IN
THE CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD
BENCH AT ALLAHABAD
***********
I N D E X
IN
COMPILATION NO. I
Original Application No. /2014
(Under
Section 19 of Administrative Tribunals Act, 1985)
DISTRICT:
ALLAHABAD
Sukhjinder Jit Singh APPLICANT
Versus
Union of India & Ors. RESPONDENTS
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S.
No
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Particulars
of documents relied upon
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Date
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Annx.
No.
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Page
No.
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1.
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Dates
and Events
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2.
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Original
Application
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3.
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Postal
Order in respect of fee
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4.
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Vakalatnama
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COMPILATION NO. II
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S.
No
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Particulars
of documents relied upon
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Date
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Annx.
No.
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Page
No.
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5.
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A copy of the impugned revised select list dated 04.02.2013.
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04.02.2013
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A-1
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6.
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A copy of the impugned revised final seniority list dated 27.02.2013
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27.02.2013
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A-2
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7.
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A copy of the order dated 20.09.1994 whereby the applicant and
several others were promoted on ad hoc
basis as Assistant Collectors of Customs and Central Excise.
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20.09.1994
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A-3
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8.
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A copy of the Indian Customs and Central Excise Group ‘A’ Rules,
1987.
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1987
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A-4
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9.
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A copy of the revised draft seniority list dated 05.02.2013.
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05.02.2013
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A-5
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10.
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A copy of the order of the Hon’ble Supreme Court dated
22.11.1996 in Writ Petition No.
306/1988 in All India Federation of Central Excise etc Vs. Union of India
& Ors: (1997) 1 SCC 520.
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22.11.1996
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A-6
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11.
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A copy of Affidavit of Chairman, CBEC before the Hon’ble Apex
Court in Contempt Petition No. 513/1997 in WP No. 306/1988: All India
Federation of Central Excise Gazzetted Executive Officers Association Vs.
Shri R. Gopinathan, Chairman, CBEC.
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23.01.1993
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A-7
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12.
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A copy of representation of the applicant dated 19.02.2013.
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19.02.2013
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A-8
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13.
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A copy of the representation of the applicant dated 28.05.2013.
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28.05.2013
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A-9
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14.
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A copy of the order dated 26.03.2014 of the Hon’ble Tribunal,
Mumbai Bench granting stay of the operation of the impugned seniority list
dated 27.02.2013.
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26.03.2014
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A-10
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15.
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A Copy of final order of the
Mumbai Bench of CAT dated 01.05.2014.
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01.05.2014
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A-11
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16.
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A copy of order dated 21.10.2014 of the respondents rejecting
the representation of the Association.
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21.10.2014
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A-12
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17.
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Copies of the letters dated 28.02.1973, 02.12.2003 and
24.09.2002 are collectively annexed herewith.
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28.02.1973,
02.12.2003,
24.09.2002
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A-13
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18.
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A copy of the letter dated 29.10.1982.
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29.10.1982
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A-14
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(ASHISH SRIVASTAVA)
Advocates
for the Applicant,
Ch.
No. 126, High Court, Allahabad,
Residence:
Infront of Allahabad Degree College
(Law
Faculty), Beniganj, Allahabad
Mob. No.- 9415649855
DATED: ____/____/2014
PLACE: ALLAHABAD
SYNOPSIS OF DATES AND EVENTS
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Date
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Event
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1982
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The applicant is a Direct Recruit Customs Appraiser of 1982
batch.
The next promotional avenue available to the applicant was to
the grade of Assistant Collector of Customs and Central Excise (subsequently re-designated as Assistant
Commissioner of Customs and Central Excise).
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20.09.1994
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The applicant was promoted as Assistant Collector on ad hoc
basis within the quota available for Customs Appraisers. It may be noted here
that at that time in the year 1994 and even much before and much thereafter
promotion to the grade of Assistant Collector of Customs and Central Excise (re-designated as Assistant Commissioner
of Customs and Central Excise) was being given on ad hoc basis, solely because of the non-finalization of seniority
list in the grade of Customs Appraisers.
Otherwise all promotions made during the said period, more specifically from
01.01.1980 to 1996-97 (i.e. the period which is the subject
matter of this OA) were otherwise on regular and long term basis, as
regular vacancies in quota of the Customs Appraisers and candidates
fulfilling eligibility conditions to be promoted on regular basis were
available.
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1997
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For the first time a seniority list of Customs Appraiser was
finalized in 1997. But, the said 1997 Seniority List was erroneous. Therefore,
the same was challenged by Direct Recruit Customs Appraisers. Because of the
said challenge, the matter remained under litigation for a long period of
time.
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2000
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However,
during the pendency of the said challenge, the respondents held Original DPC
in the year 2000 to regularize the promotions made as Assistant Collectors (re-designated as Assistant Commissioners)
against the vacancies for the period 01.01.1980 to 31.03.1997. The
notification publishing the original select list for the period 01.01.1980 to
31.03.1997 was issued by Notification No. 30/2000 dated 21st
November, 2000. The applicant did not figure in the same as he could not be
accommodated against the vacancies till 31.03.1997 based on the erroneous
seniority list of 1997.
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2004
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Finally,
because of the challenge to the erroneous 1997 seniority list by Direct
Recruit Customs Appraisers, the same was quashed and set aside and directions
were given in favour of Direct Recruit Appraisers. Pursuant to the same a
Final Seniority List of Customs Appraisers was issued by the respondents in
the year 2004. The said seniority list of 2004 is still holding the field.
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2013
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That since the 1997 seniority list on the basis of which
the Original DPC for
promotion to the grade of Assistant
Commissioner of Customs
and Excise for the
recruitment/ vacancy
years 1980 to 1996-97 had been
held in the year 2000,
after the same was set aside and
the new Final Seniority List dated 2004 was issued, it
became necessary to
review the promotions made on
the basis of 2000
original DPC.
Tthe
necessary review DPC was held in the year 2013 only.
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04.02.2013
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Pursuant to
the said review DPC a Revised Select List of Assistant Collector/Commissioner
of Customs and Central Excise against the quota of Customs Appraisers for the
year 1980 to 1996-97 was issued vide O.M.
dated 4.02.2013. In the said Revised Select List, the name of the applicant
was shown against the panel for 1995-96 at serial No. 1. There were a number
of illegalities/irregularities/errors/ discrepancies/vices in the said
Revised Select List dated 04.02.2013.
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05.02.2013
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Based upon
the said erroneous/illegal Revised Select List dated 04.02.2013, the
respondents issued a Revised Draft Seniority List of Asst. Commissioner of
Customs and Central Excise dated 05.02.2013 (i.e. the very next day of issuance of the Revised Select List).
The very same illegalities in the Revised Select List was incorporated in the
Draft Seniority List also. All the said illegalities have been elaborated in
para 4.7 of the OA.
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19.02.2013
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The applicant
submitted a representation against the Draft Seniority List dated 05.02.2013
from Meerut, where the applicant is posted at present. All the illegalities
mentioned in para 4.7 of the OA were pointed out by the applicant in his
representation.
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27.02.2013
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Within just
seven days of applicant’s representation, the respondents issued impugned
Final Seniority List dated 27.02.2013 finalising the seniority in the grade
of Assistant Commissioners without examining the contents of the said
representations of the applicant.
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28.05.2013
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When the
said final seniority list came to the notice of applicant, the applicant made
a further representation dated 28.05.2013 pointing out the various
illegalities and irregularities in the same. But to no avail. In the meanwhile
Direct Recruits Customs Appraisers Association had made representation
containing similar grounds. The said representation was rejected by the
respondents on 21.10.2014.
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___.12.2014
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Though till
date the representation of the applicant has not been replied to, the
respondents are proceeding at a break neck speed to effect promotion to all
higher grades making the impugned 27.02.2013 seniority list as the basis.
Thus, the applicant has no other alternative but to file the present OA on an
urgent basis.
|
(ASHISH SRIVASTAVA)
Advocates
for the Applicant,
Ch.
No. 126, High Court, Allahabad,
Residence:
Infront of Allahabad Degree College
(Law
Faculty), Beniganj, Allahabad
Mob. No.- 9415649855
DATED: ___.___.2014
PLACE: ALLAHABAD
IN THE CENTRAL ADMINISTRATIVE
TRIBUNAL
ALLAHABAD
BENCH AT ALLAHABAD
OA No. /2014
Sukhjinder Jit Singh
S/o Shri Jagir Singh Kahlon,
Aged about 57 years,
Resident of: House No. D-3, Central
Excise Officers’ Colony,
Mangal Pandey Nagar, Meerut,
Uttar Pradesh APPLICANT
Versus
1. Union of India,
Through the Secretary,
Ministry of Finance, Department of
Revenue,
North Block, New Delhi – 1100 01.
2.
Central
Board of Excise and Customs,
Through its
Chairman,
North Block,
New Delhi – 1100 01.
3. Union Public Service Commission,
Through its Secretary,
Dholpur
House, Shahjahan Road,
New Delhi –
1100 11. RESPONDENTS
APPLICATION
UNDER SECTION 19 OF THE ADMINISTRATIVE TRIBUNALS ACT, 1985
1.
Particulars
of the order against which the application is made:
This
Original Application is being made against the illegal and arbitrary Revised Select
List dated 04.02.2013 of Assistant Commissioner of Customs and Central Excise
against the quota of Customs Appraisers for the Recruitment year/ vacancy years
1980 to 1996-97. The said Revised Select List has been prepared by including
and taking into consideration Officers who had either retired/voluntarily
retired or resigned or expired or otherwise not available in the relevant
Select List year in which they have been included as well as in clear violation
of the order of the Hon’ble Supreme Court in Writ Petition No. 306/1988 in All
India Federation of Central Excise etc Vs. Union of India & Ors.: (1997) 1
SCC 520. Further, the Revised Select List suffers from the vice of
reducing the actual promotions made during the period 1980 to 1996-97 by
diverting vacancies of Direct Recruitment quota by a conscious decision. The
respondents cannot do the same. The representation of the applicant dated 19.02.2013
in this regard has not borne any fruit till date. The applicant is also
aggrieved by the Revised seniority list dated 27.02.2013 of Asst. Commissioners
of Customs & Central Excise (Group A of IRS) (C & CE) appointed from
01.01.1980 upto 1996-97. As the Revised Seniority List is based on the
aforesaid Revised Select List dated 04.02.2013, the Seniority List also suffers
from the same very illegalities. Needless to state that the representations of
the applicant dated 19.02.2013 and 28.05.2013 against the aforesaid impugned
revised select list and revised seniority list have gone unheeded by the
respondents till date. A copy of the said revised select list dated 4.02.2013
and a copy of the revised final seniority list dated 27.02.2013 are annexed herewith
as Annexures A-1 & A-2 respectively.
2. Jurisdiction of
the Tribunal:
The
applicant declares that the subject matter of the order against which he wants
redressal is within the jurisdiction of this Hon’ble Tribunal.
3. Limitation:
The
applicant further declares that the application is within the limitation period
prescribed in section 21 of the Administrative Tribunals Act, 1985.
4. Facts of the case:
4.1 That the applicant is a Direct Recruit Customs Appraiser of 1982
batch and was promoted to the post of Assistant Collector of Customs and
Central Excise (subsequently
re-designated as Assistant Commissioner of Customs and Central Excise) vide
order dated 20.09.1994. It may be noted here that at that time in the year 1994
and even much before and much thereafter promotion to the grade of Assistant Collector
of Customs and Central Excise (re-designated
as Assistant Commissioner of Customs and Central Excise) was being given on
ad hoc basis, solely because of the
non-finalization of seniority list in the grade of Custom Appraisers. Otherwise
all promotions made during the said period, more specifically from 01.01.1980
to 1996-97 (i.e. the period which is the subject matter of this OA) were
otherwise on regular and long term basis, as regular vacancies in quota of the
Customs Appraisers and candidates fulfilling eligibility conditions to be
promoted on regular basis were available. Further all such ad hoc promotions were given by following the procedure meant for
regular promotion. A copy of the order dated 20.09.1994 whereby the applicant
and several others were promoted on ad hoc
basis as Assistant Collectors of Customs and Central Excise (Re-designated as Asst. Commissioner of
Customs and Central Excise) is annexed herewith as Annexure A-3. It may be noted here that for all practical
purposes the said promotion order was a regular promotion order in terms of
availability of regular vacancies as well as applicant and other promotees
fulfilling the conditions of eligibility for promotion and having been
recommended by the regular DPC for the said purpose. Thereafter, the applicant
has been granted further promotion as Deputy Commissioner w.e.f. 20.09.1998, as
Joint Commissioner w.e.f. 29.05.2005 and further as Additional Commissioner
w.e.f. 01.01.2007. All such promotions were granted to the applicant and all
others on ad hoc basis only for the sole reason of non-finalisation of
seniority list of Customs Appraisers, but by following the procedure meant for
regular promotion.
4.2 That the issue of fixation and finalization of seniority in the
grade of Customs Appraisers remained under disputes all through the aforesaid
period (in fact from the very inception of
the service) and there was no final seniority list of Customs Appraisers till
the year 1997, when for the first time in the service a Final Seniority list
was issued. As the said Seniority List was erroneous, the same was challenged
by Direct Recruit Customs Appraisers. Because of the said challenge, the matter
remained under litigation for a long period of time. However, during the
pendency of the said challenge, the respondents held Original DPC in the year
2000 to regularize the promotions made as Assistant Collectors (re-designated as Assistant Commissioners) against
the vacancies for the period 01.01.1980 to 31.03.1997. The notification
publishing the original select list/seniority List for the period 01.01.1980 to
31.03.1997 was issued by Notification No. 30/2000 dated 21st November,
2000. Needless to state that the said original DPC was based upon the erroneous
seniority list of Customs Appraisers of 1997 which had already been challenged
by that time. The name of the applicant was not shown in the said original
select list as apparently the applicant could not be adjusted in the vacancies
available in the Customs Appraisers quota between 01.01.1980 to 31.03.1997.
4.3 That
finally, because of the challenge to the erroneous 1997 seniority list by
Direct Recruit Customs Appraisers, the same was quashed and set aside and
directions were given in favour of Direct Recruit Appraisers. Pursuant to the
same a Final Seniority List of Customs Appraisers was issued by the respondents
in the year 2004. Though the said 2004 seniority list was challenged by
promotee Customs Appraisers initially in the Hon’ble Central Administrative
Tribunal, Chennai Bench and thereafter in Hon’ble High Court of Madras, the
Hon’ble Supreme Court in CA No. 3630 of 2008: Chennai Customs Officers
Association Vs. UOI upheld the 2004 Customs Appraisers seniority list by its
orders dated 16.05.2008. The Hon’ble Apex Court again approved the 2004
seniority list of Customs Appraisers in SLP (C) No. 19456/2009 vide its orders
dated 25.02.2010. Thus today, it is an admitted position that the seniority
list of 2004 of Customs Appraisers is holding the field for the purposes of
promotion to the grade of Asst. Commissioner of Customs and Excise.
4.4 That since the 1997 seniority list on the basis of which the
Original DPC for promotion to the grade of Assistant Commissioner of Customs
and Excise for the recruitment/vacancy years 1980 to 1996-97 had been held in
the year 2000, after the same was set aside and the new Final Seniority List
dated 2004 was issued, it became necessary to review the promotions made on the
basis of 2000 original DPC.
4.5 That the necessary review DPC was held in the year 2013 only and
the Revised Select List of Assistant Collector/Commissioner of Customs and
Central Excise against the quota of Customs Appraisers for the year 1980 to 996-97
was issued vide O.M. dated 4.02.2013. It may be mentioned here that posts in
the grade of Assistant Commissioner is filled up in accordance with Indian
Customs and Central Excise Service Group ‘A’ Rules, 1987. As per the said
Rules, 50% of the posts are filled up by Direct Recruitment. The rest 50% is
filled by promotion from three different feeder cadres namely Superintendent
Central Excise, Superintendent Customs and Customs Appraisers in the ratio of
6:1:2. Thus, in every 18 posts, 9 posts go to Direct Recruitment, 6 posts go to
Superintendent Central Excise by promotion, 1 post goes to Superintendent
Customs by promotion and 2 posts go to Customs Appraisers by promotion. Thus,
every 18 posts filled up in the grade of Assistant Commissioners contains 2
Customs Appraisers. A copy of the Indian Customs and Central Excise Group ‘A’
Rules, 1987 is annexed herewith as Annexure
A-4. The said revised Select List was prepared only in respect of
Customs Appraisers keeping the aforesaid ratio in mind. In the said Revised Select
List, the name of the applicant was shown against the panel for 1995-96 at
serial No. 1. There were a number of illegalities/ irregularities/ errors/discrepancies/vices
in the said Revised Select List dated 04.02.2013. The last Customs Appraiser
shown in the Revised Select List is Shri TK Sanyal against Recruitment Year
1996-97.
4.6 That however, based upon the said erroneous/illegal Revised Select
List dated 04.02.2013, the respondents issued a Revised Draft Seniority List of
Asst. Commissioner of Customs and Central Excise dated 05.02.2013 (i.e. the very next day of issuance of the Revised
Select List). A copy of the said draft seniority list is annexed herewith
as Annexure A-5. By the said
Draft Seniority List, representation/objections were invited against the same.
4.7 That it may be mentioned here that the said Revised Select List
dated 04.02.2013 suffered from three (3) major illegalities/vices which were
apparent on the face of the record. Since the Revised Draft Seniority List
dated 05.02.2013 was based on the Revised Select List dated 04.02.2013, the
same three major illegalities/vices were repeated in that also. The said three
illegalities/ vices were as follows:
(a) Firstly, the Customs Appraisers who were not
in service because of resignation, retirement, voluntary retirement or death or
for any other reason in the relevant recruitment/vacancy year, then they could
not be adjusted against the vacancies/panel for the said recruitment year in
the Revised Select List or in the consequent Seniority List. For instance, if a
Customs Appraiser was no more in service in the year 1985, he could not be
considered and adjusted in the panel for promotion as Assistant Commissioner for
the year 1985-86. However, the following 12 Customs Appraisers who were no more
in service in the respective panel years, have been shown by the respondents in
the panels of various recruitment/vacancy years for promotion as Assistant
Commissioners when they were no more in service:
|
Sr. No.
|
Name of the Customs Appraiser
not in service in the relevant panel year in which he has been shown
|
Place in the Revised Select List
dated 04.02.2013
|
Seniority position in the Draft
Seniority List dated 05.02.2013
|
Reason as to how and why the
officer was not in service in the Panel year in which he has been shown
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1.
|
RM Panwani
|
1980
(2)
|
538
|
Retired in
the year 1979 as his correct Date of Birth as per service record was
31.01.1921. At that time the age of superannuation was 58 years.
|
|
2.
|
TA Ratnam
|
1980
(3)
|
540
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He had
retired from service on 31.12.1974.
|
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3.
|
AK Ramachandran
|
1982
(14)
|
811
|
He had
resigned and left service in 1971.
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4.
|
VM Deshpande
|
1983
(6)
|
855
|
Took
voluntary retirement from service on 06.11.1978.
|
|
5.
|
GS Gopala
|
1980
(24)
|
648
|
Left
immediately after joining as AO.
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6.
|
BC Sahu
|
1985
(2)
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1035
|
Left
immediately after joining as AO.
|
|
7.
|
MDA Wadia
|
1985
(11)
|
1072
|
Took
voluntary retirement on 19.12.1972.
|
|
8.
|
M Mukherjee
|
1986
(17)
|
1273
|
Expired on
14.01.1985.
|
|
9.
|
VV Rama Reddy
|
1993-94
(5)
|
2318
|
Expired in
1990.
|
|
10.
|
JL Visva
|
1990-91(78)
|
2015
|
Took
voluntary retirement on 01.03.1982.
|
|
11.
|
S Sundereshwaran
|
1995-96(16)
|
2678
|
Expired on
04.05.1988.
|
|
12.
|
SG Mule
|
1995-96(15)
|
2677
|
Expired in
1988.
|
Thus,
these 12 persons could not have been shown in the panel years in which they
have been shown in the Revised Select List dated 04.02.2013. If these 12
persons are taken out from the Revised Select List dated 04.02.2013, the
position of the applicant would improve to the panel year 1994-95. This is also
a major error apparent on the face of the record as well as a major illegality/vice.
Because of this illegality/vice in the Select List, there is illegality in the
Revised Draft Seniority List dated 05.02.2013. This needed to be corrected both
in the Revised Select List and consequently in the Revised Draft Seniority List
by firstly, improving the position of the applicant and all promotes below him in
the Revised Select List and consequently in the Revised Draft Seniority List
and secondly, by including equal number of 12 promotees below the last promote
Customs Appraiser shown in the Revised Select List and Revised Draft Seniority
List namely Shri TK Sanyal in the panel year 1996-97 and at Sr. No. 2748 in the
Revised Draft Seniority List. But that has not been done by the respondents.
(b) Secondly, as per the order of the Hon’ble Supreme Court dated 22.11.1996
in Writ
Petition No. 306/1988 in All India Federation of Central Excise etc Vs. Union
of India & Ors.: (1997) 1 SCC 520, all promote officers including
Customs Appraisers who had been promoted upto 31.12.1979 were to be given
placement prior to 01.01.1980. It is only promotions made from 01.01.1980 to
the grade of Assistant Collector/Commissioner, were to be reviewed to accord appropriate place to them in the Select Lists
from 01.01.1980 to 1996-97. The aforesaid order has been fully accepted by the
respondents. In fact, in the Draft Seniority List dated 05.02.2013, the
Respondents have incorporated the said position in very clear terms as follows:
“3. Consequently, a revised draft
Seniority List of Assistant Commissioners of Customs and Central Excise (Group
A of IRS (C&CE) upto 1996-97, has been prepared by adopting inter-alia the following principles:-
(i)
The
officers appointed prior to 01.01.1980 have been placed in the draft seniority
list based on the actual date of joining the grade of Assistant Commissioners,
in accordance with the order dated 22.11.1996 of Hon’ble Supreme Court in Writ Petition No. 306/1988 in All India
Federation of Central Excise etc Vs. Union of India & Ors.”
The
aforesaid principle of fixation of seniority mandated by the Hon’ble Apex Court
puts beyond any reasonable doubt that officers who had been promoted and who
had joined as Assistant Collectors/Commissioners till 31.12.1979 could not be
shown or adjusted or considered against the vacancy year starting from
01.01.1980. However, the respondents even while stating the principle of
fixation of seniority correctly, showed the following 13 Customs Appraisers who
had already been promoted and who had already joined as Assistant
Collector/Commissioner before 01.01.1980 as having been adjusted in the panels
for the vacancy years 01.01.1980 to 1996-97 as follows:
|
Sr. No.
|
Name of the Customs Appraiser
promoted as Assistant Commissioner prior to 01.01.1980
|
Date on which promoted/ joined
as Assistant Collector/ Commissioner
|
Shown in the Revised Select List
dated 04.2.2013against Panel Year
|
Seniority position in the
Revised Draft Seniority List dated 05.2.2013
|
|
1.
|
SL Arulraj
|
29.08.1978
|
1980 (4)
|
192
|
|
2.
|
TJ Panjwani
|
18.11.1972
|
1980 (5)
|
63
|
|
3.
|
NB Bhattacharjee
|
29.08.1978
|
1980 (7)
|
238
|
|
4.
|
CM Madhavan Nair
|
16.06.1976
|
1980 (8)
|
246
|
|
5.
|
KL Chowdhury
|
30.11.1979
|
1980 (10)
|
512
|
|
6.
|
PB Chatre
|
Before 1979
|
1980 (11)
|
358
|
|
7.
|
TA Ramsubramaniam
|
30.11.1979
|
1980 (16)
|
496
|
|
8.
|
RC Narang
|
29.08.1978
|
1981 (1)
|
184
|
|
9.
|
VS Venugopal
|
30.11.1979
|
1981 (15)
|
506
|
|
10.
|
HK Maingi
|
29.08.1978
|
1982 (7)
|
466
|
|
11.
|
S Nagarajan
|
29.03.1978
|
1982 (8)
|
482
|
|
12.
|
KP Singh
|
03.12.1979
|
1982 (17)
|
508
|
|
13.
|
NM Velluswami
|
30.11.1979
|
1983 (2)
|
522
|
All the aforesaid 13 officers
could not have been shown in the Revised Select List dated 04.02.2013 which
specifically pertains to the vacancy year 01.01.1980 to 1996-97. If the names
of these 13 officers are deleted in terms of the accepted principle of
seniority in accordance with the order of the Hon’ble Apex Court as well as
Para 3 of the covering letter of the Revised Draft Seniority List dated
05.02.2013, the name of the applicant would improve by further 13 places in the
Revised Select List dated 04.02.2013 and approximately 120 positions in the
Final Seniority List dated 27.02.2013. If ground (a) is accepted, the seniority
position would further improve by approximately another 116 positions. Thus, if
both grounds (a) and (b) are accepted, the net seniority position of the
applicant would improve by approximately 236 positions. Similarly, since the
applicant has now been shown at Sr. No. 1 in the panel year 1995-96, he would
shift to the panel year 1992-93, even if this ground along with ground (a)
above are accepted and implemented. Consequently, the position of the applicant
in the Seniority List would improve further. This is a major illegality/vice in
the Draft Seniority List. For the purposes of ready reference a copy of the
order of the Hon’ble Supreme Court in order dated 22.11.1996 in Writ Petition No. 306/1988 in All India
Federation of Central Excise etc Vs. Union of India & Ors: (1997) 1 SCC 520 is enclosed
herewith as Annexure A-6.
(c) Besides, in the Revised
Draft Seniority List dated 05.02.2013 for the vacancy years 01.01.1980 to
1996-97 i.e. till 31.03.1997, the respondents have shown altogether 2776
Assistant Commissioners. Out of the said 2776 Assistant Commissioners, 743 officers
are Direct Recruit Assistant Commissioners and 2033 are Promotee Assistant
Commissioners. As a matter of fact, the posts of Assistant Commissioners of
Customs and Central Excise, according to the Recruitment Rules, are filled up
50% by Direct Recruitment and 50% by promotion. But during the period
01.01.1980 to 31.03.1997, the respondents had taken a conscious decision to
Recruit less number of Direct Recruits and divert the resultant vacancies of
Direct Recruits to promotion quota. As a result of the said conscious decision,
the respondents appointed only 873 officers by Direct Recruitment and 2476 officers
by promotion. Since it was a conscious decision, the seniority of the said
officers was required to be fixed by taking the appointments/promotions made during
one recruitment year and rotating the Direct Recruits and Promotees in the
ratio of 1:1 till the last Direct Recruit of the said Recruitment Year and
thereafter to bunch the rest of the available promotes of the said recruitment
year at the bottom of the said year. Thereafter to start the same process for
the next Recruitment year. This process would have continued till the year
1996-97. However, in the instant case, the respondents have shown 743 officers
from Direct Recruitment (apparently the rest must have left service) and 2033
officers from promotion, thereby reducing the actual number of promotions made
during the said period by consciously diverting a substantial number of direct
recruitment vacancies of the said period. Thereby, the legal effect of the
conscious decision to increase the quota of promotees during the period
01.01.1980 to 31.03.1997 has not been passed on to the promotees. This is not
legally sustainable. It may be mentioned here that the facts and figures of
Direct Recruitment and Promotion as well as the conscious decision to divert
the vacancies of Direct Recruitment to promotion quota was stated by the
Chairman, CBEC by filing a sworn Affidavit before the Hon’ble Apex Court in Contempt
Petition No. 513/1997 in WP No. 306/1988: All India Federation of Central
Excise Gazzetted Executive Officers Association Vs. Shri R. Gopinathan,
Chairman, CBEC. A copy of the said Affidavit is annexed herewith as Annexure A-7. It is an
established law that a party to a litigation cannot change stand on a subject
matter in subsequent litigations. Much less a model employer like Union of
India/ Central Board of Excise and Customs. Thus, the diverted vacancies of
Direct Recruitment quota to promotion quota must be lawfully considered as
regular vacancies of promotion quota and has to be filled up accordingly. And
consequently, the seniority has to be fixed lawfully by rotating the DRs and
Promotees in the ratio of 1:1 till they are available and thereafter to bunch
the rest available promotees at the bottom of the same recruitment year. But,
this has not been done by the respondents in the Draft seniority list dated
05.02.2013. Instead the respondents have reduced the promotions made by
conscious diversion of vacancies from the Direct Recruitment quota. By the said
act, the Respondents have reduced 443 lawful promotions made against the
diverted vacancies from Direct Recruits during the said period. As has already
been submitted, the said consciously diverted vacancies have to be calculated
as regular vacancies of promotion quota during the said period. This submission
can be seen from another angle. The period from 01.01.1980 to 1996-97 is a very
substantially long period of 16-17 years. During this substantial period, the quota
of Direct Recruits was reduced and simultaneously the quota of promotes was
increased. Thus, the statutorily prescribed quota was never maintained or
followed during this substantial period of time. There was a total break down
of the quota rule. Now the said actual promotions cannot be varied on the
ground of any statutory quota. Thus the actual Direct Recruitment made during
each recruitment year and the corresponding promotions made in the promotion
quota vacancies and the diverted vacancies from Direct Recruitment quota is to
be considered as the total vacancies of the said recruitment year and they are
to be rotated in the ratio of 1:1 till the Direct Recruits are available and
thereafter to put the rest promotes at the bottom of the said recruitment year.
This process was to be repeated from recruitment year 1980 to 1996-97. If the
same is done the number of promotes in all the recruitment years would increase
and consequently more promotes would find place in each of the said recruitment
years. If this ground is accepted and implemented, the position of the
applicant would further improve to the panel year even prior to 1992-93 and
consequently his position in the seniority list would further improve. The
Revised Select List and the Draft Seniority List needed to be corrected on
these lines.
4.8 That as the said draft seniority list contained the same 3
illegalities/vices as contained in the Revised Select List dated 04.02.2013, the
applicant made a representation dated 19.02.2013 (i.e. within 2 weeks of the issuance of the Draft Seniority List) which
was duly received by the office of the respondents on 20.02.2013 against both
the Revised Select List as well as the Revised Draft Seniority List. A Copy of
the said representation is annexed herewith as Annexure A-8. It may be noted here that the contents of the
said representation are not being reproduced here for the sake of brevity.
However, the contents of the same may be read as part and parcel of this
paragraph for the purposes of pleadings. Needless to say that the applicant
pointed out the aforesaid 3 illegalities/ vices in the Revised Select List
dated 04.02.2013 as well as in the Draft Seniority List dated 05.02.2013,
besides many other errors/ discrepancies. It may be noted here that the
representations of the applicant was duly routed through proper channel through
the Meerut office where the applicant is posted.
4.9 That within seven days of applicant’s representation, the
respondents issued impugned Final Seniority List dated 27.02.2013 finalising
the seniority in the grade of Assistant Commissioners without examining the
contents of the said representations of the applicant. It is possible that the
said representations of the applicant might not have even reached the office of
CBEC by 27.02.2013 as the representations were submitted at Meerut office only.
It may be noted here that in the Draft Seniority List there were altogether
2776 officers which included both Direct Recruit and Promotee Assistant
Commissioners. But in the Final Seniority List there were altogether 2767
officers. Thus, the name of 9 officers were deleted in the Final Seniority List
dated 27.02.2013. The details of the said 9 officers with the reason for
deletion of their name is shown below in a tabular form:
|
Sr. No.
|
Name of the Customs
Appraiser
|
Seniority position in the draft
seniority List dated 05.02.2013
|
Reason for deletion of name in
the Final Seniority List dated 27.02.2013
|
|
1.
|
R.M.Panwani
|
538
|
Retired in
the year 1979 as his correct D.O.B was 31.01.1921. At that time the age of
superannuation was 58 years.
|
|
2.
|
AK
Ramchandran
|
811
|
He had
resigned and left service in 1971.
|
|
3.
|
BC
Sahu
|
1035
|
Left
immediately after joining as AO.
|
|
4.
|
M
Mukherjee
|
1273
|
Expired on
14.01.1985.
|
|
5.
|
VV
Rama Reddy
|
2318
|
Expired in
1990.
|
|
6.
|
S
Sundereshwaran
|
2678
|
Expired on
04.05.1988.
|
|
7.
|
S
G Mule
|
2677
|
Expired in
1988
|
|
8.
|
G.S.Gopala
|
648
|
Left
immediately after joining as AO.
|
|
9.
|
Name could
not be traced by the applicant from the seniority list
|
|
|
The
aforesaid deletion of 9 names (or 8 names for that matter) was an acceptance of
the contention of the applicant in his representation dated 19.02.2013 that the
Draft Seniority List was erroneous. Thus, though the respondents did not give
any reply to the representation of the applicant, to the aforesaid extent, the
errors and illegalities pointed out by the applicant stood acknowledged but the
consequential benefit was not given by improving the position of the applicant
and other Customs Appraisers who were below those 8 officers either in the
Revised Select List or in the Revised Seniority List. If the said 8 Customs
Appraisers are taken out from the Revised Select List and the Final Seniority
List, the applicant would move up to Panel year 1994-95 and about 75 positions
in the impugned seniority list dated 27.02.2013 on this count alone. But as far
as the other major illegalities/vices pointed out by the applicant, the same
was not addressed by the respondents nor any reply was given to the applicant.
4.10 That when the said final seniority list came to the notice of applicant,
the applicant made a further representation dated 28.05.2013 pointing out the
various illegalities and irregularities in the same. A copy of the said
representation dated 28.05.2013 is annexed herewith as Annexure A-9. Contents of the said representation are also
not repeated herein for the sake of brevity. But the said contents may be read
as a part of this paragraph for the purposes of pleadings.
4.11 That in the meanwhile the applicant came to know that the Direct
recruits Customs Appraisers Association had challenged the said impugned Final
Seniority List dated 27.02.2013 by filing OA No. 210/00157/2014 before the
Mumbai Bench of CAT in which the Hon’ble Mumbai bench of this Tribunal had
granted stay of the Final Seniority List dated 27.02.2013 as well as further
promotion based on the same vide order dated 26.03.2014. A copy of the said
order dated 26.03.2014 of the Hon’ble Tribunal, Mumbai Bench is annexed
herewith as Annexure A-10.
4.12 That
during the pendency of the said OA before the Mumbai Bench of CAT, the
Association made a representation pointing out the gross illegalities in the
seniority list, the several representations against which remained unheeded, as
the circumstances necessitating the filing of OA before the Mumbai Bench of the
Hon’ble Tribunal. When the said representation of the Association was brought
to the notice of the Mumbai Bench, the said Bench by its order dated 01.05.2014
directed the Association to make a comprehensive representation in this regard
to the respondents and directed respondents to consider the comprehensive
representation so made by the Association within 12 weeks thereof. The Mumbai
Bench passed the said order in the hope that the respondents would now redress
the aforesaid errors apparent on the face of the record. On the said hope and
premise, the Mumbai Bench did not adjudicate the OA on merits. A Copy of the said order of the Mumbai Bench of CAT dated
01.05.2014 is annexed herewith as Annexure
A-11.
4.13 That pursuant to the said order of the Mumbai bench, the
Association made a comprehensive representation dated 03-06-2014 pointing out
the same illegalities which the applicant has pointed out in this OA. The
respondents passed a reasoned and speaking order dated 21.10.2014 rejecting the
representation of the Association. The said order dated 21.10.2014 is addressed
to the President of the Direct Recruit Customs Appraisers Association, who in turn
has circulated it to the affected and concerned members of the Association. The
applicant has got a copy of the same because of the said circulation by the
president of the Association. A copy of the said order dated 21.10.2014 is
annexed herewith as Annexure A-12.
In the said rejection order, the respondents have not accepted the grounds (b)
and (c) as given in para 4.7 above. They have rejected the said 2 grounds on
reasons unsustainable in law in an arbitrary manner. As far as ground (a) is
concerned, the respondents admitted their mistake in respect of 8 officials out
of 12. They admitted the mistakes in respect of RM Panwani, AK Ramachandran, GS
Gopala, BC Sahu, M Mukherjee, VV Rama Reddy, S Sundereshwaran and SG Mule and had
already deleted their names in the Revised Final Seniority List dated
27.02.2013 but did not give the consequential benefit of revising the Select
List in the said lines by improving the position of the applicant and
incorporating 8 more Customs Appraisers below Shri TK Sanyal in the Select List
and in the Seniority List. The position of the applicant remains between the
same two persons above and below him in the Revised Draft Seniority List as
well as the Final Seniority List. However
in respect of the other 4 officers, the respondents did not accept their
mistake on very erroneous grounds. The erroneous grounds in respect of those
officers and how the reason given by the respondents are erroneous are given
below in a tabular form:
|
Sr. No.
|
Name of the Customs Appraiser
not in service in the relevant panel year in which he has been shown
|
Reason given by the respondents
to the Association for not accepting the mistake
|
Rebuttal of the applicant
|
|
|
|
|
|
|
1.
|
TA Ratnam
|
Since the
date of birth of the officer is 17.12.1926, he could not have retired at the
age of 48 in 1974.
|
Respondents
failed to appreciate that date of birth of the officer as reflected in
Annexure 1 to the letter 28.02.1973 written by UOI to respective cadre
controlling authorities is 17.12.1916 and not as 17.12.1926 as being now
claimed by the Respondents. The same finds its bulwark in letter dated
02.12.2003 and 24.09.2002 written by the Department to the UPSC wherein he is
shown to have retired in December 1974. Copies of the letters dated 28.02.1973,
02.12.2003 and 24.09.2002 are collectively annexed herewith as Annexure A-13 (Colly.).
|
|
2.
|
VM
Deshpande
|
No proof
has been given to the department that the officer has taken Voluntary
Retirement except letter written by Department to UPSC
|
Here the
Respondent is reluctant to accept the fact that officer concerned took
voluntary retirement on 06.11.1978 and their reason for not accepting the
same borders on bizzare as the Department itself is doubting the letter
written by it to the constitutional body like UPSC. Moreover this fact is
further supported by the Annexure 1 to the letter dated 29.10.1982. A copy of
the letter dated 29.10.1982 is annexed herewith as Annexure A-14.
|
|
3.
|
MDA Wadia
|
since the
officer had not completed 20 years of service from the date of joining i.e,
31.08.1968 therefore he could not have completed the requisite service of 20
years for taking voluntary retirement on 19.12.1972
|
he is a
promotee appraiser and 31.08.1968 is his date of appointment as Appraiser and
not his date of joining the department. The fact that he retired on
19.12.1972 is fortified by Annexure 1 to letter dated 29.10.1982 and letter
dated 02.12.2003 and 24.09.2002 written by the Department to the UPSC.
|
|
4.
|
JL Visva
|
since the
officer had not completed 20 years of service from the date of joining i.e,
28.06.1980 therefore the said officer could not have completed the requisite
service of 20 years for taking voluntary retirement on 01.03.1982
|
did not
take VRS but has in fact resigned from the service which is evident from a
bare perusal of the letters dated 02.12.2003 and 24.09.2002 written by the
Department to the UPSC.
|
In
view of the above rebuttal, the said 4 names are liable to be deleted from the
Revised Select List dated 04.02.2013 as well as from the Final Seniority List
dated 27.02.2013 and consequently, the name of the applicant would have to be
improved and also equal number of Customs Appraisers below Shri TK Sanyal are
required to be incorporated in the Revised Select List as well as in the Final
Seniority List.
4.14 That as the grievance of the applicant has not been remedied by
the respondents, the applicant has no other alternative and efficacious
remedies than to file the present Original
Application before this Hon’ble Tribunal on an urgent basis. There is an
urgency in the matter as the respondents are going ahead at a break neck speed
to effect further promotion to the various grades of service based on the
aforesaid erroneous Select List and the impugned Final Seniority List. The Hon’ble
Mumbai Bench had stayed the operation of the said seniority list as well as
further promotion as an effect of the said seniority list and had in good faith
directed to examine the comprehensive representation of the Association which
contained the same grounds as has been urged by the applicant. But the
respondents have rejected the same in the utmost arbitrary manner. The
applicant is greatly prejudiced by the same. Because now the applicant is being
considered as an Assistant Commissioner of 1995-96 panel year, whereas he is
entitled to 1992-93 or even earlier panel year based on the aforementioned
clear submissions based on unimpeachable records.
5.
Grounds
for relief with legal provisions:
The
applicant relies upon the following grounds which are mutually exclusive and
without prejudice to each other.
5.1 Because, the names of the 13 Customs
Appraisers promoted as Assistant Collectors/Commissioners prior to 01.01.1980
are liable to be deleted from the Revised Select List dated 04.02.2013 as well as
from the Seniority List dated 27.02.2013 by following the order of the Hon’ble
Apex Court dated 22.11.1996 in Writ
Petition No. 306/1988 in All India Federation of Central Excise etc Vs. Union
of India & Ors. as well as the principle stated by the respondent
themselves at para 3 (i) of the Revised Draft Seniority List dated 05.02.2013. Consequently
the position of the Applicant is required to be improved by that number in the
select list and its consequential effect on the seniority list is to be incorporated
and 13 more Customs Appraisers below Sh TK Sanyal (i.e. the last Customs
Appraiser shown to have been promoted in the Revised Select List as well as in
the Seniority List) are required to be incorporated in the Revised Select List
dated 04.02.2013 as well as in the Seniority List dated 27.02.2013. To the said
extent both the Revised Select List dated 04.02.2013 and the Final Seniority
List dated 27.02.2013 are liable to be quashed with a direction to re-draw the
same by deleting the names of the said 13 persons and incorporating another 13
Customs Appraisers below Shri TK Sanyal and also correspondingly improving the
position of the applicant and others both in the Revised Select List as well as
in the seniority list.
5.2 Because, the respondents have admitted
their mistake in respect of 8 individuals namely RM Panwani, AK Ramachandran,
GS Gopala, BC Sahu, M Mukherjee, VV Rama Reddy, S Sundereshwaran and SG Mule.
Thus the respondents have clearly admitted that these 8 names are wrongly
included in the Revised Select List dated 04.02.2013. The same needs to be
corrected by removing these 8 names from the said Select List and incorporating
equal number of Customs Appraisers from below Shri TK Sanyal and also
correspondingly improving the position of the applicant and others both in the
Revised Select List as well as in the seniority list. The respondents have not
done the same inspite of admitting their mistake in respect of these 8 persons.
5.3 Because, the
names of the 4 Customs Appraisers given in para 4.13 above also needs to be
deleted both from the Revised Select List dated 04.02.2013 as well as from the
Final Seniority List dated 27.02.2013 for the reasons given in the said
paragraph. Consequently 4 more Customs Appraisers below Shri TK Sanyal needs to
be incorporated in the Select List as well as Seniority List. Correspondingly,
the name of the applicant and other Customs Appraisers would further improve
both in the Revised Select List as well as in the Seniority List.
5.4 Because, the
then Chairman, CBEC vide his sworn Affidavit before the Hon’ble Supreme Court
in Contempt
Petition No. 513/1997 in WP No. 306/1988: All India Federation of Central
Excise Gazzetted Executive Officers Association Vs. Shri R. Gopinathan,
Chairman, CBEC has clearly admitted to the fact that there was a
conscious decision to divert Direct Recruitment vacancies to promotion quota
during the period 01.01.1980 to 31.03.1997. Thus, the diverted vacancies of
Direct Recruitment quota to promotion quota must be lawfully considered as
regular vacancies of promotion quota and has to be filled up accordingly. And
consequently, the seniority has to be fixed lawfully by rotating the DRs and
Promotees in the ratio of 1:1 till they are available and thereafter to bunch
the rest available promotees at the bottom of the same recruitment year. But,
this has not been done by the respondents in the Draft seniority list dated
05.02.2013 or in the Final Seniority List dated 27.02.2013. Instead they have reduced
the number of lawful promotes against the consciously diverted vacancies from
the Direct Recruitment quota to promote quota. The same is not sustainable in
law. The Revised Select List and the Seniority List are liable to be quashed on
this ground alone.
5.5 Because, the
respondents have not considered the representation of the applicant dated
19.02.2013 against the Revised Draft Seniority List before issuing the Final
Seniority List on 27.02.2013 i.e. within one week of the representation of the
applicant. The non-consideration of the representation of the applicant itself
is a ground for quashing the Revised Select List and the Final Seniority List.
5.6 Because, both
the Revised Draft Seniority List as well as the Final Seniority List are meant
to be fixation of seniority of Direct Recruits and Promotees of Recruitment
Years 1980 to 1996-97. But, the said seniority list contains a very large
number of Direct Recruits and Promotees of many earlier years. A bare look at
the seniority list would prove the same. Thus, all such names are required to
be removed from the seniority List and position of all
needs to be revised accordingly.
5.7 Because, the
Select List and the Seniority List are liable to be quashed and re-drawn
because of the above illegalities/vices in the same.
5.8 The
impugned Revised Select List dated 04.02.2013 and the Final Seniority List
dated 27.02.2013 are bad in law.
6. Details of the remedies exhausted :
The
applicant has already made representations dated 19.02.2013 as well as
28.05.2013 but to no avail. In similar circumstances, the respondents have
rejected the representation of the Association by order dated 21.10.2014. On
the other hand the respondents are going ahead to effect promotion to various
grades including the grade of Commissioner as a consequence of the impugned
seniority list. In such a fact situation there is no other alternative and
efficacious remedy than to file the present OA before this Hon’ble
Tribunal.
7.
Matters
not previously filed or pending with any other court :
The
applicant further declares that he had not previously filed any application,
writ petition or suit against the impugned Revised Select List dated 04.02.2013
and the Final Seniority List dated 27.02.2013 in respect of which this
application has been made, before any court or any other authority or any other
Bench of the Tribunal nor any such application, writ petition or suit is
pending before any of them.
8.
Relief
sought :
In
view of the facts mentioned in para 4 and the grounds stated in para 5 above
the applicant prays that this Hon’ble Tribunal may be pleased to:
(i)
Call for the records of
the case;
(ii)
Quash and set aside the impugned revised select list dated
04.02.2013 and the Final Seniority List dated 27.02.2013 with all its
consequences;
(iii)
Direct the respondents to re-draw the Revised Select List and the
Seniority List by (i) deleting the names of 13 persons given in para 4.7 (b)
above (ii) further deleting the names of 8 persons namely RM Panwani, AK
Ramachandran, GS Gopala, BC Sahu, M Mukherjee, VV Rama Reddy, S Sundereshwaran
and SG Mule which the respondents have now admitted to have been mistakenly
included in the Select List (iii) further deleting the names of 4 persons given
in para 4.13 above for the reasons mentioned therein and incorporating equal
number of Customs Appraisers below Shri TK Sanyal, the last Customs Appraiser
shown in the list and correspondingly improving the position of the applicant;
(iv)
Direct the respondents to consider the Direct Recruit vacancies
diverted to promotion quota during the period 01.01.1980 to 31.03.1997 by
conscious decision, as regular vacancies in the promotion quota of the
respective years and to fix interse seniority by rotating the DRs and Promotees
in the ratio of 1:1 Recruitment year wise till they are available and
thereafter to bunch the rest available promotees at the bottom of the same
recruitment year. The Respondents be further directed to repeat the said
process from recruitment year 1980 to 1996-97.
(v)
Direct the respondents to remove all names of Direct Recruits and
promotes of earlier to 01.01.1980 from the Seniority List of 27.02.2013 with
all its consequences.
(vi)
Award cost of the proceedings before this Hon’ble Tribunal,
(vii)
Pass such other order or direction as may be considered
appropriate in the facts and circumstances of the case.
9.
Interim
order, if any prayed for:
Pending
final decision on the application, the applicant prays that this Hon’ble
Tribunal may be pleased to:
i.
stay the operation of the impugned Seniority List dated 27.02.2013
and any further promotion to any higher grade in the service making the
seniority list dated 27.02.2013 as the basis;
ii.
Pass any other interim order or direction which this Hon’ble
Tribunal thinks fit and proper in the facts and circumstances of the case.
10.
In
the event of application being sent by registered post, it may be stated
whether the applicant desires to have oral hearing at the admission stage and
if so, he shall attach a self addressed Post Card or Inland Letter, at which
intimation regarding the date of hearing could be sent to him.
11.
Particulars
of Banks Draft/Postal Order filed in respect of the application fee.
Postal
Order No:
Amount:
Date:
Issuing
Post Office:
12.
List
of enclosures:
As
per index.
Signature of
the applicant.
