IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 WP(C).No. 9966 of 2008(S) ------------------------- OA.41/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: ------------ 1. UNION OF INDIA,REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE,MINISTRY OF FINANCE, NEW DELHI. 2. COMMISSIONER,DIRECTORATE OF LOGISTICS, CUSTOMS AND CENTRAL EXCISE,LOK NAYAK BHAVAN, IVTH FLOOR,KHAN MARKET,NEW DELHI 110 003. 3. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS,COCHIN COMMISSIONERATE,CENTRAL REVENUE BUILDING,I.S PRESS ROAD,ERNAKULAM, KOCHI-682 018. 4. THE COMMISSIONER OF CUSTOMS (PREVENTIVE) COCHIN,CENTRAL REVENUE BUILDING,I.S PRESS ROAD, ERNAKULAM,KOCHI-682 018. 5. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS,CALICUT COMMISSIONERATE,MANANCHIRA, CALICUT-1. 6. THE CHAIRMAN,CENTRAL BOARD OF EXCISE & CUSTOMS,NORTH BLOCK,NEW DELHI - 110 001. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL RESPONDENT: ------------- K.S.EMMANUKUNJU,ENGINEER,CPC JAYANTHI, C/O.SEA PATROLLING UNIT,BEYPORE,KOZHIKODE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- W.P.(C) NO. 9966 OF 2008-S ----------------------------------------- Dated 31st March, 2008. JUDGMENT Balakrishnan Nair, J. The respondents in O.A.No.41/2006 before the Central Administrative Tribunal, Ernakulam Bench are the writ petitioners. The respondent herein was the applicant. The applicant approached the C.A.T., challenging Annexure-24, produced along with Ext.P1 O.A. He claimed that he was discharging the functions of Engineer since 1985. But, he was actually promoted to that post only in 1995, after the publication of draft Recruitment Rules for the post. He contended that in other units of the Customs Department, similarly placed persons were promoted to the next higher post. Relying on two decisions of the C.A.T., it was contended that the persons so promoted were ordered to be granted the benefits with effect from the date they started discharging the functions of the promoted post. The orders relied on by the applicant were those in O.A.No.682/1989 of the C.A.T., Ernakulam Bench and O.A.No.660/1991 of the C.A.T., Bangalore WPC 9966/2008 2 Bench. The refusal to give him promotion as Engineer was unsuccessfully challenged by him before the C.A.T earlier. But, this Court interfered and by judgment in O.P.No.7212/02, directed the C.A.T to consider his claim, in the light of the aforementioned decisions of the C.A.T. The Tribunal heard the matter and allowed the O.A., by the impugned order Ext.P3 dated 2.11.2007. This Writ Petition is filed, challenging Ext.P3. 2. The learned counsel appearing for the writ petitioners contended that the C.A.T should not have followed its earlier decisions mentioned above. In those cases there was material to show that the incumbents were actually discharging the functions of the promoted post, even before their actual promotion. In this case, there is no such evidence. But, the Tribunal considered the said contention and rejected it in the following words: “The respondents drew distinction between the case of the applicants in the aforesaid two cases and that of the applicant herein stating that while the applicants in those O.As were Skipper Mates and they were discharging the duties of Skipper in the absence of a regularly appointed Skipper, in the case of the applicant herein, there were no evidence on record to show that he has been discharging the duties and responsibilities attached to the higher post of Engineer. The respondents have not disputed the facts stated by the applicant in this O.A that there were four posts of Engineer in Cochin Collectorate and the first vacancy occurred in May, 1983 when the incumbent Shri R.K.Raman retired on superannuation. Subsequently, other 3 posts also fell vacant and the last vacancy has occurred in December, 1991 with the incumbent Shri.A.O.B. Nair was promoted as Workshop Manager, WPC 9966/2008 3 Chaliyam. It is unbelievable that the duties and responsibilities attached to the posts of Engineer have remained unperformed during the period from 1.1.1983 to 1.1.1995 in the absence of the incumbents to those posts. ............... The respondents have not made any submission as to how they have got the duties and responsibilities of the post of Engineer performed during the aforesaid period of ten years. We in the above circumstances, consider that the applicant's case is identical to that of the applicants in OA 682/89 and OA 660/91.” Thus, the Tribunal considered the contentions of the writ petitioners and rejected the same. Going by the reasons given by the C.A.T., we feel that it is definitely a proper view on the facts. In any view of the matter, it is a plausible view. Even if we are conferred with the appellate power, we feel that we may not be able to interfere with the above finding. Based on cogent reasons, the Tribunal found that the case of the applicant is identical to the case of the applicants in OA Nos.682/89 and 660/91. Based on the above finding of fact, directions were issued to give retrospective effect to the promotion given to the applicant as Engineer with effect from 1.1.1985. In view of the judgment of this Court in O.P.No.7212/2002 (Annexure-23 in Ext.P1), we find that Ext.P3 order passed by the Tribunal is perfectly justified. The applicant being the seniormost person in the feeder category has been rightly granted promotion with retrospective effect. We agree with the reasons and conclusions of the Tribunal. WPC 9966/2008 4 In the result, the Writ Petition fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/