I.C. & C.E.S. Association v. The Central Administrative Tribunal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15-04-2008CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE K. CHANDRUW.P.NO.36940 OF 2003andWPMP.No.44858 OF 20031. I.C. & C.E.S. Association, rep. by its General Secretary, T.S. Jayachandar Dy. Commissioner, Customs House, Chennai 600 001.2. D.P. Manjunatha3. P. Rangaswamy4. K. Raghupaty5. R. Gurunathan.. PetitionersVs.1.The Central Administrative Tribunal,rep. by its Registrar,Madras Bench, Chennai 104.2.Union of India, rep. by Secretary,Department of Revenue,Ministry of Finance, North Block,New Delhi 110 001.3.Commissioner of Customs, PORTCustoms House, Chennai 600 001... RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of writ of Certiorarified Mandamus to call for theproceedings of the 1st respondent in O.A.No.1162/2002 dated20.10.2003 and quash the same and consequently quash theproceedings of the 2nd respondent in file A 32012/8/2000 ADII dated24.9.2002 and also the order passed in F.No.C 18011/11/2002 AD.IIdated 24.6.2002 and quash the same and direct the respondents tocorrectly identify the vacancies for promotees in Group A IndianCustoms and Central Excise Service by adopting the principle ofcontinuous officiation in view of the breakdown of quota rule andthen allocate the said vacancies in the ratio of 6:1:2 between thethree feeder cadres as per the Apex Court's judgment date 22.11.96and adopt the principle of bunching up while drawing inter-se https://hcservices.ecourts.gov.in/hcservices/ seniority of direct recruits and promotees at Group A entry stageof Indian Customs & Central Excise.For Petitioners:Mr.V. VijayshankarFor Respondents:Mr. S. Udayakumar A.C.G.S.C.,JUDGMENTP.K. MISRA, JThis writ petition is directed against the judgment ofthe Central Administrative Tribunal dated 20.10.2003 in O.A.No.1162of 2002, whereunder the Tribunal has rejected the OriginalApplication filed by the present petitioners.2. Petitioner No.1 is the Association representing thepromotee Indian Customs and Central Excise Service Group A Officersconsisting of Assistants / Deputy / Joint / AdditionalCommissioners in the Central Board of Excise and Customs promotedfrom three Group 'B' feeder cadres, namely, Superintendents ofCentral Excise, Superintendents of Customs (Preventive) andAppraisers of Customs. Petitioners 2 to 5 are working as DeputyCommissioners promoted from the Appraiser cadre.3. The facts are as follows:-3.1 The Grade of Assistant Commissioner of Central Excise andCustoms is the lowest Group 'A' cadre in the Indian Customs andCentral Excise Service. As per the Recruitment Rules, 50% of suchposts are to be filled up by promotion and 50% by directrecruitment. Promotions are to be effected from the cadre ofSuperintendents of Central Excise, Superintendents of Customs andCustoms Appraisers. There was continuous dispute among these threefeeder cadres as to the promotion within 50% quota available forthe promotees. Ultimately such dispute attained finality as perthe judgment of the Supreme Court dated 22.11.1996 reported in(1997) 1 SCC 520 (ALL INDIA FEDERATION OF CENTRAL EXCISE v. UNIONOF INDIA AND OTHERS). 3.2 The Supreme Court had concluded the issue and the relevantpassages found in paras 16 to 19 may be usefully extracted :-"16. The relevant portions of the proposal are setout below:“2.2 The seniority list of each of the above threefeeder cadres is local and is maintained by eachCollectorate/Custom House-wise. The all-India lists of thefirst two feeder cadres are prepared on the basis ofcontinuous length of regular service in the grade, subjectto maintenance of inter se seniority of each local cadre.The inter se ranking in the 3rd feeder cadre (that is,Customs Appraisers) was as per the ‘General Principles ofdetermining seniority of various categories of personsemployed in Central Service’ (generally known as quota- https://hcservices.ecourts.gov.in/hcservices/ rota principles) stipulated in the Ministry of HomeAffairs OM No. 9/11/55-RPS dated 22-12-1959 [which weremodified by the Department of Personnel and Training OMNo. 35014/2/80-Estt. (D) dated 7-9-1986], prior to theframing of the Indian Customs and Central Excise ServiceGroup ‘A’ Rules, 1987. In these Rules of 1987, it has beenprovided vide sub-rule (2) of Rule 18 that— (a) The vacancies to be filled by promotion shall befilled in accordance with the common seniority list of thethree Group ‘B’ categories of the officers mentioned insub-rule (1) above.(b) The seniority of the officers in Group ‘B’ feedercategories of service for eligibility for promotion toGroup ‘A’ shall be determined on the basis of theirregular length of service in their respective Group ‘B’categories, subject to the condition that the inter seseniority in each feeder category of service shall bemaintained.3.1 The question of determining the seniority of theGroup ‘B’ Officers of the different feeder cadres in thequota for promotion to the grade of AssistantCollector/Senior Superintendent Group ‘A’ has been thesubject-matter of dispute in a number of cases, and thus,unfortunately, remained unresolved so far. There have beenclaims and counter-claims by the officers of the differentfeeder cadres. Even at present, this dispute is thesubject-matter of a number of writ petitions, inter aliabefore the Hon’ble Supreme Court.3.2 Careful thought has once again been given to finda just and fair solution with a view to resolving thislong outstanding dispute taking into account thereasonable prospects of promotion of officers of differentfeeder cadres. It is expected and hoped that, given thegoodwill and a sense of reason on the part of all theconcerned parties, it should be possible to find asolution which is just and fair to find a solution fromboth the streams — namely Customs and Central Excise.4. With this object in view, the Board have takenstock of the nature of Group ‘A’ entry grade posts (SeniorSuperintendents/Assistant Collectors) which are thesubject-matter of dispute. For this purpose, the totalnumber of posts in the entry grade of Group ‘A’ Servicehave been divided as (i) Central Excise posts and (ii)Customs posts, on the basis of functions which each postis required to perform. Posts required to perform whollyor predominantly functions under the Central Excise posts.Similarly posts required to perform wholly orpredominantly functions under the Customs Act have beentreated as Customs posts. The ratio so arrived at has beenapplied for dividing the common posts in the Directorates https://hcservices.ecourts.gov.in/hcservices/ and CEGAT. This calculation gives the ratio of 65:36 asbetween Central Excise and Customs posts. Since the postsand persons manning them cannot be divided into fractions,the figures have been rounded to 67:33 so as to give theworkable ratio of 2:1.5.1 The proposal is that the promotee quota vacanciesin the Group ‘A’ grade of Senior Superintendent/AssistantCollector may be filled from Central Excise and CustomsGroup ‘B’ Officers in the ratio of 2:1, the number ofvacancies falling to the share of Customs Group ‘B’Officers being further apportioned between the two feedercadres of customs — namely, Customs Appraisers and Customs(Preventive) Superintendents in the ratio of theirrespective sanctioned strength (which, rounded off toworkable ratio, comes to 2:1).5.2 The need to further sub-divide the number ofvacancies in the share of the Customs Group ‘B’ Officersbetween the Customs Appraisers and Customs (P)Superintendents arises because: (a) the two feeder cadresof Customs Appraisers and Customs (P) Superintendents aredifferent and separate, (b) their seniority lists areseparate, (c) whereas recruitment to Customs (P)Superintendents’ Grade is 100% by promotion, in the caseof Customs Appraisers, it is 50% by direct recruitment and50% by promotion, and (d) in terms of the GeneralPrinciples governing determination of seniority laid downby the M.H.A./DOP&T, where there are more than one feedercadres, the inter se seniority of each feeder cadre isrequired to be maintained while preparing the senioritylist in the higher grade to which promotions are to bemade, which is also the promotion in the 1987 RecruitmentRules of IC & CES Group ‘A’.6.1 It is noticed that Central Excise Group ‘B’Officers get their promotion to Group ‘B’ after having putin, by and large, very long years of service in Group ‘C’and, consequently, they are of much older age group ascompared to Customs Appraisers. Therefore, placing theSuperintendents of Central Excise first and placingCustoms Officers thereafter, in the promotion panel wouldnot present any material disadvantage to Customs Officers.The age group of Superintendents of Central Excise is, byand large, such that they would retire before their turnfor next promotion to the grade of Deputy Collector comes.As of now, there is hardly any Deputy Collector of CentralExcise anywhere in India who is a promotee from Group ‘B’in the Central Excise; Central Excise Officers wouldgenerally retire as Assistant Collectors, therebyincreasing the chances of officers of younger age groupfrom the Customs stream for their next promotion to thegrade of Deputy Collector. https://hcservices.ecourts.gov.in/hcservices/

6.2 By and large, similar position would be there inthe case of Customs (P) Superintendents vis-à-vis DirectRecruit Customs Appraisers. Therefore, a reasonableplacement in the combined all-India seniority list may bein the following order:(i) Superintendents of Central Excise, Group ‘B’(ii) Superintendents of Customs (P) Group ‘B’(iii) Customs Appraisers.6.3 To sum up, according to the above formula, eachbunch of 9 vacancies in the promotion quota for Group ‘B’feeder cadres will be apportioned in the ratio 6:1:2consisting of Central Excise Superintendents, Customs (P)Superintendents and Customs Appraisers respectively. Toillustrate, if 9 vacancies exist for the promotee quota inGroup ‘A’ entry point, the first six vacancies would go toSuperintendents of Central Excise, the seventh vacancy toCustoms (P) Superintendents and the eighth and ninth toAppraisers; further vacancies to be filled up on the basisof a ‘cycle’ in the above order.7. For the purpose of making promotions to Group ‘A’separate consideration lists of Superintendents of CentralExcise on the one hand, and Appraisers (both directrecruits and promotees) and Preventive Superintendents ofCustoms on the other hand, would be drawn up first on all-India basis. While Group ‘B’ Officers of the two feedercadres — namely, Superintendents of Central Excise andSuperintendents of Customs (P) — may be placed in theirrespective consideration lists on the basis of theircontinuous length of service in Group ‘B’, the Group ‘B’Officers of the feeder cadre of Appraisers may be placedin their list on the basis of the principles of quota-rotaas in the General Principles laid down from time to timein the instructions of MHA/DOP&T applicable to all theServices under the Union of India, circulated on 22-12-1959 and 7-2-1986.”17. So far as inter se seniority between directrecruit Appraisers and promotees is concerned, that shouldbe finalised in the light of judgment of this Court inGaya Baksh Yadav case1. To that extent, last portion inpara 7 (underlined portion) in the above proposal standsmodified.18. As stated above, we find that the above modifiedproposal is just, fair and equitable and accordingly wedirect the Union of India to amend the impugned Rules sofar as Group ‘A’ Service is concerned. Review all post-1979 ad hoc promotions to the post of SeniorSuperintendent/Assistant Collector in the promotee quotain the light of the present proposal, redetermine therespective placement of the promotee officers in the https://hcservices.ecourts.gov.in/hcservices/ combined Group ‘A’ seniority list and regulariseaccordingly the posts of ad hoc promotions.19. In Group ‘A’ Service of the Customs and ExciseDepartment, 50% of the cadre strength are filled by directrecruitment through Union Public Service Commission andthe balance 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%of their prescribed quota. It would, therefore, beincumbent upon the Government to rearrange or regularisethe seniority list in Group ‘A’ Service keeping the interse quota of the direct recruits and promotees intact andshould not allow either to get any promotion in excess oftheir quota. The ad hoc promotions given to Group ‘B’Officers in Group ‘A’ Service, pursuant to interim ordersof this Court, would not, therefore, have any effect orprejudice the interests or rights of the direct recruitsof Group ‘A’ Service while rearranging the seniority inGroup ‘A’ Service as indicated in the judgment. It would,therefore, be of necessity that the Government shouldrearrange their inter se seniority and promotions of therespective direct recruits and promotees within theirquota and consequential promotions in further higherservices. Their seniority be arranged accordingly." (Emphasis added)3.3 Thereafter, rather belatedly, the respondents published anorder dated 21.11.2000, whereunder the promotee vacancies from theyears 1980 to 1996 to be shared among the 3 feeder cadres wasworked out. Subsequently, a combined seniority list of AssistantCommissioners (Junior Time Scale) dated 30.11.2000 was circulatedby the respondents on the basis of regularisation order dated21.11.2000. The petitioner Association made severalrepresentations to the respondents against the order ofregularisation dated 21.11.2000 and the draft seniority list dated30.11.2000. Since the Respondents 2 and 3 did not take anyappropriate action on the representations made on 19.12.2000 and3.9.2001, the petitioner Association filed O.A.No.1262 of 2001.3.4 The Tribunal on 5.12.2001, disposed of the OriginalApplication with the following directions :-"In view of the said submissions, we only direct thefirst respondent to dispose of the representations andpass orders on the same within a period of eight weeksfrom the date of communication of this order. Theapplicants may also take a copy of this order along withthe copy of the O.A. and annexures and produce the samebefore respondents for early action."3.5 In the meanwhile, the petitioner Association had earlierfiled O.A.No.1216 of 2001 challenging the regularisation ofpromotions for not correctly identifying the vacancies for https://hcservices.ecourts.gov.in/hcservices/ promotions, which was disposed of by the Tribunal by order dated20.9.2002 with a direction that the official respondents shouldfinalise the inter se seniority list and thereafter issue orders ofpromotion. While the matter stood thus, the impugned inter seseniority list dated 24.9.2002 was issued in a hurry without properapplication of mind and without considering the contentions raisedby the petitioners. 3.6 At that stage, the petitioners filed O.A.No.1162 of 2002claiming the following reliefs :-"... to call for the proceedings of the 1strespondent in the file A-32012/8/2000 AD II dated 24-9-2002 and also the order passed in F.No.C-18011/11/2002 ADII dated 24-62002 and quash the same and direct therespondent.(1) to correctly identify the vacancies forpromotees in the Group 'A' Indian Customs and CentralExcise Service in the ratio of 6:1:2 by adopting theprinciple of continuous officiation.(2) to adopt the principle of bunching up whiledrawing inter-se seniority of direct recruits andpromotees of Group 'A' entry stage of Indian Customs andCentral Excise Service from 1980 to 1985."Such Original Application having been dismissed by the Tribunalvide order dated 20.10.2003, the present writ petition has beenfiled.4. Before the Tribunal, the petitioners had raised thefollowing contentions :-(a) Since no sufficient direct recruits were available during1980-1996 in the cadre of Assistant Commissioners and therespondents in the affidavit filed in Contempt Petition No.513 of1997 before the Supreme Court had clearly admitted that there hadbeen failure of quota/rota rule in the matter of promotion to thecadre of Asst. Commissioners of Central Excise and Customs indetermining the seniority in the cadre, the respondents could nothave applied quota/rota rule and instead of following thequota/rota rule, the respondents should have followed the wellrecognised principle of fixing seniority from the date ofcontinuous officiation.(b) The Office Memorandum dated 7.2.1986 issued by theDepartment of Personnel and Training, which provided bunching ofvacancies where the required percentage of recruitment had not beenadhered to, has been violated by the respondents, inspite of theobservation of the Ernakulam Bench of the Tribunal vide order dated26.3.1991 in O.A.No.473 of 1989 that the said Official Memorandumwas to be applied retrospectively. Because of such faultyimplementation, the direct recruits, who had been recruited evenafter a long gap of five years after the promotion of thepromotees, had been shown seniors. https://hcservices.ecourts.gov.in/hcservices/ (c) The seniority of the persons, who are promoted asappraisers and those who are directly recruited, were not fixed inaccordance with the directions of the Supreme Court in the decisionreported in (1996) 4 SCC 23 (GAYA BAKSH YADAV v. UNION OF INDIA ANDOTHERS).5. The Tribunal has rejected all such contentions. Sofar as the first contention is concerned, the Tribunal found thatmerely because during some of the years, the number of directrecruitment did not match the quota available, it cannot be saidthat quota-cum-rota rule had broken down. Regarding theapplicability of the Office Memorandum, the Tribunal has referredto para 7 of such Office Memorandum, which clearly indicated "Theseorders take effect from 1st March, 1986. Seniority alreadydetermined in accordance with the existing principles on the dateof issue of these orders will not be reopened in respect ofvacancies for which recruitment action has already been taken, onthe date of issue of these order either by way of directrecruitment or promotion, seniority will continue to be determinedin accordance with the principles in force prior to the issue ofthis OM.". The contention relating to erroneous fixation ofseniority among the Appraisers either promoted or directlyrecruited was also negatived.6. While challenging the seniority list as well as theorder of the Tribunal, the petitioners contended that from theaffidavit filed by the respondents, which was filed before theSupreme Court in the Contempt Application, and from the materialson record, it is admitted that quota rule had broken own as therewas no sufficient number of direct recruits and the vacant postshad been filled up from the promotees and, therefore, it is statedthat since quota rule had broken down, seniority list could nothave been fixed by following the principle of rotation.7. We have already extracted the relevant portion of theobservation made by the Supreme Court in All India Federation ofCentral Excise case. The underlined portion contained in paragraph19 of the decision leaves no room for doubt that the promoteescould not be regularised in excess of 50% of the quota available tothem. The contention to the effect that since the quota rule hadbroken down, the fixation of seniority by adopting the method ofrota should not have been followed, cannot be accepted. As amatter of fact, the Tribunal has exhaustively dealt with thataspect by referring to several decisions of the Supreme Court andalso the relevant observations made by the Supreme Court in thecase reported in (1997) 1 SCC 520 (cited supra), which was betweenthe parties.8. Similarly the allied contention to the effect thatthere was a long gap between the direct recruits and the ad hocpromotees and, therefore, the policy of seniority from the date ofcontinuous officiation should have been followed, is also bereft ofany merit. This is more so in view of the categorical observation https://hcservices.ecourts.gov.in/hcservices/ of the Supreme Court that the promotees cannot occupy more than the50% of the quota available to them.9. From the materials on record, it is apparent thatad hoc promotions had been given to the promotees in excess of thequota available for them and, therefore, such persons have to beregularised within the quota was available for them and obviouslyfor the aforesaid purpose seniority of such persons has to bedepressed. This is not a case where direct recruits have beenshown as seniors from a date earlier to the actual recruitment ofthe direct recruits, but the seniority of the promotees has beendepressed to subsequent years as the ad hoc promotions of thepromotees were in excess of the quota. While considering thematter, the Tribunal has rightly placed upon the decisions of theSupreme Court and we do not find any case made out to interferewith the order of the Tribunal. 10. Apart from the above, we find that essentially thepetitioners were challenging the seniority of many of the directrecruits and the claim was that the promotees should be givenseniority from the date of continuous officiation. If suchseniority from the date of continuous officiation would be granted,obviously the promotees would occupy more than the 50% quotaavailable to them which in result would have make them seniorsabove the direct recruits, who have been recruited within their 50%quota. In our opinion, such a course cannot be adopted, which islikely to affect the direct recruits who are not impleaded eitherin their individual capacity or even in their representativecapacity. Since the direct fallout of the acceptance of thecontentions of the petitioners would result in re-fixation ofseniority, which had been finalised, we are of the consideredopinion that, in the absence of those persons, the OriginalApplication as well as the present writ petition are bound to bedismissed.11. Learned counsel for the petitioners has submittedthat the Tribunal had imposed a cost of Rs.10,000/- on the groundthat litigation was frivolous and such a direction should bedeleted. It is contended by him that several representations hadbeen made and keeping in view the fact that there are severaldecisions of the Supreme Court recognising the factum of seniorityon the basis of continuous officiation and also recognising theprinciple that quota rule had broken down and the seniority shouldnot be fixed on the basis of representation, it cannot be said thatlitigation was a vexatious litigation imposing a heavy cost ofRs.10,000/-. https://hcservices.ecourts.gov.in/hcservices/

12. In the facts and circumstances of the case, whiledismissing the writ petition, we feel interest of justice would beserved by directing deletion of imposition of costs. The writpetition is accordingly dismissed, subject to the aforesaidobservations. No costs.sd/-Asst.Registrar/true copy/Sub Asst.RegistrardpkTo1.The Registrar, The Central Administrative Tribunal,Madras Bench, Chennai 104.2.Secretary,Department of Revenue,Ministry of Finance, North Block,New Delhi 110 001.3.Commissioner of Customs, PORTCustoms House, Chennai 600 001.+1 cc To Mr.S.Udayakumar, Advocate, SR.21634+1 cc To Mr.V.Vijayshankar, Advocate, SR.21310ORDER IN WP.36940/2003sp [co]gkg/24.4