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 M. SATHYANARAYANAN WRIT PETITION NO.11485 OF 2004 1. J. Rama Rao S/o. late J. Venkata Raman Doss 2. N. Sundara Rajan S/o. Nallappa 3. J.P. Rajendran S/o. J.A. Joseph 4. K.V. Varadhan S/o. K.S. Vijayan 5. R. Krishnamachari S/o.N. Rangachari 6. S. Balagopal S/o.M.V. Srinivasan .. Petitioners Vs. 1. Union of India, Rep. by The Secretary to Government of India, Department of Revenue (Customs) New Delhi. 2. The Secretary, Ministry of Personnel Public Grievances and Pensions, North Block, New Delhi. 3. The Principal Chief Controller of Accounts, Central Board of Excise and Customs, AGCR Building (First Floor), New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 4. The Chief Commissioner of Customs "Custom House" 33, Rajaji Salai, Chennai 600 001. 5. Central Administrative Tribunal, Chennai Bench, rep. by its Registrar, Chennai 600 104. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Certiorari to call for the records relating to the order relating to the order of the fifth respondent made in O.A.No.408 of 2003 and quash the same. For Petitioners : Mr.V.S. Nagarajan For Respondents 1to4 : Mr.B. Mani, ACGSC - - - J U D G M E N T P.K. MISRA, J The present petitioners had filed O.A.No.408 of 2003 before the Central Administrative Tribunal (in short “Tribunal”), claiming the following reliefs :- "I. To effect fixation of pay after allowing the applicants to exercise their option, wherever applicable, in the junior time scale of Indian Customs and Central Excise Service (Gr.'A') with effect from the date of the panel, year mentioned against each applicant in order No.468/2001 of the Commissioner and consequential promotions in further higher service. II. To direct payment of arrears of pay and allowances on account of refixation from time to time including arrears of leave salary, gratuity and pensions. III. To direct grant of senior scale to which all the applicants now before this Hon. Tribunal including the second applicant who is eligible for senior time scale from 1.1.1984 with consequential arrears of pay and allowances. IV. To direct consequential higher promotions to which the applicants are eligible. https://hcservices.ecourts.gov.in/hcservices/ V. To refix the pensionary benefits including family pension on the basis of fixation of pay from the dates of the deemed dated promotions time to time from the date of their retirement as a result of this OA." 2. The main contention raised in the Original Application was to the effect that the direction given by the Supreme Court in Writ Petition (Civil) Appeal No.306 of 1988, disposed of on 22.11.1996, directing the Government to rearrange the inter se seniority of promotees in Group ‘A’ services of the Customs and Excise Department and further directing the Government to give the consequential promotion, had not been fully complied with inasmuch as the Department, even though had given promotion from retrospective date, had denied the benefit of the pay scale of the promotional post. 3. In the counter filed before the Tribunal, it was contended by the Department that all the applicants had retired before 1996 and after disposal of Civil Appeal No.306 of 1988 by the Supreme Court, the Department rearranged the seniority as per the direction and on the basis of such rearranged seniority, gave promotion to the persons concerned. Subsequently, the Department also issued a clarification that promotion was on notional basis and the actual pay in the promotional post was payable after assumption of office in the promotional post. Since the applicants had already retired, the question of giving them any arrear pay in the promotional post had been rightly denied by the Department by following the principle of “no work no pay”. 4. The Tribunal considering the rival submissions and by relying upon the decision of the Supreme Court, dismissed the Original Application by observing that since promotion was on notional basis, no amount towards arrears in the promotional post was actually payable before assumption of office by the concerned promotee. Such decision of the Tribunal is in question in the present writ petition. 5. Learned counsel for the petitioner has contended that there was long standing dispute relating to inter se seniority from among the promotee Group ‘A’ Officers and such dispute was resolved by the Supreme Court, which gave a direction for giving consequential promotion and, therefore, while giving promotion, the pay applicable to such promotional post would not have been denied. Learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court reported in 2002(1) Supreme 364 (FOOD CORPORATION OF INDIA v. S.N. NAGARKAR) in support of such contention. https://hcservices.ecourts.gov.in/hcservices/ 6. Learned counsel for the Department, on the other hand, has placed reliance upon the decisions referred to and relied upon by the Tribunal and has contended that there is no error in the order passed by the Tribunal requiring interference by the High Court. 7. The relevant portion of the order, dated 22.11.1996, passed by the Supreme Court in Civil Appeal No.306 of 1988, is extracted hereunder :- "In Group 'A' Service of the Customs and Excise Department, 50% of the cadre strength are filled by direct recruitment through Union Public Service Commission and the balance 50% are filled through promotion from Group 'B' cadres. Group 'B' officers when promoted to Group 'A' service, obviously have no right to occupy more than 50% of their prescribed quota. It would, therefore, be incumbent upon the government to re-arrange or regularise the seniority list in Group 'A' service keeping the inter se qota of the direct recruits and promotees intact and should not allow either to get any promotion in excess of their quota. The ad hoc promotions given to Group 'B' officers in Group 'A' service, pursuant to interim orders of this Court, would not, therefore, have any effect or prejudice the interests or rights of the direct recruits of Group 'A' Service while re-arranging the seniority in Group 'A' Service as indicated in the judgment. It would, therefore, be of necessity that the Government should re-arrange their inter se seniority and promotions of the respective direct recruits and promotees within their quota and consequential promotions in further higher services. Their seniority arranged accordingly." 8. It is seen that in the above decision, the Supreme Court has directed to rearrange the inter se seniority of the directly recruited Group ‘A’ Officers and the promotees within their quota and consequential direction for further higher services. The Supreme Court, however, has not given any specific direction for all the attendant benefits on the consequential promotion to be given. In other words, there is no specific direction in the order of the Supreme Court to give all the monetary benefits on the basis of promotion from any earlier date. Under these circumstances, can it be said that the Department, while giving promotion, committed any illegality by issuing any direction that actual monetary benefits would be payable only from the date of assumption of office in the promotional post, though the persons may be notionally promoted from an earlier date? https://hcservices.ecourts.gov.in/hcservices/ 9. In our considered opinion, the Tribunal, while analyzing this aspect has rightly relied upon the decision of the Supreme Court in (1994) 4 SLR 15 (TESA [INDIA] v. UNION OF INDIA) and (1989) 2 SCC 540 (UNION CARBIDE CORPORATION (II) v. UNION OF INDIA). 10. Since learned counsel for the petitioners has placed strong reliance upon the decision of the Supreme Court in 2002(1) Supreme 364 : (2002) 2 SCC 475 (cited supra), it is necessary to carefully analyse the said decision to find out whether the ratio of the said decision can be made applicable. In the aforesaid case, the petitioner in the High Court had claimed that he should have been promoted from the date on which his junior was promoted and he had specifically claimed for all consequential benefits including monetary benefits. The learned single Judge of the Punjab & Haryana High Court, while allowing the writ petition, had given a direction to the following effect:- "7. Consequently, the writ petition is allowed and a writ of mandamus is issued to the respondents to give the benefits of pay fixation to the petitioner as Assistant Grade II and Assistant Grade I and also to consider his case for promotion to the post of Assistant Manager (D) from the date persons junior to him have been promoted. This exercise must be completed within a period of four months from the date of submission of a certified copy of this order. The arrears of pay shall be paid to the petitioner within one month thereafter. In case the amount of arrears is not paid within this period, the petitioner shall get interest @ 18% from the date of this order. No costs.” 11. Subsequently, there were several rounds of litigation on account of the alleged non-implementation of the said direction and ultimately in the Execution Case it was held that since there was a specific direction regarding payment of arrears denial of payment of arrears to the concerned petitioner was not in accordance with the order passed by the learned single Judge which had become final. Such contention was accepted by the High Court and therefore there was a direction to implement the earlier judgment which had become final by paying the arrear amount including that of the promotional post. Ultimately, when the matter came to the Supreme Court, the Supreme Court upheld the direction given by the Punjab & Haryana High Court, by observing as follows :- "20. In this appeal, we are not called upon to pass a judgment on the correctness of the order passed by the learned Judge in Civil Writ Petition No. 4983 of 1993 dated 6-5-1994. The only question that arises for consideration is whether under the said judgment and order, the respondent is https://hcservices.ecourts.gov.in/hcservices/ entitled to the arrears of pay and allowances from the dates of promotion. In our view the learned Single Judge as well as the Division Bench in letters patent appeal have correctly held that the respondent (petitioner in the writ petition) is entitled, in terms of the order dated 6-5-1994, to arrears of pay and allowances with effect from the dates he was granted the two promotions, and not from the date he joined the promotional posts. No interference by this Court in exercise of jurisdiction under Article 136 of the Constitution of India is called for. This appeal is, therefore, dismissed with costs which is quantified at Rs2500." 12. On a careful consideration of the factual scenario in the said case and the ultimate decision of the Supreme Court, we are unable to accept the contention of the petitioner regarding applicability of the said case to the facts and circumstances of the present case. In the said case, the Supreme Court had clearly observed that the earlier order of the Punjab & Haryana High Court had contained a direction relating to payment of arrears, whereas in the present case there is no such judicial determination giving any direction to pay all the arrears. Therefore, in our considered opinion, the Tribunal was justified in upholding the direction of the Department that, though notional promotion can be given from an earlier date, actual benefit in the promotional post could be paid only from the assumption of office in the promotional post. As emphasised by the Tribunal, the petitioners had already retired even before the Supreme Court had decided the matter. In the absence of any specific direction in the order of the Supreme Court regarding payment of arrear monetary benefits, we do not think any error of law has been committed by the Tribunal in not granting such benefit to the petitioner. 13. The Writ Petition is accordingly dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar dpk To 1. The Registrar, Central Administrative Tribunal, High Court Campus,Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2. The Secretary, Union of India, Department of Revenue /Customs New Delhi. 3. The Secretary, Ministry of Personnel Public Grievances and Pensions, North Block, New Delhi. 4. The Chief Commissioner of Customs "Custom House" 33, Rajaji Salai, Chennai 600 001. 5. The Principal Chief Controller of Accounts, Central Board of Excise and Customs, AGCR Building (First Floor), New Delhi. 1 cc To Mr.B.Mani, Advocate, SR.20117 WP.11485/2004 MSM(CO) SRA(8/6/2009) https://hcservices.ecourts.gov.in/hcservices/