IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 WP(C).No. 26779 of 2004(S) -------------------------- OA.972/2001 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: --------------- 1. R.R.GOSWAMI, PREVENTIVE OFFICER, CUSTOMS HOUSE, KOCHI-9 PRESENTLY WORKING AS SUPERINTENDENT OF CUSTOMS (PREVENTIVE), CUSTOMS HOUSE, KOCHI-9. 2. SAFFRUDDIN AHMED, PREVENTIVE OFFICER, CUSTOMS HOUSE, KOCHI-9 PRESENTLY WORKING AS SUPERINTENDENT OF CUSTOMS (PREVENTIVE) CUSTOMS HOUSE, KOCHI-9. BY ADV. SRI.O.V.RADHAKRISHNAN (SR.) SRI.ANTONY MUKKATH RESPONDENTS: --------------- 1. P.B.SANTHYAVU, PREVENTIVE OFFICER, CUSTOMS HOUSE, KOCHI-9, PRESENTLY WORKING AS SUPERINTENDENT OF CUSTOMS (PREVENTIVE), CUSTOMS HOUSE, KOCHI-9. 2. P.N.VIJAYAN PREVENTIVE OFFICER, CUSTOMS HOUSE, KOCHI-9 (DIED DURING THE PENDENCY OF THE O.A.). 3. UNION OF INDIA, REPRESENTED BY ITS SECRETARY (REVENUE), CENTRAL SECRETARIAT, NORTH BLOCK, NEW DELHI-110011 WP(C).No. 26779 of 2004 4. COMMISSIONER OF CUSTOMS, CUSTOMS HOUSE, KOCHI-9. 5. K.P.SURENDRAN, SUPERINTENDENT OF CUSTOMS, CUSTOMS HOUSE, KOCHI-9. 6. T.SEBASTIAN, SUPERINTENDENT OF CUSTOMS, CUSTOMS HOUSE, KOCHI-9. 7. T.M.VISWANATHAN, SUPERINTENDENT OF CUSTOMS, CUSTOMS HOUSE, KOCHI-9. 8. S.SUBRAMANIAN, PREVENTIVE OFFICER, PRESENTLY WORKING AS SUPERINTENDENT OF CUSTOMS, CUSTOMS HOUSE,KOCHI-9. 9. V.K.ARORA, PREVENTIVE OFFICER, PRESENTLY WORKING AS SUPERINTENDENT OF CUSTOMS, CUSTOMS HOUSE,KOCHI-9. 10. BABU RAM, SUPERINTENDENT OF CUSTOMS, CUSTOMS HOUSE, KOCHI-9, PRESENTLY WORKING AS ASST.COMMISSIONER OF CENTRAL EXCISE, COMMISSIONERATE OF CENTRAL EXCISE, AHAMMEDABAD-III, CUSTOMS HOUSE, NAVARANGPURA, ASHRAM ROAD, AHAMMEDABAD. 11. R.K.CECIL, SUPERINTENDENT OF CUSTOMS, CUSTOMS HOUSE, KOCHI-9, PRESENTLY WORKING AS SUPERINTENDENT OF CUSTOMS, I.G.I. AIR PORT, NEW DELHI-110 037. 12. S.S.MEENA, PREVENTIVE OFFICER, PRESENTLY WORKING AS SUPERINTENDENT OF CUSTOMS, CUSTOMS HOUSE, KOCHI-9. 13. C.K.CHANDRAN, PREVENTIVE OFFICER, PRESENTLY WORKING AS SUPERINTENDENT OF CUSTOMS, CUSTOMS HOUSE, KOCHI-9. 14. V.K.P.KAIMAL, PREVENTIVE OFFICER, CUSTOMS HOUSE,KOCHI-9(RETIRED) RESIDING AT CHENGAZHAPALLIYIL HOUSE, NIRANAM SOUTH P.O., THIRUVALLA TALUK, PATHANAMTHITTA ROAD. WP(C).No. 26779 of 2004 15. N.K.TRIVEDI, PREVENTIVE OFFICER, CUSTOMS HOUSE, KOCHI-9, PRESENTLY WORKING AS SENIOR INTELLIGENCE OFFICER, DRI, ZONAL UNIT, 2/31, VISHAL KHANT, COMTHY NAGAR, LUCKNOW-226 016. 16. S.K.SRIVASTHAVA, PREVENTIVE OFFICER, CUSTOMS HOUSE, KOCHI-9, PRESENTLY WORKING AS ADDITIONAL ASSISTANT DIRECTOR, DIRECTORATE OF PERSONNEL AND MANAGEMENT,NEW DELHI. 17. R.K.VOHRA, PREVENTIVE OFFICER, CUSTOMS HOUSE, KOCHI-9 (DIED). 18. N.S.GOPI, PREVENTIVE OFFICER, PRESENTLY WORKING AS SUPERINTENDENT OF CUSTOMS, CUSTOMS HOUSE, KOCHI-9. 19. B.L.MEENA, PREVENTIVE OFFICER, CUSTOMS HOUSE, KOCHI-9, PRESENTLY WORKING AS APPRAISER, AIR CARGO COMPLEX, TRIVANDRUM. 20. A.M.GEOGY, PREVENTIVE OFFICER, PRESENTLY WORKING AS SUPERINTENDENT OF CUSTOMS, CUSTOMS HOUSE, KOCHI-9. 21. CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, REPRESENTED BY ITS REGISTRAR, C.A.T. BUILDING, MANAPPATTIPARAMBU, KALOOR, ERNAKULAM. ADV. SRI.JOHN VARGHESE, SCGSC FOR R3,4,21 SRI.S.CHANDRASENAN FOR R1 SRI.P.K.SOMARAJAN FOR R1 SRI.M.A.SHAFIK FOR R8 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R3, 4 & 21 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 6/11/2008, ALONG WITH WPC NO. 33394 OF 2004 AND WPC NO. 796 OF 2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26779 of 2004 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE O.A.NO.972/2001 ALONG WITH ANNEXURES OF THE CAT, ERNAKULAM DT.12.10.2001. EXT.P2: COPY OF REPLY STATEMENT FILED BY THE 2ND PETITIONER AND 19TH RESPONDENT (R-5 & 19) DT.4.9.2002. EXT.P3: COPY OF REPLY STATEMENT OF THE RESPONDENTS 1 AND 2 DT.13.11.2002. EXT.P4: COPY OF REPLY STATEMENT OF THE RESPONDENTS 3 AND 5 DT.2.9.2002. EXT.P5: COPY OF ORDER DT.4.5.1995 IN O.A.NO.1491/1994 OF THE HON'BLE C.A.T., ERNAKULAM. EXT.P6: COPY OF THE O.A.NO.275/1993 ALONG WITH ANNEXURES DT.2.2.1993. EXT.P7: COPY OF THE REJOINDER STATEMENT ON 29.9.2003 ALONG WITH ANNEXURES A-15 AND A-16. EXT.P8: COPY OF THE CUSTOMS DEPARTMENT (GROUP 'C' RECRUITMENT RULES 1979. EXT.P9: COPY OF ORDER DT.29.7.2004 OF THE CAT IN O.A.NO.2972/2001 OF THE C.A.T., ERNAKULAM. //TRUE COPY// PA TO JUDGE. K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- W.P.(C) NOS. 26779 & 33394/2004 and 796/2005 ----------------------------------------- Dated 6th November, 2008 JUDGMENT Balakrishnan Nair, J. W.P.(C) No.26779/2004: The petitioners were respondents 13 and 15 in O.A.No.972/2001 before the Central Administrative Tribunal, Ernakulam Bench. The respondents 1 and 2 herein were the applicants.. The inter se seniority of the applicants with reference to the party respondents was the subject-matter of that O.A. 2. The applicants (respondents 1 and 2) were promoted as Preventive Officers in the Customs Department by Annexures – A1 and A1(a) orders, produced along with Ext.P1 copy of the O.A. It is fruitful to quote Annexure-A1 order, to decide on the nature of appointment of the said incumbent to the post of Preventive Officer. The said order reads as follows: WPC 26779/04 & conn.cases 2 “Sri.P.B.Santhyavu, Steno (OG) is appointed to officiate as Preventive Officer Gr.I with effect from 23.11.77 F.N and until further orders. His promotion is on purely temporary basis. He is cautioned that his promotion is without prejudice to the seniority of the Direct Recruits to be appointed at a later date and this purely officiating arrangements will not confer any right for claiming any preferential treatment or advantage in the matter of seniority and future regular or temporary appointment. He is also cautioned that his promotion/seniority is without prejudice to the claims of other officers who are eligible to be promoted to the grade of Preventive Officer Gr.I.” The 2nd respondent herein was also promoted, subject to similar terms by Annexure-A1(a) order. 3. As per the orders then in force, the vacancies in the cadre of Preventive Officers have to be filled up in the ratio of 4 : 1 between direct recruits and promotees. Promotions were effected from the cadre of Upper Division Clerks and Stenographers. The respondents 1 and 2 were Stenographers. Subsequently, there were direct recruitments. Applying the quota Rule, such direct recruits, including the writ petitioners were assigned seniority over respondents 1 and 2. The first combined seniority list of Preventive Officers against which respondents 1 and 2 represented, was Annexure-A5 seniority list as on WPC 26779/04 & conn.cases 3 1.7.1989. The respondents 1 and 2 were respectively shown as Serial Nos.117 and 121 in that list. The petitioners were serial numbers 102 and 105. The 1st respondent filed Annexure- A9 representation dated 12.8.1991. The said representation was rejected by the Collector of Customs by Annexure-A10 memorandum dated 9.11.1992. The respondents 1 and 2 and two others challenged Annexures-A5 and A10, by filing O.A.No.275/1993. Later, the said O.A was withdrawn and the 1st respondent filed Annexure-A11 representation dated 11.6.1997 before the Government, which was followed by Annexure- A12 dated 11.12.2000. Annexure-A11 representation was rejected by order dated 6.2.2001 and Annexure-A12 representation dated 11.12.2000 was rejected by Annexure-A14 order dated 24.5.2001. O.A.No.972/2001 was filed by respondents 1 and 2, challenging Annexure-A14 and also seeking consequential reliefs. They claimed seniority in the cadre of Preventive Officers with effect from 1977. The affected persons were impleaded in the O.A. Some of them filed counter affidavits. The official respondents also filed a counter affidavit, resisting the prayers in the O.A. The Tribunal, after hearing WPC 26779/04 & conn.cases 4 both sides, allowed both the prayers of the applicants. 4. After examining the records of the D.P.C., which was held preceding the promotion of respondents 1 and 2 as per Annexures-A1 and A1(a) , the Tribunal found that the D.P.C was asked make promotions to six vacancies. So, six persons were empanelled out of the 11 persons in the field of choice, after following the normal procedure for regular promotion. But, they were appointed only on ad hoc basis. So, relying on the requisition of the competent authority to the D.P.C., to furnish the panel to make promotion to the six vacancies, it was held that those six vacancies were available under promotion quota and therefore, the incumbents, including respondents 1 and 2 should have been promoted regularly. But, the appointing authority chose to describe their appointment as ad hoc, without conferring any rights. The Tribunal found that the same was unjustified and highly arbitrary. So, it was ordered to treat their promotions under Annexures-A1 and A1(a) as regular promotions and to grant them seniority with effect from the dates of those promotion orders. The official respondents were directed to consider their claim for further WPC 26779/04 & conn.cases 5 promotion also. The writ petitioners, affected by the said direction, have filed this Writ Petition, challenging the said order of the C.A.T., which is produced as Ext.P9 in this writ petition. 5. The learned senior counsel Sri.O.V.Radhakrishnan, appearing for the petitioners, submitted that there was delay and laches from the part of respondents 1 and 2 in taking up the dispute regarding their seniority with reference to the direct recruits, who were appointed after their appointments in 1977. The learned senior counsel also pointed out that the vacancies which were available in 1977 when the D.P.C met, included deputation vacancies and foreign service vacancies. As evident from the materials on record, out of the six vacancies, only one vacancy alone was available as regular vacancy, which arose as a result of retirement of an incumbent. Three vacancies were deputation vacancies and one vacancy was foreign service vacancy. Earlier, there were four vacancies, out of which three were set apart for direct recruitment and one for promotion. The break-up of the six vacancies were as follows: (1) One regular vacancy available for regular promotion. (2) Three deputation vacancies. (3) One foreign service WPC 26779/04 & conn.cases 6 vacancy. (4) One retirement vacancy. Applying the quota rule, since the ration was 4 : 1, out of the six vacancies, only one alone was available for promotion. So, the finding of the Tribunal that all the six vacancies were available for promotion and therefore, though the promotions of the incumbents were treated as ad hoc, the same should be treated as regular, is plainly untenable. Therefore, the learned senior counsel prayed for quashing Ext.P9. 6. We heard Sri.S.Chandrasenan, learned counsel appearing for respondents 1 and 2. He pointed out that the appointing authority forwarded the papers to the D.P.C to prepare a panel for promotion to six vacancies. So, when six vacancies were reported to the D.P.C for making promotions, it should be deemed that all those vacancies are promotion vacancies and therefore, all the incumbents should have been promoted regularly. So, the description of the promotion as ad hoc, is not decisive. The Tribunal has rightly looked into the papers and found that the vacancies were regular vacancies and the promotions should have been made on regular basis. So, the Tribunal has done justice in this case by undoing injustice meted out to respondents 1 and WPC 26779/04 & conn.cases 7 2 in 1977. The learned counsel also relied on Annexure-A3 clarification issued by the Central Government. The said clarification showed that when promotion vacancies are filled up regularly by promotion and there is considerable delay in filling the direct recruitment vacancies, it is unjust to put the direct recruits over the regularly promoted persons. The Government directed review of all the promotions in the light of that order, which permitted bunching of promotions together without giving any slot for direct recruits, if there is considerable delay in making direct recruitment. There was a stipulation in that order that the said order need be applied only prospectively from 1.3.1986. That stipulation contained in para 7 of that order was quashed by the CAT. So, in the light of that order, the CAT correctly directed to place the respondents 1 and 2 in the seniority list of Preventive Officers, having regard to their initial appointment to that cadre in 1977, it is submitted. 7. The learned counsel for respondents 1 and 2 also relied on the decision of the Constitution Bench of the Apex Court in Rudra Kumar Sain v. Union of India [AIR 2000 SC 2808]. Relying on the WPC 26779/04 & conn.cases 8 said decision, the learned counsel submitted that the description of an appointment as ad hoc, stop-gap or fortuitous is not conclusive. If a regular vacancy was available and the incumbent continued for a very long period in that vacancy, his appointment should be treated as regular, even though the appointment order may contain descriptions like ad hoc, stop-gap etc., it is submitted. 8. The above facts pleaded and the points raised, throw up for our decision two points. The first point is whether, while hearing a seniority dispute against a seniority position obtained in the list published in 1989, the Tribunal can go into the correctness of the ad hoc appointment of the applicants, made in the year 1977 and hold that it is wrong and thereafter remedy the wrong so detected by it. The second point is that even assuming the Tribunal has such powers, whether its finding that there were six vacancies available for regular promotion at the relevant time, is factually correct. We will deal with the second point first. Though, the findings of fact by a competent Tribunal cannot be disturbed by this Court, under Article 226 of the Constitution of India, a finding on a decisive fact, if wrongly made, WPC 26779/04 & conn.cases 9 will be treated as a jurisdictional error. 9. In this case, initially, four vacancies arose, out of which three vacancies were set apart for direct recruitment and one for promotion. Thereafter, five vacancies arose. If those vacancies were regular vacancies, only one is available for promotion and the remaining four will have to be set apart for direct recruitment, applying the ratio 4 : 1. Six vacancies will be available for promotion, if only there are 30 vacancies available. In this case, no one has any case that at the relevant time there were 30 regular vacancies to be filled up in accordance with the relevant rules. The appointing authority wanted to get a panel for promotion to all the six vacancies. The same itself would indicate that it was meant for ad hoc promotion only. When the panel was received, the promotions were made on ad hoc basis. Since the promotees were subjected to all the tests for regular promotion, when they were regularly promoted according to their turn in 1986, they were not further subjected to D.P.C screening. The fact that all the formalities for regular screening by the D.P.C were done before they were promoted on ad hoc basis, will not convert all the six vacancies WPC 26779/04 & conn.cases 10 into regular vacancies, which are available for promotion. So, we are of the view that what was done by the Tribunal, was plainly wrong. The finding that there were six vacancies available for promotion on regular basis is entered, mis-understanding the basic facts. Therefore, the relief granted to the applicants (respondents 1 and 2),based on that finding is unsustainable. The decision of the Apex Court in Rudra Kumar Sain (supra), relied on by the respondents has no application to the facts of this case. The Apex Court was dealing with the recruitment of District Judges from the Bar, for which no ratio as such is applicable. Annexure-A3 circular also does not have any application to the facts of the case. The said circular redresses the grievances of the regular promotees, arising out of grant of seniority to direct recruits, who were recruited much later, over the earlier regular promotees. Since the promotions of respondents 1 and 2 were not regular, the above said circular does not have any application in this case. In view of our finding on the second point, it is unnecessary to consider the first point whether at this distant point of time the CAT can modify the appointment orders of the applicants. In the WPC 26779/04 & conn.cases 11 result, the Writ Petition is allowed and Ext.P9 is quashed. W.P.(C) Nos.33394/2004 & 796/2005: 10. In view of the above judgment, no further orders are required in these writ petitions. Accordingly, they are disposed of. It is ordered that the said judgment will govern these writ petitions also. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/