IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30-04-2009 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. CHANDRU WRIT PETITION NO.23622 OF 2006 and M.P.Nos.1 and 2 OF 2006 1. Union of India, Rep. by Joint Secretary (Admn.) Central Board of Excise and Customs, North Block, New Delhi. 2. Commissioner (Cadre Control Authority) O/o. Commissioner of Central Excise, 121, Mahatma Gandhi Road, Nungambakkam, Chennai. .. Petitioners Vs. 1. S. Neethisolan S/o. Subbaiyan 2. M. Senthil Kumar S/o.P. Muruggayyan 3. C. Swaminathan S/o.S. Chokalingam 4. A.G.M. Selvanayagam S/o.S. Appavoo V. Rayar 5. R. Murali Krishnan 6. The Registrar, Central Administrative Tribunal, City Civil Court Building, Chennai 600 104. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the records relating to the order of the Central Administrative Tribunal, Chennai Bench, in O.A.No.614 of 2004, dated 23.11.2005, and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.K. Elango Asst. Solicitor General For Respondents 1to5 : Ms.D. Nagasaila J U D G M E N T P.K. MISRA, J The present writ petition is directed against the order dated 23.11.2005 passed by the Central Administrative Tribunal (in short "Tribunal") in O.A.No.614 of 2004, where under the Tribunal has set aside the Central Excise and Customs Department Lower Division Clerk Recruitment Rules, 2002 (hereinafter referred to as "2002 Rules"). 2. Such Original Application was filed by the present Respondents 1 to 5 claiming the following reliefs :- "a) To declare the Revised Recruitment Rules for the posts of Lower Divisional Clerk dated 21-09-2002 issued by the first respondent herein as illegal and unconstitutional to the extent that they have restricted the feeder category to the post of LDC to Havaldars and Sepoys alone; b) Consequently direct the first and second respondents to include all Group D as feeder category for promotion to the post of LDC in the first respondent department; c) To consider and promote the applicants herein to the post of LDC from the date of their immediate junior was promoted as LDC;" 3. It is asserted in the Original Application that the applicants, who were holding the post of Lascar/Greaser under the category of Marine Crew in Group 'D', were considered as feeder category along with other Group 'D' employees such as Lab Attender, Tea maker, Sepoy, Havildar for the promotional post of Lower Division Clerk (in short "LDC"). As per the Central Excise and Land Customs Department Group C posts Recruitment Rules, 1979 (hereinafter referred to as "1979 Rules"), 10% of the vacancies in the grade of LDC are to be filled up from Group 'D' employees, who have the minimum educational qualification and passed the departmental examination. The applicants had the required educational qualification for being recruited to the post of LDC and had given their willingness for such appointment. However, the post of LDC was not being filled up from 1996/1997 onwards. While the matter stood thus, notification dated 25.9.2002 was issued containing amendment to 1979 Rules. https://hcservices.ecourts.gov.in/hcservices/ 4. It was the contention of the applicants before the Tribunal that the revised recruitment rules dated 21.9.2002 were arbitrary and violative of Articles 14, 16 and 21 of the Constitution inasmuch as such rules have completely ignored the Group 'D' category such as Marine Crew and have completely deprived the Marine Crew and other category of employees of all avenues of promotion. In the alternative it was contended that, even assuming that such rules were valid, such rules should not be made applicable to the vacancies that had arisen prior to 21.9.2002 and should be made applicable to the vacancies arisen subsequent to 21.9.2002. 5. In the reply affidavit filed before the Tribunal, it was contended by the Department that as per the old Recruitment Rules of the year 1979, which was amended on 19.10.1991, the Launch (Group 'D') staff were not specifically mentioned as feeder category for promotion to the post of LDC and they were not eligible to be promoted as such and they had their own hierarchal structure. After Cadre Restructuring the cadre of LDC has merged with Tax Assistant and 717 posts were retained to provide Group 'D' staff. As per the new recruitment rules, which were again amended in 2004, the post of LDC is to be filled 100% by promotion from the grade of Sepoy, Havaldar, Record keeper and Gestetner Operator and the Launch (Group 'D') staff does not come within such category and they were not eligible for promotion to the post of LDC and they had their own promotional channel. 6. The Tribunal has observed that inclusion of Sepoys and Havaldars in the feeder category to the post of LDC, while excluding other Group 'D' employees such as Lascar, is indicative of preferential treatment to Sepoys and Havilards without any valid reason and, therefore, is violative of Articles 14 and 16 of the Constitution and the Schedule in 2002 Rules providing for 100% promotion from Sepoys and Havildars to the post of LDC is therefore liable to be struck down. The Tribunal has turned down the plea of the Department that Lascar was not one of the feeder group for promotion to LDC and observed that such persons had passed the departmental qualifying examination in the year 1996 and 1997 and even their willingness had been obtained. The Tribunal has further observed that such 2002 Rules cannot have any retrospective operation and the vacancies were in existence prior to coming into force of the 2002 Rules were to be filled according to 1979 Rules. Accordingly, the Tribunal has given a direction to the Department to consider the case of the applicants for promotion to the post of LDC. Such direction is in question in the present writ petition filed by the Union of India. 7. Learned Asst. Solicitor General appearing for the petitioners has contended that as per the existing Rules 1979, Lascars were not in the feeder category and even though there had been some instances where by mistake some persons had been promoted https://hcservices.ecourts.gov.in/hcservices/ to the post of LDC and the applicants had been permitted to appear at the departmental examination, since such instructions were contrary to the Rules, the applicants cannot claim any right. It has been further submitted that the applicants and other persons, who were Lascars, have their own independent avenue for promotion and merely because there is no avenue for promotion to the post of LDC in 2002 Rules, such Rules cannot be held to be arbitrary or violative of Articles 14 and 16 of the Constitution. 8. Learned counsel for the respondents, on the other hand, has submitted that there is no promotional avenue for Lascars who have been waiting for more than 15 to 20 years and, therefore, denial of promotional avenue by amendment of the Rules, was arbitrary. In the alternative, it is submitted that as similarly placed persons have been given promotion on an earlier occasion, there is no embargo for the Department to consider the case of the applicants for promotion to the post of LDC as they had already passed the departmental examination. 9. The contentions and counter contentions made by the parties require careful consideration. 10. The main contention raised by the Department is to the effect that under 1979 Rules the category belonging to Launch group, whose main function is in the wing of Sea Customs, was not coming within the feeder category for promotion to LDC and, therefore, the amendment of such rules in 2002 and subsequently in 2004 cannot be challenged by the persons who are outside the feeder category even from the inception on the ground of alleged arbitrariness. 11. In order to appreciate the above contention, it is necessary to notice various rules. As per G.S.R.No.742, in exercise of power under Article 309 proviso of the Constitution, Rules were made regulating the method of recruitment to Group 'C' posts in the Central Excise and Land Customs Department. The said rules were called "The Central Excise and Land Customs Department Group C posts Recruitment Rules, 1979". As per Rule 2, such rules apply to the posts specified in column 2 of the Scheduled annexed to the Rules. The name of the posts as indicated in column 2 of the Schedule is Lower Division Clerk. Column 11, which relates to method of recruitment, indicates that recruitment shall by direct recruitment. However, the note indicates that 10% of the vacancies in the LDC would be reserved or would be filled up by Group 'D' employees, borne on regular establishment, subject to the condition that such person must possess the required minimum educational qualification, namely, matriculation or equivalent and subject to certain age limit. 12. Next in point of chronology was Marine establishment (Customs and Central Excise Departments) (Group 'C' an 'D' posts) Recruitment rules, 1986 and the Customs Marine Division (Group 'C' https://hcservices.ecourts.gov.in/hcservices/ and Group 'D' Technical posts) Recruitment Rules 1986 (excluding the posts of Seaman Gr.II and Driver). Subsequently, by further notification dated 31.12.1994, in exercise of power under the proviso to Article 309 of the Constitution and in supersession of the Rules referred to above, the President made rules regulating the method of recruitment to Group 'C' and 'D' posts in Marine Organisation of Customs and Central Excise Department so far as they relate to the posts of Skippermate, Foreman of Stores, Engineermate, Artisan, Senior Storekeeper, Senior Draftsman, Tindal, engine Driver, Draftsman, Storekeeper, launch Mechanic, Sukhani, Senior Deck Hand, Asstt. Storekeeper, Trademan, Seaman, Greaser, Lascar, Unskilled Industrial Worker. Rule 3 of 1994 Rules prescribes that the number of posts, classification and scale of pay, etc., shall be as specified in columns 3 to 5 of the schedule. Column 2 of the schedule referes to various posts. Column 12 relates to method of recruitment for the concerned post and Column 13 lays down the source and the requisite qualification. S.No.1 under Column 2 relates to the post of Skippermate, which is to be filled up by promotion from the post of Tindal, failing which by re-employment / direct recruitment. S.No.2 of the schedule relates to the post of Foreman of Stores and the vacancies are required to be filled up by promotion from the grade of Senior storekeeper, failing which by re- employment / direct recruitment. S.No.3 relates to the post of Engineermate, which is to be filled up by promotion from among the grade of Engine Driver failing which by re-employment / direct recruitment. S.No.7 relates to Tindal, which can be filled up by promotion from Sukhani failing which by deputation / direct recruitment. S.No.8 relates to Engine Driver which can be filled up by promotion from Launch Mechanic failing which by deputation / direct recruitment. S.No.11 relates to the post of Launch Mechanic which can be filled up by promotion from among Greaser failing which by deputation / direct recruitment. S.No.12 relates to the post of Sukhani which can be filled up by promotion from among Senior Deck Hand or from among seaman, failing which by deputation / direct recruitment. S.No.13 relates to Senior Deck Hand, which can be filled up by promotion from among seaman, failing which by deputation / direct recruitment. S.No.17 is Greaser, which can be filled by promotion from among Lascars, failing which by deputation / direct recruitment. 13. By Notification, as per GSR 377, the President, in exercise of powers under Article 309, made rules relating to method of recruitment to the post of Lower Division Clerk in the Central Excise and Customs Department. These rules were known as Central Excise and Customs Department Lower Division Clerk Recruitment Rules, 2002. The name of the post and classification have been made as per the schedule by which 717 posts of LDC had been notified as number of posts available and the method of selection was 100% by promotion. As per column 12, 50% of the vacancies shall be filled up by promotion from amongst Havaldars on the basis of seniority-cum- https://hcservices.ecourts.gov.in/hcservices/ fitness who possess matriculation or equivalent qualification without any age limit, whereas 50% were to be filled up by promotion from amongst Sepoys, Havaldars having matriculation, subject to Departmental qualifying examination with maximum age limit. 14. By notification dated 27.1.2004, the above Rules of 2002 were amended by incorporating that 50% of the vacancies shall be filled up by promotion from amongst Havaldars and Recordkeepers in the ratio of 30:1 on the basis of seniority-cum-fitness, whereas 50% of the vacancies are to be filled up by promotion from amongst Sepoy, Havaldar, Record Keeper and Gestetner Operator in the ratio of 60:36:1:1, on the basis of Departmental qualifying examination with typing test. 15. From 1986 Rules, which were amended in 1994, it is apparent that the persons holding the post of Lascar have their own avenue and hierarchal structure for promotion to the Marine Organisation of the Central Excise and Customs Department. 1979 Rules apparently relate to recruitment to Group 'C' posts in the Central Excise and Land Customs Department. There is no dispute that in the Ministry of Customs and Central Excise, they are two separate organisations. Marine Organisation was obviously a different organisation from the Department of Land Customs. The posts in different organisations had different methods of recruitment, different salary structure as well as different duties. As per 1979 Rules, the avenue of being employed as LDC was open to the employees of Group 'D; borne on regular establishment. Since the rule itself was applicable to Central Excise and Land Customs Department Group 'C' Posts, reference to expression "regular establishment" obviously included the reference to Group 'D' employees in the Central Excise and Land Customs Department and not to any other organisation or department in the larger organisation of the Central Excise and Customs. 16. Learned counsel appearing for the respondents has, however, contended that during earlier years, Lascars, who were holding Group 'D' post in the Marine organisation, were allowed to sit at the examination and in fact there have been many instances when such persons have been appointed as LDC on the basis of such examination. This aspect was clarified by the Department by stating that on a few occasions by mistake the persons in Marine organisation had been allowed to sit in the examination, even though the Rules did not specifically contemplate that such persons were eligible. It has been further submitted that merely because at some point of time there was some erroneous assumption, particularly by the Commissionerate functioning in Madras or Madurai, it does not mean that the persons who were not otherwise eligible would become eligible. https://hcservices.ecourts.gov.in/hcservices/ 17. It is of course true that there has been instances where persons in Marine organisation wing had been allowed to appear at the examination or even recruited. However, merely there has been infraction of rules at a particular point of time, it cannot be said that those persons were eligible under 1979 Rules. Since Lascars or other employees in the Marine organisation of the Central Excise and Customs Department were not eligible even under 1979 Rules as feeder category within 10%, the subsequent change of rules in 2002 or 2004 cannot be attacked by such persons as being ultra vires or arbitrary. 18. Learned counsel for the respondents has vehemently contended that there is proper avenue for promotion to Lascars in the Marine organisation and the fact that many persons have been rotted in the same post for number of years would show that there is no avenue of promotion, which makes the Rules violative of Articles 14 and 16 of the Constitution. 19. It is true that the fact that there would be continuous stagnation in a particular post may at times be considered as an aspect of unreasonableness of such a provision. We do not think such a contention can be accepted in the present case in view of our conclusion that in 1979 Rules, which was specifically meant for Group 'C' posts in the Central Excise and Land Customs Department, any amendment to such rules can be challenged by the persons who were not coming within the eligible category. The lack of promotional avenue for those in the Marine organisation as per the rules applicable to them, i.e., 1994, is not a matter which is directly or indirectly in issue. From the various provisions in such 1994 rules, it is apparent that there are certain avenues for promotion. Whether avenues of promotion are disproportionately low compared to number of aspirants is not a matter for us to decide even collaterally in the present case as that is the matter for the appropriate authority to consider. We are sure that if any appropriate representation would be made, the concerned authority would definitely look into the said aspect and take any remedial measure, if it is found necessary. That, however, is not a ground to decide about the validity of 2002 / 2004 Rules. 20. Inspite of our above conclusion, whereunder we upheld the validity of the Rules as amended in 2002 and 2004, the question is whether we should interfere with the order passed by the Tribunal. As we have already noticed, even though on a direct interpretation of the Rules the Lascars and others belonging to Marine crew Group 'D' were not coming within the scope of 1979 Rules, the authorities concerned have permitted the qualified persons holding educational qualification of matriculation or more to appear at the departmental qualifying examination and had been appointed as LDC. In fact, before amendment in 2002, the selection was through direct recruitment but only 10% of the posts could be filled up through the process of selection from among the qualified Lascars, etc., who had passed the concerned examination. As has been pointed out by the https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the respondents, even after introduction of 2002 and 2004 Rules, some persons belonging to Marine Crew have been so appointed. Since the respondents have already passed in such examination, in our considered opinion, the direction of the Tribunal that such persons may be considered as against the vacancies, which had arisen prior to introduction of 2002 Rules, and which was obviously by way of recognizing the legitimate aspirations of the applicants / respondents, may be upheld as such a direction can be construed to have been made in the aid of substantial justice. 21. Law is well settled that, even though the order of an inferior Tribunal may not be strictly legal, the High Court while exercising jurisdiction under Article 226 of the Constitution may refuse to interfere with such order if substantial justice has been rendered. In the peculiar facts and circumstances of the present case, we feel this is a fit case where we should not exercise our discretionary discretion . 22. Therefore, while setting aside the direction of the Tribunal that the Rules were ultra vires or arbitrary, we decline to interfere with that of the order whereunder the Tribunal had directed that the case of the applicants / respondents shall be considered in respect of the vacancies, which had arisen prior to 2002. 23. Accordingly, the writ petition is partly allowed. There is no order as to costs. Consequently, the connected miscellaneous petitions are closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar dpk To The Registrar, Central Administrative Tribunal, City Civil Court Building, Chennai 600 104. + 1 cc to Mr.D.Nagasaila,Advocate,SR.19790 + 1 cc to Mr.K.Elango,Asst.Solicitor General Of India,SR.19694 WP.23622/2006 RB(CO) EM/12.6.09 https://hcservices.ecourts.gov.in/hcservices/