Mithlesh Trivedi vs Union Of India Through Secretary And Ors

V. Ajay Kumar, J

The short issue arose for our consideration in this OA is that whether the respondents No.1 to 3 are right in placing the 4th respondent as senior to the applicant, on their inter charge transfer to Delhi Charge from Kolkatta Charge, though the applicant was admittedly senior to the 4th respondent, in the category of Inspectors in their original charge, i.e., Kolkatta Charge, and though both of them joined on the same date in Delhi Charge, on the fortuitous circumstance that the 4th respondent joined few minutes/hours earlier to the applicant, at Delhi.

Briefly stated, both the applicant and respondent No.4 originally joined in Kolkatta as Inspectors of Income Tax. The respondents vide Annexure A-4 Gradation List of Inspectors as on 01.09.2003 in the Kolkatta Zone shown the applicant against seniority No.928 and whereas shown the name of the 4th respondent against seniority no.975, as per rules. Hence, the applicant was admittedly senior in the category of Inspectors of Income Tax to the 4th respondent in the Kolkatta Zone.

However, on acceptance of their inter charge transfer to Delhi Zone, both the applicant as well as the 4th respondent joined at Delhi Zone on the same day, i.e., 26.03.2007. However, the 4th respondent joined Delhi Charge vide Diary No.11738 and whereas the applicant joined vide Diary No.11739, i.e., 4th respondent though joined on the same date but a little early in time than the applicant. The respondents by stating that on the inter charge transfer from Kolkatta to Delhi, both the applicant and the 4th respondent lost their seniority positions at Kolkatta and they are to be placed at the bottom of the list of Inspectors of Central Excise in Delhi Zone and since the 4th respondent joined early, in time, than the applicant, shown the 4th respondent as senior to the applicant in the impugned Annexure A-1 final Seniority List of Inspectors with effect from 01.04.2002 to 31.03.2014 of Delhi Zone, i.e., the 4th respondent was shown at Sl.No.2182 whereas the applicant was shown at Sl.No.2183. Questioning the said action, the applicant filed the instant OA.

Heard Shri Sanjay Kumar Das, the learned counsel for the applicant and Shri Vijay Kumar Sharma, the learned counsel for the respondents No.1 to 3 and perused the pleadings on record. No counter filed by the 4th respondent.

It is not in dispute that the applicant was senior to the 4th respondent in the category of Inspectors in Kolkatta Zone, prior to their inter charge transfer to Delhi Zone. It is also not in dispute that both of them joined on the same date, that too in the Fore-Noon only at Delhi Zone, however, the 4th respondents joined early in time than the applicant. None of the parties have shown any rule governing the fixation of seniority if two Inspectors joined on the same day in a new zone on their Inter Commissionerate transfer, but the official respondents considering the fact of joining by the 4th respondent in Delhi Zone early in time than the applicant, placed the 4th respondent above the applicant.

In D.P. Das Vs. Union of India and Others, (2011) 8 SCC 115, the Hon'ble Apex Court held as under:-

"18. The law is clear that seniority is an incidence of service and where the service rules prescribe the method of its computation, it is squarely governed by such rules. In the absence of a provision ordinarily the length of service is taken into account. The Supreme Court in M.B. Joshi & others. V. Satish Kumar Pandey & Ors., AIR 1993 SC 267has laid down that it is the well settled principle of service jurisprudence then in the absence of any specific rule the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of the service and not on any other fortuitous circumstances".

Once it is admitted that both the applicant as well as the 4th

respondent in the Delhi Zone joined on the same day, and that there is no specific rule governing the fixation of seniority, in such a situation, the respondents ought to have placed the applicant as senior, as he was senior to the 4th respondent in Kolkatta Zone. Whereas placing the 4th respondent as senior to the applicant,

basing on the fortuitous circumstance of joining at Delhi Zone by the 4th respondent, early in time, is not inconsonance with law.

Hence, in the circumstances and in view of the decision of the Hon'ble Apex Court in D.P. Das (supra), the OA is allowed and the respondents are directed to place the applicant above the 4th

respondent in the final seniority list of Inspectors of Delhi Zone, with all consequential benefits within a period of 3 months from the date of receipt of a copy of this order. No costs.