High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.04.2009CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE M. SATHYANARAYANANWRIT PETITION NO.11485 OF 20041.J. Rama RaoS/o. late J. Venkata Raman Doss2.N. Sundara RajanS/o. Nallappa3.J.P. RajendranS/o. J.A. Joseph4. K.V. VaradhanS/o. K.S. Vijayan5.R. KrishnamachariS/o.N. Rangachari6.S. BalagopalS/o.M.V. Srinivasan.. PetitionersVs.1.Union of India, Rep. byThe Secretary to Government of India,Department of Revenue (Customs)New Delhi.2.The Secretary,Ministry of PersonnelPublic Grievances and Pensions,North Block, New Delhi.3.The Principal Chief Controller of Accounts,Central Board of Excise and Customs,AGCR Building (First Floor),New Delhi. https://hcservices.ecourts.gov.in/hcservices/

4.The Chief Commissioner of Customs"Custom House"33, Rajaji Salai,Chennai 600 001.5.Central Administrative Tribunal,Chennai Bench, rep. by its Registrar,Chennai 600 104... RespondentsPetition filed under Article 226 of the Constitution of India forthe issuance of Certiorari to call for the records relating to theorder relating to the order of the fifth respondent made inO.A.No.408 of 2003 and quash the same.For Petitioners: Mr.V.S. NagarajanFor Respondents1to4: Mr.B. Mani, ACGSC- - -J U D G M E N TP.K. MISRA, JThe present petitioners had filed O.A.No.408 of 2003 beforethe Central Administrative Tribunal (in short “Tribunal”), claimingthe following reliefs :-"I. To effect fixation of pay after allowing theapplicants to exercise their option, wherever applicable, inthe junior time scale of Indian Customs and Central ExciseService (Gr.'A') with effect from the date of the panel,year mentioned against each applicant in order No.468/2001of the Commissioner and consequential promotions in furtherhigher service.II. To direct payment of arrears of pay and allowanceson account of refixation from time to time including arrearsof leave salary, gratuity and pensions.III. To direct grant of senior scale to which all theapplicants now before this Hon. Tribunal including thesecond applicant who is eligible for senior time scale from1.1.1984 with consequential arrears of pay and allowances.IV. To direct consequential higher promotions to whichthe applicants are eligible. https://hcservices.ecourts.gov.in/hcservices/ V. To refix the pensionary benefits including familypension on the basis of fixation of pay from the dates ofthe deemed dated promotions time to time from the date oftheir retirement as a result of this OA."2. The main contention raised in the Original Applicationwas to the effect that the direction given by the Supreme Court inWrit Petition (Civil) Appeal No.306 of 1988, disposed of on22.11.1996, directing the Government to rearrange the inter seseniority of promotees in Group ‘A’ services of the Customs andExcise Department and further directing the Government to give theconsequential promotion, had not been fully complied with inasmuch asthe Department, even though had given promotion from retrospectivedate, had denied the benefit of the pay scale of the promotional post.3. In the counter filed before the Tribunal, it wascontended by the Department that all the applicants had retiredbefore 1996 and after disposal of Civil Appeal No.306 of 1988 by theSupreme Court, the Department rearranged the seniority as per thedirection and on the basis of such rearranged seniority, gavepromotion to the persons concerned. Subsequently, the Department alsoissued a clarification that promotion was on notional basis and theactual pay in the promotional post was payable after assumption ofoffice in the promotional post. Since the applicants had alreadyretired, the question of giving them any arrear pay in thepromotional post had been rightly denied by the Department byfollowing the principle of “no work no pay”.4. The Tribunal considering the rival submissions and byrelying upon the decision of the Supreme Court, dismissed theOriginal Application by observing that since promotion was onnotional basis, no amount towards arrears in the promotional post wasactually payable before assumption of office by the concernedpromotee. Such decision of the Tribunal is in question in thepresent writ petition. 5. Learned counsel for the petitioner has contended thatthere was long standing dispute relating to inter se seniority fromamong the promotee Group ‘A’ Officers and such dispute was resolvedby the Supreme Court, which gave a direction for giving consequentialpromotion and, therefore, while giving promotion, the pay applicableto such promotional post would not have been denied. Learned counselfor the petitioner has placed reliance upon the decision of theSupreme Court reported in 2002(1) Supreme 364 (FOOD CORPORATION OFINDIA v. S.N. NAGARKAR) in support of such contention. https://hcservices.ecourts.gov.in/hcservices/

6. Learned counsel for the Department, on the other hand,has placed reliance upon the decisions referred to and relied upon bythe Tribunal and has contended that there is no error in the orderpassed by the Tribunal requiring interference by the High Court.7. The relevant portion of the order, dated 22.11.1996,passed by the Supreme Court in Civil Appeal No.306 of 1988, isextracted hereunder :-"In Group 'A' Service of the Customs and ExciseDepartment, 50% of the cadre strength are filled by directrecruitment through Union Public Service Commission and thebalance 50% are filled through promotion from Group 'B'cadres. Group 'B' officers when promoted to Group 'A'service, obviously have no right to occupy more than 50% oftheir prescribed quota. It would, therefore, be incumbentupon the government to re-arrange or regularise theseniority list in Group 'A' service keeping the inter seqota of the direct recruits and promotees intact and shouldnot allow either to get any promotion in excess of theirquota. The ad hoc promotions given to Group 'B' officers inGroup 'A' service, pursuant to interim orders of this Court,would not, therefore, have any effect or prejudice theinterests or rights of the direct recruits of Group 'A'Service while re-arranging the seniority in Group 'A'Service as indicated in the judgment. It would, therefore,be of necessity that the Government should re-arrange theirinter se seniority and promotions of the respective directrecruits and promotees within their quota and consequentialpromotions in further higher services. Their seniorityarranged accordingly."8. It is seen that in the above decision, the Supreme Courthas directed to rearrange the inter se seniority of the directlyrecruited Group ‘A’ Officers and the promotees within their quota andconsequential direction for further higher services. The SupremeCourt, however, has not given any specific direction for all theattendant benefits on the consequential promotion to be given. Inother words, there is no specific direction in the order of theSupreme Court to give all the monetary benefits on the basis ofpromotion from any earlier date. Under these circumstances, can it besaid that the Department, while giving promotion, committed anyillegality by issuing any direction that actual monetary benefitswould be payable only from the date of assumption of office in thepromotional post, though the persons may be notionally promoted froman earlier date? https://hcservices.ecourts.gov.in/hcservices/

9. In our considered opinion, the Tribunal, while analyzingthis aspect has rightly relied upon the decision of the Supreme Courtin (1994) 4 SLR 15 (TESA [INDIA] v. UNION OF INDIA) and (1989) 2 SCC540 (UNION CARBIDE CORPORATION (II) v. UNION OF INDIA).10. Since learned counsel for the petitioners has placedstrong reliance upon the decision of the Supreme Court in 2002(1)Supreme 364 : (2002) 2 SCC 475 (cited supra), it is necessary tocarefully analyse the said decision to find out whether the ratio ofthe said decision can be made applicable. In the aforesaid case, the petitioner in the High Court hadclaimed that he should have been promoted from the date on which hisjunior was promoted and he had specifically claimed for allconsequential benefits including monetary benefits. The learnedsingle Judge of the Punjab & Haryana High Court, while allowing thewrit petition, had given a direction to the following effect:-"7. Consequently, the writ petition is allowed and awrit of mandamus is issued to the respondents to give thebenefits of pay fixation to the petitioner as AssistantGrade II and Assistant Grade I and also to consider his casefor promotion to the post of Assistant Manager (D) from thedate persons junior to him have been promoted. This exercisemust be completed within a period of four months from thedate of submission of a certified copy of this order. Thearrears of pay shall be paid to the petitioner within onemonth thereafter. In case the amount of arrears is not paidwithin this period, the petitioner shall get interest @ 18%from the date of this order. No costs.”11. Subsequently, there were several rounds of litigation onaccount of the alleged non-implementation of the said direction andultimately in the Execution Case it was held that since there was aspecific direction regarding payment of arrears denial of payment ofarrears to the concerned petitioner was not in accordance with theorder passed by the learned single Judge which had become final. Suchcontention was accepted by the High Court and therefore there was adirection to implement the earlier judgment which had become final bypaying the arrear amount including that of the promotional post.Ultimately, when the matter came to the Supreme Court, the SupremeCourt upheld the direction given by the Punjab & Haryana High Court,by observing as follows :-"20. In this appeal, we are not called upon to pass ajudgment on the correctness of the order passed by thelearned Judge in Civil Writ Petition No. 4983 of 1993 dated6-5-1994. The only question that arises for consideration iswhether under the said judgment and order, the respondent is https://hcservices.ecourts.gov.in/hcservices/ entitled to the arrears of pay and allowances from the datesof promotion. In our view the learned Single Judge as wellas the Division Bench in letters patent appeal havecorrectly held that the respondent (petitioner in the writpetition) is entitled, in terms of the order dated 6-5-1994,to arrears of pay and allowances with effect from the dateshe was granted the two promotions, and not from the date hejoined the promotional posts. No interference by this Courtin exercise of jurisdiction under Article 136 of theConstitution of India is called for. This appeal is,therefore, dismissed with costs which is quantified atRs2500."12. On a careful consideration of the factual scenario inthe said case and the ultimate decision of the Supreme Court, we areunable to accept the contention of the petitioner regardingapplicability of the said case to the facts and circumstances of thepresent case. In the said case, the Supreme Court had clearlyobserved that the earlier order of the Punjab & Haryana High Courthad contained a direction relating to payment of arrears, whereas inthe present case there is no such judicial determination giving anydirection to pay all the arrears. Therefore, in our consideredopinion, the Tribunal was justified in upholding the direction of theDepartment that, though notional promotion can be given from anearlier date, actual benefit in the promotional post could be paidonly from the assumption of office in the promotional post. Asemphasised by the Tribunal, the petitioners had already retired evenbefore the Supreme Court had decided the matter. In the absence ofany specific direction in the order of the Supreme Court regardingpayment of arrear monetary benefits, we do not think any error of lawhas been committed by the Tribunal in not granting such benefit tothe petitioner.13. The Writ Petition is accordingly dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrardpkTo1. The Registrar,Central Administrative Tribunal,High Court Campus,Chennai. https://hcservices.ecourts.gov.in/hcservices/

2.The Secretary, Union of India, Department of Revenue /Customs New Delhi.3.The Secretary,Ministry of PersonnelPublic Grievances and Pensions,North Block, New Delhi.4.The Chief Commissioner of Customs"Custom House"33, Rajaji Salai,Chennai 600 001.5.The Principal Chief Controller of Accounts,Central Board of Excise and Customs,AGCR Building (First Floor),New Delhi.1 cc To Mr.B.Mani, Advocate, SR.20117 WP.11485/2004MSM(CO)SRA(8/6/2009)