Delhi High Court
Union Of India vs Deo Narain And Ors. on 30 January, 2002
Equivalent citations: 2002VIIIAD(DELHI)525, 96(2002)DLT773
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. This writ petition is directed against a judgment and order dated 13th April 1999 passed by the Central Administrative Tribunal vide OA No. 2146/98 whereby and whereunder the original application filed by the respondents herein was allowed. The application was filed praying for the following reliefs:
(a) issue a writ of mandamus or any other writ or order or direction of the like nature, quashing the impugned order of the Tribunal dated 13.4.1999 in O.A. No. 2146 of 1998;
and,
(b) pass such other as may be deemed fir and proper along with the costs to the writ petitioner
2. The fact of the matter is not in dispute. In the year 1992, the respondents joined the offices of the petitioners as lower division clerks on different dates in 1992 on inter-departmental transfers. admittedly, in terms of the existent rules, consequent upon their transfer, they had foregone their respective seniority in their departments and they were placed at the bottom of the seniority list. On or about 23rd May 1997, the Ministry of Finance, Department of Revenue issued instructions to all Commissionerates under the Central Board of Excise and Customs that an officer on transfer form one Commissionerate to another would be entitled to get the benefit of his past service for the purpose of promotion although his seniority shall be retained at the bottom of the transferred Commissionerate.
3. As the cases of the respondent for promotion had not been considered, they filed the afore-mentioned Original Applications which had been allowed by the Central Administrative Tribunal directing:
"8. In the result, this application is allowed with the directions to the respondents to convene review DPC for the year 1997, and consider the eligible LDCs for promotion to the post of UDCs in accordance with the principles laid down by the Supreme Court by taking into consideration the period of their past regular service rendered as LDCs before their transfer to another Commissionerate. In the circumstances, any relaxation of the Rules to consider the senior persons who do not have the eligibility conditions of 7 years as laid down in the relevant recruitment Rules cannot be resorted to by the respondents when there are sufficient number of other persons who may be junior but, however, fulfill the eligibility conditions prescribed in the Rules. This action shall be taken within three months from the date of receipt of a copy of this order. No order as to costs."
4. Mr. H.K. Gangwani, learned counsel for the petitioner would submit that having regard to the original applicants, the respondents had foregone their seniority, they could not have been directed to be considered for promotion having regard to the fact that they had not come within the zone of consideration. In support of the said contention, strong reliance has been placed on a decision of the apex court in Renu Mullick v. Union of India and Anr., 1994 SCC (L&S) 570.
5. Mr. D.R. Gupta, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that the employees who were senior to the (SIC) did not possess the eligibility criteria and in that view of the matter the impugned order cannot be said to be bad in law. According to the learned counsel, the matter might have been different, had even upon grant of relaxation to the employees who were senior to the respondents, they would have come within the purview of the zone of consideration.
6. It is not in dispute that the persons on voluntary transfer, would lose their seniority but the same by itself would not mana that their entire past service is wiped off. For the purpose of consideration of their cases for promotion, their past service is required to be taken into consideration.
7. The learned Tribunal in this judgment has noticed:
"6. In Union of India and Ors. v. C.N. Ponappan (supra), the Supreme Court has held that a person who had been transferred on compassionate grounds only loses his seniority but he does not lose the past service rendered in the previous unit for the purpose of his promotion. It was further held that "the fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place form where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of his experience of the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place form where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred."
The above principles have been followed in the other judgments relied upon by the applicants."
8. In Renu Mulick v. Union of India and Anr.,(supra), the apex court has itself held:
"10. We are of the view that the Tribunal fell into patent error in dismissing the application of the appellant. A bare reading of para 2(ii) of the executive instruction dated May 20, 1980 shows that the transferee is not entitled to count the service rendered by him/her in the former collectorate for the purpose of seniority in the new charge. The later part of that para cannot be read differently. The transferee is to be treated as a new entrant in the collectorate to which is transferred for the purpose of seniority. It means that the appellant would come up for consideration for promotion as per her turn in the seniority list in the transferee unit and only if she has put in 2 years; service in the category of UDC. But when she is so considered, her past service in the previous collectorate cannot be ignored for the purposes of determining her eligibility as per Rule 4 aforesaid. Her seniority the previous collectorate is taken away for the purpose of counting her seniority in the new charge but that has not relevance for judging her eligibility for promotion under Rule 4 which is a statutory rule. The eligibility for promotion has to be determined\with reference to Rule 4 alone, which prescribes the criteria for eligibility..."
9. There is no doubt with regard to the above-mentioned proposition of law. In the instant case, as noticed herein before, the candidates who were senior to the respondents did not have the eligibility criteria. If such eligibility criteria cannot be conferred upon them even upon giving relaxation the persons who were entitled to, they cannot create an embargo in the respondents being considered for promotion.
10. If that be the position, we are of the opinion that there was no bar, as has been held by the learned Tribunal,in considering the cases of the respondents for their promotion although there may be person who were senior to them and were not considered for the said post as they were not eligible.
11. We do not find any merit in this petition which is accordingly dismissed. But in the facts and circumstances of this case, there shall be no order as to costs.