Central Administrative Tribunal - Cuttack
C Dalai vs Central Excise & Customs on 31 October, 2022
1 260/000110 of 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
O.A.No. 260/000110 of 2014
Reserved on 29.09.2022 Pronounced on 31.10.2022
Coram: Hon'ble Mr. Devendra Chaudhry, Administrative Member
Hon'ble Mr. Swarup Kumar Mishra, Judicial Member
Sri Chandrakant Dalai, aged about 59 years, S/o Late
Kangu Dalai, Vill - Bhodar, Via - Brahma Kundi, PS. -
Nimapara, Dist-Puri now working as Superintendent,
Central Excise, Customs and Service Tax, At/P O-
Paradeep, Dist- Jagatsinghpur.
......Applicant
VERSUS
1. Union of India represented through Secretary,
Ministry of Finance, Department of Revenue, North
Block, New Delhi-1.
2 Central Board of Excise & Customs, Ministry of
Finance, Department of Revenue, Govt. of India
represented through its Chairman, North Block, New
Delhi-110001.
3. Chief Commissioner, Central Excise, Customs &
Service Tax, Bhubaneswar Zone, Rajaswa Vihar,
Bhubaneswar-7, Dist- Khurda.
4. Commissioner, Central Excise, Customs & Service
Tax, Bhubaneswar-II Rajaswa Vihar, Bhubaneswar-7,
Dist- Khurda.
5. Sri Subash Chandra Mohanty, aged 59, S/o Late
Krushna Chandra Mohanty, Vill. /P.O./P.S.
Paralakhemundi, Dist-Gajapti, now working as Asst.
Commissioner, Central Excise, Customs and Service
Tax, Sambalpur Division, Sambalpur.
......Respondents
For the applicant : Mr. S.K.Patnaik, Mr. P.K.Patnak, Counsel
For the respondents : Mr. J.M.Patnaik, Mr. D.K.Mohanty, Mr. S.Behera, Counsel
2 260/000110 of 2014
O R D E R
Mr. Swarup Kumar Mishra, J.M. The relief, which the applicant has sought in this OA, is as under:
"(1) That the impugned order dtd 13.02.2014 (annexure-16) may be quashed.
(2) Declare that the order dtd. 16.12.1998 (annexure-
11) has become infructuous and inoperative on passing of order in O.A.No.58/1991, (3) That the Respondents may be directed to promote the applicant to the rank of Asst. Commissioner of Central Excise & Customs & Service Tax with retrospective effect from 22.08.2005, when Sri R.K. Das (No.1) was so promoted, with all consequential financial benefits, (4) That the applicant may be further promoted as Deputy Commissioner with effect from 22.08.2009 and as Joint Commissioner w.e.f. 2013 with actual financial and service benefit, (5) That pass any other appropriate order as deemed proper."
2. The case of the applicant is that he belongs to SC community. On 03.12.1980, he was regularly promoted to Inspector (OG). On 13.07.1983, seniority list of Inspector (OG) as on 01.07.1982 was published wherein the name of the applicant was placed above the name of respondent No.5 (Sri Subash Chandra Mohanty). On 23.03.1985, as per the rules applicant was promoted to Inspector (SG). On 28.05.1985, he was appointed to officiate as Sr. Grade Inspector, thereafter, he was declared as regularly promoted to the grade of Inspector (SG) w.e.f. 30.05.1985 vide order dated 18.07.1986. DoP&T issued O.M. dated 07.02.1986 relating to rota quota rule between direct 3 260/000110 of 2014 recruits and promotees on 21.03.1986 seniority list of Inspector (OG) as on 01.01.1986 was published showing the applicant senior to Resp. No.5. Being aggrieved, some of the Inspector (OG) filed OA No. 62-71 of 1987 challenging the seniority list of Inspector (OG) published on 21.03.1986, which was disposed of on 10.04.1989 with direction to revise the seniority list of Inspector (OG) published on 21.03.1986. On 21.08.1990, gradation list of Inspectors was revised placing the applicant below some of the Inspectors in the grade of Inspector (OG) though the applicant was, in the meantime, promoted to the post of Inspector (SG). The applicant filed OA No. 58/1991 claiming seniority by virtue of his promotion to the post of Inspector (SG). On 16.12.1998, 74 Inspectors (OG) were allowed notional promotion to Inspector (SG). On 11.08.2000, OA No. 58/1991 filed by the applicant was disposed of with direction to the respondents department to make the applicant senior above all the Inspector (OG). Being aggrieved, some of the Inspectors (OG) as also respondents department filed OJC No. 1351 and 6825 of 2001 before the Hon'ble High Court of Orissa challenging the order of this Tribunal dated 11.08.2000 in OA 58/1991, which was dismissed by the Hon'ble High Court of Orissa vide order dated 26.03.2007 and 10.04.2007. In compliance with the aforesaid order, the seniority list dated 16.12.1998 was cancelled vide order dated 20.11.2007 and vide order dated 27.11.2007 the applicant was placed above Sri R.K.Das, whose name had figured at Sl. No. 17 in the Gradation List of Inspectors published on 21.08.1990. DPC was held on 28.11.2007 for considering the cases of Inspectors for promotion to Superintendent.
4 260/000110 of 2014 Being aggrieved, again some of the Inspectors (OG) filed OA No. 436/2007 before this Tribunal and SLP before the Hon'ble Supreme Court challenging the order of the Hon'ble High Court of Orissa in OJC No. 1351 and 6825 of 2001. The SLP was dismissed on 18.02.2008. On 18.06.2012, OA No. 436/2007 was dismissed by this Tribunal. On 17.07.2012, the promotion of the applicant to the rank of Superintendent Group-B was antedated from the date when Sri R.K.Das was promoted to the said grade w.e.f. 15.10.1991. On 10.05.2013, gradation list of Superintendent was published and circulated. On 12.08.2013, respondent No.5 submitted representation praying to place him above the applicant in the seniority list. On 13.08.2013, the said representation was rejected. The said order of rejection was challenged by Respondent No. 5 before this Tribunal in OA No. 569/2013, which was disposed of on 22.08.2013 directing the respondents department to give fresh consideration to the grievance of respondent No.5. On 13.02.2014, respondents department issued order directing as under:
"22. In view of the facts enumerated above and in particular as stated in Para-18 above, the review DPC dated 28.11.2007 being infructuous, the seniority list of Superintendents as on 01.01.2013 (circulated vide Memo dated 10.05.2013), prepared on the basis of said infructuous DPC dated 28.11.2007 without any change in the feeder cadre (i.e. Inspectors), is also not valid so far as it relates to the seniority position of Sri C.K.Dalai vis-a-vis Sri R.K.Dash (No.1) and Sri S.C. Mohanty and others. Accordingly, the seniority position prevailing prior to 28.11.2007 in the grade of Superintendents needs to be restored to resolve the dispute in question.
23. In the aforesaid background, facts on record and elaborate discussion on the points of law the last para of Part-II of the order dated 27.11.2007 issued vide C. No. II(26)6/CC/ADMN/BBSR/2007 is set aside.
5 260/000110 of 2014 Accordingly the DPC dated 28.11.2007 and the seniority list of Superintendents circulated vide Bhubaneswar-1 Commissionerate's Memo dated 10.05.2013 be reviewed by a review DPC by a Competent Committee/Body and necessary steps be taken by the Cadre Controlling Authority for the grade of Superintendents in this regard with immediate effect and all concerned may be informed for taking necessary action at their end without any further delay as it is already delayed by more than two months."
During pendency of the instant O.A., he has submitted representation on 13.08.2015 against the aforesaid decision and order with further prayer to not to hold the proposed review DPC on 14.08.2015. Meanwhile, review DPC was held and, on the recommendation of the review DPC, the respondent department issued the order dated 14.08.2015, which reads as under:
"In pursuance of the recommendation of the said DPC, Order No. 34/ET/BGBSR-I/2012 dated 17.07.2012 issued by the Commissioner, Central Excise, Customs & Service Tax, Bhubaneswar-I granting notional promotion to Shri C.K.Dalai to the grade of Superintendent w.e.f. 25.10.1991 be treated as void ab initio (invalid from the outset) and all actions taken on the basis of the said order be treated as null and void. Consequently, the seniority position of Shri C.K.Dalai in the grade of Superintendent prevailing prior to 28.11.2007 is restored.
However, this order is subject to outcome of OA No. 110/2014 filed by Shri C.K.Dala before the Hon'ble CAT Cuttack Bench, Cuttack."
3. Respondent No.5 has filed counter stating inter alia that the order dated 13.02.2014, which the applicant sought is neither a final order nor the applicant has filed any appeal against the said order and, thus, as per the provision of Section 20 and 21 of AT Act, 1985, this O.A. is not 6 260/000110 of 2014 maintainable. That apart, it has been stated that as per the order of this Tribunal in OA 58/1991, the applicant should have been given his position above all those Inspectors over whom he became Inspector (SG) w.e.f. 30.05.1985 whereas respondent No.5 being Inspector (SG) w.e.f. 28.05.1985 was although senior to the applicant, which was wrongly been altered and, subsequently, restored vide order dated 13.02.2014. Hence, according to respondent No.5, the order dated 13.02.2014 is in no way in violation of the order of this Tribunal in OA No. 58/1991. The respondent No.5 in a tabular form has furnished the service particulars of himself and the applicant, which is as under:
Name of Date of Date of Date on which Date on
Officer joining as confirmation as became which became
Inspector(OG) Inspector(OG) Inspector(SG) Superintendent
Subash Ch. 12.05.1976 01.08.1979 28.5.1985 09.07.1992
Mohanty
Chandra Kanta 03.12.1980 06.09.1982 30.05.1985 30.09.1996
Dalai
Thus, according to him, he being the senior he was promoted to the post of Superintendent on 09.07.1992 and applicant was promoted to the said grade on 30.09.1996. By placing reliance on the decision of the Hon'ble Apex Court in the case of J.S.Yadav Vs. State of UP, (2011) 2 SCC (L&S) 140, respondent No.5 submitted that since he was not a party to the OA 58/1991, as per the law, the said order is not binding to him and, thus, by making representation to the authority concerned he prayed for the removal of injustice caused to him in the decision making process by protecting his seniority as it is unheard in service jurisprudence that a junior marches over a senior. Hence, department has rightly restored his position vide order dated 13.02.2014. It is 7 260/000110 of 2014 submitted that in compliance of the order of this Tribunal dated 22.08.2013 in OA 569/2013, the respondents considered the case of respondent No.5 and issued the order dated 13.02.2014. The applicant has never challenged this order dated 22.08.2013 in OA 569/2013 before higher forum nor even in this O.A. and the O.A. is too premature in absence of any DPC being held as per the order dated 13.02.2014. Further by placing reliance on the decision of Hon'ble Apex court in the case of Ranga Reddy Vs. State of AP, 1987 SCC L&S) 271, J.S.Dhillon Vs. UOI & Ors., (1989) 11 ATC 499, Public Service Commission, Uttaranchal Vs. Mamta Bisht & Ors. (2011) 1 SCC (L&S) 208 and Prabodh Verma & Ors. Vs. State of UP & Ors, AIR 1985 SC 167, it has been submitted that since the respondent No.5 was not a party to the OA filed by the applicant, revision of gradation list after a long lapse of time without giving him any opportunity was rightly restored vide order dated 13.02.2014, which needs no interference. However, according to him, the applicant cured the mistake committed in earlier OA by making the deponent as one of the respondents in this O.A. and, therefore, he has now got opportunity to state that the instant OA mainly relates to the decision of this Tribunal in OA Nos. 62-71 of 1987 dated 10.04.1989 ordered on the failure of the rota quota rule and that order has reached finality being upheld by the Hon'ble Apex Court whereupon this Tribunal quashed the seniority list as on 01.01.1986 in the grade of Inspector of respondents' department because of failure of rota quota rule and categorically directed the respondents to determine the seniority on the basis of date of joining in the grade where the 8 260/000110 of 2014 present applicant was respondent No. 13. Accordingly, the seniority list of Inspectors as on 01.01.1990 was published and circulated vide memo dated 21.08.1990 assigning the place and position of applicant vis-à-vis respondent No.5 in the grade of Inspector. The seniority list published as on 01.01.1990 vide memo dated 21.08.1990 was not set aside by this Tribunal in OA No. 58/1991. Consequent upon implementation of the order of this Tribunal in OA Nos. 62-71/1987 and with reference to the O.M. dated 26.09.1997, review DPC was held and order was issued on 16.12.1998 as per which 74 Inspectors, including respondent No.5 and others as well as SC & ST officers, who are senior to the present applicant on the basis of date of joining as Inspector, are held senior to the present applicant as Inspector (SG) w.e.f. 28.05.1985. In this connection, the statement furnished in a tabular form is extracted below:
Sl Name of the Date of joining as Date of which became Remarks No. officer (S/Shri) Inspector (OG) Inspector (SG) 1 R.K.Dash (No 1) 04.11.75 28.05.85 Such factual 2 S.C.Mohanty 12.05.76 28.05.85 date clearly (Respondent shows that No.5 in this OA the issue here No. 110/2014 is de to 3 S.K.Choudhury 25.03.76 28.05.85 failure of Rota (ST) rule and has 4 S.Seth (SC) 11.07.77 28.05.85 nothing t o 5 C.K.Dalai(SC)- 03.12.80 30.05.85 with the caste Applicant in this status of the OA No. applicant 110/2014 Thus, according to the respondent No.5, the action taken is just and proper, which needs no interference by this Tribunal.
4. The departmental respondents have filed counter contesting the case of the applicant. In order to avoid repetition and burdensome of the order, it is suffice to state that the respondents department while 9 260/000110 of 2014 reiterating the stand taken by the respondent No.5 discussed above, have submitted that the applicant has not produced any evidence/material to support this claim of seniority above the officers who were officiating as Inspector (SG) w.e.f. 28.05.1985 as he was in that grade w.e.f. 30.05.1985. The Tribunal in its order dated 11.08.2000 in OA 58/1991 had already discussed about the applicant's credit for his regular promotion to Inspector (SG) w.e.f. 30.05.1985 and the dispute over seniority between Direct Recruit Inspectors and Promotees Inspectors raised in OA 62-71/1987 will not be affected only to the extent of his becoming Inspector (SG) w.e.f. 30.05.1985 and the applicant does not gain any benefit for the purpose of further promotion to the rank of Superintendent. Thus, the respondents department has always given credit to the applicant as Inspector (SG) w.e.f. 30.05.1985 and his claim to be senior to the officers who became Inspector (SG) w.e.f. 28.05.1985 cannot be acceptable. According to the respondents department, there was no violation of the orders of this Tribunal as alleged by the applicant. Hence, this O.A. is liable to be dismissed.
5. The applicant has filed rejoinder in which it is stated that the respondents are trying to misinterpret the order in O.A. No.58/1991 upheld by the Hon'ble High Court of Orissa in O.J.C. No. 6825/2001 and OA No.436/2007. The effect of O.A. 62-71/1987 on the claim of the his seniority was considered and rejected specifically by this Tribunal and the order so passed was confirmed by Hon'ble High Court and Hon'ble Supreme Court of India. The grievance raised by Respondent No.5 in O.A. No. 569/2013 was similar to the grievance raised by the similar 10 260/000110 of 2014 situated persons, as that of Respondent No 5. They had challenged the order dtd 27.11.2007 and the order in O.A. 58/1991 by filing O.J.C No. 1351/2001 and then filing SLP No. CC-2154/2008 and then filed O.A No 436/2007 on the ground that they were not parties in O.A. No 58/1991. But the larger Bench of this Hon'ble Tribunal rejected their prayer vide order dtd 18.06.2012. The order dtd 27.11.2007 granting him seniority was kept in abeyance by interim order passed in OA No.436/2007. Upon disposal of OA. No 436/2007 on 18.08.2012 and followed by order dtd 27 07.2012 of the Division Bench, the same was given effect to and the result of review DPC for the post of Superintendents held on 28.11.2007 was published and the applicant was declared promoted as Superintendent w.e.f. 25.10.1991 by order dtd. 17.07.2012. Thereafter, the all India seniority list of Superintendents was published under Annexure-12 dtd. 10.05.2013 placing him at SI.No.1 in the seniority list of Superintendents, which was only a clerical action implementing the decision in OA No.58/1991 and the resultant administrative order dtd. 27.11.2007. The present Respondent No 5 never challenged the order dtd 27.11.2007 and, therefore, no fresh cause of action arose for the Respondent No.5 from the circulation of the revised seniority list of Superintendents on 10.05.2013. The representation of Respondent No.5 dtd.12.08.2013 was rightly rejected on 13.08.2013 and when this Tribunal did not express any opinion while disposing of OA. No.569/2013 the Respondents department had no jurisdiction to review the entire matter in contravention of the judicial verdict of this Tribunal as stated above and take a contrary view to review the 11 260/000110 of 2014 decision on seniority under order dtd 27.11.2007 and direct to review the D.P.C dtd 28.11.2007 giving promotion to him as Superintendent w.e.f. 25.10.1991. Accordingly, applicant has reiterated the grant of the relief claimed in the O.A.
6. Ld. Counsel for the applicant has submitted that the applicant was promoted to the rank of Inspector (SG) as per the seniority list dtd. 21.08.1990 in which the applicant was at Sl.No.104 and 74 persons were placed above him. In the said order it was clearly stipulated that the list is based on presently valid and prevailing seniority list and liable to such change/amendment as the later may undergo as a result of any decision of appropriate authority. When the applicant was promoted as Inspector (SG) w.e.f. 28.05 1985, no one had challenged such promotion and at that point of time the strength of the cadre of Inspector (SG) was limited to 10% of the total strength of Inspector (OG). So, there was no scope for the respondents department to give promotion to 74 persons to the grade of Inspector (SG) at a time. It is argued that when the gradation list of Inspectors dtd. 21.08.1990 was revised in compliance of the order dtd 11.08.2000 in O.A. No.58/91 affirmed by the Hon'ble High Court vide order dtd 10.04 2007 in O.J.C. No.6825/2001 and by the order dated 18.02.2008 of the Hon'ble Supreme Court and finally by the Larger Bench order dt 18.06.2012 in O.A. No.436/2007 and order of the Division Bench in the said O.A. dtd.27.07.2012, the effect of the notional promotion dtd. 16.12.1998 was rendered inoperative. The Respondent No.5 had slept over the matter since 23.03.1985 when the applicant was given ad hoc promotion as Inspector (SG) and had not challenged the 12 260/000110 of 2014 same. He filed a representation on 12.08.2013 only challenging the seniority list of Superintendent of Central Excise, Gr.-B giving notional seniority to the applicant as on 25.10.1991 by virtue of the seniority position given to him in the rank of Inspectors above Sri R.K. Das by order dtd 17.07.2012, which was circulated by Memo dtd. 10.05.2013. It is contended that Respondent No.5 made his claim on the order dtd. 16.12.1998 giving notional promotion to him as Inspector (SG) which had lost its effect when the seniority position of the applicant was changed by virtue of judicial pronouncement followed by executive order giving him seniority above Sri R.K. Das. It has been submitted that Respondent No.5 was promoted as Asst. Commissioner of Central Excise when the applicant had been promoted as Superintendent with notional effect from 25.10.1991. The representation of respondent No.5 was rejected by order dtd. 13.08.2013, clearly stating that the applicant was placed above Sri R.K. Das in compliance of the order of this Tribunal. Since respondent No.5 was not a party, he cannot claim benefit as par with applicant.
The next contention of the applicant is that respondent No.5 filed O.A. No. 569/2013 before this Tribunal challenging the order dtd. 13.08.2013 and this Tribunal by order dtd 22.08.2013 disposed of the OA at the admission stage without issuing notice to the him although he was arraigned as respondent No.7 in the said O.A. with a direction to reconsider the representation dtd. 12.08.2013 and further directed that till a decision is taken within a period of sixty days, no further action based on the gradation list of Superintendent circulated under Memo 13 260/000110 of 2014 dtd 10.05.2013 should be taken. The applicant had no scope to point it out that the order dtd. 16.12.1998 was rendered infructuous and promotion of applicant to the higher rank of Asst. Commissioner would never affect the respondent No.5 since he was already promoted to that post. The respondents department reopened the entire issue without due application of mind and without considering the order of this Tribunal, which was upheld by the Hon'ble High Court of Orissa, that too without giving any opportunity to the present applicant. The next limb of submission of the applicant is that the seniority position assigned to the applicant in the rank of Superintendent, Central Excise in the Odisha Commissionerate as well as in the All India Seniority list have attained a finality and, thus, the case of the applicant ought to have been considered for promotion to the rank of Asst. Commissioner with all consequential benefits. The Govt. of India, Ministry of Finance has called for the service records and Vigilance clearance in respect of the applicant since May, 2013 for giving promotion to the grade of Asst. Commissioner, but due to the order dtd.22.08.2013 passed in O.A. No.569/2013 withholding further action on the seniority list of Superintendents dtd 10.05.2013, the case of the applicant for promotion as Asst. Commissioner could not be finalized but Sri R.K. Das, above whom the seniority of the applicant has been fixed, has already been promoted as Asst. Commissioner since 22.08.2005. Hence, it is the case of the applicant that the impugned order dated 13.02.2014 (Annexure-
16) is grossly contrary to the order dated 18.06.2012 in OA No. 436/2007 and order of the Larger Bench of this Tribunal dated 14 260/000110 of 2014 27.07.2012. The seniority of the applicant having been settled ought not to have been unsettled without giving him any opportunity in violation of Article 14 and 16 of the Constitution of India. In support of the relief claimed by the applicant, he has placed reliance on the following decisions:
1. Vasant Rao Roman Vs. UOI & Ors. - (1993) Supp. 2SCC 324;
2. State of Kerala & Ors. Vs. E.K.Bhaskaran Pillai - (2007) 6 SCC 524;
3. Shiv Nandan Mahto Vs State of Bihar & Ors. - (2013) 11 SCC 626;
4. Ramesh Kumar Vs. UOI & Ors. - (2015) 14 SCC 335;
5. Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Ltd. & Ors. - AIR 2016 SC 157.
7. On the other hand, it was submitted on behalf of the respondents that this case is not maintainable since it will unsettle a settled issue by the order of this Tribunal in OA No. 62-71 of 1987 wherein, on failure of Rota Rule the respondents department were directed to determine the seniority of Inspectors of Central Excise on the basis of their date of joining in the grade and in that OA the present applicant was respondent No.13. Accordingly, as per Ministry's direction dated 26.09.1997, DPC was held on 11.08.1998, order issued on 16.12.1998, placing 74 Inspectors including R.K. Dash, respondent No.5, and many SC/ST officers who are senior to the present applicant, on the basis of their date of joining as Inspector (SG) w.e.f 28.05.1985. It is contended that law is well settled in a plethora of decision that a person is disentitled to claim seniority from a date he was not borne in service.
The applicant in OA No 58/1991 had specifically prayed to quash the 15 260/000110 of 2014 seniority list of Inspectors as on 01.01.1990, circulated vide Memo dated 21.08.1990, but, it was not quashed by the Tribunal and it is a matter of record that the respondent No.5, along with many SC and ST candidates who were senior to the present applicant both in the grade of Inspector (OG) and (SG), were given their respective place and position in the gradation list of Inspectors. Thus, the claim of the applicant about his seniority over all the 74 officers, including officers belonging to SC/ST who were undisputedly senior to him as per the date of joining as Inspector (OG) and also as per the date of becoming Inspector(SG), is not only against the Rule of Law but also against the orders of this Tribunal dated 10.04.1989 in OA No. 62-71/1987 (upheld by the Hon'ble Apex Court), thereby such claim of the applicant is misleading and should not be accepted leading to multiplicity of litigation. Further, it was contended that admittedly the applicant became Inspector (SG) w.e.f. 30.05.1985. Therefore, this Tribunal quashed the order dated 16.12.2018 (Annexure-A/11) in OA No. 58/1991 and, thus, the prayer of the applicant to declare Annexure-11 of this OA to be infructuous and inoperative, as per the order in OA No.58/1991, is misnomer. It is contended that the order dated 27.11.2007 (Annexure-6) having accepted by the applicant, he has got no right to pray to declare the order dated 16.12.1998 (Annexure-11) as infructuous and inoperative as such prayer of the applicant is self contradicting and misleading. The next contention of Ld. Counsel for the respondents is that the applicant referred the order dated 20.11.2007 already set-aside vide order dated 27.11.2007 (Annexure-6) which fact 16 260/000110 of 2014 the present applicant has already conceded. The order dated 20.11.2007 being no more in existence to support the claim of the applicant, at the cost of all India ramification, he has absolutely no right to get the relief prayed by him in this OA and the same is liable to be dismissed.
8. After giving thoughtful consideration to the various arguments advanced by the respective parties, perused the records including the earlier orders referred to. Before proceeding, it is profitable to deal with the OA No. 62-71 of 1987 disposed of on 10.04.1989 and upheld by the Hon'ble Apex Court of India, in the said case, the applicants therein have prayed to declare him senior to the private respondents in the grade of Inspector (OG), to quash the DoP&T OM dated 07.02.1986, to direct the respondents to treat the seniority of the applicant vis a vis the private respondents as on 01.01.1986 and to direct the respondents to consider the case of the applicant for promotion to the next higher grade before considering the case of the private respondents. The said O.As. were disposed of with the following direction:
"13. For the reasons mentioned above, we hold that the quota rul3es of recruitment in all these cases has failed in as much as there is large scale deviation and consequently the rota rule of seniority can not be given effect to and the date of appointment of the applicants and the respondent Nos. 5 to 25 or 26 to the grade of Inspectors (OG), Central Excise & Customs should determine their seniority in the grade of Inspectors (OG), Central Excise & Customs. We, therefore direct respondent Nos. 1 to 4 to recast the seniority of the applicant and respondent Nos. 5 to 26 in the light of the principles contained in O.M. dated 7.2.1986 of the Department of Personnel and Training (Annexure-7) within four months from the date of receipt of this judgment. While doing so, the illustration given in paragraph-3 of the aforesaid office memorandum should be kept in view. While revising the seniority list, the usual procedure of giving 17 260/000110 of 2014 opportunity to all concerned to make their representation should be followed. Consequently, the memo of the Collectorate of Central Excise and Customs, Bhubaneswar as in Annexure-8 is quashed.
14. Mr. A.Patnaik, in the course of his argument has sought orders quashing paragraph-7 of the office memorandum dated 7.2.1986 of the Ministry of Personnel, Public Grievances and Pensions and not the whole O.M. as prayed for earlier in the applications. The seniority already determined by the department has been challenged by the applicant son the basis of pronouncements of the Supreme Court, some of which have been referred to in the preceding paragraphs. We are, therefore, unable to appreciate the provision in paragraph-7 of the office memorandum dated 7.2.86 which has made the revised procedure for determination of seniority effective only from 1st March 1986. we agree with the Madras Bench that the principles laid down by the Supreme Court have to be given effect to at least from the date of pronouncement of the decision by the Supreme Court and "not arbitrarily from some prospective date depending upon when the O.M gets issued by Government. We are firmly of the view that paragraph-7 of the office memorandum dated 7.2.1986 to which exception has been taken by Mr. A.Patnaik can not supersede the Supreme Court decisions and should not be taken in to account while recasting the seniority of the applicants and respondents Nos. 5 to 26 as directed in pare 13 above."
9. The applicant filed O.A. No. 58/1991 seeking to quash the seniority list as on 01.01.1990 and to declare the applicant senior to Inspectors, who were Inspector (OG) upto 01.01.1986 with further prayer that any promotion made to the post of Superintendent to be the outcome of the OA, which was disposed of on 11.08.2000 and upheld by the Hon'ble Apex Court. The relevant portion of the order of this Tribunal is as under:
"........From this list of Inspectors (Senior Grade) we find that after the first ten persons who have been promoted by 1.1.1990 to the rank of Superintendent, the position of seniority of other Inspectors (Senior Grade) from serial nos. 11 to 33, i.e., starting with R.C.Choudhury 18 260/000110 of 2014 and ending with P.L.Lenka, has been maintained in the revised seniority list. In other words, they have been assigned position from 1 to 20. Serial no. 35 is the applicant whose position as on 1.1.1986 was 60 and this has been revised to 104 in the seniority list showing the position as on 1.1.1990. The persons mentioned against serial nos. 36 to 44 in the list of Inspectors (Senior Grade) who were assigned position in the seniority last as on 1.1.1986 from 61 to 72 have been assigned higher position in the seniority list as on 1.1.1990 from 40 to 48. From this it is seen that all those persons mentioned above who were Senior Grade Inspectors as on 1.1.1986 have maintained their position in the seniority list as on 1.1.1990, but the applicant has been rushed down from the 60th position to 104th position. The applicant belongs to Scheduled Caste community and may be because of that he got quicker promotion to the rank of Inspector (Senior Grade). But after merger which does not nullify his promotion, which was on regular basis, he must be given his position in the combined list as inspector (Senior Grade) and must rank above those who were Inspectors (Ordinary Grade) as on 1.1.1986. There is nothing in the order dated 10.4.1989 which says otherwise. The order of the Tribunal is for drawing up of the seniority list of inspectors (Ordinary Grade) on the basis of date of appointment of persons in the rank of Inspectors (Ordinary Grade). What the departmental authorities have done is that they have drawn up a combined list of Inspectors (Senior Grade) and Inspectors (Ordinary Grade) which is not the mandate of the Tribunal in their order dated 10.4.1989 and while so doing they have wrongly assigned position to the applicant on the basis of his date of appointment as Inspector (Ordinary Grade). This has the effect of nullifying his promotion though in case of many other Inspectors (Senior Grade) in the combined list their position has been assigned on the basis of their promotion to the level of Senior Grade Inspector. There is no reason why in case of the applicant it should be otherwise
10. It has been submitted by the learned Additional Standing Counsel that promotion of Inspector (Ordinary Grade) to Senior Grade does not confer on him any higher promotional prospect because in accordance with the circular dated 27.9.1972 of the Board, which has been quoted in the letter dated 19.3.1981 enclosed to the written note of submission, with effect from 1.1.1974 promotion to the grade of 19 260/000110 of 2014 Superintendent should be made from amongst Inspectors (Ordinary Grade) as well as Inspectors (Senior Grade) who have put in a minimum of service of ten years as Inspector. For this purpose, the qualifying service of ten years will be reckoned from the date of continuous appointment as Inspector (Ordinary Grade). In other words, it is stated that by becoming Inspector (Senior Grade) with effect from 30.5.1985, the applicant does not gain any benefit for the purpose of further promotion to the rank of Superintendent because for the post of Superintendent ten years of service from the date of appointment as Inspector (Ordinary Grade) has to be reckoned. This may be so, but the above position does not take away the right of the applicant to be given credit in the combined seniority list for his regular promotion to Inspector (Senior Grade).
11. In consideration of all the above, we hold that while fixing the seniority of the applicant in the combined list of Inspectors inclusive of the pre-Fourth Pay Commission Inspectors (Senior Grade) and Inspectors (Ordinary Grade), the applicant has to be given credit of his appointment as Inspector (Senior Grade). i.e. he should be given his position above all those Inspectors over whom he became Inspector (Senior Grade with effect from 30.5.1985.
12. In the result, therefore, the Original Application is allowed but, under the circumstances. without any for as to costs."
10. OA 436/2017 was filed by the Inspectors seeking review/set aside the judgement dated 11.8.2000 passed in OA 58/1991 with prayer to declare the applicants therein senior to the present applicant in the cadre of Inspector (OG) and Inspector (SG) and to declare seniority list published as on 01.01.1990 as legal and valid and to quash the order dated 27.11.2007 so far as it directs to keep the respondent No.8 above Sri R.K.Das in the seniority list of Inspectors as on 1.1.1986, which was dismissed by the Larger Bench on 18.06.2012.
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11. Thereafter, OA No. 569/2013 filed by the respondent No.5 praying therein to quash the orders dated 13.08.2013, 27.11.2007 and the gradation list circulated on 10.05.2015 placing the applicant herein above him. In alternately, he prayed to direct the respondents to show his name above the applicant in the gradation list. The said O.A. was disposed of on 22.08.2013 with the observations as under:
"In the aforesaid facts and circumstances of the case, we find force in the contentions of the Learned Counsel for the applicant and accordingly, we quash the order of rejection dated 13.8.2013 (Annexure-A/9) and remit the matter back to the Respondent No.5 to reconsider his representation dated 12.8.2013 (Annexure-
A/8) and communicate the decision in a well- reasoned order to the applicant within a period of 60 (sixty) days from the date of receipt of copy of this order and until then, the Respondents are hereby directed not to take any further course of action based on the gradation list of Superintendent circulated vide Memo dated 10.5.2013 (Annexure-A/7)."
12. In consideration of the representation, the authority concerned disposed of the same vide impugned order dated 13.02.2014 (Annexure-A/16), relevant portion of which is produced below:
"22. In view of the facts enumerated above and in particular as stated in Para-18 above, the review DPC dated 28.11.2007 being infructuous, the seniority list of Superintendents as on 01.01.2013 (circulated vide Memo dated 10.05.2013), prepared on the basis of said infructuous DPC dated 28.11.2007 without any change in the feeder cadre (i.e, Inspectors), is also not valid so far as it relates to the seniority position of Sri C.K.Dalai vis-a-vis Sri R.K.Dash (No.1) and Sri S.C. Mohanty and others. Accordingly, the seniority position prevailing prior to 28.11.2007 in the grade of Superintendents needs to be restored to resolve the dispute in question.
23. In the aforesaid background, facts on record and elaborate discussion on the points of law the last para of Part-ll of the order dated 27.11.2007 issued vide C. No. 11(26)6/CC/ADMN/BBSR/2007 is set aside.
21 260/000110 of 2014 Accordingly the DPC dated 28.11.2007 and the seniority list of Superintendents circulated vide Bhubaneswar-1 Commissionerate's Memo dated 10.05.2013 be reviewed by a review DPC by a Competent Committee/Body and necessary steps be taken by the Cadre Controlling Authority for the grade of Superintendents in this regard with immediate effect and all concerned may be informed for taking necessary action at their end without any further delay as it is already delayed by more than two months."
13. Thereafter, the respondents issued the order under Annexure- A/19 dated 14.08.2015 stating therein as under:
"In pursuance of the order of Hon'ble CAT, Cuttack Bench, Cuttack dated 22.08.2013 in O.A. No. 569 of 2013, the Chief Commissioner, Central Excise, Customs & Service Tax, Bhubaneswar Zone had passed a well reasoned order vide C.No.II(26)69/CC/Admn/ BBSR/2013 dated 13.02.2014 directing that the DPC dated 28.11.2007 and the seniority list of Superintendents circulated vide Bhubaneswar-1 Commissionerate's Memo dated 10.05.2013 be reviewed by a Competent Committee/Body. Accordingly, a review DPC meeting was held
14.08.2015 to review the decision of DPC dated 28.11.2007.
In pursuance of the recommendation of the said DPC, Order no. 34/ET/BBSR-1/2012 dated 17.07.2012 issued by the Commissioner, Central Excise, Customs & Service Tax, Bhubaneswar-1 granting notional promotion to Shri C.K.Dalai to the grade of Superintendent w.e.f.25.10.1991 be treated as void ab initio (invalid from the outset) and all actions taken on the basis of the said order be treated as null and void.
Consequently, the seniority position of Shri C.K. Dalai in the grade of Superintendent prevailing prior to 28.11.2007 is restored.
However, this order is subject to outcome of OA No.110/2014 filed by Shri C.K. Dalai before the Hon'ble CAT Cuttack Bench, Cuttack."
14. As per the record, both the applicant as well as respondent No.5 in the meantime reached the age of superannuation. It is also seen that in 22 260/000110 of 2014 pursuance of the aforesaid letter dated 13.02.2014, review DPC was held on 14.08.2015. In pursuance of the recommendation of review DPC, necessary consequential order was issued on 14.08.2015 under Annexure-A/19. Neither the minutes of the review DPC held on 14.08.2015 nor the consequential order dated 14.08.2015 have been impugned and sought to be quashed in this O.A.
15. In the service sheet given by the respondents in their counter shows that the applicant was junior to the respondent No.5 and this has not been refuted or disputed by the applicant in the original application, which are reproduced below:
Sl Name of the Date of joining as Date of which became Remarks No. officer (S/Shri) Inspector (OG) Inspector (SG) 1 R.K.Dash (No 1) 04.11.75 28.05.85 Such factual 2 S.C.Mohanty 12.05.76 28.05.85 date clearly (Respondent shows that No.5 in this OA the issue here No. 110/2014 is de to 3 S.K.Choudhury 25.03.76 28.05.85 failure of Rota (ST) rule and has 4 S.Seth (SC) 11.07.77 28.05.85 nothing t o 5 C.K.Dalai(SC)- 03.12.80 30.05.85 with the caste Applicant in this status of the OA No. applicant 110/2014
16. The applicant only highlighted that since the order in OA 58/1991 having been set at rest, the decision taken by the respondents in pursuance of the order dated 22.08.20-13 in OA 569/2013 is bad in law because the applicant was not given opportunity to have his say. We find that the respondent No.5 was also not a party in OA 58/1991. There was no direction in O.A. 58/1991 that irrespective of the date of promotion, the applicant is to ranked senior or one can be assigned seniority even if he is not borne in the cadre or joined in service. The respondents in consideration of the representation and keeping in mind 23 260/000110 of 2014 the decisions referred to above have come to the conclusion the reasons of holding the review DPC vide order dated 13.02.2014. Going through the said order vis a vis the service particulars of the applicant and respondents quoted above as also the decisions referred to above, this Tribunal is of the view that absolutely there is no wrong in the decision making process of the matter. Law is also well settled that the principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising there under is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice (Punjab National Bank and Others Vs. Manjeet Singh and Another [(2006) 8 SCC 647]. A court of law does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences [Ashok Kumar Sonkar Vs. Union of India and others, [2007] 2 SCC (L&S) 19. Since the decision was in accordance with rule and law non-compliance of natural justice in the peculiar facts and circumstances cannot make the decision faulty because the result even after compliance of natural justice would have been the same.
Further, it is seen that as per the order of this Tribunal in OA 58/1991, the applicant should have been given his position above all 24 260/000110 of 2014 those Inspectors over whom he became Inspector (SG) w.e.f. 30.05.1985 whereas respondent No.5 being Inspector (SG) w.e.f. 28.05.1985 was although senior to the applicant, which was wrongly been altered and, subsequently, restored vide order dated 13.02.2014. Thus, respondent No.5 being the senior he was promoted to the post of Superintendent on 09.07.1992 and applicant was promoted to the said grade on 30.09.1996. It is also seen that the order of this Tribunal dated 10.04.1989 in OA Nos. 62-71 of 1987 has reached finality being upheld by the Hon'ble Apex Court whereupon this Tribunal quashed the seniority list as on 01.01.1986 in the grade of Inspector of respondents' department because of failure of rota quota rule and categorically directed the respondents to determine the seniority on the basis of date of joining in the grade where the present applicant was respondent No.
13. Accordingly, the seniority list of Inspectors as on 01.01.1990 was published and circulated vide memo dated 21.08.1990 assigning the place and position of applicant vis-à-vis respondent No.5 in the grade of Inspector. The seniority list published as on 01.01.1990 vide memo dated 21.08.1990 was not set aside by this Tribunal in OA No. 58/1991. Consequent upon implementation of the order of this Tribunal in OA Nos. 62-71/1987 and with reference to the O.M. dated 26.09.1997, review DPC was held and order was issued on 16.12.1998 as per which 74 Inspectors, including respondent No.5 and others as well as SC & ST officers, who are senior to the present applicant on the basis of date of joining as Inspector, are held senior to the present applicant as Inspector (SG) w.e.f. 28.05.1985.
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17. In view of the discussions made above and the fact that the applicant approached this Tribunal challenging the order, which was in a fluid stage and after the final order, for the reason best known to him he did not challenge the same after availing the opportunity of filing appeal etc., this OA deserves to be dismissed and is accordingly dismissed. No costs.
(SWARUP KUMAR MISHRA) (DEVENDRA CHAUDHRY) Member (Judicial) Member (Admn.) RK/PS