Central Administrative Tribunal - Ernakulam
M K Rajan vs The Secretary Department Of Revenue New ... on 3 March, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00107/2019
Friday, this the 3rd day of March, 2023.
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mr. K.V.EAPEN, ADMINISTRATIVE MEMBER
M.K.Rajan, S/o.Late R.K.Narayanan Nair
Aged 57 years, Superintendent of Central Excise
Office of the Commissioner of Central Taxes
and Customs, Mananchira
Kozhikode - 673 001 - Applicant
[By Advocate: Mr. C.S.Gopalakrishnan Nair
1. Union of India, Represented by its Secretary
Department of Revenue
North Block, New Delhi - 110 001
2. Chairman, Central Board of Indirect Taxes &
Customs, North Block, New Delhi-110 001
3. Chief Commissioner of Central Taxes and Central Excise
Central Revenue Building, I.S.Press Road, Cochin-682 018
4. Commissioner of Central Taxes and Central Excise
Central Revenue Building, I.S.Press Road, Cochin- 682 018
5. Commissioner of Central Taxes and Central Excise
Central Revenue Building, Mananchira
Kozhikode - 673 001 - Respondents
[By Advocate: Mr.N.Anilkumar, SPC]
The application having been heard on 06.01.2023, the Tribunal
on 03.03.2023 delivered the following:
O.A No107/2019 2
ORDER
Justice K.Haripal This application was filed while the applicant was working as Superintendent of Central Excise in Kozhikode under the 5 th respondent. He commenced his service as Stenographer on 18.09.1982 in Mumbai and was promoted as Inspector of Central Excise on 12.09.1986. Later, on inter-commissionerate transfer he was transferred to Kochi, where he joined as Inspector on 21.06.1994 at the bottom of the seniority list of Inspectors. He was promoted as Superintendent on 30.06.2011. While so, one Balwinder Singh Mathroo and others, who were Superintendents of Central Excise in Chandigarh approached the Chandigarh Bench of this Tribunal for revising their seniority, taking into account the service rendered by them in their parent Commissionerates. By Annexure-A4 order dated 03.08.2012 that application was allowed. The order was challenged before the High Court of Punjab and Haryana and the High Court dismissed the challenge. SLP filed before the Apex Court also was dismissed on 23.02.2017. On that basis, the 2 nd respondent issued Annexure-A5 communication dated 03.08.2017 conveying the approval of the competent authority to implement Annexure-A4 order in respect of all concerned including the petitioners in the O.A. and non-petitioners under the Central Board of Excise and Customs. Even though most of the Central Excise Zones have revised seniority based on Annexure-A5, O.A No107/2019 3 Annexure-A6 indicates that implementation of the decision has not taken momentum under the 3rd respondent. Referring to Annexure-A7 seniority list of Superintendents as on 01.01.2014, according to the applicant, if the seniority is revised as per Annexure-A4, his name would figure at serial No.153. The next promotion of Superintendent of Central Excise is to the cadre of Assistant Commissioner, a Group-A post, which is done based on All India seniority of Superintendents of Central Excise. Extract of seniority list of Superintendents of Central Excise on All India basis is Annexure-A8. If correct seniority is assigned as per Annexure-A4, the applicant's name would figure at sl.No.4195 in Annexure-A8. If the seniority is not revised earlier, there is every likelihood that the applicant may not come in the consideration zone and his juniors may be promoted as Assistant Commissioner. Meanwhile, the 4 th respondent has received Annexure-A9 communication from the 3rd respondent directing to furnish vigilance clearance in respect of persons working as Superintendents shown in the list, for conducting DPC. Accordingly, Superintendents up to sl.No.4197 L are in the consideration zone. If seniority is revised as per Annexures- A4 and A5, those Superintendents figuring at sl.No.4196 L onwards would become juniors to the applicant. While so, the applicant gave a representation to the 3 rd respondent, Annexure-A10, requesting to revise the seniority based on Annexures-A4 and A5, but no reply has been received. Thus he has approached this O.A No107/2019 4 Tribunal for a direction to the respondents 3 to 5 to revise his seniority in the cadre of Inspector based on Annexures-A4 and A5 immediately, to direct the respondents 3 to 5 to grant him notional promotion as Superintendent with all consequential benefits within the stipulated period and to direct them to forward the seniority list of Superintendents of Cochin Commissionerate for incorporating the name of the applicant in the appropriate place in the All India seniority list for consideration for promotion as Assistant Commissioner.
2. On behalf of the respondents the Assistant Commissioner (Legal) filed a reply challenging the very maintainability of the O.A. The official profile of the applicant is not in dispute. According to them, Annexure-A4 order was rendered basing on the decision in O.A.651/1997, in I.C.Joshy v. Union of India and others. Therefore, the decision in Annexure-A4 is applicable only for promotion to the upgraded posts of Superintendents which occurred during 1996-1997. They submit that promotion to all the upgraded posts of Superintendent shall be made strictly by selection from among the candidates who possess the requisite number of years of regular service in accordance with the Recruitment Rules of the gradation list prepared on the basis of the length of service in the grade. The Board through Annexure-A5 has decided to implement Annexure-A4 order in respect of all the petitioners as well as non-petitioners, who are similarly placed. In a similar case in O.A No107/2019 5 O.A.3326/2013 filed by N.D.Azad and others against Union of India and others, it is held by the Principal Bench that 'even though on inter- commissionerate transfer while a transferee loses his seniority and is placed at the bottom of the seniority list in the new Commissionerate, he does not forego the length of service rendered by him prior to his transfer; even if he is at the bottom of the seniority list, if he is senior enough to fall within the zone of consideration for next promotion, his eligibility for such promotion shall be determined after counting his service rendered prior to the inter commissionerate transfer.' The decision of the Principal Bench in Annexure-R2 has been confirmed by the Delhi High Court in Annexure-R3 judgment. That means, if the inter commissionerate transferee officer is senior enough to fall within the zone of consideration for next promotion, his service in the parent commissionerate could be taken into account only for the purpose of eligibility for promotion in terms of the Recruitment Rules, and not for the purpose of counting seniority of feeder cadre in the new Commissionerate. The applicant had represented for re-fixation of seniority in the grade of Inspector by counting the service rendered in the parent commissionerate whereas Annexure-A4 dealt with counting of service rendered prior to inter commissionerate transfer for the purpose of determining eligibility for promotion to the upgraded posts of Superintendents. Therefore, the ratio in Annexure-A4 cannot be applied O.A No107/2019 6 to accede to the request for re-fixation of seniority as it does not cover the subject matter. There is nothing in Annexure-A4 regarding revision of seniority in the Inspector cadre. It is also submitted by the respondents that the DPC had considered promotion to the post of 66 upgraded posts and persons under consideration for officers who had joined in 1980, 1981 and 1982 as Inspectors for promotion to the upgraded post of Superintendents and one officer who had joined in 1984 was considered. Last general category candidate considered by the DPC was Sri.C.P.Prahladan, who joined on 01.06.1982, which means even if the prayer is considered, the applicant who had become Inspector on 12.09.1986 will not fall in the gradation list. As per the seniority list of Inspectors as on 01.01.1997 the applicant comes at sl.No.504, whereas the last officer in the general category empanelled in the DPC for the 66 upgraded posts is at Sl.No.62. The claim of the applicant that he is eligible for promotion from 2002 is incorrect. The cadre is so stagnated and officers with 15 years or more of service were waiting for promotion. That means, even if Annexure-A4 is applicable and gradation list is prepared on the basis of the length of service, he will not be eligible for promotion to the upgraded post. The posts sanctioned in 2002 were additional posts and not upgraded posts. Hence the ratio in Annexure-A4 is not applicable and the gradation list prepared on the basis of length of service in the feeder category cannot be considered in lieu of seniority O.A No107/2019 7 list of feeder grade. Referring to Annexure-R4 order passed by this Tribunal in O.A.943/2013, it is submitted that 'even if past service can be considered for reckoning the eligibility regarding length of service, the applicant cannot jump the queue and upset the seniority.' It was also pointed out referring to Annexure-R5 judgment of the High Court in WP(C) 13613/2006 that the applicant is entitled to reckon his seniority in Kochi from 23.12.1993, the date of transfer order.
3. The applicant filed a short rejoinder and submitted that Annexure-A5 was issued by the 2nd respondent to the Chief Commissioner, Jaipur Zone with copy to all cadre controlling authorities. Referring to the rejoinder the respondents filed an additional reply reiterating the earlier contentions.
4. We heard the learned counsel on both sides.
Sri.C.S.Gopalakrishnan Nair, learned counsel for the applicant submits that had the seniority list been published in accordance with Annexures- A4 and A5, his position in the list would have been 4195 and he would have come to the zone of consideration for promotion as Assistant Commissioner of Excise. But he had to retire on 30.04.2021 without getting promotion. The learned counsel complained that the 2 nd respondent does not maintain All India seniority list of Superintendents properly drawn up from all zones and that was why the applicant had lost his valuable promotion to the next post of Assistant Commissioner. He has produced before us a copy of the order of the Hyderabad Bench of O.A No107/2019 8 this Tribunal in O.A.96/2019 also.
5. On the other hand, learned Standing Counsel, Sri.Anilkumar has strongly opposed the application. According to him, the applicant was transferred from the post of Inspector from Bombay to Kochi on 21.06.1994; it was mandatory, that he should be placed at the bottom of the seniority list and now after long years he cannot be heard to dispute the seniority. Learned counsel has raised numerous contentions opposing the plea. Firstly, he said that Annexures-A4 and A5 are not relating to seniority and none of the judgments touch seniority. Seniority was never touched in Annexures-R1 to R3 also. Secondly, the applicant was posted to Kochi in the year 1994 and he has taken up such a contention only in 2019, after long sleep. Therefore, relying on the decision of the Full Bench of the Hon'ble Supreme Court in K.R.Mudgal and others v. R.P.Singh and others [(1986) 4 SCC 531] he said that after long lapse of time seniority cannot be allowed to be disturbed. Even assuming that benefits of Annexures-A4 and A5 are to be granted to the applicant, such a delay defeats equity and if at all he has got any right, due to the laches, he cannot claim benefit of it. On this, he has relied on the decision in S.S. Balu and another vs State of Kerala and others [(2009) 2 SCC 479]. Learned Standing Counsel has placed reliance on the decisions reported in Union of India and others v. K.K.Vadera and others [1989 Supp (2) SCC 625] and Union of India and others v. Deo Narain O.A No107/2019 9 and others [(2008) 10 SCC 84]. Again, according to him, Assistant Commissioner is a selection post, where seniority has no relevance. If he is eligible, he has to face DPC and other promotion procedures. The learned counsel also pointed out that seniority, eligibility and zone of consideration based on total length of service are different concepts and that the applicant has approached this Tribunal purely on experimental basis, he is not entitled to get any relief.
6. In reply, the learned counsel submitted that the applicant could get a cause of action only after Annexure-A5 was issued after Annexure-A4 which had become final only after judgments rendered by the High Court and the Supreme Court. Therefore, the plea of delay cannot be countenanced.
7. The official profile of the applicant is not in dispute. He had commenced his career as a Stenographer in the respondents' department on 18.09.1982. Thereafter, he was selected as Inspector, Central Excise on 12.09.1986 in Mumbai, then he was transferred to Kochi on his request and he joined in Kochi office on 21.06.1994; by virtue of Annexure-R5 judgment of the High Court, he is entitled to reckon his seniority in Kochi from 20.12.1993, the date of order of transfer; he was promoted as Superintendent on 30.06.2011 and retired from service on 30.04.2021. It is true that following Annexure-A4 order, the 2nd respondent issued Annexure-A5, whereby the competent authority has been directed to implement the decision of the Chandigarh O.A No107/2019 10 Bench of the Tribunal in respect of all concerned, that is petitioners and non-petitioners. But as the 3rd respondent did not take any action on the same, it is complained that the applicant has suffered serious loss. Since a proper seniority list has not been drawn, he has not been taken to the zone of consideration for the post of Assistant Commissioner. According to the applicant, his position as Superintendent of Excise is at sl.No.153 in Annexure-A4. But since Annexure-A4 and A5 have not been complied with, he has not been put in proper place, which resulted in considerable prejudice and injury to him, his juniors have been promoted to Group-A post and therefore he wants to be notionally promoted and all the consequential benefits flowing therefrom are sought to be granted to him.
8. After going through the materials made available before the Tribunal, hearing the learned counsel and also the authorities cited, we are of the view that the contentions raised by the learned Standing Counsel are formidable. It is true that Annexure-A4 order was passed by the Chandigarh Bench of this Tribunal, following a decision of the Principal Bench in O.A.651/1997. The respondents have produced copy of the order of the Principal Bench in O.A.651/1997 as Annexure-R1. From the above, it is clear that, that was a case in which when promotion to the post of Superintendent was contemplated, the applicants in Annexure-R1 were not considered and thus aggrieved by the same, they O.A No107/2019 11 approached the Principal Bench and obtained the order. It is the Rule that when an inter-commissionerate transfer is effected as in the case on hand, the transferee will become the junior most and his seniority will be at the bottom of the seniority list in the cadre. Thereafter for the purpose of considering seniority in the transferee commissionerate, his seniority will be determined on the basis of the date of his joining the recipient commissionerate. It is an accepted legal proposition that on inter- commissionerate transfer while a transferee loses his seniority and is placed at the bottom of the seniority list in the new commissionerate yet he does not forgo the length of service rendered prior to the transfer. Thus while he loses his seniority in the parent commissionerate, he does not forgo the service already rendered by him. This has been reiterated by the Apex Court in Smt.Renu Mullick v. Union of India [AIR 1994 SC 1152], Scientific Advisor to Raksha Mantri and another v. V.M.Joseph [(1998) 5 SCC 305] etc. Therefore, despite being at the bottom of the seniority list in the new commissionerate, if he is senior enough to fall within the zone of consideration for next promotion, his eligibility for such promotion shall be determined after counting his service rendered prior to inter-commissionerate transfer. Annexure-R1 order was granted in favour of such transferees, that too when posts of Inspectors were upgraded as Superintendent. Here the applicant has no such case. As rightly pointed out by the learned Standing Counsel, seniority was never O.A No107/2019 12 a matter of dispute in Annexure-A4 or Annexure-R1 orders, in that way we have to consider Annexure-A5 also on that line alone.
9. Secondly, the applicant was transferred to Kochi on 21.06.1994. Indisputably that transfer was on his volition and thereafter he was promoted as Superintendent on 30.06.2011. Now his contention based on Annexure-A5 that he should have been granted promotion on a prior date on notional basis and therefore necessary benefits should flow to him. He also contends that if All India seniority list was published, his position should have been in an advanced stage and he would have been considered for the post of Assistant Commissioner also. He has produced Annexures-A7 and A8 also and say that this do not depict his correct seniority. At one place he says that proper seniority list is not maintained by the respondents 2 and 3. At the same time he has relied on such documents to say that his position is not in the appropriate place. Both these contentions cannot go together.
10. The respondents have clearly denied the claims of the applicant that his position in seniority list is different, he could not have been considered for Group-A post etc. Even though the applicant filed a rejoinder, it is a formal one; it does not touch the contentions of the respondents regarding the claim of seniority of the applicant. This is conspicuous. We are also convinced that either in Annexure-A4 or in Annexure-R1, seniority was not the core of the contention. Inter-se seniority was never considered. Now the applicant has imposed O.A No107/2019 13 extraneous matters and has raised fanciful contentions. According to him, his juniors have been given promotions that he is entitled to get notional promotion with prior date from the date of promotion of his junior. At the same time, such a contention is abstract, lacking in particulars. He does not say who were such juniors, who did a march over his seniority etc. Even assuming that such mischief was done by the respondents, the said juniors who have been promoted are nowhere in the picture. He has indirectly wants to upset a seniority list, but that can be done only after giving opportunity to the affected parties also. Here such affected parties are not before us. On that count also there is no substance in the contentions of the applicant.
11. The respondents have stated that 66 upgraded posts of Superintendent were sanctioned in 1997, when promotion to the posts was considered Inspectors joined service in 1980, 1981 and 1982 were considered, that an officer joined in 1984 alone was considered in that lot, that there is generally stagnation in the cadre. This averment is not rebutted by the applicant, in the rejoinder. In the circumstance, if his eligibility was considered taking into account his length of service from 12.09.1986, certainly he did not fall in the zone of consideration.
12. As noticed earlier, the applicant has not challenged the plea of the respondents regarding his position in the seniority lists. In the circumstances, it has to be thought that he has approached the Tribunal on experimental basis.
O.A No107/2019 14
13. As rightly stated by the respondents, the applicant is trying to re-open a matter with no ostensible reasons. He wants to upset the seniority without any basis. He was transferred to Kochi in 1994 and was promoted as Superintendent in 2011. In 2019 he wants to grant him notional promotion with a prior date. In that way he is raking up a stale claim. It may be true that Annexure-A5 had come into existence only on 03.08.2017. Still, this O.A. was filed only on 13.02.2019 and such a delay also is not explained by the applicant. The application is liable to be dismissed on that ground also.
On all these considerations, there is no material to uphold the contentions of the applicant. The Original Application is dismissed. No cost.
Dated, this the 3rd March, 2023.
K.V.EAPEN JUSTICE K.HARIPAL ADMINISTRATIVE MEMBER JUDICIAL MEMBER ds O.A No107/2019 15 List of Annexures Annexure A1- True copy of the Establishment Order No.243/1986 dt. 12.09.1986 Annexure A2- True copy of the order No.238/1993 dt.23.12.1993 issued by the 4th respondent. Annexure A3- True copy of the order No.65/2011 dt.30.06.2011 issued by the 4th respondent. Annexure A4- True copy of the order dt.03.08.2012 in O.A.No.338/PB/2012 Annexure A5- True copy of the letter F. No.C-18012/19/2012-Ad II B dt.03.08.2017 issued by the 2nd respondent. Annexure A6- True copy of the letter C. No.IV/16/04/2017 RTI dt.30.01.2018 issued by the 3rd respondent. Annexure A7- True copy of the extract of the seniority list of
Superintendents of Central Excise issued by the 3 rd respondent.
Annexure A8- True copy of the extract of the seniority list of Superintendents of Central Excise on All India basis. Annexure A9- True copy of the E-mail dt. 05.12.2018 from the 3rd respondent.
Annexure A10- True copy of the representation dt. 05.10.2017 to the 3rd respondent.
Annexure R-1 True copy of the Order of the Hon'ble Principal Bench, New Delhi dated 26.08.1997 in O.A. No:
651/1997 filed by Shri. I. C. Joshi.
Annexure R-2- True copy of Order in O. A. No. 3326/2013 dated 21.08.2015 of the Hon'ble Principal Bench, New Delhi, filed by N. D. Azad.O.A No107/2019 16
Annexure R-3 True copy of the Order dated 02.03.2017 of the Hon'ble Delhi High Court in W.P. (C) No: 5873/2016 filed against O. A. No. 3326/2013 Annexure R-4 True copy of Order dated 10.02.2016 in O.A. No:
943/2013 filed by Shri. P. P. Panicker and Shri. K. P. Ravikumar, Superintendents before the Hon'ble Tribunal, Ernakulam Bench Annexure R-5 True copy of the Order dated 11.08.2009 of Hon'ble High Court of Kerala in W.P. (C) No: 13613 of 2006 filed by Shri. M. K. Rajan & N. Nandakumar **********