IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 WP(C).No. 11575 of 2007(S) -------------------------- PETITIONERS/RESPONDENTS IN THE O.A.: --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI - 110 001. 2. THE CHAIRMAN, CENTRAL BOARD OF EXCISE & CUSTOMS, NORTH BLOCK, NEW DELHI-110001. 3. THE CHIEF COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, C.R. BUILDINGS, I.S.PRESS ROAD, COCHIN 682 018. 4. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN 682 018. 5. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, ICE BHAVAN, PRESS CLUB ROAD, TRIVANDRUM. BY ADV. SRI.ALEX VARGHESE, CGC RESPONDENT/APPLICANT IN O.A.: --------------- K.V.RAJASEKHARAN NAIR, INSPECTOR OF CENTRAL EXCISE, KUNDARA I RANGE, KUNDARA, KOLLAM DISTRICT. ADV. SRI.C.S.GOPALAKRISHNAN NAIR FOR R1 ADV.THOMAS MATHEW NELLIMOOTTIL, SC, EXCISE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/7/2011, THE COURT ON 8/8/2011 DELIVERED THE FOLLOWING: W.P.(C) No.11575/5007 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF O.A.No.601/2005 ALONG WITH ANNEXURES. EXT.P2(a): COPY OF REPLY STATEMENT DT.27.10.2005. EXT.P2(b): COPY OF CIRCULAR F.NO.32011/10/88-Ad.IIIA DT.13.6.1988 ISSUED BY GOVERNMENT OF INDIA. EXT.P3: COPY OF REJOINDER DT.11.11.2005 TOGETHER WITH ANNEXURES. EXT.P4: COPY OF ADDITIONAL REPLY STATEMENT DT.11.1.2006 ALONG WITH ANNEXURES. EXT.P5: COPY OF ORDER DT.4.1.2007 IN O.A.NO.601/2005 OF CAT, ERNAKULAM BENCH. RESPONDENT'S EXTS: EXT.R1: COPY OF THE ORDER IN O.A.NO.438/2006 DT.13.10.2006. EXT.R2: COPY OF THE JUDGMENT IN W.P.(C) NO.4564/2007 DT.6.3.2007. //TRUE COPY// PA TO JUDGE “CR” C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ------------------------------------------ W.P.(C).No.11575 OF 2007 ------------------------------------------- Dated this the 8th day of August, 2011 J U D G M E N T ~~~~~~~~~~~ P.S.Gopinathan, J. This is a petition under Articles 226 and 227 of the Constitution of India. The petitioners are the respondents in O.A.No.601/2005 dated 4.1.2007 on the file of the Central Administrative Tribunal, Ernakulam Bench, copy of which is produced as Ext.P1. The respondent herein entered the service of the petitioners as Lower Division Clerk on 18.11.1980. In July, 1988 he was promoted as Upper Division Clerk. On 23.7.1997, again promoted as Tax Assistant. The Tax Assistant is a feeder category to the post of Deputy Office Superintendent L-II, which is a further channel for promotion to the post of Deputy Office Superintendent L-I. The cadre of Deputy Office Superintendent, both L-II and L-I are ministerial cadres. The Tax Assistants are also feeder categories to the post of Inspector who is entitled to further promotion as Superintendent of Central Excise. The post of Inspector and Superintendent of Central Excise are executive cadres. For the W.P.(C) No.11575/2007 2 post of Inspector, only 1/3rd is reserved for promotees. Remaining 2/3rd is for direct recruitment. Among promotees there is age restriction for promotion to the post of Inspector, i.e., 45 years for General categories and 47 years for reservation categories. Once a Tax Assistant is promoted as Deputy Office Superintendent, he would lose the chance for promotion to the post of Inspector. The respondent, having crossed the age limit of 45 years, by Annexure-A6 order dated 9.8.2002 was promoted as Deputy Office Superintendent. While so, in November, 2002, the age limit for promotion to the post of Inspector was enhanced to 50 years. By the time, the respondent was aged only 46 years. Anticipating chance for promotion to the post of Inspector in the light of the relaxation of the age limit, respondent preferred Annexure-A3 representation dated 11.11.2002 in the Original Application seeking an order for reversion to the post of Tax Assistant. The department, readily, by Annexure-A4 order dated 26.11.2002 acceded to. On 20.12.2002, by Annexure-A5 order, the respondent was promoted as Inspector. By Annexure-R3 order dated 25.7.2005, orders were issued by the Under Secretary to Government of India directing to revert the respondent to the post of Tax W.P.(C) No.11575/2007 3 Assistant and then to promote as Deputy Office Superintendent L-II for the reason that a Tax Assistant once promoted as Deputy Office Superintendent is not liable to be reverted to the post of Tax Assistant so as to enable him to stake claim for promotion as Inspector. Reliance was placed on Ext.P2(b) circlular No.32011/10/88–AD/IIIA and Annexure-A7 circular F No.32022/24/92-AIII dated 16.8.1992 produced in O.A whereby instructions were issued against such reversion. Annexures-A4 and A5 are in clear contravention of Ext.P2(b) and Annexure-A7. However, assailing Annexure-R3 the respondent moved the Tribunal below by the above Original Application. By Ext.P5 order dated 4.1.2007, the Tribunal allowed the application and held that Annexure-R3 order is not legally sustainable. The Tribunal further declared that the respondent could not be reverted as per the said order. The petitioners were directed to rescind Annexure -R3 order and not to disturb the respondent from the post of Inspector. Assailing Ext.P5 order, this Writ Petition was preferred. 2. We have heard the learned standing counsel for the petitioners as well as the learned counsel appearing for the W.P.(C) No.11575/2007 4 respondent. Having gone through the documents relied upon as well as the rules governing promotion and postings, we find no provision which enable the petitioners to revert an Officer except upon by way of disciplinary proceedings or for want of sanctioned post. We also do not find any provision entitling an Officer to seek reversion so as to avail him another channel of promotion. We are in full agreement with the learned standing counsel that Ext.P2(b) and Annexures-A7 circulars are in tune with the rules relating to the promotion and postings. Annexures-A4 and A5 are in contravention of Ext.P2(b) and Annexure-A7. Therefore, Annexure-R3 is only a rectification order. Except for a delay of more than 2 ½ years Annexure-R3 is in order. Though delay is a good ground, the Tribunal had not taken delay as a ground to interfere with. In fact, no good reason is given for interfering with Annexure-R3. The legal issue raised by the petitioners were not seen considered by the Tribunal. In this view of the matter, Ext.P5 order impugned is not sustainable. But, we decline to interfere with Ext.P5 mainly for four reasons. The 1st reason is that Annexure-R3, though a rectification was issued more than 2 ½ years after Annexure-A5. That delay would enure to the respondent. Reversion of the W.P.(C) No.11575/2007 5 respondent after such a long time would tantamount to a demotion for which at no reason the respondent is liable. The 2nd reason is that the petitioners themselves, on Annexure-A3 representation, by Ext.A4 order without any reference to the rules relating to the promotion and postings; and the relevant circulars reverted the respondent and then by Annexure-A5 promoted the respondent to the post of Inspector. There is no case that the respondent any way misled the petitioners in issuing Annexure-A4 or A5 order. The 3rd one is that from 20.12.2002 till date, though also under the cover of the interim order passed by the Tribunal below, the petitioner had been satisfactorily discharging duties as that of the Inspector. Now he had nearly nine years service in the cadre of the Inspector. The last reason is equity and balance of convenience. Suppose we allow this petition and Annexure-R3 to be implemented, as regards the respondent, who had been holding the post of Inspector for about 9 years, the consequence would be disastrous. Suppose we decline to interfere, no prejudice or loss or hardship would be caused either to the petitioners or to any other personnel. In the above circumstance, though Ext.P5 order is not sustainable for the reasons stated therein, we W.P.(C) No.11575/2007 6 decline to exercise the jurisdiction either under Article 226 or under Article 227 of the Constitution of India. In the result, this Writ Petition is dismissed. No costs. (C.N.RAMACHANDRAN NAIR, JUDGE) ( P.S.GOPINATHAN, JUDGE) ps