Central Administrative Tribunal - Ernakulam
K.P. Ravikumar vs Union Of India on 10 February, 2016
Author: P. Gopinath
Bench: P. Gopinath
o;? CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 943 of 2013
Wednesday, this the 10th day of February, 2016
CORAM:
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
1. K.P. Ravikumar, aged 59 years, S/o. Late M. Pankajakshan Nair,
Superintendent of Central Excise Customs, Ambalamugal Range,
Thripunithura, residing at 'Sreehari' North Gate, Vaikom.
2. P.P. Panicker, aged 54 years, S/o. Late G.P. Nair,
Superintendent of Central Excise & Customs, Cochin
Commissionerate, CR Buildings, I.S. Press Road, Cochin,
residing at Pallavi, Edappally North,
Cochin - 682 024. . . . . . Applicants
(By Advocate : Mr. Shafik M.A.)
Versus
1. Union of India, represented by the Secretary,
Department of Revenue, Ministry of Finance,
North Block, New Delhi - 110 011.
2. The Chairman, Central Board of Excise & Customs,
Department of Revenue, Ministry of Finance, North Block,
New Delhi - 110 011.
3. The Chief Commissioner of Central Excise & Customs,
Kerala Zone, CR Buildings, I.S. Press Road,
Cochin - 18.
4. Mahesh Kumar, S/o. Late R. Udayabhanu, aged 56 yrs.
Superintendent of Central Excise, C.R. Buildings, I.S. Press
Road, Kochi - 18, residing at D-3, R.P. Apartments,
Mathrubhoomi Road, Vanchiyoor PO,
Thiruvananthapuram - 695 035.
5. K.B. Mohandas, aged 54 yrs., S/o. Late Bhaskaran Pillai,
Superintendent of Central Excise, C.R. Buildings,
I.S. Press Road, Kochi - 18, residing at Neethu Nivas,
Fr. Manuel Road, Kathrikkadavu, Kaloor, Kochi - 17.
6. Jayanath P. Narayanan, aged 56 yrs., S/o. P. Narayanan,
Superintendent of Central Excise, C.P. Building, I.S. Press Road,
Kochi - 18, residing at 34/243, Vignesh Government High School
Road, Edappally, Kochi -24.
7. V.A. Joseph George, Aged 56 yrs., S/o. Antony George,
Superintendent of Central Excise, C.R. Buildings,
I.S. Press Road, Kochi - 18, residing at 32/2239, New Kalavath Road,
Palarivattom, Kochi - 25.
8. C. Haridas, aged 52 yrs., S/o. Late K.A. Chakrapany Warrier,
Superintendent of Central Excise, C.R. Buildings, I.S. Press Road,
Kochi - 18, residing at House No. 18, Mercy Gardens,
Elamakkara, Kochi - 26. . . . . Respondents
[By Advocates : Mrs. Mini R. Menon, ACGSC (R1-3) &
Mr. P. Ramakrishnan (R4-8)]
This application having been heard on 21.01.2016, the Tribunal on
10.02.2016 delivered the following:
ORDER
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member -
The two applicants in this case have approached this Tribunal for a declaration that they are entitled to be granted the same benefits as in Annexure A2 order and to reckon their service prior to the inter- commissionerate transfer for promotion from 30.9.1996 based on their date of joining and also for a direction to the respondents to convene a review DPC and to promote the applicants as Superintendents with effect from 30.9.1996 and to grant all consequential benefits including arrears of salary with interests.
2. When this Original Application was filed the applicants were working as Superintendents of Central Excise at Ernakulam. The 1 st applicant joined the service on 1.12.1978. He was selected in the competitive examination conducted by the Subordinate Services Commission. He joined Kochi Commissionerate on 20.12.1984 on inter-commissionerate transfer and was promoted as Superintendent on 23.9.2002. The 2nd applicant joined the service at Bombay at 26.11.1980. He joined the Kochi Commissionerate on getting inter-commissionerate transfer on 30.4.1985. He was subsequently promoted as Superintendent on 23.9.2002. Consequent upon the restructuring of the Central Excise Department in 1996, the Ministry of Finance upgraded 716 posts of Inspectors of Central Excise to the level of Superintendents in the first phase of restructuring of Grade-B and C officers abolishing same number of posts of Inspector of Central Excise to reduce stagnation. The promotion was effected all over India on 30.9.1996. The Cochin Commissionerate promoted 80 Inspectors in the first phase in 1996 as per order dated 30.9.1996. 62 Inspectors were promoted in the second phase in 1997 as per order dated 29.8.1997. The applicants were not given promotion even though they have fulfilled the eligibility criteria of regular service of eight years and were having more than 16 & 18 years of continuous service as Inspector of Central Excise from the date of joining i.e. 1.12.1978 and 26.11.1980 respectively. OA No. 651/1997 was filed before the Principal Bench of this Tribunal by similarly placed officers and as per order dated 26.8.1997 the Tribunal set aside the promotion order issued by the Commissioner of Delhi and directed that promotion to all the upgraded post of Superintendents shall be made strictly by selection from among the candidates who possess the requisite number of years or regular service in the grade in accordance with the Recruitment Rules of the gradation list prepared on the basis of the length of service in the grade (vide Annexure A2).
3. Annexure A2 order passed by the Tribunal was confirmed by the High Court of Delhi in Writ Petitions Nos. 405/1997 and 4900/1997, vide Annexure A3. Annexure A3 judgment was challenged before the Supreme Court. The SLP was disposed of as per judgment dated 10.12.2010, vide Annexure A5. Annexure A4 judgment was also challenged before the Supreme Court and it was dismissed by the Hon'ble Supreme Court. The order passed by the Tribunal was partly implemented by the Delhi Commissionerate of the Central Excise vide Annexure A7. On coming to know of that order the applicant submitted Annexure A8 representation. Similarly placed officials also approached the Chandigarh Bench of the Tribunal. That Tribunal passed Annexure A9 order. That order was implemented by the Chandigarh Commissioner. Annexure A10 representation submitted by the applicant was rejected. It was communicated as per Annexure A11 letter. The respondents are in the process of next cadre restructuring. Annexure A13 letter has been issued for that purpose. At present the 1st applicant is shown as serial No. 3096 in a list of 3430 officials. Name of the 2nd applicant is not in the list at all.
4. The respondents 1 to 3 filed reply statement contending as follows:
The issue involved in this case was the subject matter in OA No. 415 of 1996 filed by Shri B.P. Vipinchandran, Inspector of Central Excise. This Tribunal had considered and examined Annexure A2 order of the Principal Bench as well as the order passed by the Jaipur Bench and held that the applicant has first to be within the zone of consideration for promotion on the basis of his seniority in the Cochin Commissionerate and that from the materials available it was seen that the applicant therein did not come within the zone of consideration for promotion on the basis of seniority in Cochin Commissionerate (vide Annexure R1). That order was upheld by the High Court of Kerala vide Annexure R2. The applicants joined Cochin Commissionerate only on 28.12.1994 and 30.4.1985 respectively on inter-
collectorate transfer after volunteering to forgo their seniority in the erstwhile collectorate for the purpose of seniority vide Annexure R3. The order of transfer was not in public interest but purely on compassionate grounds on the request made by the respective applicants. The transferee used to be placed at the bottom seniority. It was so clarified as per Annexure R4 order of DoP&T dated 3.7.1986. The applicants had not challenged the conditions specified in Annexure R3 order for inter-
collectorate transfer on compassionate grounds and they had acquiesced to the same. Various seniority lists issued by the Cochin Collectorate were published and those lists were never challenged by the applicants. From 1996 onwards, as part of restructuring of Group-B and Group-C posts in Customs and Central Excise Departments, 79 posts of Superintendents of Central Excise were allotted to Cochin Commissionerate as per Annexure R5 order dated 10.9.1996. It was specifically directed that the promotion to the upgraded posts of Superintendents should be made as per the laid down principles of promotion.
5. The DPC held on 26.9.1996 considered 82 vacancies in the cadre of Superintendents for the year 1996-97 including 79 upgraded ones and promotions were made as per instructions contained in DoP&T letter dated 10.4.1989. Promotion to the post of Superintendent of Central Excise is to be made from Inspectors of Central Excise with 8 years of regular service in the grade. Shri Vijayagopalan Nair who joined the Cochin Central Commissionerate on 17.11.1980 was the last Inspector belonging to the general category promoted as Superintendent in the DPC held on 26.9.1996. He was at serial No. 358 in the seniority list as on 1.1.1994 (Annexure R6). The applicants herein were placed at serial Nos. 527 and 555 respectively and hence they were not promoted. The 2 nd phase of restructuring was ordered as per Annexure R7 upgrading 66 posts of Inspectors of Central Excise to Superintendent of Central Excise. Consequently a DPC was held on 18.6.1997 for filling up 73 vacancies (including 66 upgraded vacancies) for the year 1997-98. Shri Prahaladan who joined as Inspector on 1.6.1982 was the last officer belonging to the general category promoted in the DPC held on 18.6.1997. He was at serial No. 437 in Annexure R6.
6. Past service in the erstwhile collectorate could be taken in to account only for the purpose of eligibility for promotions in terms of the Recruitment Rules and not for the purpose of counting seniority in the new collectorate. In the present case no Inspectors junior to the applicants other than those belonging to the reservation category were promoted prior to the promotion of the applicants. The official memorandum issued by the DoP&T on seniority and promotions have statutory backings in terms of the authority given to the DoP&T as per Government of India (Allocation of Business) Rules, 1961. The rules were framed invoking the provisions of Article 77 of the Constitution of India. The claim made by the applicants that they had fulfilled the eligibility criteria of required service of 8 years and were in fact having more than 15 years of continuous service does not confer on them any preference for promotion as they were juniors to other eligible candidates. A number of Inspectors who were seniors to the applicants and were having more than 15 years of service in the grade of Inspectors of Central Excise were not promoted either in 1996 or in 1997 DPC for want of vacancies in the cadre of Superintendent of Central Excise in Cochin Commissionerate, even after the 2 nd phase of restructuring. The eligibility and seniority are quite distinct, different and independent of each other. It is not appropriate at this late stage for the applicants to make a grievance relating to seniority since it would result in overturning long standing seniority position.
7. During the period from 30.9.1996 and 23.9.2002 a large number of Inspectors who are far seniors to the applicants were promoted as Superintendents. Those officers were promoted 25 years back and their seniority has been maintained till date. The applicants did not implead any of those officials whose seniority will be affected if the claim made by the applicants is allowed. Therefore, on the ground of non-impleadment of parties likely to be affected also this Application is liable to be dismissed.
8. 716 posts of Inspectors were upgraded to the level of Superintendents, abolishing the same number of posts of Inspectors of Central Excise as part of restructuring of Group-B and C in the Customs and Central Excise. 79 posts of Superintendents of Central Excise were allotted to Cochin Commissionerate as per order dated 10.9.1996 [Annexure R4(d)]. It was clearly stipulated in that order that promotions to the upgraded posts of Superintendents should be made as per the principles laid down regarding promotion. In implementation of the same, in the first phase the DPC met on 26.9.1996 for effecting promotions to 82 vacancies in the cadre of Superintendents of Central Excise for the year 1996-97 including 79 upgraded vacancies. In the first phase 82 senior Inspectors with serial Nos. 266 to 358 in Annexure R4(a) seniority list were promoted as Superintendents on 30.9.1996 to the then available vacancies. The second phase of restructuring had been ordered as per letter dated 29.5.1997. As per Annexure R4(e) order 66 posts of Inspectors were upgraded to the posts of Superintendents of Central Excise. For effecting promotions to those vacancies a DPC had been held on 18.6.1997 for filing up 73 vacancies including the 66 vacancies mentioned above.
9. The applicants were far below in the seniority list of Inspectors and so they did not come in the zone of consideration. One Shri M.P. Bipinchandran who was at serial No. 648 in Annexure R4(a) seniority list mentioned above approached this Tribunal by filing OA No. 415 of 1996 seeking promotion as Superintendent counting his past service. He had also come on inter-commissionerate transfer to Cochin on loss of seniority. Relying on the dictum laid down by the Hon'ble Supreme Court in Renu Mullick (Smt.) v. Union of India & Anr. - 1994 (1) SCC 373 and other decisions of the Supreme Court this Tribunal dismissed the case of applicant therein Mr. Bipinchandran vide Annexure R4(f). That order was challenged before the Hon'ble High Court. The Hon'ble High Court confirmed the order of this Tribunal vide Annexure R4(g). The applicants in this case also stand on the same footing as the applicant in Annexure R4(f). Annexures A2 to A5 orders are inapplicable to the facts of this case. As the entire restructured vacancies had been filled up by eligible officials in 1997 on the basis of their higher seniority position, the applicants cannot now stake a claim at this distant point of time realizing the fact that further promotions are on the anvil. The applicants are attempting to rake up stale and untenable claims without any legal or rationale basis.
10. Heard the learned counsel for the parties and perused the pleadings and records of the case.
11. The following points arise for consideration :
Whether Annexure A1 order is liable to be quashed and whether the applicants are entitled to be granted the benefits of Annexure A2 order and whether they are entitled to reckon their service prior to the inter-
commissionerate transfer for promotion with effect from 30.9.1996 based on their date of joining ?
12. Annexure A1 order was passed by the Ministry of Finance, Department of Revenue on 11.4.2013 based on a representation made by the applicants in 2013. In the said representation the applicants wanted the Department to grant them promotions to the grade of Superintendent in the light of the decision in I.C. Joshi rendered on 26.8.1997 in OA No. 651 of 1997. The learned counsel for the applicants would submit that the said decision was confirmed by the High Court and it attained finality. The respondents replied that the orders of promotion were issued based on the existing provisions of DoP&T. It was stated that the transferee will be placed below all the officers appointed regularly to that post/grade on the date of his/her appointment on transfer basis in terms of paragraph 3.5 of DoP&T's OM dated 3.7.1986. It was further clarified that such a transferee will be junior to those regularly promoted officers prior to his/her transfer. However, such a transferred officer will retain his/her eligibility of the parent commissionerate for his/her promotion to the next higher grade etc. It was further observed that the said order/direction issued by the DoP&T was accepted and upheld by the Apex Court in the decision in Union of India & Ors. v. Deo Narain & Ors. - 2008 (10) SCC 84 and Narottam Rath's case in Civil Appeal No. 5357 of 2008. Hence, it was found that the applicants are not entitled to get the benefits of the decision in I.C. Joshi's case.
13. The learned counsel for the applicants would vehemently argue that in the light of the decision rendered in I.C. Joshi's case (Annexure A2 order) which was confirmed by the High Court in Annexure A3, the contentions now raised by the respondents cannot be sustained. It is stated that as per Annexure A4 (the order subsequently passed) the benefits which were ordered to be given to the applicants in Annexure A2 were already granted and so the official respondents are estopped from contending otherwise. This submission made by the learned counsel for the applicants is stiffly resisted by the respondents including the party respondents. Even in Annexure A3 it was held by the High Court that the promotions given to the writ petitioners as per order dated 30.1.1996 should not be disturbed. The applicants were not parties to that case. Relying upon Annexures A5 & A6 it is submitted by the learned counsel for the applicant that Annexure A3 judgment passed by the High Court was confirmed by the Hon'ble Supreme Court and so the respondents cannot now raise any objection regarding the promotion which the applicants are entitled to get relying on the order in OA No. 651/1997 of the Principal Bench of this Tribunal. It is pointed out by the learned counsel for the respondents 4 to 8 that no ratio as such was laid down by the Hon'ble Supreme Court. It was held by the Hon'ble Supreme Court in Municipal Committee, Amritsar v. Hazara Singh - (1975) 1 SCC 794 that only a statement of law in a decision is binding. In State of Punjab v. Baldev Singh - (1999) 6 SCC 172 it was observed by the Supreme Court that everything in a decision is not a precedent. Same is the view taken by the Hon'ble Supreme Court in Delhi Administration v. Manohar Lal - (2002) 7 SCC 222, Divisional Controller, KSRTC v. Mahadeva Shetty - (2003) 7 SCC 197 and Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd.
- (2007) 1 SCC 408.
14. The promotion to the post of Superintendent is regional wise. It is the admitted case that the 1st applicant joined the Cochin commissionerate on 28.12.1984 on inter-commissionerate transfer. The 2nd applicant joined the Cochin commissionerate on inter-commissionerate transfer on 30.4.1985. It is also not disputed that the applicants mentioned above obtained transfer on their own volition forgoing their seniority and were placed at the bottom most seniority in Cochin commissionerate. That took place in 1984 and 1985. It is also not disputed that for promotion to the post of Superintendent the length of service required is 8 years. Now the plea advanced by the applicant is that if the service rendered by the applicants prior to the transfer is also added then the applicants were entitled to get promotion when respondents 4 to 7 and other persons were promoted as Superintendents in 1997. Since the applicants got voluntary transfer of their own choice abandoning their seniority position in Mumbai Commissionerate they cannot contend that they should be placed above the other officers in the Cochin Commissionerate. After having obtained transfer on their own individual request and also agreeing to be placed on bottom seniority they cannot now contend that their position should have been otherwise. Though for eligibility for promotion their length of service in the other organization also can be counted that does not mean that the applicants who came on bottom seniority in 1984 and 1985 can march over the officers who were already in Cochin Commissionerate.
15. It is vehemently argued by the learned counsel for respondents 4 to 8 that the 4th respondent was promoted as Superintendent on 1.7.1997. Respondents 5 to 7 were promoted as Superintendent on 29.8.1997. The 8th respondent and also the applicants herein were promoted as Superintendent on 23.9.2002. It is pertinent to note that the seniority position as it existed in 1996 were duly published. That seniority list was not questioned by the respondents at the appropriate time. Now this claim is staked by the applicants after about 1B= decades. This OA is filed only in the year 2013. A stale claim cannot get resuscitated by submitting representation on the eve of filing of the OA and then getting an adverse order on such a representation [see the decisions of the Supreme Court in C. Jacob v. Director of Geology and Mining & Anr. - (2008) 10 SCC 115]. It is also pointed out by the learned counsel for the respondents that during 30.9.1996 and 23.9.2002 a large number of Inspectors who were far seniors to the applicants were promoted as Superintendents. If the relief sought for by the applicants is to be allowed then the applicants would steal a march over all the Inspectors promoted as Superintendents between 30.9.1996 and 23.9.2002. It is also pointed out that the applicants have now come forward with this application staking a claim on a fallacious premise that they are entitled to be given promotion with retrospective effect, that is from 1996, realizing the fact that further promotions are on the anvil.
16. The applicants were treated as having entered in the cadre of Inspectors of Cochin Commissionerate on 28.12.1984 and 30.4.1985 respectively since they were to be placed on bottom seniority in view of the fact that they were transferred on the individual requests made by the applicants who agreed and accepted the condition that they would be on bottom seniority. Accordingly, as the seniority position stood they were promoted as Superintendents on 23.9.2002. Contending that their past service should be reckoned while considering the eligibility criteria they should have been placed above others and so they should have been promoted in 1996 is fallacious, unsound and unreasonable. It is unreasonable to think that the applicants can ignore the seniority position of other officers. The reckoning of the past services for promotion would arise only when the applicants are denied promotions in spite of the existence of vacancies to accommodate the applicants also and if the authorities refuse to grant promotion on the ground that they have not satisfied the length of service. At the risk of repetition it has to be said that eligibility for promotion is one thing and it cannot be confused with seniority. They are two different and distinct factors (see also the decision rendered by the Hon'ble Supreme Court in [Scientific Advisor to Raksha Mantri & Anr. v. V.M. Joseph - 1998 (5) SCC 305]. The Hon'ble Supreme Court, in A.P. State Electricity Board & Ors. v. R. Parthasarathi & Ors. - (1998) 9 SCC 425, clarified the position and distinction had been drawn between eligibility on the one hand and seniority on the other, the two concepts being distinct and separate. As the seniority position then stood the applicants were not seniors entitled to be promoted to the structured vacancies of Superintendents then available.
17. Much has been argued by the learned counsel for the applicants relying on the decision in I.C. Joshi's case (Annexure A2 order) rendered by the Principal Bench of this Tribunal. Even in Annexure A2 it was held that when the question of consideration for promotion arises it would be as per their turn in the seniority list. In other words, only then the loss of seniority of the applicants will have effect. It was held that the past regular service in the previous collectorate cannot be ignored for the purpose of determining their eligibility to the post in accordance with the rules. As we have already stated here, the question is not eligibility. With regard to the post then available the officers who were seniors, than the applicants, were promoted. That promotion was not challenged by the applicants till the representation was given by them in 2013. The applicants cannot sit quiet for decades together and watch the result of the litigations taken up by some other persons and then come to the court after several years to rake up stale and dead claims.
18. Annexure A2 has no bearing on the facts of this case. Here it is not a case where the promotion was denied on the ground that the applicants did not have the length of service but because the applicants were juniors in the seniority list which was published in 1996. A clever attempt has been made to confuse 'eligibility' with the 'seniority'. Annexure A3 also does not come to the help of the applicants herein since the facts dealt with in Annexures A2 and A3 are entirely different. It is stated that it was confirmed by the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the SLP on the ground of delay. No stamp of approval was given to the decisions rendered in Annexures A2, A3 and A4 etc. No ratio as such has been laid down by the Hon'ble Supreme Court, against the settled position in Renu Mullick and other decisions on the point cited supra. Therefore, the contention that the applicants are to be granted promotion based on the order passed in Annexure A2 confirmed in Annexure A3 is only to be brushed aside.
19. The applicants cannot get themselves equated with the other officers who were already there in Cochin Commissionerate as on the date when the applicants were transferred (on their own request and volition) in 1984 and 1985 respectively. It is not a case where officers who were juniors to the applicants were granted promotion on the ground that they had the required length of service in Cochin Commissionerate but the applicants were denied promotion on the ground that they did not satisfy the length of service. That apart all those questions cannot now be raked up after about 15 years since the cause of action arose immediately after 1996. Even the prayer made in this application is to promote the applicants with effect from 30.9.1996 based on their date of joining. It is inconceivable how such a claim could be made. It is curious to note that the applicants who are well aware of the fact that more than 100 persons who were above the applicants were already promoted prior to 2002 were not at all made parties in this proceedings. Respondents 4 to 8 have came on their own by filing a petition for impleadment.
20. Annexure A5 judgment of the Hon'ble Supreme Court rendered in a case filed by another officer challenging Annexures A2, A3 and A4 also does not affect the case of the respondents and other similarly placed officers since even in Annexure A5 it was held by the Hon'ble Supreme Court that the order giving seniority to the respondents therein namely the applicants in the OA does not in any manner change the nature and character of the directions issued by the High Court stating and holding that the question of inter se seniority among the parties was left open as the same did not arise in the Writ Petition.
21. The contention raised by the applicants herein that they are not questioning the seniority is only an attempt to wriggle out of the situation. The promotions were effected in 1996 based on the seniority position as it existed then. The applicants got themselves transferred to Cochin Commissionerate on bottom seniority. Therefore, the applicants cannot now unsettle the settled seniority position.
22. In this connection the respondents would also rely upon the decision rendered by this Tribunal in OA No. 415 of 1996. The applicant Mr. Bibin Chandran raised similar contention as raised in this OA. He contended that the benefit of past service with effect from 12.6.1979 should be reckoned for the purpose of seniority and promotion irrespective of the transfer to the Commissionerate of Cochin. The applicant therein joined the Bombay Collectorate on 12.6.1979. On 12.5.1983 he applied for transfer to Cochin Commissionerate and accordingly he was transferred as per order dated 23.12.1988 and joined the Cochin Collectorate/Commissionerate on 3.1.1989. Similar contentions were raised by the applicant therein and that too in 1996 itself and not in 2013 as done by the applicants herein. After considering all the aspects the claim made by the applicant therein was turned down by this Tribunal by Annexure R1. He challenged the same before the High Court of Kerala filing OP 12420/1998 (Annexure R2). Similar contentions were raised by Mr. Bibin Chandran the applicant/petitioner therein as raised by the applicants herein.
23. The short question which fell for consideration before the Hon'ble High Court in Annexure R2 was 'can be petitioner be permitted to jump the queue and claim promotion to the post of Superintendent before persons senior to him have been considered or promoted ?' It was found that the applicant therein joined the Cochin Collectorate on 3.1.1989 and his name was included in the seniority list on the basis of his having joined the Collectorate/Commissionerate on that date. He was placed at the top of the 1989 batch. As in this case there was no case that persons who had joined the Cochin Commissionerate after the applicant therein joined there, was considered or promoted to the post of Superintendents. Here also the applicants have no case that the officers who had joined the Cochin Commissionerate after the dates when the applicants herein joined Cochin Commissionerate were granted promotion. The contentions similar to the one raised herein was raised before the High Court. It was contended that the eligibility of the petitioner for promotion to the post of Superintendent has to be considered on the basis of his having joined the service as an Inspector in 1979 and if the claim is so considered the petitioner is entitled for promotion. That contention was held to be misconceived. It was noted that the petitioner therein was transferred from Bombay Collectorate to the Cochin Collectorate at his own request. It was also not disputed that the condition precedent for transfer was that the petitioner shall be placed at the bottom of the seniority list as existing at the time of his transfer. Similar is the position in this case as well. It was held by the High Court that the petitioner (therein) cannot claim, merely by virtue of his previous service, that he is entitled to be considered for promotion before persons who are far senior to him in the seniority list are considered. The Supreme Court decision in Renu Mullick v. Union of India - AIR 1994 SC 1152, Union of India v. C.N. Ponnappan - AIR 1996 SC 764, Scientific Advisor to Rakshamantri v. V.M. Joseph - 1998 (5) SCC 305 and Dwijen Chandra Sarkar & Anr. v. Union of India - AIR 1999 SC 598, were considered by the High Court in Annexure R2. It was held that the basic rule enunciated in the cases aforecited is that the period of service rendered by an employee in a particular department prior to his transfer counts as experience. Thus, while considering the eligibility of a person, the service rendered by him in another department or Collectorate shall be taken in to account while determining his eligibility. If the qualification for promotion to the post of Superintendent was a particular length of service, while determining the eligibility, the period of service rendered by the petitioner from June 12, 1979 onwards shall also be taken in to consideration. But the rule as enunciated by the Supreme Court cannot be read to mean that merely being eligible, the petitioner becomes entitled to jump the queue and steal a march over persons senior to him. This is exactly what the applicants wanted to do in this case. They wanted to jump the queue and steal a march over the persons who were seniors to them. It was held in Annexure R2 as under:
'13. . . . . . . . Thus, while considering the eligibility of a person, the service rendered by him in another department or Collectorate shall be taken in to account while determining his eligibility. In other words, if the qualification for promotion to the post of Superintendent was a particular length of service, while determining the eligibility, the period of service rendered by the petitioner from June 12, 1979 onwards shall be taken in to consideration. However, the rule as enunciated by their Lordships cannot be read to mean that by merely being eligible, the petitioner becomes entitled to jump the queue and steal a march over persons senior to him. If this were to be permitted, the loss of seniority on transfer ordered at the instance of the employee would lose all meaning. The acceptance of the petitioner's claim would imply that his seniority shall remain unaffected. Such is admittedly not the position under the rules.'
24. The High Court after referring to Renu Mullick and other cases held that the petitioner's seniority has been rightly fixed in the new Collectorate as a new entrant of 1989 (the applicant therein). When his turn for promotion comes, the entire service rendered by him shall be considered to determine his eligibility as prescribed under the rules. Here also it is not a case where the applicants were denied promotion on the ground that they did not satisfy the length of service but because they were in the bottom seniority position. Only those persons who were above the applicants were granted promotions.
25. The learned counsel for the party respondents 4 to 8 would also submit that Annexure R2 is relied upon for another aspect also. In Annexure R2 also only one person was impleaded. The High Court held that it will not amount of impleading all, especially when, it is clear from the records that there are at least 342 persons senior to the petitioner. Here nobody was impleaded. Respondents 4 to 8 came on their own by filing petition for impleading. As stated earlier more than 100 persons who are seniors to the applicants were promoted and none of them were impleaded in this case presumably on a fallacious premise that by not impleading those persons the applicants can get orders as sought for by them in the OA. The contention that there is no necessity for impelading such persons since it is for the official respondents who are to implement the order is too tenuous to be countenanced. It is the right of the persons who had already been promoted that will be affected if the claim made by the applicants are to be allowed. Therefore, non-impleadment of the officers who are promoted in 1996-1997 etc. is also fatal to the claim made by the applicants. However, we are deciding the case on merit itself and not on the ground of non-impleadment.
26. It is contended by the respondents that 716 number of posts of Inspectors were upgraded to the level of Superintendents abolishing the same number of posts of Inspectors of Central Excise as part of restructuring of Group-B and Group-C posts in the Customs and Central Excise. According to the respondents 79 posts of Superintendents in the Central Excise were allotted to Cochin Commissionerate as can be seen from Annexure R4(d). It is stipulated in Annexure R4(d) that promotion to the upgraded post of Superintendent should be made as per the prescribed principles of promotion. Accordingly, the 1st phase of DPC met on 26.9.1996 for effecting promotions to 82 vacancies in the cadre of Superintendents for the year 1996-97 which include the 79 posts which were allotted to Cochin Commissionerate as per the restructuring made as just mentioned above. Thus, according to the respondents serial Nos. 266 to 358 in Annexure R4(a) were promoted as Superintendents on 30.9.1996. The 2nd phase of restructuring had been done as per Annexure R4(e) the letter dated 29.5.1997. As per the directions contained therein 66 posts of Inspectors were upgraded to the post of Superintendents. For effecting promotion to those vacancies another DPC was held on 18.6.1997 for filling up a total of 73 vacancies including the 66 upgraded vacancies. That was done for the year 1997-98. Accordingly, serial Nos. 377 to 437 including respondents 4 to 7 were promoted as Superintendents on 1.7.1997 and 29.8.1997 respectively. Since the applicants were far below in the seniority list of Inspectors, they were not within the zone of consideration and as such they were not considered for promotion. There was nothing illegal in it. Since the entire restructured vacancies and other vacancies then available had already been filled up by eligible officials at that point of time i.e. 1996- 97 on the basis of the seniority as it stood then the applicants who came on transfer on their own request accepting bottom most seniority cannot stake a claim after several years contending that they should be promoted with effect from 1996. Therefore, the argument based on Annexures A2, A3 etc. is totally misplaced. There is nothing in any of these orders to show that officers who opted for transfer to another Commissionerate accepting the condition that on transfer he would be at the bottom seniority can jump the queue later contending that his past service should be reckoned. His past service can be reckoned only for the eligibility purpose where length of service is required and not to jump the queue as otherwise the transfer on acceptance of bottom seniority would become meaningless.
27. The learned counsel for the respondents 4 to 8 has relied upon the following decision of the Hon'ble Supreme Court in support of the contention that eligibility for promotion cannot be confused with seniority as they are two different and distinct factors:
a) Scientific Advisor to Raksha Mantri & Anr. v. V.M. Joseph
- (1998) 5 SCC 305,
b) A.P. State Electricity Board & Ors. v. R. Parthasarathi & Ors.
- (1998) 9 SCC 425,
c) Dwijen Chandra Sarkar & Anr. v. Union of India & Ors.
- (1999) 2 SCC 119,
d) Union of India & Ors. v. Deo Narain & Ors. - 2008 KHC
5224 = 2008 (10) SCC 84,
e) Renu Mullick (Smt.) v. Union of India & Anr. - (1994) 1 SCC
373, and
f) Union of India & Ors. v. C.N. Ponnappan - 1996 (1) SCC
524
These decisions have also been referred to in support of the contention that though past service can be counted for reckoning the total length of service for eligibility for promotion that cannot be counted for seniority. In all these cases it was held that a person may be eligible, fit or qualified to be considered for promotion but it does not however necessarily mean that he must be treated as having requisite seniority for entry in the zone of consideration. Even if he fulfills the first requirement but if he does not come within the zone of consideration in the light of his position and placement in seniority and the second conditions is not fulfilled, he cannot claim consideration merely on the basis of his eligibility and qualification. It is only at the time when seniority cases of other employees similarly placed are considered his case can be considered. Following the earlier decisions on the point, in Deo Narain's case cited supra, it was held by the Hon'ble Supreme Court as under:
'29. In our judgment, the ratio laid down by this Court in Ponnappan clearly lays down the principle formulated in the Government of India's letter dated May 20, 1980 as also in a subsequent communication, dated May 23, 1997 issued by the Ministry of Finance, Department of Revenue. Even otherwise, in our considered opinion, the two concepts, viz. (i) 'eligibility' and (ii) 'seniority' are quite distinct, different and independent of each other. A person may be eligible, fit or qualified to be considered for promotion. It does not, however, necessarily mean that he must be treated as having requisite 'seniority' for entry in the zone of consideration. Even if he fulfills the first requirement, but does not come within the zone of consideration in the light of his position and placement in 'seniority' and the second conditions is not fulfilled, he cannot claim consideration merely on the basis of his eligibility or qualification. It is only at the time when 'seniority' cases of other employees similarly placed are considered that his case must also be considered. The CAT, in our view, therefore, was not right in applying Ponnappan and in granting relief to the applicants. There is no doubt in our mind that it says to the contrary.' The decision of the Allahabad High Court in Naresh Kumar Gupta & Ors.
v. Central Administrative Tribunal, Allahabad - 1999 (4) AWC 3079 has also been relied upon by the learned counsel for the respondents since the facts dealt with there is identical to the facts of this case. There it was held:
'7. No doubt the petitioners are eligible for appointment on the upgraded post of Superintendent since they were appointed prior to 2.8.1982 as inspectors, but in our opinion the petitioners being at the bottom of the seniority list will have to wait their turn and will only be considered after the persons seniors to them are first considered. The petitioners voluntarily gave up their seniority by choosing a different cadre and hence they cannot complain now. . . . . '
28. The decision of the Supreme Court in Vijay Kumar Kaul & Ors. v. Union of India & Ors. - (2012) 7 SCC 610 has been relied upon by the learned counsel for the respondents in support of the contention regarding the impermissiblity of the belated challenges being entertained. The claim for seniority is put forth within a reasonable period of time. It was held by the Apex Court in City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala - AIR 2009 SC 571:
'26. . . . . . One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a writ is an adequate ground for refusing a writ. The principle is that the courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum'.
Following the aforesaid decision and other decisions on the point it was held by the Apex Court in Vijay Kumar Kaul's case cited supra as under:
'35. In the case at hand it is evident that the appellants had slept over their rights as they perceived waiting for the judgment of the Punjab and Haryana High Court would arrest time and thereafter further consumed time submitting representations and eventually approached the tribunal after quite a span of time. In the meantime, the beneficiaries of Punjab and Haryana High Court, as we have been apprised, have been promoted to the higher posts. To put the clock back at this stage and disturb the seniority position would be extremely inequitable and hence, the tribunal and the High Court have correctly declined to exercise their jurisdiction.'
29. Here also the applicants slept over the matter for nearly 15 years and thought of filing the application in 2013 based on the decisions rendered by other Tribunals. The contention that the cause of action arose only when the judgment was rendered in similar matters by other Tribunals cannot be countenanced at all.
30. The decision of Vijay Kumar Kaul cited supra has also been referred to by the respondents to support another plea also. As has been stated earlier, more than 100 persons were promoted in 1996-97 etc. who were seniors to the applicants but none of them were impleaded in the application as respondents. There was no dispute regarding the fact that all those seniors were conferred the benefit of promotion to the higher post. In their absence no direction can be issued for fixation of seniority because such an order would jeopardize the interest of those promotees. It was held in the said decision as under:
'36. Another aspect needs to be highlighted. Neither before the tribunal nor before the High Court, Parveen Singh and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant.'
31. The learned counsel for the respondents has also relied upon the Full Bench decision of the Kerala High Court in N.J. Sajeeve v. Union of India & Ors. - WP(C) No. 36499 of 2007, dated 27th October, 2009 in support of their contention that applications filed after several years cannot be entertained to unsettle the settled position. The sit back theory squarely applies to the facts of this case, it is contended. It was held by the Full Bench of the High Court in Sajeeve's case thus:
'30. In the context of considering whether the petitioner was entitled to 'sit back' in his position and assume that inter se seniority between him and respondents 5 and 6 ought to have been taken as settled, it will have to be noticed that the position of seniority which obtained in the department between petitioner and respondents 5 and 6 from 1977 onwards came to be even questioned by respondents 5 and 6 only after 20.10.1998; i.e., to say, almost 22 years later. No doubt, the validity of the said circular dated 20.10.1998 had to be challenged by the petitioner herein. But the Tribunal should have considered whether the positions of seniority which came to be settled over more than two decades can be upset by a circular issued by the Ministry. The principles laid down by the Supreme Court in Rabindra Nath v. Union of India {AIR 1970 SC 470} and in the subsequent judgments which have followed the same, ought to have been kept in mind by the Tribunal at that point of time. That was not done.
31. We are of the view that, just as in a case where a belated challenge to a settled position of seniority or consequential orders of promotion will not be entertained by a writ court under Article 226 of the Constitution, on the principles laid down in Rabindra Nath v. Union of India {AIR 1970 SC 470} and Mudgal {AIR 1986 SC 2086}, the court should also be wary in countenancing a contention which, if accepted, would result in overturning seniority positions of long standing.
Essentially, the doctrine of sit back would apply both in cases where challenge against settled positions are mounted belatedly and in cases where the challenge to administrative actions overturning settled seniority positions are sought to be defended.
In the light of what has been stated above we hold that though the past service can be counted for reckoning the eligibility regarding the length of service the applicant cannot jump the queue and upset the seniority since the applicants by getting transfer in 1984/1985 had opted to have bottom seniority. Therefore, on all the grounds this Original Application fails and it is accordingly, dismissed. No order as to costs.
(P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER SA