A.G. Rajan v. The Central Administrative Tribunal, Madras Bench, Madras

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17-02-2009CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE A. KULASEKARANWRIT PETITION NO.16239 OF 2008andM.P.NO.1 OF 2008A.G. RajanSenior Tax Assistant,Directorate General of Central ExciseIntelligence,Chennai Zonal Unit,C-3, 'C' Wing, Rajaji Bhawan,Besant Nagar, Chennai 600 090. ..PetitionerVs.1.The Central Administrative Tribunal,Madras Bench,Madras.2.Union of India,Rep. by the Secretary,Central Board of Excise and Customs,North Block, New Delhi 110 001.3.The Director General,Directorate General of RevenueIntelligence,'D' Block, Indraprastha Bhawan,7th Floor, Indraprastha Estate,New Delhi 110 002.4.The Director General,Directorate General of Central Excise Intelligence,Wing No.6, West Block (II Floor)R.K. Puram, New Delhi 110 006. https://hcservices.ecourts.gov.in/hcservices/

5. The Addl. Director General,Directorate General of CentralExcise Intelligence,Chennai Zonal Unit,C-3, 'C' Wing, Rajaji Bhawan,Besant Nagar, Chennai 600 090. ..RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of Writ of Certiorarified Mandamus to call for therecords of the order passed in O.A.No.399 of 2008, dated 24.6.2008,on the file of the Central Administrative Tribunal, Madras Bench,Madras, and quash the same.For Petitioner : Mr.R. Subramanian Senior Counsel for Ms.S. HemalathaFor Respondents 2to5 : Mr.B. Santhakumar, SCCGJUDGMENTP.K. MISRA, JThe present petitioner filed O.A.No.399 of 2008 before theCentral Administrative Tribunal, Madras Bench, (hereinafter referredto as "The Tribunal") for quashing the circulars dated 5.3.2008 and31.5.2008 and consequently to direct the respondents to conductdepartmental promotional examination based on seniority and forconsequential benefits. Such Original Application having beendismissed at the admission stage by giving some reasons, the presentwrit petition has been filed.2. The averments, which were made before the Tribunal andreiterated in this writ petition, are to the following effect:-The petitioner was working as Senior Tax Assistant and due forpromotion to the post of Intelligence Officer. Earlier thepetitioner had made a representation to the authorities concerned totake steps for promoting the eligible persons, but the respondents byletter dated 1.3.2005 had intimated that "draft Recruitment Rules ofIntelligence Officer in respect of DRI/DGCEI are under finalisationat Ministry and necessary action will be taken only after new RRs areapproved". Subsequently, however, even though the Recruitment Ruleshad not been finalised, the respondents issued Circular dated5.3.2008 calling for willingness of the candidates for departmentalpromotional examination for the post of Intelligence Officer on thebasis of the existing rules of the year 1990. At that state, thepresent petitioner / applicant had given his willingness.Subsequently, however, another Circular dated 31.5.2008 was issued https://hcservices.ecourts.gov.in/hcservices/ calling for similar willingness. At that stage, the petitioner filedOriginal Application for quashing such circulars dated 5.3.2008 and31.5.2008.3. One of the contentions raised was to the effect thatsince earlier the Department had indicated that steps for promotionwould be taken after finalisation of the draft rules, there was nojustification to take steps for filling up the post on the basis ofthe old rules.4. The Tribunal dismissed the Original Application byobserving that on an earlier occasion when the Circular dated5.3.2008 was issued, the petitioner himself has indicated hiswillingness and, therefore, he was estopped from challenging suchcircular dated 5.3.2008 and the subsequent circular dated 31.5.2008.The Tribunal further held that, though it was contended that no ruleshave been framed, the rules of the year 1990 were in existence and,therefore, it cannot be said that promotions were being made de horsthe rules. 5. As already indicated, the Original Application wasdismissed at the stage of admission, even though no counter had beenfiled on behalf of the Department. However, in the present writpetition, counter has been filed on behalf of the respondents. Insuch counter it has been indicated that even though earlier thepresent petitioner had been informed that promotion would beconsidered only after finalisation of the draft rules, since therules have not been finalised, steps were taken to fill-up the postin accordance with the existing rules and accordingly willingness wascalled for as per Circular dated 5.3.2008 and the petitioner himselfhas indicated his willingness. Therefore, there is no justificationfor the petitioner to file the Original Application becausesubsequently another circular dated 31.5.2008 was issued.6. In the Circular dated 5.3.2008, which is available atPage No.17 of the typed set of papers, it has been indicated that anexamination would be held for appointment to the post of IntelligenceOfficer and the candidates willing to appear in the examination mayconvey their willingness. The petitioner by letter dated 7.3.2008,indicated his willingness to appear at the examination to beconducted for the post of Intelligence Officer. On 31.5.2008, thepresent Respondent No.3 issued a Corrigendum, whereunder it wasindicated that Tax Assistant and Stenographers Gr.III who would becompleting five years regular since in the grade as on 30.06.2008 mayalso submit their willingness to appear at the examination. 7. It is apparent that by issuance of the aforesaidCorrigendum, number of persons in the feeder category has increased.The main ground of attack as indicated in the Original Applicationwas to the effect that the Department, while replying to the https://hcservices.ecourts.gov.in/hcservices/ representation of the petitioner, has stated that promotion wouldtake place only after finalisation of the draft rules and, therefore,there is no justification on the part of the Department to take stepsfor filling up the promotional post, even without finalising thedraft rules. As already noticed, when the Department has issued theCircular dated 5.3.2008 inviting willingness of the candidates toappear at the examination as per the existing Rules, the presentpetitioner had indicated his willingness to appear at suchexamination. At that stage, the petitioner did not raise anygrievance that the promotional post should be filled up only afterthe new Rules are in place. It is also to be noticed that in theearlier representation of the petitioner, prayer had been made thatsteps should be taken to fill up the post. It is obvious that thepetitioner did not have any grievance when the Circular dated5.3.2008 was issued. Merely because subsequently a furtherCorrigendum was issued on 31.5.2008 increasing the field of eligiblecandidates, it cannot be said that the right of the petitioner hasbeen affected in any manner. 8. It is of course true that he may have to face stiffercompetition inasmuch as number of eligible candidates would be more.But, that cannot be a justifiable ground to quash the process ofselection. Merely because there is increase in the number ofeligible candidates, the entire process cannot be set at naught. Theright of an eligible candidate to be considered for promotion whenthe employer thinks it appropriate to fill up the promotional postdoes not imply that the employer is required to fill up thepromotional post as soon as the vacancy crops up, unless the rulescontemplate preparation of a panel for promotion ever year. It isnot the case of the petitioner that a panel of suitable candidateswas required to be prepared every year for the purpose of filling upthe promotional post in which event, he could have raised ajustifiable argument that the persons who are not eligible earliercan be made eligible merely because there is delay in preparation ofthe panel. Moreover, it would not be reasonable to stall the processof promotion indefinitely merely because certain draft rules wereunder consideration of the Department. 9. In the present case, the authorities concerned had takena conscious decision not to fill up the promotional post. It cannotbe said that such a decision, at that stage, was arbitrary. In thisconnection, it may be noted as observed in (1997) 3 SCC 59 (DR.K.RAMULU AND ANOTHER v. DR.S. SURYAPRAKASH RAO AND OTHERS) that it isopen to the appropriate authority not to fill-up the vacancy. Undersimilar circumstances, in the decision reported in (1997) 3 SCC 59(cited above), such contention had been negatived.10. Having regard to all these aspects, we do not find anyscope to interfere with the order passed by the Tribunal. The writ https://hcservices.ecourts.gov.in/hcservices/ petition is accordingly dismissed. No costs. Consequently, theconnected miscellaneous petition is closed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrardpkTo1.The Registrar, Central Administrative Tribunal,Madras Bench,Madras.2.The Secretary, Union of India,Central Board of Excise and Customs,North Block, New Delhi 110 001.3.The Director General,Directorate General of Revenue Intelligence,'D' Block, Indraprastha Bhawan,7th Floor, Indraprastha Estate,New Delhi 110 002.4.The Director General,Directorate General of Central Excise Intelligence,Wing No.6, West Block (II Floor)R.K. Puram, New Delhi 110 006.5. The Addl. Director General,Directorate General of Central Excise Intelligence,Chennai Zonal Unit,C-3, 'C' Wing, Rajaji Bhawan,Besant Nagar, Chennai 600 090.+ 1 c.c. to M/s. S. Hemalatha, Advocate. S.R.No.6828.+ 1 c.c. to M/s. B. Shanthakumar, Sr. Counsel forCentral Government. S.R.No.6572.JUDGMENT IN WP.NO.16239/2008SR (CO)GSK 26.02.2009.