IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28-01-2009 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.Nos.17380 & 35745 of 2004 W.P.No.17380/2004 1. The Commissioner of Customs, Customs House, Chennai. 2. The Union of India represented by its Chairman, Central Board of Excise and Customs, Department of Revenue (North Block) New Delhi. .. Petitioners Vs. 1. S. Krishnamoorthy 2. The Registrar, Central Administrative Tribunal, City Civil Court Building, Chennai. .. Respondents W.P.No.35745/2004 1. The Union of India represented by its Chairman, Central Board of Excise and Customs, Department of Revenue, North Block, New Delhi 2. 2. The Commissioner of Customs, Customs House, Chennai 1. .. Petitioners Vs. 1. T.S.A. Pillai 2. The Registrar, Central Administrative Tribunal, City Civil Court Building, Chennai. .. Respondents https://hcservices.ecourts.gov.in/hcservices/ Writ Petitions have been filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the entire records pertaining to the impugned order in O.A.No.482 of 2003 dated 6.2.2004 and O.A.No.159 of 2004 dated 27.8.2004 respectively, passed by the Central Administrative Tribunal, Chennai, and quash the same. For Petitioners : Mr.K. Ravindranath, SCCG In both WPs For Respondent-1 : Mr.V. Vijay Shankar In both WPs - - - COMMON JUDGMENT P.K. MISRA, J The facts in brief in W.P.No.17380 of 2004 are as follows:- Respondent No.1 / applicant had joined service under the present petitioners initially as an Examiner and in course of time he was promoted as an Appraiser and ultimately further promoted as an Assistant Commissioner with effect from 15.9.1997. He took voluntary retirement from service with effect from 3.11.2000. Thereafter, he filed O.A.No.482 of 2003 claiming that the Government and the Department should grant “… Senior Time Scale . . . with all attendant and consequential benefits with effect from the date his juniors were given the Senior Time Scale in October 1999 . . .". The main basis for making such a claim was on the footing that the seniority list of Appraisers was circulated only on 12.11.1997, wherein he was shown at Sl.No.881 and the Appraisers, who were juniors to him having been shown as 885, 914, 915, 917 and 948 onwards, had been given deemed promotion as Assistant Commissioner (Junior Time Scale) from October 1995 and Deputy Commissioner (Senior Time Scale) with effect from October, 1999. It was therefore claimed be him that, since he was senior to those persons, he was entitled to be promoted from the date when his juniors were promoted and the benefits which were made available to such juniors should have been extended to him. It was also highlighted by him that in similar cases such as O.A.No.757 of 2000 and O.A.No.1305 of 2001, the Administrative Tribunal had issued similar directions. 1.1 The Union of India and the Department in their reply filed before the Tribunal took a stand that the applicant (present Respondent No.1) was promoted to the grade of Assistant Commissioner (JTS) on 8.9.1997 and he had taken voluntary https://hcservices.ecourts.gov.in/hcservices/ retirement with effect from 3.11.2000. It was highlighted that for appointment as Assistant Commissioner (STS), one is required to complete four years of regular service in the grade of Assistant Commissioner (JTS) and since the applicant and completed only 3 years, 2 months and 15 days in the grade of Assistant Commissioner (JTS) before he had taken his voluntary retirement, the question of grant of Assistant Commissioner (STS) did not arise in his case. 1.2 The Tribunal negatived the contention of the Department by observing as follows :- “4. It is not in dispute that a number of juniors to the applicant herein have been granted the STS. But it is not stated in the reply as to whether they had completed four years of service or not. However they have been granted the STS. The fact that the respondents had given the STS to a number of juniors to the applicant from 1998 onwards is admitted. Therefore, it stands to reason that this benefit should also be given to the applicant as well. In this connection we also notice that the applicant had retired, though on voluntary retirement basis, effective from 3.11.2000 only. On the other hand the applicant’s juniors have been granted the STS effective from 4.1.1998 onwards, i.e. much before the retirement date of the applicant. Therefore the applicant in all fairness is entitled to get the same benefit, even though he has already retired from service.” 1.3 Accordingly, the Tribunal directed the Department to consider the case of the applicant for the grant of Senior Time Scale with all consequential benefits with effect from the date when his immediate junior was given the Senior Time Scale. The aforesaid direction is in question in W.P.No.17380 of 2004 filed by the Union of India and the Commissioner of Customs. 2. The main contention raised in the writ petition is to the effect that as per the rules, an Assistant Commissioner in the Junior Time Scale can be promoted as Deputy Commissioner in Senior Time Scale only on completion of four years of regular service as Assistant Commissioner in Junior Time Scale and since the applicant (present Respondent No.1) had not completed such four years period as he had retired voluntarily in November, 2000, the direction given by the Tribunal is illegal. https://hcservices.ecourts.gov.in/hcservices/ 3. Learned counsel appearing for Respondent No.1, on the other hand, has submitted that in all other cases the Department had implemented the direction given by the Tribunal by notionally ante-dating the date on which the persons to be Assistant Commissioner in Junior Time Scale, even though those persons had not completed four years of regular service as Assistant Commissioner, Junior Time Scale, and there is no logic or reason as to why the present Respondent No.1 is being treated differently and the direction given by the Tribunal is being challenged in this writ petition. 4. In the connected writ petition, W.P.No.35745 of 2004, which is directed against O.A.No.159 of 2004, the facts are similar in the sense that the applicant was relying upon the very same decision of the Tribunal in O.A.Nos.757 of 2000 & 1305 of 2001, save and except the fact that there was no voluntary retirement by such applicant. 5. In the reply, the Department had taken the stand that the previous order of the Tribunal in O.A.Nos.757 of 2000 and 1305 of 2001 had been implemented on account of pendency of the Contempt Applications. 6. There is no dispute that the post to which promotion was claimed is a Grade V of service and governed by Rule 19 of the Indian Customs and Central Excise Service Group ‘A’ Rules, 1987. Rule 19 being relevant, is extracted hereunder:- “19. Appointment to Grade V of Service: (1) Appointment to the vacancies in Grade V of the Service shall be made by promotion of officers in Grade VI of the Service in the order of seniority subject to rejection of the unfit. (2) Officers, both promotees and direct recruits, appointed to the Grade VI of the Service in accordance with the provisions of these rules shall be considered for regular promotions to Grade V of the Service in running order of their seniority and after completing four years’ regular service in Grade VI. Provided that an officer appointed to the Grade VI of the Service shall not be considered for promotion to Grade V until he has successfully completed the period of probation.” 7. A perusal of the aforesaid rule, more particularly Rule 19(2) amply makes it clear that a person would be eligible for promotion to Grade V from Grade VI only after completing four years https://hcservices.ecourts.gov.in/hcservices/ of regular service in Grade VI. As per Rule 19(1), appointment to Grade V shall be made by promotion of officers in Grade VI in the order of seniority subject to rejection of the unfit. In other words, even though the promotion is on the basis of seniority, it is not automatic inasmuch as a person who is unfit can be rejected. Moreover, as already noticed, the person must have completed four years of regular service in Grade VI. 8. Respondent No.1 in each of the case was promoted as Assistant Commissioner (Junior Time Scale), which was in Grade VI of service. It is not the case either at that time or even now that he was due to be promoted as Assistant Commissioner (Senior Time Scale) in Grade V on an earlier date and his case had been illegally overlooked by the Department. Even assuming that was so, it was for him to ventilate his grievance at that time. He had kept quiet at that time and has thought it fit to make a claim only after he found that some other persons, who were junior to him as Assistant Commissioners (Junior Time Scale), pursuing their remedy before the Central Administrative Tribunal. The main plank of his contention appears to be that since other Assistant Commissioners (Junior Time Scale) who were junior to him have got the benefit of becoming of Assistant Commissioner (Senior Time Scale) in Grade V in 1999, he should not be treated differently and the same benefit should be made available to him. 9. It is no doubt true that the Department had not questioned some of the earlier orders of the Tribunal, whereunder the benefit of promoting a person to the Assistant Commissioner (Senior Time Scale) had been given and the orders of the Tribunal had been implemented without apparently raising the question as to whether such persons had completed 4 years of regular service in Grade VI before being considered for regular promotion to Grade V. Merely because the Department had not thought it fit to challenge the orders of the Tribunal in those earlier cases, it is not estopped from challenging similar orders in other cases. 10. In (1995) 4 SCC 683 (STATE OF MAHARASHTRA v. DIAGAMBAR), the Supreme Court observed :- “16. . . . Sometimes, as it was stated on behalf of the State, the State Government may not choose to file appeals against certain judgments of the High Court rendered in writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this Court under Article 136 of the Constitution, for seeking redressal therefor. At other times, it is also possible for the State, not to file appeals before this Court in some matters on account of improper advice or negligence or improper conduct of https://hcservices.ecourts.gov.in/hcservices/ officers concerned. It is further possible, that even where SLPs are filed by the State against judgments of the High Court, such SLPs may not be entertained by this Court in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State. Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some SLPs in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an SLP or SLPs in other similar matter(s) where it is considered on behalf of the State that non- filing of such SLP or SLPs and pursuing them is likely to seriously jeopardise the interest of the State or public interest.” 11. In this connection, it would be appropriate to refer to the decision of the Supreme Court reported in (2006) 11 SCC 709 (COL.B.J. AKKARA [RETD] v. GOVERNMENT OF INDIA AND OTHERS). In the said case, the question related to calculation of pensionary benefits. The persons concerned were challenging the Defence Ministry circular clarifying certain matters related to payment of pension. The Delhi High Court struck down a similar circular dated 19.10.1999 relating to Civilian Medical Officers (corresponding to Defence Ministry circular dated 11-9-2001) and such decision of the Delhi High Court had attained finality and the Union of India had implemented such decision by reverting back to addition of non- practising allowance to minimum pay for purposes of stepping up the pension in regard to pre-1996 Civilian Medical Officers. The contention that the Union of India was required to extend the similar treatment in case of defence service Medical Officers by ignoring the clarification dated 11.9.2001, was one of the issues before the Supreme Court. In the above context, the Supreme Court by referring to the observations made in Digambar's case (cited above), observed as follows :- “26. The said observations apply to this case. A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non- comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment https://hcservices.ecourts.gov.in/hcservices/ in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a “pick-and-choose” method only to exclude petitioners on account of mala fides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29-10-1999 (corresponding to the Defence Ministry circular dated 11-9-2001) has been upheld and that decision has attained finality will not come in the way of the State defending or enforcing its circular dated 11-9-2001.” 12. In our considered opinion, the ratio of the decision of the Supreme Court in the aforesaid case, which in its turn had followed an earlier decision of the Supreme Court in State of Maharashtra v. Diagambar (1995) 4 SCC 683, would be applicable. 13. It is not the case of the Respondent No.1 that the Department has adopted a “pick and choose” method only to exclude the present Respondent No.1. As a matter of fact, an explanation has been given that the earlier decisions have been implemented as contempt proceedings had been filed and there was no time to pursue any other legal remedy as the Damocles sword of contempt proceeding was hanging. 14. In the present case, if a direction would be given that the person was to be promoted in 1999 with effect from the date when his juniors were promoted, it would be like issuing a Mandamus to the Union of India to act contrary to the statutory provisions which contemplate that a person can be promoted to Grade V only after having served for four years in Grade VI. It is no doubt true that in their cases with a view to comply with the direction given by the Tribunal, the Union of India had passed orders that such persons were deemed to have become Assistant Commissioners (Junior Time Scale), at an earlier date. However, merely because a wrong decision of the Tribunal has been followed and given effect to by the Union of India in some of the matters, it may not be appropriate for us to direct the Union of India to commit similar irregularity in all other cases. No person can claim equality on the basis of an erroneous decision. As observed by the Supreme Court in Col.B.J. Akkara’s case, neither the principle of res judicata nor the principle of estoppel would be attracted to the facts of the present case. The erroneous decision of the Tribunal cannot be considered as a binding precedent for the High Court to follow. https://hcservices.ecourts.gov.in/hcservices/ 15. For the above reasons, the two separate orders passed by the Tribunal cannot be sustained. 16. So far as W.P.No.17380 of 2004 is concerned, the matter can be looked from another angle. As already indicated, Respondent No.1 was promoted as Assistant Commissioner (Junior Time Scale) in 1997. If he had any grievance and claim that he should have been promoted as Assistant Commissioner (Senior Time Scale) with effect from an earlier date, it was a matter for him to agitate at that stage. Not only he had kept quiet at that stage, but subsequently he had even sought for voluntary retirement which would mean that he had voluntarily given up the right to claim any further promotion or right to claim any promotion from an earlier date. 17. Learned Counsel for Respondent No.1 has placed reliance upon the decision of the Supreme Court reported in (2006) 3 SCC 708 (HEC VOLUNTARY RETD. EMPLOYEES WELFARE SOCIETY AND ANOTHER v. HEAVY ENGINEERING CORPN. LTD. AND OTHERS) and submitted that there is difference between an employee who voluntarily retires in terms of contract of voluntary retirement and another who voluntarily retires in accordance with the statutory rules. 18. In the present case, we are not suggesting that merely because Respondent No.1 took voluntary retirement in 2000, he would be deprived of any higher salary or higher emoluments which would become due to him on account of any retrospective change in the service conditions such as increase of salary or allowance from a date earlier to the actual retirement. In such a case like any other normal retiree, the person who had taken voluntary retirement would be entitled to the benefit for the period anterior to the retirement, but which become due on account of any retrospective change in law or in pay scale. In the present case, we are concerned with an individual grievance. Respondent No.1, who took voluntary retirement, is trying to establish that before his voluntary retirement, he should have been promoted. There is subtle distinction between the two, inasmuch as in the case of normal retirement or voluntary retirement, the person gets service benefits which is made available to all who were in service before the particular date; whereas, in the present case, the person is trying to claim a right to be promoted which is peculiar to him or which is his individual right. Therefore, in our considered opinion, it can be said that if Respondent No.1 had any right of being promoted to Grade V from an earlier date, in such event, he could have claimed promotion to Grade V at that time and there is waiver and acquiescence and Respondent No.1 cannot claim such right because subsequently he discovers that some of his juniors were given promotional benefit by way of implementing the judicial orders, which are now found to be erroneous orders. https://hcservices.ecourts.gov.in/hcservices/ 19. For the aforesaid reasons, we are unable to sustain the orders passed by the Tribunal, which are accordingly quashed and the Writ Petitions are allowed. No costs. dpk Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To The Registrar, Central Administrative Tribunal, City Civil Court Building, Chennai. 1 cc to Mr.V.Vijay Shankar, Advocate, SR.4278 ksj (co) dv/5.2. ORDER IN WP.Nos.17380 & 35745 of 2004 https://hcservices.ecourts.gov.in/hcservices/