IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10-06-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. CHANDRU WRIT PETITION No.13559 OF 2001 Union of India Rep. by 1. The Commissioner of Central Excise, 26/1 (121) Mahatma Gandhi Road, Chennai 34. 2. The Commissioner of Central Excise, Bibikulam, Madurai 2. .. Petitioners Vs. 1. Central Administrative Tribunal, rep. by its Registrar, Chennai Bench, Chennai 104. 2. S. Kathiresan .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the proceedings of the first respondent dated 13.3.2001 made in O.A.No.489 of 2000 and quash the said order. For Petitioners : Mr.R. Ramanlaal, SCCG For Respondent-2 : Mr.S. Sundaravadivel J U D G M E N T P.K. MISRA, J The present writ petition has been filed by the Department of Central Excise challenging the order of the Central Administrative Tribunal (hereinafter referred to as “the CAT”) dated 13.3.2001 in O.A.No.489 of 2000, whereunder the CAT allowed the Original Application filed by the present Respondent No.2 and directed that the applicant before the Tribunal (present Respondent No.2) should be treated as senior to opposite party Nos.3 to 19 before the Tribunal (those opposite https://hcservices.ecourts.gov.in/hcservices/ parties have neither challenged the order of the Tribunal nor impleaded as respondents in the present writ petition). 2. The facts in brief are as follows: - The applicant was appointed as Upper Division Clerk (in short UDC) on 1.7.1988. Subsequently, on the basis of inter-collectorate transfer, he was transferred to the combined UDCs cadre of Madras, Madurai, Trichy and Coimbatore Commissionerates and joined the office on 19.4.1989. Opposite Party Nos.3 to 19 before the Tribunal were promoted in the month of May, 1989, after the transfer of the applicant had been effected. In the seniority list of UDC as on 1.1.1991, the applicant was placed at S.No.838 as a direct recruit and Opposite Party No.3 was placed at S.No.839. Such seniority list was prepared on the basis of 50% quota available to the direct recruits and promotees respectively on rotational basis. Similarly, in the seniority list as on 1.1.1993, the applicant was shown senior to opposite parties 3 to 19, the applicant's Serial Number being 634 and that of the Opposite Party No.3 being 635. Such seniority list was also drawn up on the basis of 50% quota available to the direct recruits and promotees respectively on the basis of rotation. Subsequently, however, in the seniority list drawn on 1.1.1996, the applicant was shown junior to opposite parties 3 to 19. He was placed at S.No.1097, whereas the promotees opposite parties 3 to 19 were shown between S.Nos.1066 and 1097. Aggrieved by the said seniority list, the applicant filed representations dated 24.9.1996, 12.11.1997, 4.3.1998, 23.7.1998, 18.3.1999 and 19.8.1999. The Commissioner of Central Excise, Madurai, as per the impugned order C.No.II/34/14/96-Est. dated 16.7.1999 informed that the representation filed by the applicant had been rejected by the Union of India as per letter dated 19.5.1989. The O.A.No.489 of 2000 was filed for quashing such letter and for placing the applicant above the opposite parties 3 to 19. 3. No counter affidavit was filed by the private opposite parties before the Tribunal. However, in the counter affidavit filed by the official respondents (present petitioners), while not denying that the applicant had been shown as senior in the list of 1991 and 1993, it was indicated that he was shown as junior in the seniority list for the year 1996. In the counter affidavit it was indicated that for the purpose of promotion, a panel was prepared during the year 1987 and initially during the year 1987-1988, but on the basis of instructions received, promotion was also effected in respect of the vacancies, which arose during the year 1989. It was stated that since such promotion was effected in the year 1989 on the basis of the panel prepared during the year 1987, those persons, who were promoted in May,1989, were shown above the applicant. The question of limitation was also raised stating that the first representation had been made on 24.9.1996 and, therefore, the applicant should have moved the Tribunal within 18 months from the date of such representation. https://hcservices.ecourts.gov.in/hcservices/ 4. The Tribunal by observing that even though the representation had been made on 24.9.1996 and the communication rejecting the representation was served only on 16.7.1999, the contention relating to bar of limitation was not acceptable. The Tribunal further observed that even though the applicant was appointed as UDC in 1988 as he was transferred on inter-collectorate transfer on 19.4.1989 and he had to forego his previous seniority, but his seniority has to be reckoned with effect at least from 19.4.1989. It was further found that the promotees were in fact promoted thereafter during the month of May, 1989 and, therefore, they could not have been treated as seniors to the applicant. The Tribunal further observed that no reason has been shown as to why the seniority list of 1.1.1991 and 1.1.1993 had suddenly been changed without any basis. 5. In the writ petition, the Department has raised the contention that such seniority was revised in order to implement the order of the Central Administrative Tribunal in T.A.Nos.173 & 174 of 1986 and O.A.Nos.140 to 142 of 1985. It has been further stated that the Central Government had issued a direction for relaxing the qualifying service from 7 years to 4 years for the purpose of promotion to Lower Division Clerk (in short LDC) to UDC for a period of one year upto 27.11.1987. On the basis of such direction, the DPC was held on 14.9.1987 for promotion of LDCs to UDCs, to fill up the existing and anticipating vacancies as on 31.12.1987. Promotion orders were issued upto 9th name in such panel for the existing vacancies. Before accrual of the anticipated vacancies, the time limit for relaxation of the qualifying service had expired. Subsequently, an order extending the period of relaxation was received from the Ministry during the year 1988. However, by then the panel had already outlived its validity of one year. Thus, another DPC was held on 28.11.1988. However, the Ministry as a special case directed vide F.No.14011/3/89 Ad.IIIA (Pt) dated 18.10.1999 to operate the panel drawn by the DPC on 14.9.1987 and to fill up all the 32 vacancies and thereafter to convene a fresh DPC to fill up the remaining vacancies of the year 1988. In view of this, a revised DPC was convened on 13/14-12-1989. The select panel drawn by the DPC on 14.12.1987 was operated on its entirety as directed by the Ministry by order dated 18.10.1989. Since such promotion had been effected on the basis of the select panel of the year 1987, as per O.M.No.F.No.36011/1/82 Estt. dated 10.3.1982, the first recruitment, which was made from such select list should be considered as recruitment year for the purpose of promotion, even though the appointment has been made in the next year. 6. A copy of the judgment of the Tribunal in Transfer Appln.Nos.173 & 174 of 1986 is brought to our notice. In the said case, even though eligible persons belonging to SC/ST category were available for being considered for promotion as against general vacancies, they had been ignored. The Tribunal stated that since such candidates were otherwise eligible to be considered not only against reserved category https://hcservices.ecourts.gov.in/hcservices/ but also against general category, such persons should be given notional promotion and seniority should be refixed. We do not find any basis for applying the said order of the Tribunal, which related to an earlier batch, to the facts of the present case. As a matter of fact, before the Tribunal such judgment was never pressed into service and for the first time such judgment is being relied upon in the present writ petition. 7. The petitioners have also placed reliance upon the order of the Tribunal dated 30.7.1987 in O.A.Nos.140 to 142 of 1985. In the said case, the applicants before the Tribunal were promotees and the private opposite parties were direct recruits. Even though such direct recruits have been recruited subsequent to the promotion of the applicants, such persons were shown seniors. In the said case, the Tribunal observed that the direct recruits have been recruited much after the promotees and they should not have been shown as seniors to the promotees, who were actually promoted before the direct recruits. 8. In the present case, it is not the contention that the applicant before the Tribunal, who was a direct recruit, had been recruited in excess of the quota available nor it was the case that the promotees in fact had been promoted before the direct recruit. Nothing has been shown that the promotees had been inequitably denied promotion, even though posts were available for them. As a matter of fact, promotees got the benefit of the order of relaxation issued by the Government relating to relaxation of their qualifying service. In the absence of specific materials, it is not possible to hold that the promotees had been denied their due share and, therefore, their promotion should be given retrospective effect. Even otherwise, the said decision had not also not been pressed into service before the Tribunal and such question is raised for the first time before this Court. 9. In the above view of the matter, the contention raised by the petitioners to the effect that seniority list has been revised in order to give effect to the earlier orders of the Tribunal cannot be countenanced. As a matter of fact, the earlier orders of the Tribunal related to different persons of a different batch and it cannot be said that changing of the seniority list was only with a view to implement such earlier orders. 10. The main contention, which had been raised before the Tribunal by the Department, was to the effect that since promotion was effected on the basis of the panel of the year 1987, it must be taken that 1987 was the year of recruitment. The said contention cannot be accepted in view of the fact that actually the promotion took effect in May, 1989, after the present Respondent No.2 had already been directly recruited. As a matter of fact, Respondent No.2 had already been directly recruited in the year 1988, but on account of transfer he was https://hcservices.ecourts.gov.in/hcservices/ within the purview of seniority. However, since the opposite party Nos.3 to 19 were not in the cadre and had been promoted subsequently, the principle that one would lose seniority on the basis of request transfer was not applicable. This aspect has been analysed by the Tribunal and the contention of the Department has been negatived. We do not find any error of law apparent on the face of record in such order passed by the Tribunal. 11. For the aforesaid reasons, we do not find any merit in the writ petition, which is accordingly dismissed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar dpk To The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai 104. ck (co) krd / 18.6.08 JUDGMENT IN WP.13559/2001 https://hcservices.ecourts.gov.in/hcservices/