S. Neethisolan & Ors. v. S. Neethisolan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30-04-2009CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE K. CHANDRUWRIT PETITION NO.23622 OF 2006andM.P.Nos.1 and 2 OF 20061.Union of India,Rep. by Joint Secretary (Admn.)Central Board of Excise and Customs,North Block, New Delhi.2.Commissioner(Cadre Control Authority)O/o. Commissioner of Central Excise,121, Mahatma Gandhi Road,Nungambakkam, Chennai... PetitionersVs.1.S. NeethisolanS/o. Subbaiyan2.M. Senthil KumarS/o.P. Muruggayyan3.C. SwaminathanS/o.S. Chokalingam4.A.G.M. SelvanayagamS/o.S. Appavoo V. Rayar5.R. Murali Krishnan6.The Registrar,Central Administrative Tribunal,City Civil Court Building,Chennai 600 104... RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of Writ of Certiorari to call for the recordsrelating to the order of the Central Administrative Tribunal, ChennaiBench, in O.A.No.614 of 2004, dated 23.11.2005, and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners: Mr.K. Elango Asst. Solicitor GeneralFor Respondents 1to5: Ms.D. NagasailaJ U D G M E N TP.K. MISRA, JThe present writ petition is directed against the orderdated 23.11.2005 passed by the Central Administrative Tribunal (inshort "Tribunal") in O.A.No.614 of 2004, where under the Tribunal hasset aside the Central Excise and Customs Department Lower DivisionClerk Recruitment Rules, 2002 (hereinafter referred to as "2002Rules"). 2. Such Original Application was filed by the presentRespondents 1 to 5 claiming the following reliefs :-"a) To declare the Revised Recruitment Rules for theposts of Lower Divisional Clerk dated 21-09-2002 issued bythe first respondent herein as illegal and unconstitutionalto the extent that they have restricted the feeder categoryto the post of LDC to Havaldars and Sepoys alone;b) Consequently direct the first and second respondentsto include all Group D as feeder category for promotion tothe post of LDC in the first respondent department;c) To consider and promote the applicants herein to thepost of LDC from the date of their immediate junior waspromoted as LDC;"3. It is asserted in the Original Application that theapplicants, who were holding the post of Lascar/Greaser under thecategory of Marine Crew in Group 'D', were considered as feedercategory along with other Group 'D' employees such as Lab Attender,Tea maker, Sepoy, Havildar for the promotional post of Lower DivisionClerk (in short "LDC"). As per the Central Excise and Land CustomsDepartment Group C posts Recruitment Rules, 1979 (hereinafterreferred to as "1979 Rules"), 10% of the vacancies in the grade ofLDC are to be filled up from Group 'D' employees, who have theminimum educational qualification and passed the departmentalexamination. The applicants had the required educationalqualification for being recruited to the post of LDC and had giventheir willingness for such appointment. However, the post of LDC wasnot being filled up from 1996/1997 onwards. While the matter stoodthus, notification dated 25.9.2002 was issued containing amendment to1979 Rules. https://hcservices.ecourts.gov.in/hcservices/

4. It was the contention of the applicants before theTribunal that the revised recruitment rules dated 21.9.2002 werearbitrary and violative of Articles 14, 16 and 21 of the Constitutioninasmuch as such rules have completely ignored the Group 'D' categorysuch as Marine Crew and have completely deprived the Marine Crew andother category of employees of all avenues of promotion. In thealternative it was contended that, even assuming that such rules werevalid, such rules should not be made applicable to the vacancies thathad arisen prior to 21.9.2002 and should be made applicable to thevacancies arisen subsequent to 21.9.2002.5. In the reply affidavit filed before the Tribunal, it wascontended by the Department that as per the old Recruitment Rules ofthe year 1979, which was amended on 19.10.1991, the Launch (Group'D') staff were not specifically mentioned as feeder category forpromotion to the post of LDC and they were not eligible to bepromoted as such and they had their own hierarchal structure. AfterCadre Restructuring the cadre of LDC has merged with Tax Assistantand 717 posts were retained to provide Group 'D' staff. As per thenew recruitment rules, which were again amended in 2004, the post ofLDC is to be filled 100% by promotion from the grade of Sepoy,Havaldar, Record keeper and Gestetner Operator and the Launch (Group'D') staff does not come within such category and they were noteligible for promotion to the post of LDC and they had their ownpromotional channel.6. The Tribunal has observed that inclusion of Sepoys andHavaldars in the feeder category to the post of LDC, while excludingother Group 'D' employees such as Lascar, is indicative ofpreferential treatment to Sepoys and Havilards without any validreason and, therefore, is violative of Articles 14 and 16 of theConstitution and the Schedule in 2002 Rules providing for 100%promotion from Sepoys and Havildars to the post of LDC is thereforeliable to be struck down. The Tribunal has turned down the plea ofthe Department that Lascar was not one of the feeder group forpromotion to LDC and observed that such persons had passed thedepartmental qualifying examination in the year 1996 and 1997 andeven their willingness had been obtained. The Tribunal has furtherobserved that such 2002 Rules cannot have any retrospective operationand the vacancies were in existence prior to coming into force of the2002 Rules were to be filled according to 1979 Rules. Accordingly,the Tribunal has given a direction to the Department to consider thecase of the applicants for promotion to the post of LDC. Suchdirection is in question in the present writ petition filed by theUnion of India. 7. Learned Asst. Solicitor General appearing for thepetitioners has contended that as per the existing Rules 1979,Lascars were not in the feeder category and even though there hadbeen some instances where by mistake some persons had been promoted https://hcservices.ecourts.gov.in/hcservices/ to the post of LDC and the applicants had been permitted to appear atthe departmental examination, since such instructions were contraryto the Rules, the applicants cannot claim any right. It has beenfurther submitted that the applicants and other persons, who wereLascars, have their own independent avenue for promotion and merelybecause there is no avenue for promotion to the post of LDC in 2002Rules, such Rules cannot be held to be arbitrary or violative ofArticles 14 and 16 of the Constitution.8. Learned counsel for the respondents, on the other hand,has submitted that there is no promotional avenue for Lascars whohave been waiting for more than 15 to 20 years and, therefore, denialof promotional avenue by amendment of the Rules, was arbitrary. Inthe alternative, it is submitted that as similarly placed personshave been given promotion on an earlier occasion, there is no embargofor the Department to consider the case of the applicants forpromotion to the post of LDC as they had already passed thedepartmental examination.9. The contentions and counter contentions made by theparties require careful consideration.10. The main contention raised by the Department is to theeffect that under 1979 Rules the category belonging to Launch group,whose main function is in the wing of Sea Customs, was not comingwithin the feeder category for promotion to LDC and, therefore, theamendment of such rules in 2002 and subsequently in 2004 cannot bechallenged by the persons who are outside the feeder category evenfrom the inception on the ground of alleged arbitrariness. 11. In order to appreciate the above contention, it isnecessary to notice various rules. As per G.S.R.No.742, in exerciseof power under Article 309 proviso of the Constitution, Rules weremade regulating the method of recruitment to Group 'C' posts in theCentral Excise and Land Customs Department. The said rules werecalled "The Central Excise and Land Customs Department Group C postsRecruitment Rules, 1979". As per Rule 2, such rules apply to theposts specified in column 2 of the Scheduled annexed to the Rules.The name of the posts as indicated in column 2 of the Schedule isLower Division Clerk. Column 11, which relates to method ofrecruitment, indicates that recruitment shall by direct recruitment.However, the note indicates that 10% of the vacancies in the LDCwould be reserved or would be filled up by Group 'D' employees, borneon regular establishment, subject to the condition that such personmust possess the required minimum educational qualification, namely,matriculation or equivalent and subject to certain age limit.12. Next in point of chronology was Marine establishment(Customs and Central Excise Departments) (Group 'C' an 'D' posts)Recruitment rules, 1986 and the Customs Marine Division (Group 'C' https://hcservices.ecourts.gov.in/hcservices/ and Group 'D' Technical posts) Recruitment Rules 1986 (excluding theposts of Seaman Gr.II and Driver). Subsequently, by furthernotification dated 31.12.1994, in exercise of power under the provisoto Article 309 of the Constitution and in supersession of the Rulesreferred to above, the President made rules regulating the method ofrecruitment to Group 'C' and 'D' posts in Marine Organisation ofCustoms and Central Excise Department so far as they relate to theposts of Skippermate, Foreman of Stores, Engineermate, Artisan,Senior Storekeeper, Senior Draftsman, Tindal, engine Driver,Draftsman, Storekeeper, launch Mechanic, Sukhani, Senior Deck Hand,Asstt. Storekeeper, Trademan, Seaman, Greaser, Lascar, UnskilledIndustrial Worker. Rule 3 of 1994 Rules prescribes that the numberof posts, classification and scale of pay, etc., shall be asspecified in columns 3 to 5 of the schedule. Column 2 of theschedule referes to various posts. Column 12 relates to method ofrecruitment for the concerned post and Column 13 lays down the sourceand the requisite qualification. S.No.1 under Column 2 relates tothe post of Skippermate, which is to be filled up by promotion fromthe post of Tindal, failing which by re-employment / directrecruitment. S.No.2 of the schedule relates to the post of Foremanof Stores and the vacancies are required to be filled up by promotionfrom the grade of Senior storekeeper, failing which by re-employment / direct recruitment. S.No.3 relates to the post ofEngineermate, which is to be filled up by promotion from among thegrade of Engine Driver failing which by re-employment / directrecruitment. S.No.7 relates to Tindal, which can be filled up bypromotion from Sukhani failing which by deputation / directrecruitment. S.No.8 relates to Engine Driver which can be filled upby promotion from Launch Mechanic failing which by deputation /direct recruitment. S.No.11 relates to the post of Launch Mechanicwhich can be filled up by promotion from among Greaser failing whichby deputation / direct recruitment. S.No.12 relates to the post ofSukhani which can be filled up by promotion from among Senior DeckHand or from among seaman, failing which by deputation / directrecruitment. S.No.13 relates to Senior Deck Hand, which can befilled up by promotion from among seaman, failing which by deputation/ direct recruitment. S.No.17 is Greaser, which can be filled bypromotion from among Lascars, failing which by deputation / directrecruitment.13. By Notification, as per GSR 377, the President, inexercise of powers under Article 309, made rules relating to methodof recruitment to the post of Lower Division Clerk in the CentralExcise and Customs Department. These rules were known as CentralExcise and Customs Department Lower Division Clerk Recruitment Rules,2002. The name of the post and classification have been made as perthe schedule by which 717 posts of LDC had been notified as number ofposts available and the method of selection was 100% by promotion.As per column 12, 50% of the vacancies shall be filled up bypromotion from amongst Havaldars on the basis of seniority-cum- https://hcservices.ecourts.gov.in/hcservices/ fitness who possess matriculation or equivalent qualification withoutany age limit, whereas 50% were to be filled up by promotion fromamongst Sepoys, Havaldars having matriculation, subject toDepartmental qualifying examination with maximum age limit.14. By notification dated 27.1.2004, the above Rules of2002 were amended by incorporating that 50% of the vacancies shall befilled up by promotion from amongst Havaldars and Recordkeepers inthe ratio of 30:1 on the basis of seniority-cum-fitness, whereas 50%of the vacancies are to be filled up by promotion from amongst Sepoy,Havaldar, Record Keeper and Gestetner Operator in the ratio of60:36:1:1, on the basis of Departmental qualifying examination withtyping test.15. From 1986 Rules, which were amended in 1994, it isapparent that the persons holding the post of Lascar have their ownavenue and hierarchal structure for promotion to the MarineOrganisation of the Central Excise and Customs Department. 1979Rules apparently relate to recruitment to Group 'C' posts in theCentral Excise and Land Customs Department. There is no disputethat in the Ministry of Customs and Central Excise, they are twoseparate organisations. Marine Organisation was obviously adifferent organisation from the Department of Land Customs. Theposts in different organisations had different methods ofrecruitment, different salary structure as well as different duties.As per 1979 Rules, the avenue of being employed as LDC was open tothe employees of Group 'D; borne on regular establishment. Since therule itself was applicable to Central Excise and Land CustomsDepartment Group 'C' Posts, reference to expression "regularestablishment" obviously included the reference to Group 'D'employees in the Central Excise and Land Customs Department and notto any other organisation or department in the larger organisation ofthe Central Excise and Customs.16. Learned counsel appearing for the respondents has,however, contended that during earlier years, Lascars, who wereholding Group 'D' post in the Marine organisation, were allowed tosit at the examination and in fact there have been many instanceswhen such persons have been appointed as LDC on the basis of suchexamination. This aspect was clarified by the Department by statingthat on a few occasions by mistake the persons in Marine organisationhad been allowed to sit in the examination, even though the Rules didnot specifically contemplate that such persons were eligible. It hasbeen further submitted that merely because at some point of timethere was some erroneous assumption, particularly by theCommissionerate functioning in Madras or Madurai, it does not meanthat the persons who were not otherwise eligible would becomeeligible. https://hcservices.ecourts.gov.in/hcservices/

17. It is of course true that there has been instanceswhere persons in Marine organisation wing had been allowed to appearat the examination or even recruited. However, merely there has beeninfraction of rules at a particular point of time, it cannot be saidthat those persons were eligible under 1979 Rules. Since Lascars orother employees in the Marine organisation of the Central Excise andCustoms Department were not eligible even under 1979 Rules as feedercategory within 10%, the subsequent change of rules in 2002 or 2004cannot be attacked by such persons as being ultra vires or arbitrary.18. Learned counsel for the respondents has vehementlycontended that there is proper avenue for promotion to Lascars in theMarine organisation and the fact that many persons have been rottedin the same post for number of years would show that there is noavenue of promotion, which makes the Rules violative of Articles 14and 16 of the Constitution.19. It is true that the fact that there would be continuousstagnation in a particular post may at times be considered as anaspect of unreasonableness of such a provision. We do not think sucha contention can be accepted in the present case in view of ourconclusion that in 1979 Rules, which was specifically meant for Group'C' posts in the Central Excise and Land Customs Department, anyamendment to such rules can be challenged by the persons who were notcoming within the eligible category. The lack of promotional avenuefor those in the Marine organisation as per the rules applicable tothem, i.e., 1994, is not a matter which is directly or indirectly inissue. From the various provisions in such 1994 rules, it is apparentthat there are certain avenues for promotion. Whether avenues ofpromotion are disproportionately low compared to number of aspirantsis not a matter for us to decide even collaterally in the presentcase as that is the matter for the appropriate authority to consider.We are sure that if any appropriate representation would be made, theconcerned authority would definitely look into the said aspect andtake any remedial measure, if it is found necessary. That, however,is not a ground to decide about the validity of 2002 / 2004 Rules.20. Inspite of our above conclusion, whereunder we upheldthe validity of the Rules as amended in 2002 and 2004, the questionis whether we should interfere with the order passed by the Tribunal.As we have already noticed, even though on a direct interpretation ofthe Rules the Lascars and others belonging to Marine crew Group 'D'were not coming within the scope of 1979 Rules, the authoritiesconcerned have permitted the qualified persons holding educationalqualification of matriculation or more to appear at the departmentalqualifying examination and had been appointed as LDC. In fact,before amendment in 2002, the selection was through directrecruitment but only 10% of the posts could be filled up through theprocess of selection from among the qualified Lascars, etc., who hadpassed the concerned examination. As has been pointed out by the https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the respondents, even after introduction of 2002and 2004 Rules, some persons belonging to Marine Crew have been soappointed. Since the respondents have already passed in suchexamination, in our considered opinion, the direction of the Tribunalthat such persons may be considered as against the vacancies, whichhad arisen prior to introduction of 2002 Rules, and which wasobviously by way of recognizing the legitimate aspirations of theapplicants / respondents, may be upheld as such a direction can beconstrued to have been made in the aid of substantial justice. 21. Law is well settled that, even though the order of aninferior Tribunal may not be strictly legal, the High Court whileexercising jurisdiction under Article 226 of the Constitution mayrefuse to interfere with such order if substantial justice has beenrendered. In the peculiar facts and circumstances of the presentcase, we feel this is a fit case where we should not exercise ourdiscretionary discretion .22. Therefore, while setting aside the direction of theTribunal that the Rules were ultra vires or arbitrary, we decline tointerfere with that of the order whereunder the Tribunal had directedthat the case of the applicants / respondents shall be considered inrespect of the vacancies, which had arisen prior to 2002.23. Accordingly, the writ petition is partly allowed.There is no order as to costs. Consequently, the connectedmiscellaneous petitions are closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar dpkToThe Registrar,Central Administrative Tribunal,City Civil Court Building,Chennai 600 104. + 1 cc to Mr.D.Nagasaila,Advocate,SR.19790+ 1 cc to Mr.K.Elango,Asst.Solicitor General Of India,SR.19694 WP.23622/2006RB(CO)EM/12.6.09