IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 OP (CAT).No. 2730 of 2011(Z) ---------------------------- AGAINST THE ORDER DATED7.7.2010 & 27/10/2010 IN RA.39/2010 IN OA 141/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS/ RESPONDENTS ------------------------------- 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 AND CUSTOMS, C.R.BUILDINGS, I.S.PRESS ROAD, ERNAKULAM. 3. THE CHIEF COMMISSIONER OF CENTRAL EXCISE, KERALA ZONE, C.R.BUILDINGS, I.S.PRESS ROAD, ERNAKULAM. BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA RESPONDENT/ APPLICANT ------------------------ K.MURALEEDHARAN, STENOGRAPHER GR III, CENTRAL EXCISE & CUSTOMS, CALICUT COMMISSIONERATE, C.R.BUILDINGS, MANANCHIRA, CALICUT-673001. ADV.SRI.V.RAJENDRAN THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 18/8/2011, THE COURT ON 24/08/2011 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF O.A.NO.141/2009 ALONG WITH ITS ANNEXURES FILED BY THE RESPONDENT BEFORE THE C.A.T, ERNAKULAM BENCH. EXT.P2: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN O.A.No.141/2009 BEFORE THE CAT, ERNAKULAM BENCH. EXT.P3: COPY OF THE REJOINDER FILED BY THE RESPONDENT IN O.A.No.141/2009 BEFORE THE CAT, ERNAKULAM BENCH. EXT.P4: COPY OF THE REJOINDER FILED BY THE PETITIONERS IN O.A.No.141/2009 BEFORE THE CAT, ERNAKULAM BENCH. EXT.P5: COPY OF THE ORDER DT.7.7.2010 PASSED BY THE CAT, ERNAKULAM BENCH IN O.A.No.141/2009 DT.1.4.2011. EXT.P6: COPY OF THE R.A.NO.39/2010. EXT.P7: COPY OF THE ORDER DT.27.10.2010 PASSED BY THE CAT, ERNAKULAM BENCH IN R.A.NO.39/2010 IN O.A.No.141/2009 DT. 1.4.2011. //TRUE COPY// PA TO JUDGE C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. -------------------------------------- O.P.(CAT).No.2730 OF 2011 --------------------------------------- Dated this the 24th day of August, 2011 J U D G M E N T ~~~~~~~~~~~ P.S.Gopinathan, J. The petitioners are the respondents in O.A.No.141/2009 on the file of the Central Administrative Tribunal, Ernakulam Bench. The respondent herein is the applicant before the Tribunal. Ext.P1 is the copy of the application to which Ext.P2 reply was filed by the petitioners. Exts.P3 and P4 are the rejoinders filed by the respondent. By Ext.P5 order dated 7.7.2010, the Tribunal allowed the application. The petitioners moved an application as R.A.N0.39/2010, copy of which is marked as Ext.P6 seeking an order to review Ext.P5 order. By Ext.P7 order dated 27.10.2010, Ext.P6 review application was dismissed. From the synopsis, it appears that this petition under Article 227 of the Constitution of India was filed assailing only Ext.P7. But in the prayer relief was sought against both Ext.P5 and P7. 2. The facts leading to the petition is that the respondent entered the service of the 2nd petitioner as a OP(CAT).2730/2011 2 Sepoy. He, while in service, acquired a Post Graduate Degree and a Law Graduate Degree. He appeared for the Departmental Computer Proficiency Examination and qualified to be promoted as Lower Division Clerk (LDC). Accordingly, he was promoted on 6.2.2003. However, the respondent applied for extension of time to join duty as LDC for reasons not disclosed, but accepted by the petitioners and he joined duty on 23.5.2003. In the meanwhile, Central Excise and Customs Departments Tax Assistant (Group C post) Recruitment Rules, 2003 (hereinafter referred to as 'Rules) came into effect on 2.5.2003. As per Rule 4(3) of the Rules, LDC is entitled to further promotion as Tax Assistant provided, he is a Lower Division Clerk in the seniority list as on the date of the commencement of the Rules. Claiming that the respondent was promoted on 6.2.2003 as LDC and therefore, he is entitled to be promoted as per the Rules, he sought for promotion as Tax Assistant. But the petitioners declined the request stating that since the respondent joined duty as LDC on 25.3.2003, he was not working as a Lower Division Clerk as on the date of the commencement of the Rules and therefore, he is not entitled to be promoted. Being aggrieved, the respondent moved the Tribunal below. The OP(CAT).2730/2011 3 Tribunal giving reliance to Annexure-R4 found that one C.P.Jexon, though promoted on 8.7.2004 was given notional promotion with effect from 14.2.2003. Consequently, his promotion was regularised as if he was a Lower Division Clerk as on the date of commencement of the Rules. The Tribunal, therefore, found that there is no reason to discriminate the respondent. Consequently, the application was allowed and the petitioners were directed to consider the case of the respondent and to pass appropriate orders with consequential benefits within 90 days from the date of receipt of the order. The Tribunal while allowing the application had also taken note that the respondent had passed the Departmental Computer Proficiency Examination, which is a qualifying examination for promotion. It is assailing that order, as mentioned earlier, the Review Application was filed. 3. We have heard Sri.P.Parameswaran Nair, the learned Assistant Solicitor General of India and Sri. V.Rajendran, learned counsel appearing for the respondent. Having gone through the orders of the Tribunal, we find that on sound reasons and having taken note of the precedent at the instance OP(CAT).2730/2011 4 of petitioners, they were directed to consider the case of the respondent for promotion as was done in the case of C.P.Jaxen. We find no arbitrary exercise of jurisdiction. Neither is there any illegality or impropriety in the order so as to be rectified in exercise of the powers under Article 227 of the Constitution of India. Before us, a copy of order of the Tribunal dated 22.2.2011 was produced. It would shown that the petitioners had been asking for extension of time stipulated as per Ext.P5 order on one ground or other. More than one year had elapsed after the passing of Ext.P5 order. While asking time for compliance, this petition was filed. We find no reason to entertain the petition. In the result, this petition is dismissed. The petitioners are further directed to implement Ext.P5 order within 30 days from the date of receipt of a copy of this judgment which shall be produced by the respondent before the 2nd and 3rd petitioners. (C.N.RAMACHANDRAN NAIR, JUDGE) ( P.S.GOPINATHAN, JUDGE) ps/20/8