IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIFTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 18240 of 2008 Between: 1 The Chief Commissioner, Customs and Central Excise, L.B. Stadium Road, Basheer Bagh, Hyderabad. 2 The Commissioner of Customs and Central Excise, L.B. Stadium Road, Basheer Bagh, Hyderabad. 3 The Commissioner of Customs and Central Excise, Hqrs. Ofice, Central Revenue Buildings, Kannavari Thota, Guntur - 522 002. ..... PETITIONER(S) AND 1 Sri Shaik Madina Saheb, S/o. Sri Late Shaik Khaja Saheb, O/o. the Commissioner of Customs and Central Excise, Hqrs. Office, Central Revenue Building, Kannavari Thota, Guntur - 522 004. 2 Sri K. Navaratnam, S/o. Not Known, aged Major, Office of the Commissioner of Customs and Central Excise, Guntur Commissionerate, Guntur. 3 Sri. P.V. Satyanarayana, S/o. Not Known, aged Major, Office of the Commissioner of Customs and Central Excise, Guntur Commissionerate, Guntur. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue order or direction in the nature of a writ of Certiorari calling the records pertaining to order dated dt.11.03.2008 in O.A.No. 1046 of 2004 on the ﬁle of Hon'ble Central Administrative Tribunal, Hyderabad Bench, Hyderabad and to Quash the same as illegal, arbitrary and against the well settled principles of Law. Counsel for the Petitioners: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondent Nos.: . The Court made the following : O R D E R:- (per GM,J) This writ petition is ﬁled seeking certiorari to quash the order dated 11.3.2008 made in O.A.No.1046 of 2004 on the ﬁle of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad. Brief facts of the case are that one Shaik Madina Saheb, who is the 1st respondent herein, was initially appointed as Sepoy on 4.8.1973 in Customs and Central Excise Department, and was later promoted to Selection Grade Sepoy and he was senior to K.Navarathnam and P.V.Satyanarayana, respondents 2 and 3 respectively. Subsequently, the 1st respondent was promoted to the grade of Hawaldar and joined in the said post on 31.8.1987 whereas respondents Nos.2 and 3 herein were promoted to the grade of Hawaldar (Records) and they joined in the said post on 4.6.1987 and 15.4.1987 respectively. Subsequently, the 1st respondent was promoted to L.D.C. cadre with eﬀect from 10.3.1988 and later to U.D.C. cadre in 1993 and his name in the seniority list of U.D.Cs. was placed at Sl.No.30 as on 1.1.1998. Ever since the 1st respondent’s appointment as Sepoy, the 3rd respondent was shown as junior to him. The grievance of the 1st respondent, who is the applicant before the Tribunal, was that the petitioners, in the grade of L.D.C., without verifying the factual position placed him at Sl.No.16 whereas respondents 2 and 3 are shown at Sl.No.14 and 15, and in the grade of U.D.C. the 1st respondent was placed at Sl.No.4, whereas, respondents 2 and 3 at Sl.Nos.2 and 3 and again in the cadre of D.O.S. L (II) the 1st respondent is shown as junior to respondent No.3. Then, the 1st respondent made a representation dated 25.5.2004 to the petitioners requesting them to rectify the mistake and revise the seniority by placing his name above respondents 2 and 3, but the petitioners have neither considered the representation nor passed any order thereon. Aggrieved by the same, the 1st respondent ﬁled O.A.No.1046 of 2004, and the Central Administrative Tribunal, Hyderabad Bench, Hyderabad, allowed the O.A. by passing the order to the following effect: “The respondents are, therefore, directed to determine the seniority of the applicant vis-à-vis private respondents in the grade of Hawaldar (Records) in terms of the above instructions as discussed above and not on the basis of date of joining in the post and accordingly assign the seniority in the subsequent grades and extend the consequential beneﬁts that ﬂow from the revision of seniority. Respondents shall complete the entire exercise and pass appropriate order within a period of 2 months from the date of receipt of the copy of the order”. Now, the petitioners’ main grievance is that though the 1st respondent was senior in the cadre of Sepoy he became junior to the respondents 2 and 3 in the interpolated seniority list of Hawaldar and Hawaldar (Records) as his juniors joined in the post of Hawaldar (Records) much earlier to him. However, since respondents 2 and 3 joined the post before the 1st respondent, they have been assigned higher seniority in the post of Hawaldar and when three of them were given promotion to the post of LDC they were given deemed date of promotion from 10.3.1998 following the Ministry’s Instructions according to which the interse seniority of the promoted oﬃcers would follow their seniority in their parent lower grade D and also in accordance with the O.M. dated 22.12.1959 and the explanation given thereunder. Challenging the said order, this writ petition is filed. The learned counsel for the petitioners has contended that the 1st respondent and respondent Nos.2 and 3 were assigned seniority when they were promoted to the post of LDC following the Ministry’s instructions dated 27.9.1978, according to which, the inter-se seniority of the promoted oﬃcers would follow their seniority in their parent lower grade Gr.D and also in accordance with the O.M. dated 22.12.1959 and the explanation given thereunder. Having heard the learned counsel for the petitioners and perused the material placed on record, we feel it necessary to go through Paragraph 5 of the Ministry’s Instructions, which are extracted herein below: “5. Promotees – (i) The relative seniority or persons promoted to the various grades shall be determined in the order of their selection for such promotions: Provided that where persons promoted initially on a temporary basis are conﬁrmed subsequently in an order diﬀerent from the order of merit indicated at the time of their promotion, seniority would be determined by the order indicated at the time of initial appointment and not according to the date of confirmation. (Second proviso added under G.I., Dept. of Per. & Trg, O.M.No.20011/1/96-Estt. (D), dated the 30 the January, 1997 not printed since the same has been deleted retrospectively from 30.1.1997 itself vide OM, dated 21.1.2002 (Order No.12) AUTHORS). (ii) Where promotions to a grade are made from more than one grade, the eligible persons shall be arranged in separate lists in the order of their relative seniority in their respective grades. Thereafter, the Departmental Promotion Committee shall select persons for promotion from each list upto the prescribed quota and arrange all the candidates selected from diﬀerent lists in a consolidated order of merit which will determine the seniority of the persons on promotion to the higher grade. Note: If separate quoats for promotion have not already been prescribed in the relevant recruitment rules, the Ministries/Departments may do so now, in consultation with the Commission, wherever necessary. Clariﬁcation - Where the posts in the feeder grades are in diﬀerent scales of pay or even in the identical or equivalent scales of pay, the oﬃcers up to the number of vacancies for each feeder grade as per the quota may be selected and interpolated in a combined select list according to the grading. The persons who are assigned the same grading by the DPC should be arranged in the consolidated order of merit with reference to the date arrived at after adding the requisite number of years of qualifying service in the feeder grade to their date of appointment i.e. with reference to the date from which they became eligible for promotion after rendering the prescribed qualifying service in the feeder grade, maintaining their inter se seniority in the parent service/grade. Among the persons in the feeder grade given the same grading, those in the higher scale of pay will rank senior to those in the lower scale of pay.” From a perusal of the Ministry’s Instructions, it is clear that the seniority has to be assigned in the order of merit of their selection for the promotion in the grade of Hawaldar, and it is nowhere mentioned in the Instructions that the seniority has to be assigned on the basis of the date of joining in the post of Hawaldar. It is not the case of the petitioners that they placed the 1st respondent below respondent Nos.2 and 3 on the basis of order of their selection, but they have done it on the basis of the date of joining in the post of Hawaldar (Records), which is not correct. Hence, the contention put forth by the learned counsel for the petitioners that respondent Nos.2 and 3 were assigned seniority following the Ministry’s Instructions and in accordance with O.M. dated 22.12.1959 and the explanation given thereunder is unsustainable and cannot be accepted. In the light of the Ministry’s Instructions and the fact that the 1st respondent was initially senior to respondent Nos.2 and 3 in the grade of Sepoy (Group-D), we are of the considered opinion that the petitioners are not justiﬁed in assigning the seniority of the 1st respondent below respondent Nos.2 and 3 on the basis of the date of joining in the post, which is contrary to the Ministry’s Instructions. Under the said circumstances, the Tribunal has rightly allowed the O.A.No.1046 of 2004 and the order of the Tribunal does not suﬀer from any legal inﬁrmities warranting interference of this Court under Article 226 of the Constitution of India. In the result, this writ petition is devoid of merits and is accordingly dismissed. No costs. ________________________ GHULAM MOHAMMED, J 25th August, 2008 ____________________ C.V. RAMULU, J. bcj