Karnataka High Court
Sri C R Madhava Murthy vs The Union Of India on 15 April, 2014
Bench: K.L.Manjunath, Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 15TH DAY OF APRIL 2014
BEFORE
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION NOS.10120-121 OF 2013(S-CAT)
BETWEEN:
1. Sri C.R.Madhava Murthy
S/o Sri Raghavendrachar,
Aged about 59 years
Superintendent of Central Excise & Customs
O/o Commissioner of Customs,
Queens Road, C.R.Buildings,
Bangalore - 560 001.
2. Sri M.J.Dakappa
S/o late Jattaiah
Aged about 61 years
Superintendent of Service Tax(Rtd.)
R/o Flat No.D-304, Friends Paradise,
2550, 2551/1, 9th Cross, 13th Main,
'E' Block, Sahakaranagar,
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Bangalore - 560 092. ...PETITIONERS
(By Sri N.G.Phadke, Advocate)
AND:
1. The Union of India
Represented by the Secretary
Ministry of Finance,
Department of Revenue,
North Block, New Delhi - 110 001.
2. The Secretary
Department of Personal & Training
Government of India,
North Block, New Delhi - 110 001.
3. The Commissioner of
Central Excise, Bangalore -1,
Commissionerate, Central Revenue
Building, P.B.No.5400,
Queen's Road, Bangalore - 560 001.
4. The Chief Commissioner of
Large Tax Payers unit,
J.S.S.Towers, 100 feet Ring Road,
Banashankari III Stage,
Bangalore - 560 085.
5. The Commissioner of
Service Tax, Service Tax Commissionerate,
No.16/1, S.P.Complex, Lalbagh Road,
Bangalore - 560 047. ...RESPONDENTS
(By Sri K.S.Bharath Kumar, Advocate)
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These Writ Petitions are filed under Article 226
and 227 of the Constitution of India praying to quash
the impugned order dated 4.6.2012 passed by the CAT,
Bangalore Bench, Bangalore in O.A.No.79/2009 at
Annexure-C. Quash the consequential order dated
31.12.2012 issued by R3 Commissioner of Central
Excise, Bangalore -1, Commissionerate, Bangalore -
560 001, at Annexure-D.
These Writ Petitions having been heard and
reserved for judgment on 08.04.2014 coming on this
day, Ravi Malimath J., pronounced the following:-
ORDER
The petitioners are working as Superintendents in the Central Excise under the fourth respondent. They were recruited in the Customs and Central Excise Department as LDCs and were promoted as UDCs based on their seniority. Thereafter, the first petitioner was promoted to officiate as Inspector of Central Excise 4 w.e.f. 02.04.1981 and the second petitioner w.e.f. 13.07.1987. They were regularly appointed as Inspectors w.e.f. 17.04.1992. Some of the officials were directly recruited as Inspectors later than the dates from which the petitioners started officiating as Inspectors in the Central Excise Department.
2. The first petitioner and one Sri.C.K. Sathish, were promoted on 29.08.1987, whereas the second petitioner and Shri.B.S.Srikanth were promoted on 23.09.2002. The first petitioner is senior to Sri.C.K.Sathish and the second petitioner is senior to Sri.B.S.Srikanth, as per their seniority list of Superintendents. When the petitioners continued in the grade of Superintendent of Central Excise and Customs, the directly recruited officials were promoted under the ACP Scheme to the next higher pay grade. Shri.C.K.Sathish got upgradation with effect from 17.12.2005 and Shri.B.S.Srikanth got the upgradation 5 from 15.05.2006. The first petitioner submitted a representation seeking appropriate pay scale, which was rejected.
3. The case of the petitioner was that they have not been given the higher grade of pay, based on the instructions contained in para-5.1, 5.2 and 8 in O.M. dated 9.8.1999 and clarification at Sl.No.27, contained in O.M. 10.02.2000 at Annexure-A3. That these instructions, are opposed to Article - 14 and 15 of the Constitution of India. That equals are treated as unequals. That they are drawing a lesser pay than their juniors, who joined as Inspectors much later than the petitioners. That during their entire services, they would be drawing a much lesser pay than their juniors. In fact, till the direct recruits were granted the second upgradation under the ACP Scheme, they were drawing lesser pay than the petitioners.
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4. Under these circumstances, the instant application was filed before the Tribunal seeking to quash the decision at para 5.1, 5.2 and 8 of Annexure-1 to the O.M. dated 09.08.1999, vide Annexure-A2, insofar as it comes in the way of the petitioners to get equal pay grade and equal pay on par with their junior colleagues, as well as to quash the clarification at Sl.No.27 of O.M. dated 10.02.2000, issued by the respondent and consequential reliefs.
5. The Tribunal by the impugned order held at para-24 as follows:
"24. Thus, we are of the opinion that clarification dated 10.2.2000 deals with only part of the problem, viz., the junior in the gradation list getting ACP earlier than the senior. While we do not wish to quash the clarification given, as the statement made therein is not incorrect, as stated earlier, but as it does not deal with the issue raised in the query, we direct respondent No.2 to 7 consider the cases as in this O.A and take a decision regarding grant of next higher grade to the employees stagnating in a cadre, when they have been promoted to the cadre based on competition like departmental examination, interview, physical fitness etc., and not just on seniority cum fitness basis and issue a speaking order regarding the anomalous situation that senior officers in a cadre are denied the ACP benefits only on the ground that they had earned various promotions on the basis of seniority cum fitness in the lower grade. The above exercise shall be completed within 4 months from the date of receipt of a copy of this order."
6. Consequent to the above impugned order of the Tribunal, the respondents passed an order dated 31.12.2012 in compliance with the order of the Tribunal. The request of the petitioner for consideration of their case for grant of final pay gradation under the ACP scheme was rejected. The petitioners therefore have 8 filed these petitions questioning the order of the Tribunal dated 4.6.2012 as well as the subsequent order passed by the respondents dated 31.12.2012.
7. The learned counsel for the petitioners contends that the impugned order is bad in law and liable to be set-aside. That the Tribunal committed an error in declining to quash the decision at para 5.1, 5.2 and 8 of Annexure-1 to the O.M. dated 09.08.1999, vide Annexure-A2, as well as the clarification at Sl.No.27 of O.M. dated 10.02.2000. That the compliance of the order of the Tribunal by the respondent, is also erroneous. It is further pleaded that there are substantial grounds that would render the impugned orders as bad in law and liable to be set-aside. Various judgments are relied upon, in support of his case.
8. On the other hand, the learned counsel for the respondents defends the impugned order. They 9 primarily contend that the order of the Tribunal which is impugned in the present writ petitions, has since been given effect to by the subsequent order of the respondents dated 31.12.2013. That this order is also sought to be questioned in these writ petitions. When the order of the Tribunal has been complied with by considering the grievances of the petitioners, the same cannot form the subject matter of the present writ petitions. If at all the petitioners are aggrieved, they would have to question the order of the respondent dated 31.12.2012 before the Tribunal. Therefore, notwithstanding the objections to the writ petitions, the writ petitions requires to be rejected on this ground itself.
9. On hearing learned counsels and on considering the material on record, we are of the considered view that appropriate relief requires to be 10 granted. What was sought for by the petitioner before the Tribunal was to quash the decision at para-5.1, 5.2 and 8 of Annexure-A of the O.M. dated 09.08.1991 and the clarification at sl.no.27 of the O.M. dated 10.02.2000, the decision of the third respondent in its letter dated 11.01.2008 pertaining to the petitioner no.1 and directing the respondents to grant the benefits of the second upgradation under the ACP scheme dated 09.08.1999 etc.
10. The case of the petitioners is that such a prayer was not granted by the Tribunal and on the contrary, it directed the respondents to consider the case of the petitioner and take a decision regarding grant of next higher grade to the employees stagnating in a cadre, when they have been promoted to the cadre based on competition like departmental examination, interview, physical fitness etc. and not just on seniority- cum-fitness basis.
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11. In pursuance to the order of the Tribunal, the respondents have passed an order dated 31.12.2012. They have examined in detail the plea of the petitioners as well as the directions of the Tribunal. While passing the detailed order, the plea of the petitioners were rejected. This order is sought to be questioned herein. Under these circumstances, we are of the considered view that it would be wholly inappropriate to examine the contentions so far as the merits of these petitions are concerned. The merits of the petition would be relevant for consideration, provided the order of the Tribunal is alone under challenge. However, after the Tribunal has passed the impugned order by issuing directions to the respondents, the same has been complied with. In terms of the directions issued by the Tribunal to the respondents, they have passed an order dated 12 31.12.2012 rejecting the plea of the petitioners which order is also sought to be questioned herein.
12. The impugned order of the Tribunal cannot be challenged since it has been complied with by the respondents. The directions issued by the Tribunal, have been complied with by issuing the order dated 31.12.2012. Therefore, nothing more remains to be considered in the order of the Tribunal. Considering the merits or demerits of the order of the Tribunal would be a futile exercise.
13. Under these circumstances, once the Tribunal has passed an order which has been complied with and a new order has been passed, it would be highly inappropriate for a writ court to consider the subsequent impugned order for the first time. It is only just and necessary that the subsequent order passed by the respondents is considered by the Tribunal. The 13 Tribunal would have to hear the petitioners so far as their grievance with regard to the subsequent order passed by the respondent is concerned. Therefore, we are of the considered view that it would be highly inappropriate to consider this writ petition so far as the validity of the subsequent order dated 31.12.2012.
14. It is further contended by the learned counsel for the petitioners that the prayer sought for by the petitioners was to quash the decision at para-5.1, 5.2, and 8 of Annexure-A1 and other reliefs. The said relief has not been granted by the Tribunal. Therefore, if the petitioners are asked to go back to the tribunal to agitate the subsequent order passed by the respondent dated 31.12.2012, the same would be a futile exercise, since the original prayer of the petitioner has not been favourably considered. We find considerable force in this submission.
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15. The plea of the petitioners to quash the decision as stated herein above would necessarily have to be considered by the Tribunal. It is only on the directions issued by the Tribunal that the respondent having considered the same, have issued the subsequent order. Therefore in our considered view, the plea of the petitioner as was originally sought for to quash the decision etc. would require to be considered by the Tribunal.
16. The Tribunal should have either granted the relief or rejected it. Having not done so, and on the other hand issuing a direction to the respondents to consider the case of the petitioners and while holding that the same does not deal with the issues raised in the query, it is only just and proper that the plea of the petitioners with regard to the OMs requires to be considered to merits. The tribunal would have to hold as 15 to whether petitioners are entitled to the said relief or not.
17. For the reasons assigned herein, we are of the considered view that the valuable rights of the petitioners requires to be considered in a just, fair and reasonable manner by permitting them to reagitate the earlier prayer made by them. Since the earlier prayer made by them has not been considered, they are at liberty to raise the said issues to be considered by the Tribunal. Therefore, we are of the view, that the ends of justice would be met, if liberty is granted to the petitioners, to question the order of the respondents dated 31.12.2012, and also granting liberty to them to reagitate the prayer made by them earlier, in view of the fact that their earlier prayer has not been considered.
18. For the aforesaid reasons the writ petition is disposed off in the following terms:
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i) the first prayer of the writ petitioners to quash the order dated 04.06.2012 passed by the Central Administrative Tribunal, Bangalore Bench in O.A. No.79/2009 at Annexure-C is dismissed as being infructuous.
ii) The second prayer to quash the order dated 31.12.2012 issued by the third respondent - Commissioner of Central Excise, Bangalore - 1 Commissionerate Bangalore - 560 001 is disposed off, by granting liberty to the petitioners to question the said order before the Tribunal. Liberty is also granted to the petitioners to seek quashing the decision at para-5.1, 5.2 and 8 of Annexure-A of the O.M. dated 09.08.1991 and the clarification at sl.no.27 of the O.M. dated 17 10.02.2000, the decision of the third respondent in its letter dated 11.01.2008 before the Tribunal.
The writ petitions are disposed off accordingly.
Sd/-
JUDGE Sd/-
JUDGE JJ