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  Judgement - 09KLC-3322
 
   
   
 

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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