Central Administrative Tribunal - Ernakulam
Kusum vs The Secretary Department Of Revenue ... on 13 June, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00310/2021
Tuesday, this the 13th day of June, 2023
CO RAM:
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
Kusum, Aged 31 years,
W/o. Pradeep Dabas,
Preventive Officer (Inspector), Customs House,
Cochin, Willingdon Island,
Residing at Galaxy Windsor Apartment,
F4, 3rd Floor, St. Sebastian Road, Kumaranasan Nagar,
Kadavanthra, - Applicant
(By Advocate: Mr. R. Sreeraj)
VERSUS
1. Union of India represented by its
Secretary to the Government of India,
Ministry of Finance, Department of Revenue,
North Block, New Delhi - 110 001.
2. Central Board of Indirect Taxes and Customs,
Represented by its Chairman, Ministry of Finance,
North Block, New Delhi - 110 001.
3. The Commissioner of Customs, Customs House,
Willingdon Island, Cochin - 682 009.
4. The Staff Selection Commission,
Represented by its Chairman,
Block No.12, CGO Complex,
Lodhi Road, New Delhi - 110 001. - Respondents
(By Advocate: Mr. N. Anilkumar, SPC)
This Original Application having been heard on 23 rd May, 2023, the
Tribunal on 13th June, 2023 delivered the following :
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ORDER
Per: K. V. Eapen, Administrative Member The applicant is a Preventive Officer (Inspector of Customs) working under the 3rd respondent, Commissioner of Customs , Kochi. She has filed this O.A as she submits that she was denied proper seniority and ranking in her Cadre, on the basis of her merit in the Common Graduate Level Examination (CGLE) 2012 conducted by the 4 th respondent, Staff Selection Commission New Delhi. She submits that the respondents have flouted the mandates of various Department of Personnel and Training, Government of India (DoP&T) O.Ms dated 03.07.1986, 04.11.1992, 03.03.2008 and 11.11.2010, which lay down that the relative seniority of all direct recruits is to be determined by the order of merit in which they are selected for such appointment on the recommendations of the UPSC or other selecting authority, with the further stipulation that the persons appointed as a result of an earlier selection will be senior to those appointed as a result of subsequent selection.
2. The applicant submits that she is also aggrieved by the letter produced as the impugned order at Annexure A7 issued by the 2 nd respondent, Central Board of Indirect Taxes and Customs, Department of Revenue, Ministry of Finance, which takes stand that since no vacancy pertaining to the year 2012 was available for adjustment of these candidates like her, they cannot be considered belonging to 2012 vacancy year for purpose of determining their seniority. She submits that the said communication in not fixing her seniority in accordance with her merit position in CGLE 2012 is a violation of the legal principles that a person 3 cannot be permitted to take undue and unfair advantage of his own wrong. It is settled in Mrutunjay Pani & another v Narmada Bala Sasmal & another [1962 (1) SCR 290] by the Hon'ble Supreme Court that a wrongdoer ought not to be permitted to make a profit out of his own wrong. According to the Hon'ble Apex Court where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. It is submitted that this position has been reiterated by the Hon'ble Supreme Court in Union of India & others v Major General Mohan Lal Yadav (Retired) [1996 (3) SCR 785].
3. The applicant had joined the Central Board of Indirect Taxes & Customs on 20.06.2018. She submits that she is eligible for promotion to the post of Superintendent/Appraiser from the post of Preventive Officer (Inspector), Customs under the relevant Recruitment Rules. Though her selection and eventual appointment as Preventive Officer (Inspector), Customs was based on her merit in the CGLE 2012, her appointment along with some others was delayed till 2018. Many of her batchmates however got appointed in the year 2014 itself. She submits that this delay was not due to any reason attributable to her but is being used by the respondents to deny her due seniority and other consequential benefits like promotion (notional), pay fixation, etc. It is submitted that the basic question to be examined by this Tribunal is whether the respondents can be permitted to take an undue and unfair advantage of their own wrongdoing to gain a favourable interpretation of law.
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4. It is submitted that the Staff Selection Commission had issued an advertisement in March 2012 for holding the CGLE for filling up posts under various Departments under the Government of India, including the post of Preventive Officer (Inspector) Customs, etc., in the Customs and Central Excise Department. After the completion of the entire selection process, the SSC had declared the results in January/February 2013. However, the results of certain candidates including the applicant, were withheld. Notices were issued on them asking to show cause as to why their candidature should not be cancelled. These candidates then filed O.As before the Principal Bench of this Tribunal. After a long process of pleadings/hearing, the Principal Bench on 30.07.2014 in O.A No.930/2014 Sudesh v SSC and others and other connected O.As, produced at Annexure A1, quashed the show cause notice issued dated 28.01.2014 in the lead OA as well as the other show cause notices issued to the applicants in the connected O.As. The respondents were directed to declare the result of all applicants in the O.As and to allocate them the Services for which they had been found eligible on the basis of pure merit if they were found successful. It was directed that while doing so, the respondents were to take action fully in consonance with the rules and instructions governing the subject while declaring the result and for allocating the service for which they (the applicants) are found successful on the basis of merit.
5. Soon after the Annexure A1 orders in O.A No.930/2014 and connected cases were declared, the Principal Bench also passed its orders dated 17.09.2014 in O.A 2863/2014 filed by the applicant herein along with 5 three others (Rakesh Kumar & Others v Union of India & others), along with O.A 2839/2014 (Devender Yadav v Staff Selection Commission and others). A copy of the said orders passed by the Principal Bench allowing the O.A by quashing the impugned show cause notice in the O.As as not being legally sustainable and directing the respondents to declare the results of the applicants in the O.As and to allocate them to the service purely on the basis of merit, if found successful in the examination has been produced at Annexure A2. It was also ordered that the respondents shall fully conform to the rules and instructions for declaration of results and for allocation of service to those applicants who are found successful on the basis of pure merit.
6. It is submitted by the applicant that had the respondents immediately complied with the directions in Annexures A1 and A2 final orders above, there would not have been much prejudice caused to her and to others who were similarly situated. However the respondents took up the matter on appeal before the Hon'ble High Court of Delhi by filing W.P(C) No.9055/2014 (Staff Selection Commission & another v Sudesh). This W.P(C) was dismissed on 19.12.2014 by the Hon'ble High Court, vide its judgment produced at Annexure A3. It was held by the Hon'ble High Court that, in their view, the Tribunal was justified in quashing the 2 nd show-cause notice which suffered from the same lacunae of being vague and devoid of any relevant particulars, and that there was no purpose in permitting the petitioners to deal with the replies and pass any further order on the basis of such a vague show-cause notice. The matter was then brought up before the 6 Hon'ble Supreme Court by the respondents. The Hon'ble Supreme Court on 31.10.2017 in Review Petition (C) No.2417-2419 in C.A No.2836- 2838/2017 in Staff Selection Commission v Sudesh, produced at Annexure A4, declared in its judgment dated 31.10.2017 that after carefully going through the review petitions and connected papers, no merit was found in the Review Petition and the same was accordingly dismissed.
7. It is submitted that it was only after the above judgment dated 31.10.2017 was issued, and that too after initiation of Contempt of Court proceedings, that the Staff Selection Commission ultimately declared the results of the applicants and others in January 2018. Ultimately, after completion of all procedural formalities, the applicant could join duty as Inspector (Preventive Officer), Customs only on 20.06.2018. It is submitted by her that for no fault on her part she had lost 4 valuable years of service. Meanwhile batchmates in the CGLE 2012, whose results were not withheld, joined various departments without any hindrance in the year 2014 itself. It is submitted that these batchmates have thus got seniority and other service benefits by reckoning their ranking and merit position in CGLE 2012. Further it is submitted that some other candidates, whose results had been finally declared along with the applicant in 2018, but who joined other departments, i.e., those other than the departments coming under the CBIC, had got their seniority fixed, on the basis of their ranking and merit position in CGLE 2012.
8. The applicant has filed this O.A seeking that her seniority be fixed in the cadre of Preventive Officer (Inspector), Customs in accordance with her 7 merit position in CGLE 2012 by placing her above her batchmates in CGLE 2012, who are lower in merit than her keeping her vacancy year as 2012- 2013. She also prays that she be granted all consequential benefits, including further promotion with effect from the date of promotion of her juniors along with the notional fixation of pay etc. She also seeks quashing of Annexure A7 letter of the Central Board of Indirect Taxes and Customs dated 03.11.2020. In this connection, the applicant has also submitted that the respondents should be directed to take their decision in relation to fixing of her seniority guided by the order dated 03.12.2020 of the Principal Bench of this Tribunal in O.A 69/2015 (Shishpal v SSC & Others). A copy of the said order has been produced at Annexure A5. The Principal Bench, in the O.A 69/2015 had directed the respondents to declare the result of the applicant therein within a time period of 8 weeks. It was directed that in case the applicant was to be eventually appointed, he shall be given consequential seniority along with his batchmates for the examination and that his pay fixation shall be granted on notional basis with reference to his immediate junior in the said department. However, no backwages or arrears were required to be paid. It was also directed that the fixation of seniority and notional pay fixation shall be completed within a time period of four months of his joining the said department.
9. The applicant submits that she had given several representations to the respondents asking for her seniority to be fixed in accordance with her ranking/merit position in CGLE 2012. The representations dated 06.11.2019, 26.11.2019 and 31.12.2020 are produced at Annexure A6 8 series. In the representation dated 31.12.2020 it has been contended that other similarly situated delayed appointees who had joined other Central Government departments, like the Department of Posts, Enforcement Directorate etc., have got their seniority fixed on the basis of their merit in CGLE-2012. However, in her case the seniority is fixed taking the vacancy year 2017-18 in view of the DoP&T instructions and in view of cases subjudice before the Central Administration Tribunal, Delhi. However, the applicant has referred to the directions of the CAT Principal Bench, New Delhi in O.A No.3478/2019 dated 18.12.2020 in her representation dated 31.12.2020. It was pointed out that the Principal Bench in the O.A had once again directed to declare the results of the applicants in 8 weeks. For the purpose of adjusting against a vacancy, the Principal Bench had also directed to create supernumerary post to accommodate the applicants therein. It was also directed to give all consequential benefits of seniority along with the batchmates from the same examination and also notional pay fixation with reference to his immediate juniors. However we note that in this O.A it is indicated at paragraph 14 that the O.A No.3478/2019 (Shahid Idrisha & others v Union of India & others) was allowed by the Principal Bench only on 23.06.2021.
10. Whatever be the case, it is submitted that the respondents have not been taking a positive step in the matter. It is submitted that according to the respondents since no vacancy pertaining to the year 2012 is available for adjustment of candidates, the applicant cannot be considered as belong to the vacancy year 2012 for the purpose of determining her seniority. Further, 9 the impugned order at Annexure A7 also indicates that the Central Board of Indirect Taxes & Customs had also referred this issue to the nodal department (DoP&T) as well as to the Department of Legal Affairs for further directions on the issue. The opinion that has emanated from them is that, as a general principle in terms of DoP&T OM dated 07.02.1986 and 03.07.1986, since no vacancy pertaining to the year 2012 is available for adjustment of these candidates, these candidates cannot be considered as belonging to 2012 vacancy year for the purpose of determining their seniority. Hence the seniority of these candidates can be considered only in that vacancy year against which they would be finally adjusted. The respondents have taken this position that this general rule would apply as nothing in respect of seniority of the candidates had been directed by the Court while considering the cases filed by the CGLE candidates against SSC. (It is to be noted in passing however that the letter at Annexure A7 is dated 03.11.2020, i.e., before the Annexure A5 final order in O.A 69/2015 on 03.12.2020 was passed by the Principal Bench).
11. Meanwhile it is submitted by the applicant that any further delay in re-fixing her seniority in the rank of Preventive Officer (Inspector) Customs on the basis of her merit and rank position in CGLE 2012 will seriously prejudice her as far as her service benefits, including further promotion are concerned. It is submitted that her junior has been promoted as Appraiser as is evidenced by the order at Annexure A8 issued by the Joint Commissioner of Customs (Estt), Chennai - VIII. It is submitted by the applicant that vacancies in any Department are to be determined by the user department. 10 The same are then sent to the recruiting agency. In this case it is submitted that the vacancies were notified to the SSC in the year 2012 itself. Hence all the vacancies existing at that time have been notified in the notification for CGLE 2012. It is submitted that if the user department has utilised the vacancies meant for CGLE 2012 in the notification for a subsequent CGLE, the applicant and others like her should not suffer for that.
12. The applicant also submitted that her case for fixation of seniority in accordance with her merit position in CGLE 2012, by reckoning her vacancy year as 2012-13, is also supported by decisions of various judicial forums. She submits that the judgment of Hon'ble Supreme Court in A. Reghu v State of Andhra Pradesh [C A No.5862/2007], the final order of the Chennai Bench of this Tribunal in O.A No.674/2014, the judgment of the Hon'ble High Court of Delhi in WP(C) 7423/2013 (Government of NCT of Delhi v Rakesh Beniwal) and the judgment of the Hon'ble Supreme Court in Kusheshwar Prasad v State of Bihar [(2007) 11 SCC 447] all support her position.
13. In response to these detailed contentions, the respondents have preferred to file only a very short statement, in which, they solely rely and draw attention to the circular dated 03.11.2020, produced as the impugned order Annexure A7, to establish their position. They also have attached Annexure R1 with their reply statement which is a copy of another Circular No.05/2021 dated 22.11.2021, which had clarified the matter relating to fixation of seniority and other consequential benefits in the grade of Inspector (Examiner) of candidates selected through the additional result of 11 Combined Graduate Level Examination, 2012 by referring to the CAT order dated 23.06.2021. It is indicated in this circular that the respondents had been directed by the CAT order to fix the seniority of the applicants in the post of Inspector (Central Excise and Customs) duly taking into account the relevant guidelines, invite objections on tentative seniority list and publish final list. It is also indicated in the letter in the third paragraph that the DoP&T, being a nodal Department in the service matters, had been consulted and it is clarified that as a general principle in terms of DoP&T OM dated 07.02.1986 & 03.07.1986, the additional direct recruits selected against the carried forward vacancies of the previous years would be placed en-bloc below the last promotee or DR, as they case may be, in the seniority list based on the rotation of vacancies for that year. Further the letter also indicates that since no vacancy pertaining to the year 2012 is available for adjustment of these candidates, these cannot be considered as belonging to the 2012 vacancy year for the purpose of determining their seniority. Hence, seniority of these candidates can be considered in only that vacancy year against which they would be finally adjusted.
14. All the cadre controlling authorities were directed to take suitable action regarding the additional candidates of CGLE 2012 wherever they have been posted as per the above instructions in the Annexure R1 letter dated 22.11.2021.The respondents also submit that after the additional result of the CGLE 2012 was published, as many as 122 officers were appointed and allocated to various cadre controlling authorities across the Central Board of Indirect Taxes and Customs. As no vacancies of the year 2012 12 were available, the officers had to be adjusted against the vacancy year 2017-18 as per these instructions. It is submitted that the applicant is one just among the 122 officers appointed by the Department vide the additional result of CGLE 2012. Hence, as indicated in the Board's letter dated 03.11.2020 (Annexure A7 also produced as Annexure R2), she can be adjusted only against the vacancy year 2017-18 in pursuance of the uniform stand taken by the Board on similar appointments with various Cadre Controlling Authorities across the country.
15. Learned Counsel for the applicant Shri R. Sreeraj, has contested the above interpretation/position taken by the respondents during oral submissions. He produced another recent order of the Principal Bench dated 07.02.2023 in an identical matter in O.A No.341/2022 (also Shahid Idrisha & others v Union of India & others). The Principal Bench relied on an earlier order passed by the Principal Bench of this Tribunal in O.A 3001/2017 which had held that the applicant therein would be entitled for consequential seniority, depending on merit in the said selection process. It was also held that he shall also be entitled for fixation of pay on notional basis with reference to his immediate junior, but not be entitled for back wages or arrears or fixation of pay. Thus relying on this order, the Principal Bench allowed the O.A 341/2022 directing the competent authority among the respondents to pass an order giving appropriate seniority to the applicants with effect from the dates of their batchmates who joined the services pursuant to CGLE-2012 were given, strictly on notional basis. It was also ordered that the applicants would be entitled for consequential 13 benefits, including but not restricted to, promotion and re-fixation of salary and allowances. No claim was allowed for the arrears of such financial benefits as the award of the same would be on a notional basis.
16. Further, in the rejoinder to the reply to the reply statement the applicant submitted that the respondents have misconstrued the DoP&T O.Ms dated 07.02.1986 & 03.07.1986 because the sentences extracted and reproduced in the short reply statement only deal with the situation when required number of direct recruits were not available in a particular vacancy year. However, the situation was entirely different in the present case as the directs recruits were very much available. It was just that the respondents prevented their appointment by illegally withholding their results. It is pointed out in the rejoinder that all the three judicial forums upto the Hon'ble Supreme Court had declared that the action of the respondents was illegal. Ultimately, they were forced to declare the results and appoint the applicant and others whose results were withheld. It is submitted in the rejoinder that in such a situation, where non-availability was due to the illegal prevention from being available, the respondents cannot compare the situation with a case of genuine non availability and consequential carrying forward of vacancies and deny the applicant seniority based on her success/merit in CGLE-2012. It would be like permitting the respondents to take undue and unfair advantage of their own wrong. It is submitted that the recruiting agency declares the results keeping in mind the requirement of the user department as well. In the present case the vacancies were notified to the SSC in the year 2012 itself. Hence the plea of no vacancy does not 14 hold water. If the department had utilized the vacancies of the year 2012 for subsequent recruitment, the applicant is not supposed to suffer the consequence. It is submitted that this discrimination has been done in the Central Board of Indirect Taxes and Customs, a point on which the respondents have not made any comments in their reply statement.
17. After going through the above contentions, we are of the opinion that, overall, the applicant has made a persuasive case in light of orders of the Principal Bench of Tribunal which have either been produced or referred to. The Principal Bench's order at Annexure A5 along with its order in O.A 341/2022 which in turn depended on the orders in O.A 3001/2017 were apparently passed in cases of identically situated applicants working in the same Central Board of Indirect Taxes and Customs. These orders have allowed the applicants therein the fixation of appropriate seniority depending on merit in the selection process conducted through the CGLE- 2012. Specifically, the order in O.A 341/2022 of the Principal Bench has directed the respondents to give the applicants therein seniority on a notional basis with effect from the date their batchmates who joined the service pursuant to CGLE-2012. The order has also extended consequential benefits, such as including but not restricted to, promotion and refixation of salary and other allowances. It has also been indicated that the applicants would have no claims to the arrears, as the award is on notional basis.
18. We feel that the respondents have not adequately defended their position in their reply statement, except bringing to notice the circular at Annexure R1 dated 23.11.2021. From the statement the main defence is that 15 no vacancy pertaining to 2012 was available for the adjustment of the candidates who were appointed in the year 2018. Hence, they cannot be considered as belonging to 2012 vacancy years for the purpose of determining their seniority. However, in this connection the point made by the applicant in the rejoinder in relation to the points relied on by the respondents by referring to the DoP&T OMs dated 07.02.1986 and 03.07.1986 has not been countered. The applicant had contended that these O.Ms were issued in a different context, in relation to when the number of direct recruits were not available in a particular year and the vacancies then needed to be carried forward. The applicant's point is that the vacancies were carried forward only due to what had been subsequently found by the Tribunal and higher judicial forums to be an illegal action taken by the respondents. It was the 4 th respondent, Staff Selection Commission who wrongly took the position that there had been gross irregularities in the conduct of the examination. This position could not be sustained in any of the judicial forums. Thus the question posed by the applicant that whether the mistake or wrong premise on the part of SSC be allowed to influence their future service conditions, including seniority which they would have been entitled to in the normal course is quite relevant.
19. In view of these consideration and in respectful agreement with the orders passed by the Principal Bench in O.A 341/2022 dated 07.02.2023, we direct the competent authority among the respondents to pass orders giving the appropriate seniority to the applicant with effect from the date her batchmates who joined the appropriate cadre under 16 the Central Board of Indirect Taxes and Customs have been given in terms of the merit position in the CGLE 2012 examination. This will however be done only on a notional basis. The applicant would also be entitled to the consequential benefits which could include promotion and re-fixation of her pay and other allowances. However, she will not have any claim to any arrears of such financial benefits, as the award of the same is on a notional basis. We also direct that the action to be taken by the respondents will be completed within a period of three months from the date of receipt of a copy of this order.
20. The O.A is allowed as indicated above. An M.A No.180/957/2022 filed by the respondents to delete the 1st and 2nd respondents from the array of parties is not allowed. There shall be no order as to costs.
(Dated this the 13th day of June, 2023)
K. V. Eapen Justice Sunil Thomas
(Administrative Member) (Judicial Member)
bp
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List of Annexures
Annexure A1- True copy of the final order dated 30.07.2014 in O.A 930/2014 &
connected cases (Sudesh v SSC & others) on the file of the Principal Bench. Annexure A2- True copy of the final order dated 17.09.2014 in O.A 2839/2014 (Devender Yadav v SSC & others) and connected cases on the file of the Principal Bench of this Tribunal.
Annexure A3- True copy of the judgment dated 19.12.2014 in WP(C) 9055/2014 on the file of the Hon'ble High Court of Delhi.
Annexure A4- True copy of the order dated 31.10.2017 in Review Petition (C) 2417-2419 (Staff Selection Commission & another v Sudesh) on the file of the Hon'ble Supreme Court.
Annexure A5- True copy of the final order dated 03.12.2020 in O.A 69/2015 (Shishpal v SSC & others) on the file of the Principal Bench of this Tribunal. Annexure A6- True copy of the representation dated 06.11.2019 submitted by the applicant.
Annexure A6A- True copy of the representation dated 26.11.2019 submitted by the applicant.
Annexure A6B- True copy of the representation dated 31.12.2020 submitted by the applicant.
Annexure A7- True copy of the letter F.No.A32018/14/2019-Ad.IIIA dated 03.11.2020 issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs.
Annexure A8- True copy of the order No.214/2020 dated 31.12.2020 issued by the Joint Commissioner of Customs (Estt) Chennai - VIII.
Annexure R1- True copy of F.No.A-32022/11/2019-Ad.III.A dated 22.11.2021 - Circular No.5/2021.
Annexure R2- True copy of CBIC's clarification in F.No.A 32018/14/2019- Ad.III.A dated 3rd November 2020.
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