Central Administrative Tribunal - Jaipur
Ajay Agarwal vs M/O Finance on 26 September, 2022
(OA No.414/2016)
(1)
Central Administrative Tribunal
Jaipur Bench, Jaipur
O.A.No.414/2016
With
M.A.No.468/2016
M.A.No.537/2016
M.A.No.274/2022
M.A.No.299/2022
Reserved on:05.09.2022
Pronounced on:26.09.2022
Hon'ble Mr. Dinesh Sharma, Member (A)
Hon'ble Mrs. Hina P. Shah, Member (J)
1. Ajay Agarwal S/o Sh.Jai Prakash Agarwal, Age 48 years
72/244-A, Vinayak Path, Mansarovar, Jaipur-302020.
2. Sanjay Raizada S/o Sh. S.C. Raizada, Age 48 years
R/o 70/22, Patel Marg, Mansarovar, Jaipur.
3. D.N.Lata S/o Sh.Chhitarmal Lata, Age 46 years R/o 61
Avadhpuri, Mahesh Nagar, Jaipur.
4. Dheeraj Bangali, S/o Sh.S.N.Bangali, Age 42 years R/o
F-101, Major Shitan Singh Colony, Shastri Nagar,
Jaipur.
5. P.K.Jangid S/o Sh.C.M.Jangid, Age 43 years R/o Plot
No.154, First Floor, Anand Nagar, Sirsi Road, Jaipur.
6. Deepak Punjabi S/o Late Sh.M.L.Punjabi, Age 44 years
R/o Plot No.51/93, Shipra Path, Mansarovar, Jaipur.
7. Rajiv Garg S/o Sh. Keshav Dev, Age 48 years R/o Plot
No.C/24, Customs Colony, Vidhyadhar Nagar, Jaipur.
8. Nanu Ram Mahawar S/o Sh. Shiv Narayan Mahawar,
Age 45 years R/o A-51, Vidhyadhar Nagar, Jaipur.
9. Bhanwar Singh S/o Sh.Jadam Singh, Age 42 years R/o
Plot No.88, Sajanleela Vihar, Nandiri, Jodhpur.
(OA No.414/2016)
(2)
10. Sanjay Kumar Sethi S/o Sh.V.D.Sethi, Age 43 years
R/o Plot No.134, Kanji Nagar, Agra Road, Jaipur.
...Applicants.
(By Advocate: Shri Amit Mathur)
Versus
1. The Union of India through its Secretary, Ministry of
Finance, Department of Revenue, 4th Floor, HUDCO
Vishala Building, Bikaji Kama Place, New Delhi.
2. The Chief Commissioner (Jaipur Zone), Central Excise
and Customs, NCRB, Statue Circle, Jaipur.
3. Pradeep Parwani S/o Dr. H.K.Parwani, Age 42 years,
Resident of flat No.B-403, SDC Greenpark, Janta
Colony, Jaipur-302004.
...Respondents.
(By Advocates: Shri Kinshuk Jain for official respondents and
Ms.Ashish Joshi for private respondent)
ORDER
Per: Dinesh Sharma, Member (A):
In this OA, the applicants have prayed for the following reliefs:
i) That this Hon'ble Tribunal will be pleased to call for the records and proceedings leads to the issue of upgradation of Inspector, Central Excise to the post of Superintendent and after going through the illegality or otherwise, this Hon'ble Tribunal will be pleased to quash and set aside the directions contained in the impugned letter dated 12.05.2016.
ii) That this Hon'ble Tribunal will be pleased to direct the official respondents to issue Commissionerate-wise details of the actual number of Inspector, Central Excise posts which stood upgraded to the post of Superintendent during the period from 01.01.1999 till 07.12,2002, whether due to cadre restructuring or otherwise.
(OA No.414/2016)
(3)
iii) That this Hon'ble Tribunal will be
pleased to direct the official respondents to issue Commissionerate-wise details of the actual number of Superintendent, Central Excise posts which stood created during the period from 01.01.1999 till 07.12,2002, whether due to cadre restructuring or otherwise.
iv) That pending the hearing and final disposal of this application, respondents 1 to 4 be restrained by an order and injunction issued from this Hon'ble Tribunal from proceeding with taking any action on the impugned letter dated 12.05.2016.
v) That an-interim order in terms of prayer clause (d) be granted in favour of the applicants.
vi) That the cost of this application may be awarded in favour of the applicants.
vii) That such other and further relief as are expedient be granted in favour of the applicants.
viii) That any other relief or direction which this honourable tribunal deems fit in the facts and circumstances of the case may also be passed in favour of the applicant.
2. The case has a very chequered and apparently complex history of a restructuring of cadre, a protracted litigation between two streams of feeder categories for promotion against differently determined vacancies for such promotions. This is reflected in the O.A., the reply, the rejoinder, the reply to rejoinder and a number of Miscellaneous Applications filed during the pendency of this (OA No.414/2016) (4) case. The litigation has been mainly between two sets of employees, those who came in service through what may be termed as the older ministerial route (of LD/UD Clerks/Assistants) and those who were initially taken as Data Entry Operators (represented in this O.A. by Respondent No 3, allowed to be impleaded as Private Respondent) but later turned into a feeder category for higher level posts of the ministerial cadre. There are two seemingly contradictory judgments (though the respondents deny it), of the Hon'ble High Courts of Andhra Pradesh and Mumbai (dated 02.03.2005 and 07.03.2005 in W.P.No.7963/2004 of Hon'ble A.P. HC and dated 28.10.2013 in W.P.No.298 of 2013 and Civil Writ Petition No.4262 of 2013 of Hon'ble Mumbai High Court). There is, finally, a decision, during the pendency of this OA, by the Hon'ble Supreme Court in the case of D.Raghu and Others vs. R.Basaveswarudu & Ors. ect. vide Civil Appeal Nos.1970-75 of 2009 decided on 05.02.2020, annexed at Annexure MAR- I). We are not reproducing all the history, and also consciously avoiding attempting a precis of all the pleadings, giving dates and details of various orders, etc., (unless it is absolutely necessary for the purpose of referencing). It is not only for avoiding clutter, but also because, after going through these pleadings; and despite objection by the (OA No.414/2016) (5) Private Respondent (Respondent No.3) about the applicability of the Supreme Court's judgment on the facts of this case); we are basing our decision, primarily, on the decision of the Supreme Court mentioned above.
3. A very dumbed down summary of the case is that the respondents promoted the applicants to the post of Inspector in the year 2006 which gave the applicants notional promotion with effect from 06.12.2002. This was apparently done following the decision of the Hon'ble High Court of Andhra Pradesh dated 02.03.2005 in Writ Petition No.7963 of 2004 (hereinafter referred to as the decision of "Hon'ble A.P. HC"). This decision ordered that the vacancies occurring before 07.12.2002 should be filled under the old Recruitment Rules of 1979. The decision of the Hon'ble A.P. HC was appealed against and the matter was before the Hon Supreme Court at the time of filing of this O.A. In the meanwhile, there is another decision by the Hon'ble Mumbai High Court, dated 28.10.2013 (hereinafter referred to as the decision of the "Hon'ble Mumbai High Court"). This decision found that the vacancies said to be existing before 2002, against which the old ministerial class persons were given promotions, were wrongly determined. More persons were promoted than the actual vacancies at that time and this had resulted in lesser promotional vacancies remaining for (OA No.414/2016) (6) the Data Entry Operator stream. This decision, which was not appealed against and thus attained finality, is sought to be implemented by the official respondents across the country. The present O.A. is against the impugned orders (dated 12.05.2016, annexed at Annexure A/1) by which it is proposed to conduct a review DPC in Rajasthan, to undo any error in promotion due to wrong determination of vacancies in this region/circle.
4. The arguments of the applicants are that the respondents (official) cannot retract from their averments made before the Hon'ble A.P. HC, where they have supported the claims of the applicants and justified the promotions given to them against the vacancies determined by them at that time. The respondents should follow the decision of the Hon'ble A.P. HC and not the decision of the Hon'ble Mumbai High Court. The applicants have further cited the case of Deepak Jaitly & Others vs. Union of India & Others (Annexure A/9 to the rejoinder), which was filed by the Data Entry Operators and was decided by the Jaipur Bench of this Tribunal on 22.11.2010 in OA No.244/2006 against them.
5. An interim relief, staying further action on the impugned order (Annexure A/1), was granted by this (OA No.414/2016) (7) Tribunal, by its order dated 03.06.2016. The order has been extended till date, though MAs (MA No.468/2016 & MA No.537/2016) have been filed for vacating these orders (by both the official and the private respondents).
6. The respondents (official) have denied the claims made by the applicants stating that the decision of the Hon'ble A.P. HC was not about how the vacancies before 2002 were to be determined. They had filed their reply before the Hon'ble A.P. HC based on what were the facts at that time. They have now consciously decided to correct the error in the determination of vacancies, after the judgment of the Hon'ble High Court of Mumbai, which has been passed after considering the decision of Hon'ble A.P. HC. The respondents have also claimed that the decision of the Deepak Jaitly (supra) was in the context of the claims made by the Data Entry Operators. It was decided on the basis of the official position in this matter which prevailed at that time (which was the same as the one taken before the Hon'ble A.P. HC, justifying promotions of the applicants on the basis of what is now termed as the wrong determination of vacancies) and therefore, it cannot be said to be verdict against correction by the Department of an error in the determination of vacancies.
(OA No.414/2016) (8)
7. An MA (MA No.106/2021) was filed by the official respondents, quoting from the decision of the Hon'ble Supreme Court in the case of D.Raghu and Others vs. R.Basaveswarudu & Ors. ect. Vide Civil Appeal Nos. 1970-75 of 2009 decided on 05.02.2020, and requesting for taking this decision of the Hon'ble Supreme Court on record. The M.A. was allowed. They have prayed for dismissing the OA now, filing MA No.274/2022, on ground of the decision by the Hon'ble Supreme Court, and further decision, dated 01.06.2022, taken by the department following this decision of the Hon'ble Supreme Court, which are annexed to MA No.299/2022 (Annexure MAR-1). There are other MAs (MA No.468/2016 dated 20.10.2016 and MA No.537/2016 dated 28.11.2016) filed by the official/private respondents. These are for vacating/modifying the stay order, for dismissing the OA and for allowing the official respondents to proceed with the action for conducting review DPC of the applicants, respectively. The argument of the private respondent, clearly spelt out in their MA No.4/2022 is that there is no contradiction between the judgments of the Hon'ble A.P. HC and Hon'ble Mumbai High Court, and the decision of the Hon'ble Supreme Court does not stop the official respondents from acting against the applicants, who were promoted against non-existent vacancies.
(OA No.414/2016) (9)
8. The matter was finally heard on 05.09.2022. The learned counsel for the official respondents (Shri Kinshuk Jain, arguing for the MA filed by them) submitted that the matter has become (kind of) infructuous due to the decision of the Hon'ble Supreme Court. The official respondents have already filed an MA bringing this judgment on record and praying for dismissing the OA. The learned counsel for the applicants (Shri Amit Mathur) agreed with the suggestion (regarding OA having become infructuous) provided the respondents made it clear that they would not act further on the decision of the Mumbai High Court, and revert the applicants. Shri Kinshuk Jain, learned counsel for the official respondents expressed inability to go beyond what is pleaded in their MA No.468/2016. The learned counsel for the private respondent (representing Data Entry Operators) argued against accepting the applicants' prayers and also filed a written argument note supporting holding of a review DPC for promotion against correctly determined vacancies.
9. We have gone through the pleadings and heard the arguments. Both are summarized in the previous paragraphs. It seems that the official respondents have not yet clearly made up their mind about what they should do with respect to the applicants, after the decision of the (OA No.414/2016) (10) Hon'ble Supreme Court in the case of D.Raghu (supra) (brought on record as Annexure MAR-I). There can be no denying that the verdict of the Hon'ble Supreme Court is binding on all. The verdict does mention, citing the case of Taherakhatoon (D) by Lrs. vs. Salambin Mohammad decided by Hon'ble Supreme Court on 26.02.1999), not disturbing officers promoted following the Hon'ble A.P. HC verdict (Refer Para 119 (19,20 & 21 of this verdict), which is also referred to in the letter dated 01.06.2022,filed by the respondents along with MA No.299/2022). This should, prima-facie, include the applicants. The argument of the private respondent that it does not, is based on their interpretation of the Hon'ble Supreme Court order and the orders of the Hon'ble Mumbai and A.P.High courts. We do not think that the private respondent, or even us, are competent to interpret the decision of the Hon'ble Supreme Court in any which way, at the present stage. The fact that the official respondents have prayed for dismissing this OA in the light of the Hon'ble Supreme Court's order, can be taken as an indication of their not intending to proceed further with the impugned orders. It can also be taken as a ruse (as suspected and argued by the learned counsel for the applicants) to have the case dismissed, get the stay vacated and to proceed further with review DPCs and (OA No.414/2016) (11) the applicants) to have the case dismissed, get the stay vacated and to proceed further with review DPCs and reversions as proposed in the impugned order (Annexure A/1). We neither want to guess the intentions of the official respondents, nor, as stated earlier, to interpret the orders of the Hon'ble Supreme Court in any particular way, without knowing what action is being taken by the respondents and without anyone challenging that action before us. Suffice it is to say that we find the orders of the Hon'ble Supreme Court does apparently covers the matter raised in the OA before us. This fact is admitted by both the learned counsels for the applicants and the official respondents. The order of the Hon'ble Supreme Court also, prima-facie, protects the applicants who were apparently promoted pursuant to the decision of the Hon'ble A.P. HC. Any decision on our part, pre-judging what would be the actions of the official respondents with respect to the applicants following the decision of the Hon'ble Supreme Court, is clearly pre-mature and therefore not warranted at this stage. The impugned orders (at Annexure A/1) were issued before the decision of the Hon'ble Supreme Court. In our considered opinion, these would certainly require a re-look by the respondents in the light of the decision of the Hon'ble Supreme Court. We, therefore direct the respondents to take a fresh decision in (OA No.414/2016) (12) this matter, in the light of the orders of the Hon'ble Supreme Court in D. Raghu's case (supra).
10. We are, thus, disposing this OA with a direction to the official respondents to take appropriate fresh decision, in the light of the decision of the Hon'ble Supreme Court in D.Raghu's case (supra). Needless to mention, it shall be open for any party to raise the matter at an appropriate forum, if such fresh decision violates any law of the land (including the aforementioned decision of the Hon'ble Supreme Court). No costs.
11. M.A.No.468/2016 and M.A.No.537/2016 filed by the official and the private respondents for vacation of interim order dated 03.06.2016 are disposed of and M.A.No.299/2022 and M.A. No.274/2022 filed by the official respondents and the private respondent for bringing CBIC letter dated 01.06.2022 on record and praying for dismissal of OA are also disposed of.
(Hina P. Shah) (Dinesh Sharma) Member (J) Member (A) /kdr/