IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE V.GIRI & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 WP(C).No. 36499 of 2007(S) --------------------------------------- OA.NO.469/2006 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. .................... PETITIONER: ------------------- N.J. SAJEEVE, SUPERINTENDENT OF CENTRAL EXCISE, CALICUT III RANGE, CALICUT , RESIDING AT JOSE VILLA, P & T QUARTERS ROAD, EAST HILL CALICUT. BY ADVS. MR.P.RAMAKRISHNAN, SMT.PREETHI RAMAKRISHNAN. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI. 2. CENTRAL BOARD OF EXCISE & CUSTOMS, REPRESENTED BY THE CHAIRMAN, NEW DELHI. 3. THE CHIEF COMMISSIONER, CENTRAL EXCISE & CUSTOMS, KERALA ZONE,COCHIN. 4. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, I.S. PRESS ROAD, COCHIN-18. 5. P.K. JAYARAJAN, SUPERINTENDENT OF CENTRAL EXCISE, CENTRAL REVENUE BUILDINGS, MANANCHIRA, KOZHIKODE. W.P.(C). NO.36499/2007-S: 6. G.JAYAPRAKASH, SUPERINTENDENT OF CENTRAL EXCISE, OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE, ICE BHAVAN, PRESS CLUB ROAD THIRUVANANTHAPURAM. R1 TO R4 BY MR.TOJAN J.VATHIKULAM, S.C, R5 & R6 BY MR.O.V.RADHAKRISHNAN, SENIOR ADVOCATE, ADV. MR.K.M.MOHAMMED KUNHI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON 27/10/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.36499/2007-: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORIGINAL APPLICATION O.A. NO. 469/06, ALONG WITH ANNEXURES. EXT.P.2: COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS 1 TO 4 IN O.A. NO. 469/06. EXT.P.3: COPY OF THE ADDITIONAL REPLY FILED ON BEHALF OF RESPONDENTS 1 TO 4 IN O.A. NO. 469/06. EXT.P.4: COPY OF THE REPLY STATEMENT IN O.A. NO. 469/06 FILED ON BEHALF OF THE PETITIONER. EXT.P.5: COPY OF THE REJOINDER FILED IN O.A. NO. 469/06 ON BEHALF OF RESPONDENTS 5 AND 6. EXT.P.6: COPY OF THE ORDER DTD. 13/09/07 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A. NO. 469/06. EXT.P.7: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C). NO.7945/06 ALONG WITH M.A. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. K.BALAKRISHNAN NAIR, V.GIRI & P.S.GOPINATHAN, JJ. ---------------------------------------- W.P.(C)No.36499 of 2007 ---------------------------------------- Dated this the 27th day of October, 2009. JUDGMENT Giri, J. The principal question that arises for consideration in this writ petition involves application of the principles of the “sit back theory” that have been evolved by the Courts as part of service jurisprudence. In plain terms, the 'theory of sit back' postulates a situation where the incumbents in a service assume as settled, a certain state of affairs reflecting their position in a cadre or a service, vis-a-vis other persons comprised within the same service. The theory has been mostly applied in disputes involving inter se seniority and matters consequential thereto, including promotion. The dispute in the present case involves Superintendents of Central Excise, who originally commenced service as Inspectors. The contesting respondents had commenced service in the Department earlier to the petitioner. They W.P.(C)No.36499 of 2007 :: 2 :: had, on their request, been subjected to an inter-unit transfer. It is the case of the petitioner that such inter- unit transfer, on request, would entail loss of seniority in the parent unit and the transferee has to take his place at the bottom of the cadre in the unit to which he is transferred. Accordingly, the contesting respondents, the petitioner contends, had commenced service in the unit in question, subsequent to him. They had accepted the position that the petitioner is senior to them. The petitioner had also accepted the position and he contends that he, therefore, was entitled to sit back and assume the said state of affairs as governing the parties. It was after a long lapse of several years that the position was sought to be reviewed at the instance of the contesting respondents and such a plea, according to the petitioner, should not have been entertained, let alone be accepted. It is essentially this contention, involving the application of the principles of “sit back theory”, that has been mooted for consideration. W.P.(C)No.36499 of 2007 :: 3 :: 2. The petitioner entered service as a directly recruited Inspector in the Commissionerate of Customs and Central Excise, Cochin on 25.8.1975. At the same time, respondents 5 and 6 entered service in the Madurai Division on 11.12.1974 as Inspectors, but later, were transferred to the Cochin Commissionerate, wherein they commenced service on 13.12.1976 and 5.12.1977 respectively. Such transfer of respondents 5 and 6, indisputably, were, on their request. 3. This inter se position amongst the petitioner and respondents 5 and 6 in the Cochin Commissionerate was prevailing from 1976-77 onwards and it is, on the said basis that the petitioner was promoted as Superintendent of Central Excise on 5.3.1993 and respondents 5 and 6 came to be promoted to the said post on 30.9.1996. The petitioner makes a reference to the seniority list of Inspectors published on 5.12.1994 (Annexure R5(d) produced by the petitioner herein along with the reply statement filed by him before the Central W.P.(C)No.36499 of 2007 :: 4 :: Administrative Tribunal.) The petitioner was rank No.186 and respondents 5 and 6 were 279 and 288 respectively. 4. The same position inter se the petitioner and respondents 5 and 6 is reflected in the seniority list of Superintendents of Central Excise on 5.8.1997 {Annexure R5(e)} wherein the petitioner is ranked 87 and respondents 5 and 6 are ranked 158 and 162 respectively. 5. Parties refer to certain instructions issued by the Central Board of Customs on 12.2.1958, (Annexure A3 to the Original application filed before the Central Administrative Tribunal) wherein the inter-unit transfers within a period of three years from the first appointment could be made without a loss of seniority. The petitioner refers to the revised instructions issued on 22.12.1959, Annexure A5 to the Original Application and later, stated to have been forwarded to the Central Board of Customs and Central Excise, to all Commissioners. The said W.P.(C)No.36499 of 2007 :: 5 :: revised instructions did not provide for saving the seniority of an inter-unit transferee where such transfer is on his request. This was a position that was accepted in 1994, when the seniority list amongst Inspectors was published and even in 1997 when the seniority list of Superintendents was published. But apparently, the Patna Bench of the Central Administrative Tribunal, by Annexure A11 order in an original application permitted one Damodar Singh, an inter-unit transferee to carry over the seniority from his parent department to his transferee unit. This order of the Patna Bench of the Central Administrative Tribunal came to be affirmed by the Hon'ble Supreme Court, by order dated 31.3.1998. Apparently, acting on the basis of the direction issued by the Patna Bench of the Central Administrative Tribunal, which came to be affirmed by the Supreme Court by Annexure A13, the Ministry proposed a revision in the Seniority list amongst the Inspectors of the Central Excise Department by determining the seniority from the W.P.(C)No.36499 of 2007 :: 6 :: date of the original entry in the department without providing for a forfeiture of the same amongst the inter- unit transferees. Thus, in the revised seniority list of Inspectors dated 4.7.2000, the petitioner was ranked 288 while respondents 5 and 6 were ranked 259 and 260 respectively. Consequently, the seniority list of Superintendents also came to be revised as per Ext.A19 to the Original Application and while the petitioner was ranked 102 therein, respondents 5 and 6 were ranked 75 and 76. This seniority list amongst the Superintendents was published on 12.6.2002. 6. The petitioner then preferred O.A.No. 59/2003 before the Central Administrative Tribunal, Ernakulam Bench. The petitioner challenged the circular dated 20.10.1998 issued by the Department, which inter alia, permitted the inter-commissionerate transferees, who had been transferred on their request, prior to 25.5.1980, to count their seniority in their parent unit also, provided such inter-commissionerate transfer, was W.P.(C)No.36499 of 2007 :: 7 :: within three years from the date of entry into the service. This direction was a benefit flowing out of Clauses 1 and 2 of the circular dated 12.2.1958, apparently, comprehending non-gazetted staff in the Central Board of Central Excise and Customs and the Department proceeded on the premise that this was the benefit that was directed to be given to Damodar Singh by the Patna Bench of the Central Administrative Tribunal and the Supreme Court had affirmed the same. The writ petitioner had challenged the circular dated 20.10.1998 and the apparent consequential revision of the seniority list amongst Inspectors and Superintendents in the Cochin Commissionerate. 7. The official respondents, who filed a reply and an additional reply before the Central Administrative Tribunal, inter alia, contended that the aforementioned circular dated 20.10.1998 had actually been withdrawn by the Department by a subsequent circular dated 25.3.2004. W.P.(C)No.36499 of 2007 :: 8 :: 8. The Central Administrative Tribunal, nevertheless went on to consider the merits of the contentions raised by the parties and proceeded to hold that the principle laid down in Damodar Singh by the Patna Bench of the Central Administrative Tribunal, which had been affirmed by the Supreme Court, would hold the field and therefore, the inter se seniority amongst the Inspectors and Superintendents of Central Excise should be reckoned with reference to the original date of entry into service and that inter-commissionerate transferees, who had obtained such transfers on request, should not be compelled to forfeit their seniority in the parent unit, provided such transfers had been effected within three years of commencement of service. 9. This order of the Central Administrative Tribunal was challenged by the petitioner in W.P.(C) No.30312/05 and by judgment dated 15.11.2005 a Bench of this court observed that since the circular dated 20.10.1998 had been withdrawn subsequently on W.P.(C)No.36499 of 2007 :: 9 :: 25.3.2004, the Department need only proceed to implement the subsequent circular provided, the same remains unchallenged and has become final. The Bench made it clear that it was not deciding any of the questions raised by the writ petitioners and the writ petitions were disposed of on the submission of the learned counsel for the petitioners that the orders challenged before the Central Administrative Tribunal are superseded by subsequent orders of the Government of India. 10. Based on the subsequent circular and the directions issued by the Division Bench, the seniority list of Inspectors was again revised on 20.2.2000, while the petitioner was ranked 273, respondents 5 and 6 came to be ranked 366 and 375. It will have to be noticed in this context that W.P.(C)No.30312/05 was disposed of at the stage of admission, before issuing notice to respondents 5 and 6 herein. W.P.(C)No.36499 of 2007 :: 10 :: 11. Respondents 5 and 6 then challenged the subsequent circular dated 25.3.2004 and the seniority list published on 20.2.2006 in O.A.No.469/06. The said original application was allowed by the Central Administrative Tribunal as per judgment dated 30.9.2006, inter alia, placing reliance on the judgment of a Division Bench of this court in W.P.(C)No.7945/06. It is this order of the Central Administrative Tribunal, Ernakulam Bench, that has been challenged in this writ petition. 12. A counter affidavit has been filed by the official respondents as also by the contesting respondents. 13. We heard Mrs.Preethy Ramakrishnan, learned counsel for the petitioner, Mr.Tojan Vathikulam, learned counsel for the Department and Mr.O.V.Radhakrishnan, learned counsel for respondents 5 and 6. W.P.(C)No.36499 of 2007 :: 11 :: 14. Learned counsel for the petitioner contended that the Tribunal has committed a serious error in allowing the original application filed by respondents 5 and 6 herein, on two grounds. Firstly, that respondents 5 and 6 were not permitted to carry over their seniority from the Madurai Division when they were transferred, on their request, to the Cochin Commissionerate. The instructions issued by the Central Board of Customs and Excise on 12.2.1958 permitting transfers without loss of seniority, within a period of three years from the date of first appointment were revised on 22.12.1959 and it was the revised instructions Annexure A5 that was prevailing when respondents 5 and 6 had joined service in Madurai Division and were transferred, on their request to Cochin Division. Thus, the premise on which the Tribunal had proceeded to hold that respondents 5 and 6 were entitled to carry over their seniority in the Madurai Division when they were transferred to the Cochin Commissionerate is factually untenable. W.P.(C)No.36499 of 2007 :: 12 :: 15. It was then contended that assuming for arguments sake that the instructions issued on 12.2.1958 permitting transfers within a period of three years from the date of first appointment without loss of seniority, was in force when respondents 5 and 6 had been transferred from Madurai Division to Cochin Division, on their request, it was a case where respondents 5 and 6 themselves had accepted their position at the bottom of the ladder in Cochin Commissionerate. This position of inter se seniority between the petitioner and respondents 5 and 6 was accepted by them as a state of affairs from the date on which they joined the Cochin Commissionerate, in 1976-77 and continued even in 1994 when the seniority list of Inspectors was published on 5.12.1994. The said seniority list Annexure R5(d) reflected the inter se seniority between the petitioner and respondents 5 and 6. The latter did not raise any objection to the same. In the meanwhile, the petitioner had been promoted as Superintendent on 5.3.1993 and W.P.(C)No.36499 of 2007 :: 13 :: this was also not objected to by respondents 5 and 6. They themselves were promoted as Superintendent on 30.9.1996 and they have not raised any objection to the same. The seniority list of Superintendents was published on 5.8.1996. That also reflected the seniority of the petitioner and respondents 5 and 6. They did not raise any objection to the same. Thus, the state of affairs which was prevailing from the year 1976-77 till 1998, were accepted by the parties as governing them and naturally the petitioner was entitled to 'sit back' with the belief that he was senior to respondents 5 and 6 in the cadre of Inspectors as also Superintendents. The state of affairs was not consequent upon any benefit that the petitioner had claimed and had received in antagonism to respondents 5 and 6 and which benefit had been challenged by the latter. The state of affairs came to prevail by reasons of respondents 5 and 6 having been transferred from the Madurai Division to Cochin Division, on their request, and since such transfers were W.P.(C)No.36499 of 2007 :: 14 :: perceived as entailing loss of seniority in the parent unit, that was accepted as such by respondents 5 and 6. In such circumstances, they should not have been permitted to raise a claim at a distance of time, almost 22 years after they had secured a transfer from one division to another. 16. It was also contended that the Tribunal erred in proceeding on the premise that the Patna Bench of the Central Administrative Tribunal in Damodar Singh's case laid down any inviolable principle, as it were, that all inter-commissionerate transfers effected in the Department of Central Excise, within a period of three years from entry into service prior to 25.5.1980, will enable the incumbent to carry over the seniority from the parent unit. The judgment of the Supreme Court, dismissing the Civil Appeal against the order in Damodar Singh's case was rendered essentially on the premise that no materials had been placed before the court to show that inter-commissionerate or inter- W.P.(C)No.36499 of 2007 :: 15 :: division transfers would occasion loss of seniority. Obviously, the observations made by the Supreme Court in the Civil Appeal against Damodar Singh's case would bind only the parties and it cannot be treated as a precedent, in relation to any claim made by persons like respondents 5 and 6, who had been subjected to inter- commissionerate transfer, on request. 17. Sri.O.V.Radhakrishnan, learned Senior Counsel, on the other hand, submitted that the instructions issued in 1958 permitted inter- commissionerate transfers without loss of seniority. There is no material to show that the revised instructions issued on 22.12.1959 were operative in 1976-77 when respondents 5 and 6 had joined the Cochin Commissionerate. It was further contended that the earlier order passed by the Tribunal dismissing the original application filed by the petitioner herein, O.A.No.59/93 stood in the way of the petitioner re- agitating his claim, in the course of defending W.P.(C)No.36499 of 2007 :: 16 :: O.A.No.469/06 filed by respondents 5 and 6. 18. Learned counsel for the Department Mr.Tojan Vathikulam submitted that the Department affirms the stand taken by them in the counter statement filed before the Central Administrative Tribunal. 19. The question that has been seriously mooted for consideration and which we have considered in some detail revolves around the principle that the incumbents in a service are entitled, as of right, to assume the prevalence of a state of affairs relating to their position in service, including inter se seniority amongst persons included in a cadre, and sit back with the belief that such state of affairs have assumed finality and should accordingly govern the parties. Learned counsel for the petitioner relies on the following judgments of the Supreme Court 20. Rabindra Nath v. Union of India {AIR 1970 SC 470}}, Amrit Lal Berry v. Collector of Central Excise {1975(4) SCC 714}, R.S.Makashi v. W.P.(C)No.36499 of 2007 :: 17 :: I.M.Menon {1982(1) SCC 379}, K.R.Mudgal v. R.P.Singh {1986(4) SCC 531}, B.S.Bajwa v. State of Punjab {1998(2) SCC 523}, Indian Drugs and Pharmaceuticals Ltd. v. Workmen {2007(1) SCC 408} and Government of Karnataka v. Gowramma {AIR 2008 SC 863}. 21. We consider it advantageous to extract the dictum laid down by the Supreme Court in Rabindra Nath v. Union of India {AIR 1970 SC 470}. We note that the principles laid down therein have been almost unwaveringly quoted by the Supreme Court in the subsequent judgments. It was held as follows in paragraphs 34 and 35 of the judgment in Rabindra Nath v. Union of India {AIR 1970 SC 470}. “34. The learned counsel for the petitioners strongly urges that the decision of this court in Trilokchand and Motichand's case, {1969) 1 SCC 110 (Supra) needs review. But after carefully considering the matter, we are of the view that no relief should be given to petitioners who without any reasonable explanation, W.P.(C)No.36499 of 2007 :: 18 :: approach this Court under Article of the Constitution after inordinate delay. The highest Court in this land has been given Original Jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay. 35. We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. It was on this ground that this Court in Jaisinghani's case, 1967-2 SCR 703 = (AIR 1967 SC 1427) observed that the order in that case would not affect Class W.P.(C)No.36499 of 2007 :: 19 :: Ii officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income-tax and who were appointed and promoted to their original posts during 1945 to 1950, should be left alone.” 22. The theory of 'sit back' has been applied almost uniformly in the context of a contention of delay and laches on the part of any person, who makes an attempt to prosecute a claim, which, if accepted, would result in a situation where inter se positions which have been settled over the years will have to be revised. These contentions have often been raised in proceedings W.P.(C)No.36499 of 2007 :: 20 :: under Articles 226 or 32 of the Constitution and therefore, the Supreme Court had taken note of the fact that though there is no statutory period of limitation applicable to proceedings under Articles 226 and 32 of the Constitution, where settled positions of seniority are sought to be questioned after a considerable lapse of time, the court would be inclined to decline jurisdiction in such cases, on the ground of delay and laches. The court would be loathe to interfere with settled affairs in matters of seniority and promotion effected in any cadre or service after a lapse of time. As observed by the Supreme Court in Rabindra Nath v. Union of India {AIR 1970 SC 470}, though the courts would not be anxious to throw out petitions on the ground of delay on the part of the petitioner in approaching the court, justice will have to be administered in accordance with law and principles of equity, justice and good conscience, As the court observed in the said case, it would be unjust to deprive the respondents (in the said case) the rights W.P.(C)No.36499 of 2007 :: 21 :: which have accrued to them; “each person ought to be entitled to 'sit back' and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. 23. The principles laid down in Rabindra Nath v. Union of India {AIR 1970 SC 470} were followed in Amrit Lal Berry v. Collector of Central Excise {1975 (4) SCC 714}. The court again reiterated the position in R.S.Makashi v. I.M.Menon {1982(1) SCC 379}, and thereafter in K.R.Mudgal v. R.P.Singh {AIR 1986 SC 2086 = 1986(4) SCC 531} 24. The approach made by the Supreme Court in a case dealing with a dispute of seniority between Assistants in the Intelligence Bureau in the case of K.R.Mudgal v. R.P.Singh {AIR 1986 SC 2086} is significant. The Supreme Court specifically held that where a belated challenge is mounted before the High Court, the Court ought to decline to consider the merits of the contentions. Where a writ petition mounting such W.P.(C)No.36499 of 2007 :: 22 :: belated challenge was found to be liable to be dismissed on the ground of laches, the following observations made by the Supreme Court are significant: “The respondents in the writ petition raised a preliminary objection to the writ petition stating that the writ petition was liable to be dismissed on the ground of laches. Although the learned single Judge and the Division Bench have not disposed of the above writ petition on the ground of delay, we feel that in the circumstances of this case the writ petition should have been rejected on the ground of delay alone. The first draft seniority list of the Assistants was issued in the year 1958 and it was duly circulated amongst all the concerned officials. In that list the writ petitioners had been shown below the respondents. No objections were received from the petitioners against the seniority list. Subsequently, the seniority lists were again issued in 1961 and 1965 but again no objections were raised by the writ petitioners, to the seniority list of 1961, but only petitioner 6 in the writ petition represented against the seniority list of 1965. We have