Central Administrative Tribunal - Delhi
Jagmohan Maliya & Ors. vs Uoi & Ors. on 22 August, 2013
Central Administrative Tribunal Principal Bench, New Delhi.
MA-1724/2013 in OA-2041/2013 Reserved on : 16.08.2013.
Pronounced on : 22.08.2013.
Honble Mr. G. George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Jagmohan Maliya & Ors. Versus UOI & Ors.
Present : Sh. M.K. Bhardwaj, counsel for applicants.
Sh. R.N. Singh, counsel for official respondents.
Sh. K.K. Rai, Sr. Counsel with Sh. K.M. Singh for private respondents.
Sh. S.K. Gupta, counsel for newly impleaded respondent.
ORDER ON INTERIM RELIEF Mr. Shekhar Agarwal, Member (A) MA-1724/2013 in OA-2041/2013 This MA has been filed by the private respondents for vacation/modification of the ad-interim ex-parte order passed by this Tribunal on 14.06.2013 while admitting this O.A.
2. This O.A. has been filed seeking the following relief:-
(a) to declare the action of respondents in not fixing the seniority of applicant as Inspector Central Excise & Customs by interspacing them with the promotees of same recruitment year as illegal, arbitrary and unjustified and issue appropriate directions to fix the seniority of applicants by interspacing them with the promotees of the same recruitment year i.e. 2001 & 2002.
(b) to declare all the orders based on draft seniority list of Inspector Central Excise & Customs dated 07.08.2012 as illegal and arbitrary.
(c) to direct the respondents to fix the seniority of applicants as per the judgment of Honble supreme Court dated 27.11.2012 in case of UOI Vs. N.R. Parmar & Ors.
to allow the OA with cost.
(e) Pass such other and/or further orders as this Honble Court may deem fit and proper in the facts and circumstances of the case.
3. While admitting this case on 14.06.2013, the following order was passed:-
In view of the above position, issue notice to the respondents, returnable within four weeks. In the meantime, respondents may not issue any further promotion order for the post of Superintendent of Central Excise on the basis of the draft seniority list dated 07.08.2012.
List the matter on 19.07.2013. Vide MA-1725/2013 certain private respondents were impleaded in this O.A. and they have now through MA-1724/2013 prayed for vacation/modification of the ex-parte interim order referred to above.
4. The official respondents while arguing the case also supported the case of the newly impleaded private respondents. Learned counsel for the official respondents argued that the main prayer in this O.A. is that the respondents be directed to fix the seniority of the applicants as per the judgment of Honble Supreme Court dated 27.11.2012 in the case of N.R. Parmar (supra). Learned counsel for official respondents argued that the respondents were in the process of implementing the judgment of Honble Supreme Court in the case of N.R. Parmar (supra). Meanwhile in the interest of work it had become necessary to promote certain officers to the vacant posts of Superintendents in CBEC. He argued that in case these posts were kept vacant till finalization of the seniority list as per Honble Supreme Court directions, great loss of revenue will be caused to the Government. He further argued that the promotions being made by the official respondents are of promotee officers who have become Inspectors prior to 2003. On the other hand, applicants are direct recruits who have joined the department through Combined Graduate Level Examination which was advertised on 31.01.2013. Thus, even if the Honble Supreme Courts directions in the case of N.R. Parmar (supra) are implemented the applicants will not get seniority prior to 2003. On the contrary, the private respondents impeaded vide MA-1725/2013 and other officers promoted by the respondents vie orders dated 31.05.2013, 05.03.2013 & 01.01.2013 are those who have become Inspectors before 2003. Thus, no loss will be caused to the applicants if the interim order granted on 14.06.2013 is vacated and respondents are permitted to go ahead with the promotions in the interest of work.
5. Learned counsel for official respondents further stated that the Custom and Central Excise department was restructured and orders of restructuring were issued on 19.07.2001. While issuing these orders the Government had also decided that no direct recruitment will be made to various grades for vacancies arising upto 31.12.2002 and that all such vacancies will be filled by promotion. This had been done by relaxation of Recruitment Rules as a one time measure by the competent authority. On this basis, learned counsel argued that the applicants were not only appointed after 2003 but were also assigned against vacancies arising after 31.12.2002. The case of respondent impleaded vide MA No.2113/2013 who was a candidate of 1996 examination but joined service in 2003 appears to be exception. Thus, by no stretch of imagination can they claim to be senior to the private respondents of this case as well as those promoted by above mentioned orders. On this basis, he argued that there is no justification for continuation of the interim order granted on 14.06.2013.
6. On the other hand, learned counsel for the applicants argued that Honble Supreme Court had given judgment regarding fixation of seniority between direct recruits and promotees as long back as on 27.11.2012. Yet the department has not implemented the same and has not fixed the seniority in accordance with the directions o the Honble Supreme Court. In fact, the department at the moment has no settled seniority list at all. They are making promotions on the basis of a draft seniority list. Learned counsel for the applicants argued that the action of the respondents in making promotions on the basis of provisional seniority list is not only violation of the orders of the Honble Supreme Court in N.R. Parmars case but also unsustainable in law. He, therefore, prayed that till the final disposal of this O.A. the interim orders should be continued.
7. We have heard the submissions of both sides. In their support, the official respondents have relied upon the judgment of Punjab & Haryana High Court in the case of R.S. Doon Vs. Central Administrative Tribunal, Chandigarh & Ors., 2002(2) AISLJ 113 in which it was held that the ex-parte stay should not be of more than 14 days and should be granted only after recording the reasons i.e. after considering the applicant of convenience, irreparable loss to parties and public interest etc. They have also relied on the judgment of Punjab and Haryana High Court in the case of Sukhdev Singh Sidhu Vs. State of Punjab, 2003(4) SLR 12 in which it has been observed as follows:-
29. the ratio of the above noted decision is that the Courts and the Tribunals should not stay the process of recruitment/selection because that not only causes injury to a large number of employees who are deprived of the right of consideration for appointment but is also antithesis of public interest and adversely affect service as a whole.
8. The official respondents have also filed a copy of the order dated 22.07.201 of Jabalpur Bench of this Tribunal passed in OA-531/2013 in the case titled Rajesh Kumar Katkare & Ors. Vs. UOI & Ors., the order reads as follows:-
With the consent of the parties, matter is finally heard.
2. Through this Original Application, the applicants have prayed for the following relief:
(i) That, respondents be restrained from holding DPC for the post of Income Tax Officers (ITO) on the basis of the old seniority list.
(ii) By an appropriate Order or Direction the respondents be directed to hold the DPC on the basis of the recasted seniority list dated 11.03.2013 (Annexure A-3) as per the judgment dated 27.11.2012 of the Apex Court in the case of N.R. Parmar.
(iii) Any other order or direction, which this Honble Tribunal deem fit and proper in the facts and circumstances of the case, may kindly be passed in favour of the applicant.
(iv) Cost of the present case.
3. The respondents have filed their detailed reply. In para 17 of their reply they have categorically stated as under:
17. To take care of the interest of the aggrieved applicants, the Honble Tribunal is hereby assured that the promotion orders to the post of ITO shall be passed only after incorporating the following rider:
The promotion of these officers shall be subject to revision of the seniority of Inspectors/Income-tax Officers, if any, consequent to implementation of Honble Supreme Court judgment dated 27.11.2012 in N.R. Parmar case and other similar cases on the matter pending, if any, in various court including the present Original Application. It is pertinent to mention that the CBDT itself has followed the same line of action while releasing the promotion orders to the post of Assistant Commissioner of Income Tax by incorporating in the promotion order the aforementioned rider.
4. In view of the above averments in the reply filed by the respondents, nothing survives in this Original Application and the same is accordingly disposed of.
9. On the other hand, the applicant have relied upon the judgment of Honble Supreme Court in the case of State of Punjab and Others Vs. Satnam Kaur and Others, (2005) 13 SCC 617 in which it was held that the judgment of Honble Supreme Court is binding and no orders can be passed by passing the same. Learned counsel also cited the judgment of Honble Supreme Court in the case of D. Navinchandra and Co. Vs. UOI, (1987)3 SCC 67 in which it has been held that when Supreme Court has laid down any law categorically and repeatedly, persons questioning it were not entitled to any equity of restitution. Learned counsel further relied upon the judgment of Supreme Court in the case of V.P. Shrivastava and Others Vs. State of M.P. and Others, (1996) 7 SCC 759 in which general principles for determination of inter se seniority between promotees have laid down.
10. In our opinion, the respondents have prima facie demonstrated that no loss will be caused to the applicants by vacation of the interim order as even if their O.A. is allowed and prayer made therein is granted, they will not get seniority of any year before 2003 in terms of the Honble Supreme Court order in the case of N.R. Parmar (supra). Thus, the balance of convenience lies in favour of the respondents inasmuch as by continuing the interim orders the post of Superintendents of CBEC will remain vacant which may not be in public interest. As far as citation given by the applicants are concerned, the respondents rightly argued that since they (respondents) were not going against the orders of Honble Supreme Court, hence these citations were not applicable in the instant case. Their argument was that pending implementation of N.R. Parmars judgment and finalization of seniority in accordance with that, they were making promotions in public interest.
.
11. We, therefore, vacate the interim orders granted on 14.06.2013. We, however, direct that promotions made hereafter on the basis of provisional seniority list shall be ad hoc and subject to the outcome of this O.A.
12. List this O.A. for our consideration on 25.09.2013 alongwith CP-193/2013 in OA-411/2013.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/