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Judgement
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Before K.Balakrishnan Nair , V. Giri & P.S Gopinathan JJ
Tuesday, the 20th day of October 2009/ 5th Karthika, 1931 |
Party
Array / Case No. |
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36499 of 2007(S)
1. N.J. SAJEEVE, SUPERINTENDENT OF
... Petitioner
Vs
1. UNION OF INDIA
... Respondent
2. CENTRAL BOARD OF EXCISE & CUSTOMS,
3. THE CHIEF COMMISSIONER,
4. THE COMMISSIONER OF CENTRAL BOARD
5. P.K. JAYARAJAN, SUPERINTENDENT OF
6. G.JAYAPRAKASH, SUPERINTENDENT OF
For Petitioner :SRI.P.RAMAKRISHNAN
For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR
|
Judgement |
O R D E R
K.BALAKRISHNAN NAIR, V.GIRI &
P.S.GOPINATHAN, JJ.
----------------------------------------
W.P.(C)No.36499 of 2007
----------------------------------------
Dated this the 27th day of October, 2009.
JUDGMENT
Giri, J.
The principal question that arises for
consideration in this writ petition involves application of
the principles of the "sit back theory" that have been
evolved by the Courts as part of service jurisprudence.
In plain terms, the 'theory of sit back' postulates a
situation where the incumbents in a service assume as
settled, a certain state of affairs reflecting their position
in a cadre or a service, vis-a-vis other persons comprised
within the same service. The theory has been mostly
applied in disputes involving inter se seniority and
matters consequential thereto, including promotion. The
dispute in the present case involves Superintendents of
Central Excise, who originally commenced service as
Inspectors. The contesting respondents had commenced
service in the Department earlier to the petitioner. They
W.P.(C)No.36499 of 2007
:: 2 ::
had, on their request, been subjected to an inter-unit
transfer. It is the case of the petitioner that such inter-
unit transfer, on request, would entail loss of seniority in
the parent unit and the transferee has to take his place at
the bottom of the cadre in the unit to which he is
transferred. Accordingly, the contesting respondents,
the petitioner contends, had commenced service in the
unit in question, subsequent to him. They had accepted
the position that the petitioner is senior to them. The
petitioner had also accepted the position and he contends
that he, therefore, was entitled to sit back and assume
the said state of affairs as governing the parties. It was
after a long lapse of several years that the position was
sought to be reviewed at the instance of the contesting
respondents and such a plea, according to the petitioner,
should not have been entertained, let alone be accepted.
It is essentially this contention, involving the application
of the principles of "sit back theory", that has been
mooted for consideration.
W.P.(C)No.36499 of 2007
:: 3 ::
2. The petitioner entered service as a directly
recruited Inspector in the Commissionerate of Customs
and Central Excise, Cochin on 25.8.1975. At the same
time, respondents 5 and 6 entered service in the Madurai
Division on 11.12.1974 as Inspectors, but later, were
transferred to the Cochin Commissionerate, wherein they
commenced service on 13.12.1976 and 5.12.1977
respectively. Such transfer of respondents 5 and 6,
indisputably, were, on their request.
3. This inter se position amongst the petitioner
and respondents 5 and 6 in the Cochin Commissionerate
was prevailing from 1976-77 onwards and it is, on the
said basis that the petitioner was promoted as
Superintendent of Central Excise on 5.3.1993 and
respondents 5 and 6 came to be promoted to the said
post on 30.9.1996. The petitioner makes a reference to
the seniority list of Inspectors published on 5.12.1994
(Annexure R5(d) produced by the petitioner herein along
with the reply statement filed by him before the Central
W.P.(C)No.36499 of 2007
:: 4 ::
Administrative Tribunal.) The petitioner was rank
No.186 and respondents 5 and 6 were 279 and 288
respectively.
4. The same position inter se the petitioner and
respondents 5 and 6 is reflected in the seniority list of
Superintendents of Central Excise on 5.8.1997
{Annexure R5(e)} wherein the petitioner is ranked 87
and respondents 5 and 6 are ranked 158 and 162
respectively.
5. Parties refer to certain instructions issued by
the Central Board of Customs on 12.2.1958, (Annexure
A3 to the Original application filed before the Central
Administrative Tribunal) wherein the inter-unit transfers
within a period of three years from the first appointment
could be made without a loss of seniority. The petitioner
refers to the revised instructions issued on 22.12.1959,
Annexure A5 to the Original Application and later, stated
to have been forwarded to the Central Board of Customs
and Central Excise, to all Commissioners. The said
W.P.(C)No.36499 of 2007
:: 5 ::
revised instructions did not provide for saving the
seniority of an inter-unit transferee where such transfer
is on his request. This was a position that was accepted
in 1994, when the seniority list amongst Inspectors was
published and even in 1997 when the seniority list of
Superintendents was published. But apparently, the
Patna Bench of the Central Administrative Tribunal, by
Annexure A11 order in an original application permitted
one Damodar Singh, an inter-unit transferee to carry
over the seniority from his parent department to his
transferee unit. This order of the Patna Bench of the
Central Administrative Tribunal came to be affirmed by
the Hon'ble Supreme Court, by order dated 31.3.1998.
Apparently, acting on the basis of the direction issued by
the Patna Bench of the Central Administrative Tribunal,
which came to be affirmed by the Supreme Court by
Annexure A13, the Ministry proposed a revision in the
Seniority list amongst the Inspectors of the Central
Excise Department by determining the seniority from the
W.P.(C)No.36499 of 2007
:: 6 ::
date of the original entry in the department without
providing for a forfeiture of the same amongst the inter-
unit transferees. Thus, in the revised seniority list of
Inspectors dated 4.7.2000, the petitioner was ranked 288
while respondents 5 and 6 were ranked 259 and 260
respectively. Consequently, the seniority list of
Superintendents also came to be revised as per Ext.A19
to the Original Application and while the petitioner was
ranked 102 therein, respondents 5 and 6 were ranked 75
and 76. This seniority list amongst the Superintendents
was published on 12.6.2002.
6. The petitioner then preferred O.A.No.
59/2003 before the Central Administrative Tribunal,
Ernakulam Bench. The petitioner challenged the circular
dated 20.10.1998 issued by the Department, which inter
alia, permitted the inter-commissionerate transferees,
who had been transferred on their request, prior to
25.5.1980, to count their seniority in their parent unit
also, provided such inter-commissionerate transfer, was
W.P.(C)No.36499 of 2007
:: 7 ::
within three years from the date of entry into the service.
This direction was a benefit flowing out of Clauses 1 and
2 of the circular dated 12.2.1958, apparently,
comprehending non-gazetted staff in the Central Board
of Central Excise and Customs and the Department
proceeded on the premise that this was the benefit that
was directed to be given to Damodar Singh by the
Patna Bench of the Central Administrative Tribunal and
the Supreme Court had affirmed the same. The writ
petitioner had challenged the circular dated 20.10.1998
and the apparent consequential revision of the seniority
list amongst Inspectors and Superintendents in the
Cochin Commissionerate.
7. The official respondents, who filed a reply
and an additional reply before the Central Administrative
Tribunal, inter alia, contended that the aforementioned
circular dated 20.10.1998 had actually been withdrawn
by the Department by a subsequent circular dated
25.3.2004.
W.P.(C)No.36499 of 2007
:: 8 ::
8. The Central Administrative Tribunal,
nevertheless went on to consider the merits of the
contentions raised by the parties and proceeded to hold
that the principle laid down in Damodar Singh by the
Patna Bench of the Central Administrative Tribunal,
which had been affirmed by the Supreme Court, would
hold the field and therefore, the inter se seniority
amongst the Inspectors and Superintendents of Central
Excise should be reckoned with reference to the original
date of entry into service and that inter-commissionerate
transferees, who had obtained such transfers on request,
should not be compelled to forfeit their seniority in the
parent unit, provided such transfers had been effected
within three years of commencement of service.
9. This order of the Central Administrative
Tribunal was challenged by the petitioner in W.P.(C)
No.30312/05 and by judgment dated 15.11.2005 a Bench
of this court observed that since the circular dated
20.10.1998 had been withdrawn subsequently on
W.P.(C)No.36499 of 2007
:: 9 ::
25.3.2004, the Department need only proceed to
implement the subsequent circular provided, the same
remains unchallenged and has become final. The Bench
made it clear that it was not deciding any of the
questions raised by the writ petitioners and the writ
petitions were disposed of on the submission of the
learned counsel for the petitioners that the orders
challenged before the Central Administrative Tribunal
are superseded by subsequent orders of the Government
of India.
10. Based on the subsequent circular and the
directions issued by the Division Bench, the seniority list
of Inspectors was again revised on 20.2.2000, while the
petitioner was ranked 273, respondents 5 and 6 came to
be ranked 366 and 375. It will have to be noticed in this
context that W.P.(C)No.30312/05 was disposed of at the
stage of admission, before issuing notice to respondents
5 and 6 herein.
W.P.(C)No.36499 of 2007
:: 10 ::
11. Respondents 5 and 6 then challenged the
subsequent circular dated 25.3.2004 and the seniority
list published on 20.2.2006 in O.A.No.469/06. The said
original application was allowed by the Central
Administrative Tribunal as per judgment dated
30.9.2006, inter alia, placing reliance on the judgment of
a Division Bench of this court in W.P.(C)No.7945/06. It is
this order of the Central Administrative Tribunal,
Ernakulam Bench, that has been challenged in this writ
petition.
12. A counter affidavit has been filed by the
official respondents as also by the contesting
respondents.
13. We heard Mrs.Preethy Ramakrishnan,
learned counsel for the petitioner, Mr.Tojan Vathikulam,
learned counsel for the Department and
Mr.O.V.Radhakrishnan, learned counsel for respondents
5 and 6.
W.P.(C)No.36499 of 2007
:: 11 ::
14. Learned counsel for the petitioner contended
that the Tribunal has committed a serious error in
allowing the original application filed by respondents 5
and 6 herein, on two grounds. Firstly, that respondents 5
and 6 were not permitted to carry over their seniority
from the Madurai Division when they were transferred,
on their request, to the Cochin Commissionerate. The
instructions issued by the Central Board of Customs and
Excise on 12.2.1958 permitting transfers without loss of
seniority, within a period of three years from the date of
first appointment were revised on 22.12.1959 and it was
the revised instructions Annexure A5 that was prevailing
when respondents 5 and 6 had joined service in Madurai
Division and were transferred, on their request to Cochin
Division. Thus, the premise on which the Tribunal had
proceeded to hold that respondents 5 and 6 were entitled
to carry over their seniority in the Madurai Division
when they were transferred to the Cochin
Commissionerate is factually untenable.
W.P.(C)No.36499 of 2007
:: 12 ::
15. It was then contended that assuming for
arguments sake that the instructions issued on 12.2.1958
permitting transfers within a period of three years from
the date of first appointment without loss of seniority,
was in force when respondents 5 and 6 had been
transferred from Madurai Division to Cochin Division, on
their request, it was a case where respondents 5 and 6
themselves had accepted their position at the bottom of
the ladder in Cochin Commissionerate. This position of
inter se seniority between the petitioner and respondents
5 and 6 was accepted by them as a state of affairs from
the date on which they joined the Cochin
Commissionerate, in 1976-77 and continued even in 1994
when the seniority list of Inspectors was published on
5.12.1994. The said seniority list Annexure R5(d)
reflected the inter se seniority between the petitioner
and respondents 5 and 6. The latter did not raise any
objection to the same. In the meanwhile, the petitioner
had been promoted as Superintendent on 5.3.1993 and
W.P.(C)No.36499 of 2007
:: 13 ::
this was also not objected to by respondents 5 and 6.
They themselves were promoted as Superintendent on
30.9.1996 and they have not raised any objection to the
same. The seniority list of Superintendents was
published on 5.8.1996. That also reflected the seniority
of the petitioner and respondents 5 and 6. They did not
raise any objection to the same. Thus, the state of affairs
which was prevailing from the year 1976-77 till 1998,
were accepted by the parties as governing them and
naturally the petitioner was entitled to 'sit back' with the
belief that he was senior to respondents 5 and 6 in the
cadre of Inspectors as also Superintendents. The state of
affairs was not consequent upon any benefit that the
petitioner had claimed and had received in antagonism to
respondents 5 and 6 and which benefit had been
challenged by the latter. The state of affairs came to
prevail by reasons of respondents 5 and 6 having been
transferred from the Madurai Division to Cochin
Division, on their request, and since such transfers were
W.P.(C)No.36499 of 2007
:: 14 ::
perceived as entailing loss of seniority in the parent unit,
that was accepted as such by respondents 5 and 6. In
such circumstances, they should not have been permitted
to raise a claim at a distance of time, almost 22 years
after they had secured a transfer from one division to
another.
16. It was also contended that the Tribunal
erred in proceeding on the premise that the Patna Bench
of the Central Administrative Tribunal in Damodar
Singh's case laid down any inviolable principle, as it
were, that all inter-commissionerate transfers effected in
the Department of Central Excise, within a period of
three years from entry into service prior to 25.5.1980,
will enable the incumbent to carry over the seniority
from the parent unit. The judgment of the Supreme
Court, dismissing the Civil Appeal against the order in
Damodar Singh's case was rendered essentially on the
premise that no materials had been placed before the
court to show that inter-commissionerate or inter-
W.P.(C)No.36499 of 2007
:: 15 ::
division transfers would occasion loss of seniority.
Obviously, the observations made by the Supreme Court
in the Civil Appeal against Damodar Singh's case would
bind only the parties and it cannot be treated as a
precedent, in relation to any claim made by persons like
respondents 5 and 6, who had been subjected to inter-
commissionerate transfer, on request.
17. Sri.O.V.Radhakrishnan, learned Senior
Counsel, on the other hand, submitted that the
instructions issued in 1958 permitted inter-
commissionerate transfers without loss of seniority.
There is no material to show that the revised instructions
issued on 22.12.1959 were operative in 1976-77 when
respondents 5 and 6 had joined the Cochin
Commissionerate. It was further contended that the
earlier order passed by the Tribunal dismissing the
original application filed by the petitioner herein,
O.A.No.59/93 stood in the way of the petitioner re-
agitating his claim, in the course of defending
W.P.(C)No.36499 of 2007
:: 16 ::
O.A.No.469/06 filed by respondents 5 and 6.
18. Learned counsel for the Department
Mr.Tojan Vathikulam submitted that the Department
affirms the stand taken by them in the counter statement
filed before the Central Administrative Tribunal.
19. The question that has been seriously mooted
for consideration and which we have considered in some
detail revolves around the principle that the incumbents
in a service are entitled, as of right, to assume the
prevalence of a state of affairs relating to their position
in service, including inter se seniority amongst persons
included in a cadre, and sit back with the belief that such
state of affairs have assumed finality and should
accordingly govern the parties. Learned counsel for the
petitioner relies on the following judgments of the
Supreme Court
20. Rabindra Nath v. Union of India {AIR
1970 SC 470}}, Amrit Lal Berry v. Collector of
Central Excise {1975(4) SCC 714}, R.S.Makashi v.
W.P.(C)No.36499 of 2007
:: 17 ::
I.M.Menon {1982(1) SCC 379}, K.R.Mudgal v.
R.P.Singh {1986(4) SCC 531}, B.S.Bajwa v. State of
Punjab {1998(2) SCC 523}, Indian Drugs and
Pharmaceuticals Ltd. v. Workmen {2007(1) SCC
408} and Government of Karnataka v. Gowramma
{AIR 2008 SC 863}.
21. We consider it advantageous to extract the
dictum laid down by the Supreme Court in Rabindra
Nath v. Union of India {AIR 1970 SC 470}. We note
that the principles laid down therein have been almost
unwaveringly quoted by the Supreme Court in the
subsequent judgments. It was held as follows in
paragraphs 34 and 35 of the judgment in Rabindra
Nath v. Union of India {AIR 1970 SC 470}.
"34. The learned counsel for the petitioners
strongly urges that the decision of this
court in Trilokchand and Motichand's
case, {1969) 1 SCC 110 (Supra) needs
review. But after carefully considering
the matter, we are of the view that no
relief should be given to petitioners who
without any reasonable explanation,
W.P.(C)No.36499 of 2007
:: 18 ::
approach this Court under Article of the
Constitution after inordinate delay. The
highest Court in this land has been given
Original Jurisdiction to entertain
petitions under Article 32 of the
Constitution. It could not have been the
intention that this Court would go into
stale demands after a lapse of years. It
is said that Article 32 is itself a
guaranteed right. So it is, but it does
not follow from this that it was the
intention of the Constitution makers that
this Court should discard all principles
and grant relief in petitions filed after
inordinate delay.
35. We are not anxious to throw out petitions
on this ground, but we must administer
justice in accordance with law and
principles of equity, justice and good
conscience. It would be unjust to deprive
the respondents of the rights which have
accrued to them. Each person ought to
be entitled to sit back and consider that
his appointment and promotion effected
a long time ago would not be set aside
after the lapse of a number of years. It
was on this ground that this Court in
Jaisinghani's case, 1967-2 SCR 703 =
(AIR 1967 SC 1427) observed that the
order in that case would not affect Class
W.P.(C)No.36499 of 2007
:: 19 ::
Ii officers who have been appointed
permanently as Assistant
Commissioners. In that case, the Court
was only considering the challenge to
appointments and promotions made
after 1950. In this case we are asked to
consider the validity of appointments
and promotions made during the periods
of 1945 to 1950. If there was adequate
reason in that case to leave out Class II
officers, who had been appointed
permanently Assistant Commissioners,
there is much more reason in this case
that the officers who are now permanent
Assistant Commissioners of Income-tax
and who were appointed and promoted to
their original posts during 1945 to 1950,
should be left alone."
22. The theory of 'sit back' has been applied
almost uniformly in the context of a contention of delay
and laches on the part of any person, who makes an
attempt to prosecute a claim, which, if accepted, would
result in a situation where inter se positions which have
been settled over the years will have to be revised.
These contentions have often been raised in proceedings
W.P.(C)No.36499 of 2007
:: 20 ::
under Articles 226 or 32 of the Constitution and
therefore, the Supreme Court had taken note of the fact
that though there is no statutory period of limitation
applicable to proceedings under Articles 226 and 32 of
the Constitution, where settled positions of seniority are
sought to be questioned after a considerable lapse of
time, the court would be inclined to decline jurisdiction
in such cases, on the ground of delay and laches. The
court would be loathe to interfere with settled affairs in
matters of seniority and promotion effected in any cadre
or service after a lapse of time. As observed by the
Supreme Court in Rabindra Nath v. Union of India
{AIR 1970 SC 470}, though the courts would not be
anxious to throw out petitions on the ground of delay on
the part of the petitioner in approaching the court,
justice will have to be administered in accordance with
law and principles of equity, justice and good conscience,
As the court observed in the said case, it would be unjust
to deprive the respondents (in the said case) the rights
W.P.(C)No.36499 of 2007
:: 21 ::
which have accrued to them; "each person ought to be
entitled to 'sit back' and consider that his appointment
and promotion effected a long time ago would not be set
aside after the lapse of a number of years.
23. The principles laid down in Rabindra Nath
v. Union of India {AIR 1970 SC 470} were followed in
Amrit Lal Berry v. Collector of Central Excise {1975
(4) SCC 714}. The court again reiterated the position in
R.S.Makashi v. I.M.Menon {1982(1) SCC 379}, and
thereafter in K.R.Mudgal v. R.P.Singh {AIR 1986 SC
2086 = 1986(4) SCC 531}
24. The approach made by the Supreme Court
in a case dealing with a dispute of seniority between
Assistants in the Intelligence Bureau in the case of
K.R.Mudgal v. R.P.Singh {AIR 1986 SC 2086} is
significant. The Supreme Court specifically held that
where a belated challenge is mounted before the High
Court, the Court ought to decline to consider the merits
of the contentions. Where a writ petition mounting such
W.P.(C)No.36499 of 2007
:: 22 ::
belated challenge was found to be liable to be dismissed
on the ground of laches, the following observations
made by the Supreme Court are significant:
"The respondents in the writ petition
raised a preliminary objection to the writ petition
stating that the writ petition was liable to be
dismissed on the ground of laches. Although the
learned single Judge and the Division Bench have
not disposed of the above writ petition on the
ground of delay, we feel that in the
circumstances of this case the writ petition
should have been rejected on the ground of delay
alone. The first draft seniority list of the
Assistants was issued in the year 1958 and it was
duly circulated amongst all the concerned
officials. In that list the writ petitioners had
been shown below the respondents. No
objections were received from the petitioners
against the seniority list. Subsequently, the
seniority lists were again issued in 1961 and
1965 but again no objections were raised by the
writ petitioners, to the seniority list of 1961, but
only petitioner 6 in the writ petition represented
against the seniority list of 1965. We have
already mentioned that the 1968 seniority list in
which the writ petitioners had been shown above
the respondents had been issued on a
misunderstanding of the Office Memorandum of
W.P.(C)No.36499 of 2007
:: 23 ::
1959 on the assumption that the 1949 Office
Memorandum was not applicable to them. The
June 1975 seniority list was prepared having
regard to the decision in Ravi Varma case and
the decision of the High Court of Andhra Pradesh
in the writ petitions filed by respondents 7 and
36 and thus the mistake that had crept into the
1968 list was rectified. Thus the list was
finalised in January 1976. The petitioners who
filed the writ petition should have in the ordinary
course questioned the principle on the basis of
which the seniority lists were being issued from
time to time from the year 1958 and the
promotions which were being made on the basis
of the said lists within a reasonable time. For
the first time they filed the writ petition in the
High Court in the year 1976 nearly 18 years after
the first draft seniority list was published in the
year 1958. Satisfactory service conditions
postulate that there should be no sense of
uncertainty amongst the Government servants
created by the writ petitions filed after several
years as in this case. It is essential that anyone
who feels aggrieved by the seniority assigned to
him should approach the court as early as
possible as otherwise in addition to the creation
of a sense of insecurity in the minds of the
Government servants there would also be
administrative complications and difficulties.
Unfortunately, in this case even after nearly 32
W.P.(C)No.36499 of 2007
:: 24 ::
years the dispute regarding the appointment of
some of the respondents to the writ petition is
still lingering in this Court. In these
circumstances we consider that the High Court
was wrong in rejecting the preliminary objection
raised on behalf of the respondents to the writ
petition on the ground of laches. The facts of
this case are more or less similar to the facts in
R.S.Makashi v. I.M.Menon. In the said decision,
this court observed at page 100 of the Reports
thus: (SCC p.400 para 30)
In these circumstances, we consider
that the High Court was wrong in
overruling the preliminary objection
raised by the respondents before it, that
the writ petition should be dismissed on
the preliminary ground of delay and
laches, inasmuch as it seeks to disrupt
the vested rights regarding the
seniority, rank and promotions which
had accrued to a large number of
respondents during the period of eight
years that had intervened between the
passing of the impugned resolution and
the institution of the writ petition. We
would accordingly hold that the
challenge raised by the petitioners
against the seniority principles laid
downin the Government Resolution of
March 22, 1968 ought to have been
W.P.(C)No.36499 of 2007
:: 25 ::
rejected by the High Court on the
ground of delay and laches and the writ
petition insofar as it related to the
prayer for quashing the said
Government Resolution should have
been dismissed.".
25. Though the theory of 'sit back', as such, was
not referred to in Mudgal's case {AIR 1986 SC 2086},
essentially the principle upheld by the Supreme Court
was that settled positions of seniority should not be
permitted to be agitated again, after a reasonable lapse
of time. The Supreme Court observed that it would not
be in the interest of administrative efficiency to let
disputes of seniority to be permitted to be raised and
prosecuted several years after the seniority had been
settled in the department in the ordinary course of
business.
26. The crucial dates and facts involved in the
present case have already been mentioned in the opening
portion of this judgment. We consider it appropriate to
recall certain crucial dates and events. The writ
W.P.(C)No.36499 of 2007
:: 26 ::
petitioner entered service as an Inspector in the Cochin
Commissionerate on 25.8.1975 and respondents 5 and 6,
though had joined the Madurai Division on 11.12.1974,
had joined the Cochin Division on an inter-
commissionerate transfer, on 13.12.1976 and 5.12.1977
respectively. There is no dispute that the petitioner was
promoted as the Superintendent on 5.3.1993 and
respondents 5 and 6 were promoted only on 30.9.1996.
These promotions were accepted by both sides and
significantly the petitioner's promotion effected on
5.3.1993 was not questioned by respondents 5 and 6.
What is of crucial significance is, therefore, that the
seniority position prevailing inter se the petitioner and
respondents 5 and 6 and obtaining from 1975, 1976 and
1977, was not questioned at any point of time by
respondents 5 and 6 either in 1993 when the petitioner
was promoted or in 1996 when respondents 5 and 6
themselves were promoted as Superintendents.
Obviously, the earlier promotion of the petitioner on
W.P.(C)No.36499 of 2007
:: 27 ::
5.3.1993 to the post of Superintendent must have been
on acceptance of the seniority enjoyed by the petitioner
over respondents 5 and 6 from the date on which
respondents 5 and 6 had joined the Cochin
Commissionerate on 13.12.1976 and 5.12.1977. The
seniority list of Inspectors published on 5.12.1994 also
reflected the same inter se seniority position. The
seniority list of Superintendents published on 5.8.1996,
i.e., after the promotion of respondents 5 and 6 as
Superintendents, further reiterated and reflected the
inter se seniority of the petitioner and respondents 5 and
6. At no point of time were these seniority lists of
Inspectors or Superintendents published on 5.12.1994 or
5.8.1996 challenged by respondents 5 and 6 before any
authority or court, as the case may be.
27. Apparently respondents 5 and 6, proceeded
to raise their claim, for what they call as 'carrying over
their seniority in the parent unit" on the basis of a letter
issued by the Ministry on 20.10.1998. This letter was
W.P.(C)No.36499 of 2007
:: 28 ::
issued purportedly for the purpose of uniformly
implementing the direction issued by the Patna Bench of
the Central Administrative Tribunal in Damodar Singh's
case. No doubt, a reference was made to the judgment
of the Supreme Court affirming the judgment of the
Central Administrative Tribunal Patna Bench. But, it is
only relevant to recall in this context that the Supreme
Court had not issued any general directions in the matter
of fixation of seniority amongst the Inspectors and
Superintendents of the Central Excise Department. The
aforementioned order of the Central Administrative
Tribunal, Patna Bench affirmed by the Supreme Court by
the judgment dated 31.3.1998 need not have really been
taken as a reason by the Ministry for proposing a
revision of the seniority list which had long since been
settled. It is useful to refer to the letter dated
20.10.1998, which reads as follows:
"I am directed to say that the question
of granting benefits of Clause (i) and
(ii) of this Ministry's O.M.No.6/97/57-
W.P.(C)No.36499 of 2007
:: 29 ::
Ad.IIIA dated 12.2.1958 to the Non-
Gazetted staff in CBEC who took Inter-
Commissionerate transfer before
20.5.80, was under dispute in
CAT,Patna Bench. CAT, Patna Bench in
its judgment dated 20.7.1995
(O.A.No.601/93 Shri Damoder Singh)
has held that the benefit of Clause (i) of
the O.M. Of 1958 may be given to Shri
Damodar Singh while fixing his
seniority on his inter-commissionerate
transfer from Jaipur to Patna in the year
1978. Hon'ble Supreme Court has also
upheld the judgment of CAT, Patna
Bench vide its judgmnet dated 31.3.98
in S.L.P.No.6734/96. Consequent upon
the judgment of Hon'ble Supreme Court
it has been decided by the Board suo-
moto that to avoid further
litigation/representations, the benefit of
Clause (i) and (ii) of 1958 circular (copy
enclosed) may be granted to all the
similarly situated Group 'C' officers
under CBEC who were transferred
before 20.5.1980. While implementing
the decision and revising the Seniority
of the employees who have undergone
inter-commissionerate transfer before
20.5.1980, it may be ensured that all
those who are adversely affected should
W.P.(C)No.36499 of 2007
:: 30 ::
be given a due notice and their
representations should be considered
before revising their seniority.
This issue in consultation with
DOPRT/Ministry of Law."
28. The reason, therefore, purported to be given
for issuing a direction to revise the seniority list already
published was allegedly to avoid further litigation and to
attain uniformity. Obviously the Ministry only achieved
the converse. No doubt, Damodar Singh had
approached the Patna Bench of the Central
Administrative Tribunal for getting the benefit of his
seniority in his parent unit. But forfeiture of seniority in
the parent unit was accepted by the inter-unit
transferees in the Cochin Commissionerate and settled
positions of seniority amongst Inspectors and
Superintendents, accepted as governing them over a
period of time and enabling the persons concerned to 'sit
back' in their positions were overturned by a circular,
which obviously was not mandated even by the order of
the Patna Bench of the Central Administrative Tribunal,
W.P.(C)No.36499 of 2007
:: 31 ::
let alone by the Supreme Court which had affirmed the
order of the Central Administrative Tribunal. It will have
to be recalled that the said circular was the subject
matter of a subsequent challenge by the petitioner herein
before the Central Administrative Tribunal, Ernakulam in
O.A.No.59/03. The said challenge was mounted along
with the challenge to the revised seniority list of
Inspectors issued on 4.7.2000 and revised seniority list of
Superintendents issued on 12.6.2002. The petitioner
moved the Central Administrative Tribunal, Ernakulam
Bench in O.A.No.59/03 against the revision of seniority
list of Superintendents and obviously because, since the
both the petitioner and respondents 5 and 6 had been
promoted as Superintendents in 1993 and 1996
respectively, the petitioner's cause of action could have
arisen only after the revised seniority list of
Superintendents was published.
29. Apparently, waking up to the sudden spurt
in belated claims and the obvious lack of wisdom or
W.P.(C)No.36499 of 2007
:: 32 ::
foresight behind the issuance of the circular dated
20.10.1998, the Ministry itself had withdrawn the same
on 25.3.2004 and this fact was specifically adverted to in
the reply statement and the additional reply statement
filed by the Department in O.A.No.59/03. Nevertheless,
the said original application came to be dismissed. The
order of the Central Administrative Tribunal was
challenged before this court in W.P.(C)No.30312/05 and
by judgment dated 15.11.2005 this court observed that
the Department need only follow the proceedings dated
25.3.2004, if it had not been challenged.
30. In the context of considering whether the
petitioner was entitled to 'sit back' in his position and
assume that inter se seniority between him and
respondents 5 and 6 ought to have been taken as settled,
it will have to be noticed that the position of seniority
which obtained in the department between petitioner
and respondents 5 and 6 from 1977 onwards came to be
even questioned by respondents 5 and 6 only after
W.P.(C)No.36499 of 2007
:: 33 ::
20.10.1998; i.e., to say, almost 22 years later. No doubt,
the validity of the said circular dated 20.10.1998 had to
be challenged by the petitioner herein. But the Tribunal
should have considered whether the positions of seniority
which came to be settled over more than two decades
can be upset by a circular issued by the Ministry. The
principles laid down by the Supreme Court in Rabindra
Nath v. Union of India {AIR 1970 SC 470} and in the
subsequent judgments which have followed the same,
ought to have been kept in mind by the Tribunal at that
point of time. That was not done.
31. We are of the view that, just as in a case
where a belated challenge to a settled position of
seniority or consequential orders of promotion will not be
entertained by a writ court under Article 226 of the
Constitution, on the principles laid down in Rabindra
Nath v. Union of India {AIR 1970 SC 470} and
Mudgal {AIR 1986 SC 2086}, the court should also be
wary in countenancing a contention which, if accepted,
W.P.(C)No.36499 of 2007
:: 34 ::
would result in overturning seniority positions of long
standing. Essentially, the doctrine of sit back would
apply both in cases where challenge against settled
positions are mounted belatedly and in cases where the
challenge to administrative actions overturning settled
seniority positions are sought to be defended.
32. This principle ought to have been kept in
mind by the Tribunal when respondents 5 and 6 had
subsequently challenged the circular dated 25.03.2004 in
O.A.No.469/06. That was not done. The challenge to the
circular dated 25.3.2004 by itself would not have been of
any significance, as acceptance of the claim made by
respondents 5 and 6 could be done by any Tribunal only
if the Tribunal or the court as the case may be, permits
respondents 5 and 6 to claim the benefit of carrying over
seniority from their parent unit, when they joined the
Cochin Commissionerate in 1976 and 1977. In other
words, accepting the claim made in O.A.No.469/06 at
the instance of respondents 5 and 6 herein could only be
W.P.(C)No.36499 of 2007
:: 35 ::
resultant upon the Tribunal permitting respondents 5
and 6 to challenge positions of inter se seniority of
Inspectors in the Central Excise Department, to be raised
after a period of almost 22 years. Applying the principle
in Mudgal {AIR 1986 SC 2086}, the Tribunal ought to
have dismissed O.A.No.469/06 on a preliminary ground
of delay, laches, acquiescence and application of the
principles of 'sit back theory'.
33. The second aspect which was mooted by the
learned counsel for the parties, relates to the question as
to whether an inter-unit transferee in the Central Excise
Department, was entitled to carry over the seniority from
the parent unit. The Tribunal has proceeded on the
premise that the circular dated 12.2.1958 which enable
such transfers without loss of seniority had not been
modified at any point of time till 20.5.1980. The revised
instructions applicable to non-gazetted staff, inter alia for
the purpose of determining seniority and issued on
22.12.1959 Annexure A5 was pressed into service by the
W.P.(C)No.36499 of 2007
:: 36 ::
petitioner. We have gone through the instructions dated
12.2.1958 and 22.12.1959. We are unable to agree with
the view taken by the Tribunal that the revised
instructions dated 22.12.1959 has no application to the
inter-unit transfer of respondents 5 and 6. There is no
basis for such a finding. Respondents 5 and 6 have not
placed on record, either before this court or before the
Tribunal the orders under which they have been
transferred from Madurai Division to the Cochin
Commissionerate. It has always been the specific
contention of the petitioner that the inter-unit transfer of
respondents 5 and 6 was allowed on condition that they
had agreed to forfeit their seniority in the parent unit.
We do not find any tenable explanation on the part of
respondents 5 and 6 for not producing their orders of
inter-unit transfer. We further take note of the additional
documents produced by the petitioner as Exts.P10 and
P11 along with I.A.No.8399/09. We think, it is also
significant to take note of the fact that Ext.P10 refers to
W.P.(C)No.36499 of 2007
:: 37 ::
one K.C.C.Raja, Preventive Officer Grade I, and
apparently K.C.C.Raja had earlier approached the
Tribunal, Ernakulam Bench in O.A.No.1182/95 for
reckoning his seniority from his entry in service in the
Bombay Unit. His claim was accepted and affirmed by
this court in O.P.No.1070/98. But, having gone through
the judgment affirming the judgment of the Tribunal, we
find that this court had merely gone by the circular dated
20.10.1998, which was subsequently withdrawn on
25.3.2004. The principles of law apparently were not
argued before this court. At any rate, the same has not
been considered by the Division Bench. We also take
note of the fact that the Tribunal itself has not
considered the 1959 revised instructions, but had
proceeded on the premise that the 1958 circular had
continued to prevail till the year 1980. Since there was
not even a reference to the 1959 revised instructions, we
are of the view that the principles laid down by the
Tribunal in O.A.No.1182/95 or the aforementioned
W.P.(C)No.36499 of 2007
:: 38 ::
judgment of the Division Bench of this court in
O.P.No.1070/98 ought not to have had any persuasive
effect with the Tribunal in the present case. Further
more, respondents 5 and 6 have not placed any materials
before this court to indicate that their inter-unit transfer
was not subject to a condition that they shall not be
permitted to carry over their seniority from the parent
unit.
34. Learned Senior Counsel for the respondents
Mr.O.V.Radhakrishnan submitted that the direction
issued by the Patna Bench of the Central Administrative
Tribunal in Damodar Singh's case in the matter of
permitting an inter-unit transferee to carry over his
seniority from the parent unit was affirmed by the
Supreme Court. It is profitable to refer to the judgment
of the Supreme Court in its entirety, which reads as
follows:
"The respondent's seniority was
determined taking into fact that at Patna he
should be teated to be the junior most on the
date his prayer for transfer was allowed and
W.P.(C)No.36499 of 2007
:: 39 ::
he joined at Patna. Challenging the said
seniority the respondent had initially filed a
representation to the Central Board but the
representation having been rejected, he had
approached the Central Administrative
Tribunal . The Tribunal by the impugned
judgment has come to the conclusion that in
view of the policy of the Central Government
in the year 1958 the respondent's seniority
has to be determined taking the entire service
period and not on the basis of the transfer
which was made at his request. The appellant
has not been able to produce any material to
indicate that the said policy was not in vogue
when the respondent was transferred
pursuance to his request. In that view of the
matter, we see no infirmity with the
impugned order of the Tribunal. This appeal
is accordingly dismissed. No order as to
costs."
35. It is quite clear from the judgment in Civil
Appeal No.6734/98 that the Supreme Court had taken
specific note of the fact that the Union of India was not
able to produce any material to indicate that the policy of
the Central Government laid down in the year 1958,
whereby the seniority had to be determined taking the
entire service period was not in vogue when Damodar
W.P.(C)No.36499 of 2007
:: 40 ::
Singh was transferred pursuant to his request. Thus, the
revised instructions of 1959, nor the circular which was
issued in 1980 was brought to the notice of the Supreme
Court. We have gone through the judgment of the
Central Administrative Tribunal, Patna Bench in
Damodar Singh, which has also been placed on record
and it seems that the 1959 circular was not bought to the
notice of the Central Administrative Tribunal also. In the
circumstances, we are of the view that the judgment of
the Apex Court in Civil Appeal No.6734/98 really turned
on the fact that the revised policy which came into force
in 1959 had not been brought to the notice of the court.
In such circumstances, as has been repeatedly laid down
by the Supreme Court on several occasions, the direction
issued therein cannot be intended to act as a precedent
in other cases. It will bind only the parties to the
judgment. Reference in this regard could be made to the
dictum laid down in Government of Karnataka v.
Gowramma {AIR 2008 SC 863}.
W.P.(C)No.36499 of 2007
:: 41 ::
36. We are, therefore, unable to accept the
submission of the learned Senior Counsel for
respondents 5 and 6 that the decision of the Supreme
Court in Civil Appeal No.6734/98 was intended or would
actually govern the dispute that has been raised in the
present case.
For all these reasons, the petitioner is entitled to
succeed. The writ petition is allowed. The order of the
Central Administrative Tribunal, Ernakulam Bench in
O.A.No.469/06 shall stand set aside and O.A.No.469/06
shall stand dismissed. In the circumstances, there will be
no order as to costs.
Sd/-
(K.BALAKRISHNAN NAIR)
JUDGE
Sd/-
(V.GIRI)
JUDGE
Sd/-
(P.S.GOPINATHAN)
sk/- JUDGE
//true copy//
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