Bombay High Court
Mr. Chandrashekhar S/O Madhavrao ... vs Union Of India, Through Its ... on 17 April, 2017
Bench: V.A. Naik
1704WP4016.11-Judgment 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4016 OF 2011
PETITIONER :- Mr. Chandrashekhar S/o Madhavrao
Dhamorikar, Aged about 72 years,
Occupation-Retired Assistant Commissioner,
Central Excise Department, R/o Plot No.66,
Central Excise Colony, Khamla, Nagpur-25,
Tahsil & District-Nagpur (M.S.)
...VERSUS...
RESPONDENTS :- 1) Union of India, Through Its Secretary,
Ministry of Finance And Company Affairs,
Department of Revenue, New Delhi.
2) The Chairman, Central Board of Excise &
Customs, New Delhi.
3) The Commissioner, Central Excise &
Customs, P.O.Box No.81, Telankhedi Road,
Civil Lines, Nagpur (M.S.).
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Mr.H.D.Dangre, counsel for the petitioner.
Mr.Sharad Bhattad and Mr.Kunal Nalamwar,
counsel for the respondents.
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CORAM : SMT. VASANTI A NAIK &
MRS.SWAPNA JOSHI
, JJ.
DATED : 17.04.2017
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this writ petition, the petitioner challenges the order of
the Central Administrative Tribunal dated 03/02/2011, dismissing the
original application filed by the petitioner.
1704WP4016.11-Judgment 2/9
2. The petitioner was appointed as an inspector in the
Central Excise and Customs Department in the year 1962 and was
promoted as a superintendent in the year 1982. The petitioner was
promoted to the post of assistant commissioner in the junior time scale
on 03/09/1992. The petitioner retired on attaining the age of
superannuation on 30/11/1997. According to the petitioner, the
petitioner was entitled to promotion in the senior time scale with effect
from 10/09/1996, i.e. after completing four years of service on the post
of assistant commissioner in junior time scale. Since the departmental
promotion committee was not constituted till 30/11/1999, i.e. more
than two years from the date of retirement of the petitioner on
superannuation, the petitioner's case was not considered by the
committee for grant of senior time scale. Being aggrieved by the
inaction on the part of the respondents in granting the benefits of senior
time scale, the petitioner made a representation to the respondents on
28/06/2001. The representation of the petitioner was not decided. The
petitioner filed an original application bearing No.2168 of 2002. The
original application was disposed of by the tribunal, with a direction
against the respondents to decide the representation of the petitioner
within three months. In pursuance of the order passed by the tribunal,
the representation of the petitioner was rejected by the order dated
1704WP4016.11-Judgment 3/9
12/05/2003. The petitioner challenged the order rejecting the
representation and sought senior time scale with effect from
10/09/1996 by filing the original application in August, 2004. The
original application was dismissed by the impugned order dated
03/02/2011.
3. Shri Dangre, the learned counsel for the petitioner,
submitted that in view of the interim order passed by the Hon'ble
Supreme Court in the case of AK Chatterjee v. Union of India and
others dated 13/08/1990, it was necessary for the respondents to have
granted senior time scale to the petitioner on completion of four years
of service on the post of assistant commissioner in the junior time scale.
It is submitted that the Hon'ble Supreme Court decided the special leave
petition, by the judgment dated 22/11/1996 and by the said judgment,
reported in (1997) 1 SCC 520 (All India Federation of Central Excise
v. Union of India and others), it was directed by the Hon'ble Supreme
Court that the respondents should rearrange or regularise the seniority
list in group-A service and grant the promotions to the employees
without disturbing the employees that were granted ad hoc promotions
on the basis of the interim order passed by the Supreme Court on
13/08/1990. It is submitted that merely because the petitioner stood
retired on attaining the age of superannuation, on 30/11/1997 and the
1704WP4016.11-Judgment 4/9
departmental promotion committee was constituted on 13/11/1999,
the petitioner could not have been left out. It is submitted that in the
original applications filed before the Madras Bench of the Central
Administrative Tribunal, by the Association of the employees serving in
the Central Excise and Customs Department, a direction is issued by the
Madras Bench of the tribunal against the respondents to consider
granting promotion to the assistant commissioners working in the junior
time scale to the grade of assistant commissioner senior time scale. It is
submitted that in pursuance of the orders passed by the Madras Bench
of the Central Administrative Tribunal, the respondents have granted
senior time scale to some employees who are junior to the petitioner. It
is submitted by placing reliance on an additional affidavit filed on
behalf of the petitioner that certain junior employees have been granted
senior time scale in pursuance of the orders passed by the Madras
Bench of the Central Administrative Tribunal. The learned counsel
relied on the judgments of the Hon'ble Supreme Court, reported in
(1998) 7 SCC 44 (Baij Nath Sharma v. Hon'ble Rajasthan High
Court at Jodhpur and another) and (2005) 12 SCC 258 (Govt.of
A.P.and another v. M. Adbuta Rao) to substantiate his submission
that if juniors are granted promotion from a date prior to the
superannuation of an employee and in the meanwhile if the employee is
superannuated, he can challenge the promotion of his juniors by filing
1704WP4016.11-Judgment 5/9
the proceedings after his retirement. It s stated that if the departmental
enquiry culminates against an employee after his retirement, the
employee may be entitled to the monetary benefits if he is found to be
suitable for promotion while in service.
4. Shri Bhattad, the learned counsel for the respondents,
supported the order of the tribunal. It is submitted that the tribunal has
rightly held that the petitioner had based his claim only on the interim
orders passed by the Hon'ble Supreme Court dated 13/08/1990 and the
judgment reported in (1997) 1 SCC 520 was not the basis for claiming
the relief. It is submitted that the said judgment was not even cited by
the petitioner before the tribunal. It is stated that the petitioner had
retired on attaining the age of superannuation two years before the
departmental promotion committee was constituted. It is submitted
that in the circumstances of the case, the representation of the
petitioner was rightly rejected, more so when he had made the same in
the year 2001. It is submitted that the orders passed by the Madras
Bench of the Central Administrative Tribunal do not direct regular
promotion in the senior time scale and they speak of ad hoc promotions
in the senior time scale on the basis of the interim order passed by the
Hon'ble Supreme Court dated 13/08/1990. It is submitted that some of
the juniors have been promoted in pursuance of the orders passed by
1704WP4016.11-Judgment 6/9
the Madras Bench of the tribunal but in those cases the employees were
in service and in this case the petitioner has filed the original
application after more than four years from the date of his retirement.
It is submitted that in the circumstances of the case, the relief was
rightly refused.
5. On hearing the learned counsel for the parties and on a
perusal of the original application and the order passed by the tribunal,
we find that there is no scope for interference with the impugned order,
in exercise of the writ jurisdiction. The petitioner claims promotion in
the senior time scale on completion of four years of service, on
10/09/1996. The petitioner retired on attaining the age of
superannuation on 30/11/1997. Till the petitioner retired from service,
the departmental promotion committee was not constituted and the
case of either the petitioner or any other assistant commissioner
working in junior time scale was not considered for promotion. The
departmental promotion committee was constituted on 13/11/1999
and the assistant commissioners in the junior time scale, that were in
service were considered for grant of senior time scale. The petitioner
could not have been considered along with others that were in service
as the petitioner had retired more than two years earlier. If the
petitioner was of the view that promotion ought to have been granted
1704WP4016.11-Judgment 7/9
to him immediately on completion of four years of service from
03/09/1992, the petitioner ought to have filed the original application
in the beginning of the year 1996 or 1997. The petitioner however did
not file any proceedings even on the basis of the interim order of the
Hon'ble Supreme Court referred to herein above and even before the
tribunal the petitioner based his claim on the interim order passed by
the Hon'ble Supreme Court in the said matter, on 13/08/1990. The
Hon'ble Supreme Court while directing the respondents to reshuffle the
list of the assistant commissioners in the junior time scale had only
directed the respondents not to disturb the assistant commissioners that
were granted senior time scale on ad hoc basis. Admittedly, the
petitioner was not granted senior time scale on ad hoc basis in the year
1996. The observation in the judgment of the Hon'ble Supreme Court
that the ad hoc promotees should not be disturbed does not come to the
rescue of the petitioner. Since the petitioner had not pointed out as to
how he was entitled to be promoted as per the decision of the Hon'ble
Supreme Court in the said case, the tribunal rightly held that the
petitioner was not entitled to the relief claimed. The tribunal further
held and rightly so that the orders of the Madras Bench of the Central
Administrative Tribunal would not apply to the case of the petitioner.
We have perused the orders of the Madras Bench. It is observed in the
said orders that the employees in those cases were working at the
1704WP4016.11-Judgment 8/9
relevant time, when the original application was filed, as assistant
commissioners in the junior time scale. In the instant case the
petitioner had retired from service on attaining the age of
superannuation in the year 1997 and five years later the petitioner filed
the original application, seeking the benefit of senior time scale. The
tribunal as well as the respondents rightly held that the petitioner was
not entitled to be considered after his retirement by directing the
constitution of a review departmental promotion committee to consider
the case of the petitioner, who had retired from service. Had the
petitioner filed the proceedings before his retirement and had the
petitioner been entitled to the relief on the basis of the judgment of the
Hon'ble Supreme Court, reported in (1997) 1 SCC 520, the petitioner
may have had a chance of success. In the circumstances of the case, it
cannot be said that the tribunal has erred in rejecting the original
application filed by the petitioner. It would be necessary to hold while
making the aforesaid observations that the judgment reported in
(1998) 7 SCC 44 and (2005) 12 SCC 258 and relied on by the counsel
for the petitioner cannot be made applicable to the facts of this case. In
the case reported in (1998) 7 SCC 44, the writ petition was filed by the
member in the Rajasthan Judicial Services immediately on the date of
his retirement seeking his promotion as some of his juniors were
granted promotion just at the time of his retirement. The aforesaid
1704WP4016.11-Judgment 9/9
judgment would not assist the case of the petitioner. So also, in the
case in the judgment reported in (2005) 12 SCC 258, when the
departmental promotion committee had found that the employee was
fit for promotion but his promotion was deferred because of the
pendency of the departmental enquiry, the Hon'ble Supreme Court held
that as the petitioner was exonerated in the departmental enquiry after
his retirement, the petitioner would be entitled to the relief. In this case
the departmental promotion committee was constituted for the first
time two years after the retirement of the petitioner on attaining the
age of superannuation. Nearly 20 years have lapsed from the date of
retirement of the petitioner from service. In the circumstances of the
case, the order of the tribunal cannot be interfered with.
6. Since the order of the tribunal is just and proper, we
dismiss the writ petition with no order as to costs. Rule stands
discharged.
JUDGE JUDGE
KHUNTE
