbai High Court. So also the relief in O.A. No. 566 of 2005 cannot be granted since there is no bar to operate the draft seniority list in the facts and circumstances of the case. All these applications are accordingly dismissed. No order as to costs”. 7. The aforesaid order of the Madras Bench of the Tribunal was challenged before the Madras High Court. The Madras High Court permitted the Department to make ad-hoc promotions subject to finalisation of the seniority list. According to the applicants, the department is not at all prevented from promoting Officers either on ad-hoc basis or on regular basis as per the two lists dated 16th December, 2004 which is final for the purpose of regular -10- promotions and the final seniority list dated 16th December, 2004 and the draft list dated 28th April, 2005 for the purpose of ad-hoc promotions. So far as the draft seniority list published on 28th April, 2005 is concerned, the same has been challenged by the promotee officers before the Principal Bench of the Tribunal at New Delhi. The said list was quashed by the Principal Bench of the Tribunal on 21st August, 2007. Upon challenge being made, the Delhi High Court in Writ Petition No. 6515 of 2007 has suspended the operation of the order of the Principal Bench at New Delhi vide order dated 5th September, 2007. 8. As pointed out earlier, the challenge before the Mumbai Bench of the Tribunal by six direct recruit Appraisers was to the letter dated 3rd June, 2008, whereby the Chief Commissioners of Customs, Mumbai, Calcutta and Chennai were asked to draw up seniority list of officers in the grade of Customs Appraiser. It is stated in the said letter that while drawing up the seniority list, they were asked to follow the principles determined by various Courts of law. Reference has been made in the said letter about the Supreme Court judgement which was in connection with the appeal filed by the promotees against the judgment of the Madras High Court. The communication in the form of the said letter was challenged by the direct recruits on the ground that it may result into complication as there is already a final seniority list dated 16th December, 2004 and another draft seniority list published on 28th April, 2005. The Mumbai Bench of the Tribunal vide its order dated 10th July, 2008 while issuing notice -11- to the respondents, stayed the operation of the letter dated 3rd June, 2008. At the time of granting ad-interim relief, the Tribunal observed that prima facie the letter created confusion and complication and accordingly it was directed that the operation of the said letter may be kept in abeyance for a period of 14 days and the department was permitted to promote the officers to various grades on the basis of the final seniority list dated 16th December, 2004 and in case of administrative exigency, if vacancies are available, the respondents may resort to ad-hoc promotions on the basis of the draft seniority list published on 28th April, 2005. However, it is clearly mentioned that all such promotions will be subject to the final outcome of the original application. 9. Against the aforesaid order of the Mumbai Bench of the Tribunal, three writ petitions were filed. This Court on 15th December, 2008, disposed of the three writ petitions. The order reads thus: “Vide letter dated 3rd June, 2008, Ministry of Finance, Government of India, issued certain di9rections with regard to drawl of seniority list of officers in the grade of Customs Appraiser. Operation of this letter came to be stayed by an ex parte order passed by the Central Administrative Tribunal, Bombay Bench, Mumbai. Certain other directions were passed by the Central Administrative Tribunal after hearing the parties vide its order dated 11th September, 2008. Exception is taken by the Petitioners to these two orders. Various contentions have been raised in regard to various facets of fixation of seniority as well as of posting, etc. We do not propose to go into the merit or otherwise of the contentions raised before us keeping in view the course of action that we propose to adopt and issue directions in -12- relation to these cases. 2. There is no doubt that certain difficulties are bound to result from the orders passed by the Central Administrative Tribunal as well as the letter dated 3rd June, 2008 issued by the Government of India. It is not in dispute before us that the application as well as the main original application No. 360 of 2008 is listed for final hearing before the Tribunal on 9th January, 2009. It will be appropriate to issue a direction at this stage that the matter may be heard finally by the Tribunal on that day and we do hope, keeping in view the concern shown by the learned counsel appearing for the parties and without commenting in any manner upon as to who is responsible for delaying the proceedings, that the matter is heard on that date and decided expeditiously. For any reason whatsoever if the Tribunal is not able to hear the matter finally and close it for orders, we would definitely expect that the Tribunal would hear the application finally and pass interim orders relating to the ex-parte order passed on 10th July, 2008 as well as the directions contained in the order dated 11th September, 2008. We make it clear that none of the parties would be entitled to pray for adjournment before the Central Administrative Tribunal on that date. We would expect neither of the parties to these Petitions to precipitate the issues till that date. 3. Writ Petitions disposed of accordingly. No order as to costs” 10. Pursuant to the aforesaid order, the Mumbai Bench of the Tribunal disposed of the miscellaneous petition on 13th January, 2009, and directed the respondents to grant posting to those Superintendents in the grade of Assistant Commissioner within a period of one month. The Tribunal also directed the respondents to consider and promote the eligible officers from the cadre of Appraisers within a period of three weeks. -13- 11. The aforesaid order of the Tribunal was again challenged in Writ Petition No. 463 of 2009. This Court on 28th January, 2009, partly stayed the said interim order so far as it concerned making promotions from the grade of Customs Appraisers. This Court directed the Tribunal to hear the matter finally and deal with it expeditiously. 12. The Tribunal thereafter passed the impugned order dated 1st May, 2009. The Tribunal held that the exercise sought to be done under letter dated 3rd June, 2008 is superfluous and premature in the absence of final disposal of the writ petitions pending before the Bombay High Court and Delhi High Court. The Tribunal further held that the two seniority lists shall hold the field and to operate pending final decision in Writ Petition No. 4855 of 2005 pending before the Bombay High Court and Writ Petition Nos. 6515 of 2007 and others pending before the Delhi High Court. The Tribunal further held that all promotions be granted on regular or ad-hoc basis as per the final seniority lists dated 16th December, 2004 and draft seniority list dated 28th April, 2005 subject to the decisions on the pending writ petitions before the Bombay and Delhi High Courts. It is further held that if any administrative exigencies require, because of the vacancies available, the draft seniority list may be extended on the existing principles. A concern has been expressed by the Tribunal that the officers belonging to the Appraiser cadre who are both applicants and respondents before the Tribunal were left out in spite of specific ruling of the -14- Supreme Court of India in the case of All India Federation of Central Excise and should, therefore, be promoted on ad-hoc basis forthwith. It was also brought to the notice of the Tribunal that the process of consideration for promotions for this group of officers had already been completed. The Tribunal further directed that the actual promotion orders which have not been issued in respect of Appraisers, despite consideration should be expeditiously issued, in any case within two weeks from the date of receipt of the said order. 13. The instant petitions are directed against the aforesaid order of the Tribunal by the promotees as well as by the Union of India. 14. Mr. Cama, learned senior counsel appearing for the petitioners in Writ Petition (Lodging) No. 1006 of 2009 (promotees), vehemently submitted that the order of the Tribunal is unsustainable as the Tribunal has entertained the application only at the stage where the Union of India sought for certain information from various Departments from Mumbai, Chennai and Calcutta. It is submitted that the Tribunal could not have entertained the application and halted the subsequent -process of finalising the seniority list. He submitted that it is not his argument that till the list is finalised, no promotion should be given on ad-hoc basis. However, according to him, whether promotions should be effected or not should be left to the Department and Tribunal cannot issue directions that the Department must promote a particular officer. It is -15- submitted by Mr. Cama that the Tribunal has virtually bypassed the directions given by the Madras High Court in its judgment which judgment has been upheld by the Supreme Court of India. Mr. Cama further submitted that so far as judgment of the Madras High Court is concerned, it cannot be said that the writ petitions filed by the promotees were dismissed. In view of the directions given by the Madras High Court that the department is now drawing up a fresh seniority list and the Tribunal should not have interfered with the said process at this stage. It was not necessary to give direction that till petitions pending before the Bombay and Delhi High Courts are decided, the impugned communication dated 3rd June, 2008 should not be acted upon. Mr. Cama further submitted that by virtue of the directions given by the Tribunal, the department now cannot finalise the seniority list as per the judgment of the Madras High Court and the process will be further delayed inordinately. According to Mr. Cama, it is always open for the department to give ad-hoc promotion subject to finalisation of the seniority list and that the Court cannot give direction that the promotion must be given on ad-hoc basis as it is for the Government to consider as to whether the promotional posts are required to be filled in. It is submitted that there is no justification for giving direction that promotion should be given from a seniority list which is not in conformity with the direction given by the Madras High Court in its judgment. 15. Mr. Aney, learned senior counsel appearing for the petitioners in -16- Writ Petition (Lodging) No. 990 of 2009, submitted that the Tribunal could not have given directions that within a particular period a particular officer must be promoted. It is submitted that it is for the department to consider whether any administrative exigency arises for giving promotion. Surely, the Tribunal could not have directed that the promotion must be made in a particular manner and within a particular time. Mr. Aney further submitted that so far as the so-called final seniority list dated 16th December, 2004 is concerned, the direct recruits were given seniority from the date of passing of the examination conducted by the Union Public Service Commission and the Madras High Court has clearly held that the seniority of direct recruits can be counted only from the date of appointment. It is submitted that in view of the observations of the Madras High Court, there is nothing wrong on the part of the department to redraw the said seniority list as both the lists i.e. final seniority list dated 16th December, 2004 and the draft seniority list dated 28th April, 2005 is not in consonance with the principles laid down by the Madras High Court in its judgment. It is, therefore, submitted that the Tribunal should not have intercepted the said process and should not have directed deferment of the said letter/order till the proceedings before the Bombay and Delhi High Courts are disposed of as, according to him, the said two proceedings have nothing to do with the finalisation of the seniority list which exercise the Union of India is now undertaking. According to Mr. Aney, the application filed before the Mumbai Bench of the Tribunal is nothing but an attempt by the direct recruits to stall the -17- Departments action of implementation of