AI Structured Summary
Not yet generated for this judgment
Judgment
Madan B. Lokur, J.—These two writ petitions are directed against an interim order dated 7th August, 2008 (wrongly typed as 7th July, 2008) passed by the Central Administrative Tribunal, Principal Bench, in M.A. No. 1046/2008 in O.A. No. 1366/2008.
With the consent of learned Counsel, we have decided to dispose of the writ petitions immediately.
The broad facts are that for recruitment to the grade of Assistant Commissioner of Customs and Central Excise there exist two streams � appointments can be made either by direct recruitment or by promotion from the grade of Appraiser and Superintendent.
It appears that there has been a long standing inter se dispute between Appraisers and Superintendents about their seniority and that dispute has not yet been finally resolved. There does not seem to be any dispute about the inter se seniority of directly recruited Assistant Commissioners.
From the grade of Assistant Commissioner, promotions are made to the grade of Deputy Commissioner, Joint Commissioner, Additional Commissioner and then Commissioner of Customs and Central Excise. We are concerned with promotions to the grade of Commissioner of Customs and Central Excise.
For the sake of convenience, we refer to those Assistant Commissioners (who are now Additional Commissioners) promoted from the grade of Appraiser and Superintendent, as promotee Assistant Commissioners. Similarly, we refer to those Assistant Commissioners (who are now Additional Commissioners) directly recruited in that grade as directly recruited Assistant Commissioners.
The Union of India had prepared a seniority list in 2004 of all the Assistant Commissioners, that is, Assistant Commissioners who came from the stream of direct recruits and those who came by way of promotion from the grade of Appraiser and Superintendent. This seniority list appears to have been the subject matter of a challenge and was struck down. The Union of India also prepared another integrated seniority list published on 28th April, 2005. We find from the order passed by the Tribunal that the integrated 2005 seniority list was operated for making promotions to the post of Joint Commissioner. Therefore, it appears that today this 2005 seniority list is the only existing or operative seniority list.
There seem to be some other disputes pertaining to the seniority of officers of Customs and Central Excise both in Bombay as well as in Madras. Decisions were rendered by the Central Administrative Tribunal in respect of these disputes. The decisions rendered by the Tribunal were challenged in the concerned High Court but for the time being we are not concerned with those disputes.
Suffice it to say that in respect of one case taken up by the Madras High Court, judgment was delivered on 21st April, 2006 wherein certain principles were laid down with respect to the fixation of seniority of Appraisers and Superintendents. The decision rendered by the Madras High Court was taken up to the Supreme Court in Chennai Customs Appraising Officers Assn. Vs. Union of India (UOI) and Others, . The Supreme Court approved the principles laid down by the Madras High Court.
The sum and substance of the decision of the Supreme Court insofar as we are concerned is two fold: firstly, the seniority of Appraisers and Superintendents is required to be redrawn on certain principles; secondly, the seniority of Appraisers and Superintendents is again open till it is redrawn and finalized. The effect of this will, of course, be felt up the ladder.
Pursuant to the decision rendered by the Supreme Court, the Union of India apparently sent a letter on 3rd June, 2008 to three collectorates for the purposes of settling the seniority list of Appraisers and Superintendents. The Union of India had intended to settle the seniority on or before 31st July, 2008 but, not unsurprisingly, some aggrieved persons approached the Central Administrative Tribunal in Mumbai and obtained a stay of operation of the letter dated 3rd June, 2008. We have been told that the original application pending before the Mumbai Bench of the Tribunal is O.A. No. 360/2008.
After the decision of the Supreme Court approving the principles for fixation of seniority, one of the parties approached the Madras High Court with a contempt petition requiring the Union of India to redraw the seniority list in accordance with the accepted principles. The Madras High Court issued a direction in the contempt petition on 29th October, 2008 requiring the Union of India to refix the seniority of that person within a period of two weeks. We have been told by learned Counsel for the Union of India that the seniority of that one person (K.V. Mohan Doss) has been fixed subject to the outcome of the litigation pending in Mumbai as well as in Delhi.
Around this time, the Union of India/Central Board of Excise and Customs decided to fill up 48 vacancies in the grade of Commissioner of Customs and Central Excise. From the note put up before the Departmental Promotions Committee (which note has been shown to us) it appears that the Union of India decided, on the basis of some calculations made by it, that 36 vacancies are to be filled up from the category of directly recruited Assistant Commissioners while 12 vacancies fall to the category of promotee Assistant Commissioners (promoted from the grade of Appraisers and Superintendents). It also transpires from a reading of the note that since there was no dispute about the seniority of the directly recruited Assistant Commissioners, the DPC was requested to make recommendations to fill up only those 36 vacancies. With regard to the 12 vacancies which fell to the category of promotee Assistant Commissioners, the matter was kept in abeyance pending finalization of the inter se seniority of Appraisers and Superintendents. In other words, the integrated seniority list of 2005 was given a partial go by. From the note it also appears that one of the reasons for holding back the filling up of 12 vacancies is that a case for contempt of Court was pending before the Madras High Court (since decided).
The DPC met soon thereafter and made its recommendations on 23rd June, 2008 concerning promotions of directly recruited Assistant Commissioners to the grade of Commissioner of Customs and Central Excise. None of the promotee Assistant Commissioners were considered for promotion.
Feeling upset with this situation, the promotee Assistant Commissioners (actually now Additional Commissioners) preferred O.A. No. 1366/2008 before the Principal Bench of the Tribunal. The prayer made by the promotee Assistant Commissioners/Additional Commissioners was for a declaration to the Union of India to follow the draft seniority list of 2005 in its entirety, and without excluding them from consideration. It was also prayed that the proceedings of the DPC held on 23rd June, 2008 be set aside to the extent that the DPC considered the case of persons who were junior to the promotee Assistant Commissioners/Additional Commissioners. The third important prayer was for a direction to the Union of India to hold a review DPC and consider the case of the promotee Assistant Commissioners/Additional Commissioners for promotion to the grade of Commissioner of Customs and Central Excise before any of their juniors from the draft 2005 seniority list are considered.
By the impugned order, the Tribunal granted a blanket stay of the recommendations of the DPC with the result that even those directly recruited Assistant Commissioners (now Additional Commissioners) who could be promoted as Commissioner of Customs and Central Excise were injuncted from holding that post. The impugned order passed by the Tribunal on 7th August, 2008 (wrongly typed as 7th July, 2008) was subsequently modified by another order on 17th October, 2008 whereby the Union of India was permitted to promote those directly recruited Assistant Commissioners to the grade of Commissioner, who were senior to the promotee Assisant Commissioners before the Tribunal.
While there is a partial modification of the impugned order passed by the Tribunal on 7th August, 2008 the substantive grievance raised by the promotee Assistant Commissioners before the Tribunal continues to remain, which is that they were not considered for promotion to the grade of Commissioner of Customs and Central Excise. It is under these circumstances that we decided to take up the matter to test the correctness of the order passed on 7th August, 2008. We may note that the order passed on 17th October, 2008 is not under challenge before us but that hardly make any difference given the facts and circumstances of the case.
It is submitted by learned Counsel appearing for the direct recruits that the impugned order is grossly unfair in as much as only 6 promotee Assistant Commissioners had approached the Tribunal and 12 posts were kept vacant for their category and, therefore, there was no occasion for the Tribunal to pass any interim injunction, let alone placing a blanket ban on promotions. It was also submitted that from the pleadings on record and particularly from paragraph 42 of the impugned order that the promotee Assistant Commissioners really had no objection to the promotion of the direct recruits. Our immediate reaction to the second argument is that it is not substantiated. It is true that the promotee Assistant Commissioners may not have any objection to the direct recruits being promoted, but this is, of course, subject to their rights and contentions and their consideration for promotion. It is not as if the promotee Assistant Commissioners have an absolute or blanket �no objection� � they do. We, therefore, reject this argument of learned Counsel for the direct recruits straightway. The third submission of learned Counsel is that every eligible person should be considered for promotion and there was really no necessity for the Tribunal to have granted the interim stay because that was not even what the applicants (promotees) before the Tribunal had desired. In other words, the Tribunal had completely misdirected itself. The fourth and final submission of learned Counsel for the direct recruits is that the Tribunal had erred in granting the stay without any notice to the selected candidates and on this ground alone the original application filed by the promotee Assistant Commissioners ought to have been dismissed. Reliance was placed by learned Counsel on Diwakar Shrivastava and Others Vs. State of Madhya Pradesh and Others, as well as State of Bihar and Others Vs. Kameshwar Prasad Singh and Another,
In so far as learned Counsel for the promotee Assistant Commissioners is concerned, his submission was that the 2005 seniority list should be operated in its entirety and even the promotee Assisant Commissioners should be considered for promotion to the grade of Commissioner of Customs and Central Excise.
Reference was made to Rule 24 of the Indian Customs and Central Excise Service Group �A� Rules, 1987 which reads as follows:
Senior not to be ignored for consideration in promotion if junior is considered: Where juniors who have completed their qualifying/ eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying eligibility service by more than half of such qualifying/ eligibility service of two years, whichever is less and successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying/ eligibility service.
The submission is that no person junior to the promotee Assistant Commissioners should be promoted to the grade of Commissioner of Customs and Central Excise. We may note at this stage that it was perhaps because of the existence of this particular rule that the Tribunal varied the impugned order on 17th October, 2008 and permitted the Union of India to make promotions to the grade of Commissioner of Customs and Central Excise though limiting it to persons senior to the applicants before the Tribunal.
Learned Counsel referred to an Office Memorandum dated 30th March, 1988. The relevant portion of this Office Memorandum dealing with revision of a seniority list and ad-hoc arrangements in respect thereof reads as follows:
(iii) Revision of Seniority List:
Another reason for making ad hoc arrangements and delaying regular promotions is that the seniority position of the officer holding the post in the feeder grade is disputed. In all such cases regular D.P.Cs. may be held based on the existing seniority list. In case such disputes are pending before a Court/Tribunal,/unless there is an injunction/stay order against making regular promotions, the appointing authority may convene the D.P.C. and make promotions on the basis of the existing seniority list. However, while issuing the orders in such cases it should be stipulated that these promotions are provisional and subject to the final decision of the Court/Tribunal. Subsequently, when the directions of the Court/Tribunal become available a review D.P.C. may be held and the necessary adjustments made in the promotions of officers based upon the revised seniority list. In case any of the officers provisionally promoted do not figure in the list approved by the Review D.P.C. they may be reverted to the posts held by them earlier.
The submission of learned Counsel is that in a situation such as the present, the proposed revision of the seniority list should not prohibit the Union of India from acting on the existing 2005 seniority list and making ad-hoc promotions, so that administrative efficiency does not suffer.
In so far as learned Counsel for the Union of India is concerned, he placed before us the record of the case. He submitted that in view of the fact that the seniority of Appraisers and Superintendents was uncertain and could not be finalized inspite of best efforts made by the Union of India, there was no option but to recommend to the DPC to make promotions only in respect of those persons about whom there was no dispute about seniority, that is, the directly recruited Assistant Commissioners. It is for this reason that the DPC was asked to make its recommendations for promotion from the category of directly recruited Assistant Commissioners only. He submitted that to safeguard the interests of the promotee Assistant Commissioners/Additional Commissioners, the DPC was requested to keep 12 posts vacant in the grade of Commissioner of Customs and Central Excise.
Having heard learned Counsel for all the parties (at considerable length) we are of the opinion that the public interest requires that all the posts of Commissioner of Customs and Central Excise should be filled up by the Union of India. There is no doubt that that grade consists of senior posts in the Government of India and it does not serve anybody�s purpose whatsoever if 48 of these posts lie vacant all over the country (as a result of the impugned order). Similarly, it does not serve anybody�s purpose if only 8 out of these 48 posts are filled up (as a result of order dated 17th October, 2008). The more appropriate course of action would be endeavour to fill up all the 48 posts so that administrative efficiency does not suffer. This is a major factor that we have kept in mind while deciding these writ petitions.
We have also taken into account the fact that in any event the promotions sought to be made by the Union of India to the grade of Commissioner of Customs and Central Excise are on an ad hoc basis. As such, since no regular promotions are being made, the Union of India can always rectify the situation should it become necessary, either after all the various cases are decided or after the seniority list is finalized in respect of Appraisers and Superintendents in terms of the decision rendered by the Supreme Court in Chennai Customs Appraising Officers Association. To this extent, the principle laid down in the Office Memorandum dated 30th March, 1988 is apposite and very relevant.
We consider it rather odd that the Union of India should seek to operate only one part of the 2005 seniority list and not another part of that seniority list. What is happening in this case is that the Union of India is selectively operating the 2005 seniority list only in respect of directly recruited Assistant Commissioners but not in respect of promotee Assistant Commissioners. We are conscious that the Union of India has given reasons for this, but the reasons are really not all that convincing and they do not take into account either the requirements of administrative efficiency or the principle laid down in the Office Memorandum dated 30th March, 1988.
No doubt, the Supreme Court has fully accepted the principles for fixation of seniority as laid down by the Madras High Court, but it is a matter of common knowledge that notwithstanding this, the finalization of the seniority list will take its own time. In any event, we need not even apply the common knowledge principle because in this very case, it is on record that the Union of India was desirous of finalizing the seniority list by 31st July, 2008. For achieving this target, it had sent a letter dated 3rd June, 2008 but, as luck would have it, that letter was stayed by the Bombay Bench of the Tribunal.
It appears to us inequitable that until the seniority list is finalized on the principles accepted by the Supreme Court (which may take any amount of time), a vacuum should exist in respect of the posts of Commissioner of Customs and Central Excise from the promotee Assistant Commissioner category. To avoid such a vacuum, which really does not serve any public purpose, it would be appropriate if the 2005 seniority list is actually given full effect to on an ad-hoc basis, subject to implementation of the orders of the Supreme Court.
We are conscious that learned Counsel for the directly recruited Assistant Commissioners submitted that only six persons had approached the Tribunal for relief, and their interests would be more than well served if 12 posts are kept vacant. But, the fact of the matter is that today the situation is quite fluid, and it cannot be said with any degree of certainty that only six persons are affected.
We did ask learned Counsel for the promotee Assistant Commissioners to tell us whether there are more than 12 promotee Assistant Commissioners who would be eligible for promotion to the grade of Commissioner of Customs and Central Excise but he says that it is not possible for him to give a definite answer.
Be that as it may, if there are less than 12 persons eligible for promotion, that will in any case not prejudice either of the parties if our proposed directions are given effect to. On the other hand, if there are more than 12 such candidates, even then no prejudice will caused to either of the parties since the promotions are only ad-hoc and necessary rectifications can always be made by the Union of India at an appropriate time. Either way, it really makes no material difference how many eligible candidates there would be.
In so far as the third submission of learned Counsel for the directly recruited Assistant Commissioners is concerned, we are of the opinion (and so is learned Counsel for the promotee Assistant Commissioners) that every eligible person should be considered for promotion. We have already dealt with the reasons advanced by the Union of India for not doing so and have already observed that there is no merit in them.
In so far as the final submission of learned Counsel for the directly recruited Assistant Commissioners is concerned, we do agree with him that the Tribunal ought not to have passed the kind of order that it did. This is totally wrong, but in the view that we are taking in the matter, we need not say anything further on this issue.
We agree with learned Counsel for the promotee Assistant Commissioners that Rule 24 of the Indian Customs and Central Excise Service Group �A� Rules, 1987 makes it quite clear that a senior person cannot be ignored for consideration for promotion if his junior is considered. In the present case, there is admittedly no dispute that some persons junior to the promotee Assistant Commissioners fall in the category of directly recruited Assistant Commissioners who have not only been considered for promotion but have actually been selected. This, in our opinion, is contrary to the plain language of Rule 24 of the aforesaid Rules.
For all the reasons that we have outlined above and in view of the factors that we have taken into consideration, we dispose of these writ petitions with the following directions:
(i) The Union of India should convene a DPC within a period of one month from today and in any case on or before 31st December, 2008 and consider the promotee Appraisers and Superintendents (who are now Additional Commissioners) for promotion to the grade of Commissioner of Customs and Central Excise on the basis of the 2005 seniority list adverted to above.
(ii) The Union of India should go ahead and promote those already recommended for promotion to the grade of Commissioner of Customs and Central Excise by the DPC held on 23rd June, 2008 but the promotions so made will be purely ad hoc in view of the Office Memorandum dated 30th March, 1988 which deals with revision of the seniority list and provides that ad hoc arrangements should be made instead of delaying regular promotions. All promotions whether of directly recruited Assistant Commissioners or promotee Assistant Commissioners/Additional Commissioners will be on an ad hoc basis and subject to final orders passed by the Tribunal in O.A. No. 1366/2008.
(iii) We request the Chairman of the Central Administrative Tribunal to look into the matter and transfer cases similar to the present one pending in any other Bench of the Tribunal to one central place so that there is no conflict of decisions. This is only a request and not a direction.
(iv) We request the Bench hearing O.A. No. 1366/2008 to expedite the disposal of the Original Application pending before it. We have no doubt that all the parties involved in this litigation will fully co-operate with the Tribunal for an early resolution of the dispute.
(v) The applicants before the Tribunal in O.A. No. 1366/2008 will provide adequate sets of the paper book to the Union of India for effecting service on the selected directly recruited Assistant Commissioners within two weeks from today so that further proceedings are not delayed.
Both the writ petitions are disposed of.
Dasti, under the signatures of the Court Master.