IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 OP (CAT).No. 95 of 2011(S) -------------------------- O.A.NO.39/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS:- ------------------------------ 1. UNION OF INDIA, REP. BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI. 2. THE CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMS, NORTH BLOCK, NEW DELHI. 3. CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDING, I S PRESS ROAD, COCHIN. 4. COMMISSIONER OF CENTRAL EXCISE, CENTRAL REVENUE BUILDINGS, I S PRESS ROAD, COCHIN. 5. COMMISSIONER OF CENTRAL EXCISE, CENTRAL REVENUE BUILDINGS, MANANCHIRA, KOZHIKODE. 6. COMMISSIONER OF CUSTOMS (PREVENTIVE), CENTRAL REVENUE BUILDINGS, I S PRESS ROAD, COCHIN. 7. ASSISTANT COMMISSIONER OF CUSTOMS, CUSTOMS PREVENTIVE DIVISION, CENTRAL REVENUE BUILDINGS, MANANCHIRA, KOZHIKODE. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX. RESPONDENT(S): --------------- 1. V.K.DEENADAYAL, SEAMAN, CUSTOMS PREVENTIVE DIVISIONAL OFFICE, CENTRAL REVENUE BUILDINGS, MANANCHIRA PO, KOZHIKODE, PIN-673 020. 2. A.KAMALESH, SEAMAN, CUSTOMS PREVENTIVE DIVISIONAL OFFICE, CENTRAL REVENUE BUILDINGS, MANANCHIRA PO, KOZHIKODE, PIN-673 020. 3. THE REGISTRAR, THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, KALOOR P.O., PIN-682 018. ADV. SRI.C.S.GOPALAKRISHNAN NAIR THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 24/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS:- P1: A TRUE COPY OF THE ORDER DATED 17-7-2009 IN O.A. 39/2009. P2: ORDER DATED 6-7-2010 IN R.A.NO.1/2010 IN O.A.NO.39/2009. P3: A TRUE COPY OF THE O.A. NO.45/2003 FILED BY THE APPLICANT. P4: A TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIOENRS TO O.A.39/2009. P5: A TRUE COPY OF THE O.A.NO.39/2009 FILED BY THE APPLICANTS. P6: A TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE PETITIOENRS. P7: A TRUE COPY OF THE REVIEW PETITION NO.1/2010 IN O.A. NO.39/2009 WITHOUT THE EXHIBITS. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= O.P.(CAT) No. 95 of 2011 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 24th February, 2011 JUDGMENT Basheer, J. Chairman of the Central Board of Excise and Customs and other officials in the Department have filed this original petition under Article 227 of the Constitution of India impugning the order passed by the Central Administrative Tribunal by which the Tribunal has held that respondents 1 and 2 herein are entitled to be promoted as Lower Division Clerks with effect from the date they passed the Departmental test. It has been further held by the Tribunal that these two respondents would be entitled to be placed just above their juniors in the respective lists, in terms of their seniority and that they would also be entitled to additional remuneration for the post-promotion period, if such benefit had been extended to all other similarly situated employees. 2. While impugning the above order passed by the OP(CAT) 95/2011 2 Tribunal, it is contended by learned counsel for the petitioners that the Tribunal has committed serious illegality in overlooking the fact that respondents 1 and 2 did not have any manner of right to be promoted as Lower Division Clerks going by the feeder category rules. Is the above contention tenable? 3. Respondents 1 and 2 were appointed as Laskars in the year 1997. It is the admitted position that while they were serving as Laskars, the Department had assigned them duties of Lower Division Clerks ever since 2001. In fact, respondent No.1 started working as Lower Division Clerk from 2001 while respondent No.2 did so from 2002. It is on record that these two respondents worked as Lower Division Clerks till October-November, 2010. It is also beyond controversy that respondent No.1 had in fact discharged the duties of Cashier also, for more than 1 ½ years till both of them were sent back to their original post of Laskars. 4. While working as Cashier and Lower Division OP(CAT) 95/2011 3 Clerk respectively, respondents 1 and 2 approached the Central Administrative Tribunal praying for a direction to the Department to promote them as Lower Division Clerks with effect from the date they passed the Departmental test by relaxing the recruitment rules. They also prayed for other incidental reliefs consequent to such promotion. 5. In this context, it may be noticed that respondents 1 and 2 had approached the Tribunal on an earlier occasion in 2003 and filed O.A.No.45/2003 praying for a direction to the Department to promote them as Lower Division Clerks. It appears that by virtue of an interim order passed by the Tribunal these respondents had appeared for the Departmental Test and passed the same. Consequently, the prayer in the original application was amended by adding a prayer that the Department may be directed to promote these respondents to the post of Lower Division Clerks. These respondents had also prayed for a declaration that their exclusion OP(CAT) 95/2011 4 from the feeder category for promotion to the post of Lower Division Clerks was discriminatory. 6. The above original application was ultimately dismissed by the Tribunal by order dated October 1, 2004. In other words the prayer for declaration referred to above and also the prayer for a direction to promote them as Lower Division Clerks were rejected by the Tribunal. The above order passed by the Tribunal was affirmed by a Division Bench of this Court in W.P(C)No.2101/2006. 7. It is contended by learned counsel for the petitioners that judgment of this Court in the above writ petition has sealed the fate of the petitioners and therefore they could not have aspired for promotion as Lower Division Clerks. It is further pointed out that these respondents belong to the feeder category of Seamen. They can only aspire for promotion as Senior Deck Hand, Sukheni, Tindel and Skippermate and for Laskars the grades of promotion available are Greaser, Launch Mechanic, Engine Driver and Engineer Mate. There is OP(CAT) 95/2011 5 some force in the above contention raised by learned counsel for the petitioners. 8. However, as has been noticed already, respondents 1 and 2 had discharged the duties of Lower Division Clerks for more than 9 years, in fact respondent No.1 had worked in the post of Cashier also for more than one and a half years, for which of course he would have been entitled to get higher remuneration. The Tribunal while passing the impugned order had taken note of the above aspect and also the fact that respondents 1 and 2 had passed the Departmental Test conducted for Lower Division Clerks. It was also noticed that pursuant to the said test the candidates who found a place in the select list had been promoted except these two respondents. The Tribunal was therefore apparently persuaded to take the view that respondents 1 and 2 were therefore entitled to be promoted as Lower Division Clerks with all attendant benefits and that too with effect from the date they started discharging the duties of OP(CAT) 95/2011 6 Lower Division Clerks. 9. When this case was taken up for consideration on January 17, 2011, we had passed an interim order, paragraph 5 of which is extracted hereunder for the sake of convenience. “Admittedly, the two employees had been discharging the duties of Lower Division Clerks for nearly 9 years. We are informed that they had been paid only the emoluments attached to the cadre of Seaman for the entire duration of their services as Lower Division Clerks. The Department having utilised their services as Lower Division Clerks, should, in our view, take a more humane and pragmatic approach in the peculiar facts and circumstances of this case, even in the face of any technical snag or statutory interdiction. In our view, the question whether these two employees can be adequately rewarded by making a lumpsum payment for the services rendered by them can also be looked into by the department. We refrain OP(CAT) 95/2011 7 from making any other observation in the matter at this stage.” 10. Subsequently, when the case was again taken up for further hearing, learned counsel for the petitioners informed the court that the matter was under active consideration of the Board and a decision is expected to be taken very soon. But at that juncture there was a further development which got reflected in the order that we passed on that day. “Learned counsel who appears for the two employees submits that the Department can also consider the question whether they can be given promotion as Lower Division Clerks without any strings attached to it. In other words, he submits that the two employees will not press for any retrospectivity nor will they claim any arrears of salary or such other service benefits. Learned counsel further submits that the two employees are prepared to give a written undertaking in this regard if this Court so directs”. 11. In view of the above development, we directed OP(CAT) 95/2011 8 learned counsel for the petitioners to get instructions in the matter. Learned counsel submits that the request made by these respondents cannot be entertained at all particularly for the following reasons:- i) They had passed the Departmental test only on February 11,2003 and December 24, 2003 which is after publication of the new recruitment rules for Lower Division Clerks on September 20, 2002. ii) As per the new Recruitment Rules, cadre of Seamen is not included in the feeder category for Lower Division Clerks. iii) These two respondents were allowed to appear for the Departmental test only provisionally and subject to the outcome of O.A.No.451/2003. In this O.A. the new Recruitment Rules of Lower Division Clerks which excluded Seamen from the feeder category of Lower Division Clerks, were challenged. These respondents did not get any relief in the said O.A. The order passed by the Tribunal was confirmed by a Division Bench of this Court. iv) There are other senior Group D staff who OP(CAT) 95/2011 9 have qualified in the written examination and are awaiting their promotion as Lower Division Clerks. If these two respondents who do not belong to the feeder category are promoted, it will lead to further litigation. v) If respondents 1 and 2 are promoted, in terms of the old Recruitment Rules, which ceased to exist on September 20, 2002, it will be in violation of the new Recruitment Rules. vi) Under the new Recruitment Rules only employees belonging to categories of Sepoys, Havildars and Record Keepers can be considered for promotion as L.D.Clerks. 12. We have referred the above contentions urged by the learned counsel for the department extensively only for the sake of convenience of understanding the stand of the department. It is true that going by the new Recruitment Rules, it may not be possible to promote respondents 1 and 2 as L.D.Clerks. Under the old Recruitment Rules Group-D employees were entitled to be considered for promotion under 10% quota earmarked for in-service candidate. OP(CAT) 95/2011 10 Admittedly, Seamen belong to Group-D category. However, when the new Recruitment Rules were introduced, Group-D categories except Sepoys/Havildars were excluded from the feeder category. Still further, under the old Recruitment Rules 10% of the vacancies were set apart for in service candidates and 90% of the vacancies had to be filled up through direct recruitment. Under the new Recruitment Rules 100% of the vacancies are to be filled up by way of promotion from among the in service candidates. 13. We have referred to salient features of the old and new Recruitment Rues only to highlight the fact that Seamen category along with certain other Group-D categories except Sepoys and Havildars are excluded from the purview of promotion as L.D.Clerks. 14. But in the case on hand it has been noticed that respondents 1 and 2 had joined the department as Seamen in 1997. Admittedly from 2001 onwards respondent No.1 has been discharging his duties as L.D.Clerk as directed by his employer Respondent No.2 had been doing so since OP(CAT) 95/2011 11 February, 2002. Both these respondents ceased to work as Seamen since the last more than nine - ten years. In other words, they have been working as L.D.Clerks for nearly ten years. Even after the introduction of the new Recruitment Rules in 2002, the department had consciously allowed them to officiate as L.D.Clerks. As has been noticed already that respondent No.1 worked as Cashier for nearly 1½ years as well starting from 2009. 15. The short question that may arise for consideration is whether the deployment of these two employees as L.D.Clerks can be treated as an ad hoc/stop gap arrangement. Whatever be the excuse or explanation that may be offered by the department, the fact remains that respondents 1 and 2 had officiated as L.D.Clerks though they were appointed as Laskars. The department did not have a case that they were not competent to function as L.D.Clerks or that they were not qualified to hold the said post . 16. In this context it may also be noticed that these OP(CAT) 95/2011 12 two employees had passed the written test for promotion to the category of L.D.Clerks, of course, by virtue of an interim order passed by the Tribunal in the case filed by them at that time. There is no dispute that they had passed the examination and thus become eligible for promotion as L.D.Clerks. 17. But, according to the department, the new Recruitment Rules will stand in the way of their promotion. It is on record that the new Recruitment Rules were introduced only with effect from September 20, 2002. These two employees had been working when old Recruitment Rules were in vogue. Therefore, the contention of the department that these two employees cannot be considered for promotion, in view of the introduction of the new Recruitment Rules, cannot be sustained at least in the peculiar facts and circumstances of this case. 18. The next question to be considered is whether these two employees will be entitled to get promotion with retrospective effect. OP(CAT) 95/2011 13 19. It is pointed out by the learned counsel for the department that a few other senior colleagues of respondents 1 and 2 and those who belonged to the feeder category have been waiting for their chance for promotion as L.D.Clerks. If respondents 1 and 2 are now given promotion, chances of those employees will be adversely affected and that may create trouble in the organization. He caution that this may also lead to litigation as well. 20. In this context it may be noticed that respondents 1 and 2 had stated before us through their counsel that they are not at all very keen to get retrospective promotion with effect from 2001 onwards. They had also informed the court that they were prepared to give a written undertaking in this regard. We had recorded the above submission in our interim order dated February 11, 2011. Learned counsel submits that his clients will not resile from their earlier undertaking and they will be satisfied if they are given promotion prospectively. 21. In this context we may also refer to rule 6 of the OP(CAT) 95/2011 14 Recruitment Rules. It is contended by the learned counsel for respondents 1 and 2 that the Central Government is vested with wide discretionary powers to relax the rigour of any rule. Rule 6 of the Recruitment Rules reads thus:- “6. Power to relax – Where the Central Government is of the opinion that it is necessary or expedient so to do, it may by order, and for reason to be recorded in writing relax any of the provisions of these rules with respect to any class or category of person or posts .” 22. However, learned counsel for the petitioners contends that rule 6 of the Recruitment Rules has no application at all in the case on hand. According to the learned counsel, the power of relaxation envisaged under rule 6 governs a totally different situation and contingency. Such power cannot be exercised by the Central Government in individual cases. According to the learned counsel, the power of relaxation, if at all, can be exercised by the Government only in the case of any class or category of persons. But, it is contended by learned counsel for the OP(CAT) 95/2011 15 respondents that indisputably respondents 1 and 2 till the introduction of the new Recruitment Rules belonged to Group-D category. Power of relaxation vested with the Central Government is wide enough to deal not only with a large number of employees belonging to a particular class or category but even in a case of one or two individuals belonging to a particular category or class. There is some force in the above contention. 23. As has been noticed already the department had asked respondents 1 and 2 to work as L.D.Clerk for reasons best known to them. The department had of course paid only remuneration/salary attached to the post of Seaman to these two employees, though it had extracted from them more onerous services. Whatever be the nature of the arrangement, whether ad hoc or stop gap, the department knew what it had been doing. Such a course of action might have been resorted to by the department probably for the reason that the department did not have other eligible hands to discharge the duties of L.D.Clerks or any work to OP(CAT) 95/2011 16 be assigned to them as Seaman. Be that as it may, there is no denying the fact that they were directed to work as L.D.Clerks, since they possessed the requisite minimum qualification of S.S.L.C. to hold the said post. 24. In Rudra Kumar Sain and others V. Union of India and others (AIR 2000 SC 2808) a five Judge Bench of the Supreme Court had occasion to consider the three terminologies like “ad hoc”, “stop-gap” and 'fortuitous” with respect to Service Jurisprudence. Though the above decision was rendered in a slightly different context, the following observations are apposite for our purpose:- “..If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as 'ad hoc' or 'stop-gap'. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as 'fortuitous' in nature. If an OP(CAT) 95/2011 17 appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a 'stop-gap' arrangement and appointment in the post as 'ad hoc' appointment. It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an (ad hoc, fortuitous or stop-gap) appointment can be made. (emphasize supplied)” 25. We have referred to the above decision only to highlight the fact that the department knew what was the contingency or situation that existed at the time when respondents 1 and 2 were assigned the duties of L.D.Clerks in the year 2001. It may be true that the department did not pay the salary or other benefits attached to the post of L.D.Clerks to them. But understandably these two employees had been nurturing the hope that one day in the near future they will be given the status of L.D.Clerks with OP(CAT) 95/2011 18 all benefits attached thereto. Therefore, the contention raised by these two employees that the department ought to have considered their case with a little more compassion cannot be ignored at all. It was probably realizing the technical snag in view of the amended rules that they had submitted before us that they will not press for any retrospective promotion or make any claim for salary and other benefits attached to the post of L.D.Clerk from 2001 onwards. What they ask for is only promotion prospectively. In the peculiar facts and circumstances of the case, we are satisfied that the prayer made by respondents 1 and 2 is only legitimate. 26. In our view the case of these two employees have to be considered in terms of the then existing rules, though of course, they need be promoted only prospectively. The authority concerned from among the petitioners shall issue appropriate orders promoting respondents 1 and 2 prospectively within one month from the date of receipt of a copy of this judgment. Respondents 1 and 2 shall file an OP(CAT) 95/2011 19 undertaking before the authority relinquishing their claim for retrospective promotion and all past service benefits including seniority, arrears of salary etc. attached to the post of Lower Division Clerk from 2001 or 2002 onwards as the case may be. The order of the Tribunal is modified to the above extent. The Original Petition is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.