IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WP(C).No. 13613 of 2006(S) -------- --------------------------------------- OA.728/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS//APPLICANTS:: -------------------- 1. M.K.RAJAN, INSPECTOR OF CENTRAL EXCISE, HEAD QUARTERS REVIEW CELL, C.R.BUILDINGS, MANANCHIRA, CALICUT-1. 2. N.NANDAKUMARAN UNNI, INSPECTOR OF CENTRAL EXCISE, ACC (UB), TRIVANDRUM. BY ADVS. SRI.S.CHANDRASENAN & SRI.P.K.SOMARAJAN RESPONDENT(S)/RESPONDENTS:: ------------------------ 1. CENTRAL BOARD OF EXCISE & CUSTOMS, REP. BY ITS SECRETARY, NEW DELHI. 2. COMMISSIONER OF CENTRAL EXCISE & CUSTOMS COCHIN COMMISSIONERATE, CR BUILDINGS, I.S. PRESS ROAD, COCHIN-18. 3. R.MANOJ, INSPECTOR OF CENTRAL SERVICES, C/O.ASST. COLLECTOR, CENTRAL EXCISE, CANNANORE DIVISION. 4. B.PRAHLADAN, INSPECTOR OF CENTRAL SERVICES, C/O.ASST.COLLECTOR, CENTRAL EXCISE, PALGHAT DIVISION. 5. UNION OF INDIA, REP. BY ITS SECRETARY TO GOVT. , MINISTRY OF FINANCE, DEPT. OF REVENUE, NEW DELHI. R1, R2 & R5 BY ASST. SOLICITOR GENERAL, SRI.P.PARAMESWARAN NAIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON 11/08/2009 DELIVERED THE FOLLOWING: - 2 - WP(C).No. 13613 of 2006(S) APPENDIX PETITIONERS' EXHIBITS:- Ext.P1: True copy of the Original Application along with Annexures A1 to A11,. Ext.P2: True copy of the reply statement of respondents 1, 2 & 5 alongwith Annexure R2A. Ext.P3: True copy of the reply statement of respondent No.4. Ext.P4: True copy of the rejoinder to the reply statement along with Annexures A12 and A13. Ext.P5: Certified free copy in O.A. No.728/2003 dt. 3.4.2006 before the Central Administrative Tribunal, Ernakulam Bench. (True copy) K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.P.(C) No.13613 of 2006 S ------------------------------ Dated this, the 11th day of August, 2009 JUDGMENT Balakrishnan Nair, J. The petitioners were the applicants in O.A.No.728 of 2003 before the Central Administrative Tribunal, Ernakulam Bench. They approached the Tribunal by filing Ext.P1 Original Application challenging Annexures A7 and A8 orders, as per which, their representations concerning their claim for seniority in the cadre of Inspectors of Central Excise, have been rejected. 2. The petitioners were transferred to Central Excise Collectorate, Cochin on Inter Collectorate transfer, as per Annexure A1 order of the Collector of Central Excise and Customs, dated 23.12.1993. There was some delay in relieving them from their parent units and therefore, they could join the Cochin Collectorate only on 21.6.1994 and 19.5.1994 respectively. The dispute between the petitioners and the respondents was, whether they were entitled to get the seniority W.P.(C) No.13613 of 2006 - 2 - from the date of the order of transfer or the date when they joined Cochin Collectorate. The petitioners claim that Annexure A-10 order governs the field, which is produced along with Ext.P1. The respondents, on the other hand, contended that Ext.R2(a) produced along with Ext.P2 reply statement is the relevant order. The Tribunal after considering the contentions of both sides, dismissed the Original Application, holding that the petitioners are entitled to reckon their seniority only from their date of joining at Cochin Collectorate. Feeling aggrieved by the order of the Tribunal, this writ petition is filed. The respondents have filed a counter affidavit in the writ petition. 3. We heard the learned counsel on both sides. The relevant portion of Ext.R2(a) dated 23-11-1981 reads as follows: “I am directed to refer to your letter C.No.II/34/3/81 - Vig. C.Ex. Dated the 13th August, 1981 on the above subject and to say that the seniority of persons joining on Inter-Collectorate/ Inter-Departmental Transfer be fixed below the last temporary person working in that cadre in the recipient Collectorate/Department at the material time in terms of Para 2(ii) of the Board's Letter F.No.A.22015/34/80 - Ad.III B dated the 20th May, '80. In other words, his seniority is to be taken into account from the date he joins the recipient Department and not from the date W.P.(C) No.13613 of 2006 - 3 - of issue of Transfer Order. The persons whose names figure in the recruitment panel which is in operation at the material time, but who are not in position when an officer joins on Inter-Collectorate/Inter-Departmental transfer, will be placed below the transferred officer in the seniority list.”. (emphasis supplied) The said order specifically says that seniority of inter-Collectorate/inter-Departmental transferee will be reckoned only from the date of joining the transferee Collectorate/Department. But, the matter was re-considered and Annexure A-10 dated 12.3.1987 was issued by the competent authority. The said order reads as follows: “Reference is invited to Board's letter F.No.A22015/34/80-Ad.III B dated 20.5.1980 and F.No.A.23011/3/81-Ad.III A dated 23.11.1981 on the above subject. The question of fixation of seniority of officials who are transferred from one Collectorate to another Collectorate at their own request on compassionate grounds in terms of the provisions of the Recruitment Rules for Group 'C' and 'D' posts in the Customs and Central Excise Department has been re-examined. It is hereby clarified that the transferred officials should be assigned seniority in the recipient Collectorate as the junior most direct recruit. However, if a panel for direct recruitment is W.P.(C) No.13613 of 2006 - 4 - in operation at the time of transfer, and if some persons from the panel have already been appointed, the transferred official will be given seniority with effect from the date of his appointment in that Collectorate, subject to the condition that if some persons senior in the select panel happen to join subsequently, they will be entitled to seniority above the transferred officer, having regard to their position in the select panel vis-a-vis their juniors who had joined earlier. 2. To illustrate the above point, supposing the panel for direct recruitment in operation contains 10 names and only persons at S.No.5 and 6 have joined and the others are yet to join. In this case, the transferred official will be placed below the direct recruit at S.No.6 in the panel and would be senior to those at S.No. 7 to 10 of the panel, whereas the persons at S.No.1 to 4 who may join subsequently, would rank senior to him. In case there is no panel for direct recruitment in operation at the time of transfer, the transferred official may be placed in the seniority list below the employees already appointed to the cadre against a roster point meant for direct recruitment.”. Going by the above two orders, it can be seen that in modification of the rules governing the seniority of a W.P.(C) No.13613 of 2006 - 5 - transferee contained in Ext.R2(a), Annexure A-10 order has been issued. Thus, when a transferee is appointed to the recipient Collectorate/Department, any dispute regarding his seniority arises if only there is a panel from which recruitments are made. Otherwise, his date of commencement of seniority is relevant only for the purpose of computing ACP benefits. 4. The contention of the respondents is that, the seniority will be reckoned with reference to the date of transfer order, if only there is a panel for direct recruitment, otherwise the principle in Ext.R2(a) will govern the seniority. We find it difficult to accept the said contention. Annexure A-10 is issued in modification of Ext.R2(a). Therefore, a transferee is always entitled to get seniority, after the issuance of Annexure A-10, from the date of his transfer order. So, in this case, it is declared that petitioners shall be given seniority from the date of order by which they are transferred to the Cochin Collectorate. W.P.(C) No.13613 of 2006 - 6 - In the result, we quash Annexures-A7 and A-8 and we declare that petitioners are entitled to get seniority with effect from 23.12.1993, the date of Annexure A1 order, in Cochin Collectorate. If there was any direct recruitment made at the relevant time, such persons seniority, needless to say, will be subject to the rules governing seniority applicable to direct recruits. After determining the date with reference to which the direct recruits' seniority is fixed, a combined seniority list can be prepared integrating the petitioners in that list with their date of appointment as 23.12.1993. The writ petition is disposed of as above. Sd/- K. Balakrishnan Nair, Judge. Sd/- C.T. Ravikumar, Judge. DK. (True copy)