S.K. Sharma And Ors. vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 591 Del

JUDGMENT

S.B. Sinha, C.J.

1. A judgment dated 30.08.2000 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal') is in question in this writ petition.

2. The petitioners were working in the Department of Customs as Preventive Officers. Certain additional posts in various categories were created including 384 Customs Preventive Officers by an order dated 20.01.1991. The relevant portion of the said order is as follows:-

"F.No. A-11013/140/90-Ad. IV Government of India

Ministry of Finance

Department of Revenue

New Delhi 28th January, 1991

To

All Principal Collectors/ Collector of Customs/ Collector of Central Excise All Director-General/ Directors of Customs and Central Excise Sub: Creation of Gr. 'B', 'C' & 'D' posts

Sir,

The question of creation of Gr. 'B', 'C' & 'D' posts for handling increased work-load has been under consideration for the Government for some time past. Government have since approved the creation of the following additional posts in different grades as indicated Col. 3 of the Table in a phased manner over a period of 3 years in the Collectorates of Central Excise and Customs.

  S.No.   Grade and            No. of additional
        scale of pay         posts sanctioned
5.     Customs Preventive      384
       Officers
       (Rs. 1640 -- 2900)
                   
2. Sanctions covering the first phase of
Creation and Collectorate wise allocation
thereof will follow.

3. This issues with the approval of Cabinet
           Secretariat vide letter F. No. 53/1/1/90-
           CAV dt. 9.1.91 and IFU Dt. No. 140/91-
           IFU.III dt. 28.1.91 in relaxation of the ban
           on creation and filling up of posts.
                                      
 

Yours faithfully,                  

(TARSEM LAL)                   

UNDER SECRETARY TO THE GOVT. OF INDIA" 
 

3. By an order dated 21.08.1991, the Government sanctioned various poss at different places.
 

4. The petitioners applied for their transfer to Delhi on compassionate ground wherefor they were asked to forego their seniority. The petitioner No. 1 was transferred from Madras Customs; petitioner Nos. 2, 4 and 5 were transferred from Bombay Customs and petitioner No. 3 was transferred from Calcutta Customs vide Establishment Order No. 329/91 dated 06.08.1991 stating:-

"CUSTOMS AND CENTRAL

EXCISE COLLECtorATE: DELHI

ESTABLISHMENT ORDER NO. 329/91

The following Preventive Officers working in the Customs Houses mentioned against their names are hereby transferred to Customs & Central Excise Collectorate, Delhi on inter-collectorate transfer basis:

         Sl.No.        Name of the Officers                Customs House
        1.              Indra Prakash                 Bombay Customs
        2.              Pradeep Shukla                Bombay Customs
        3.              Rajeev Singh                  Madras Customs 
                        (On deputation at IGI as ACO) 
        4.              Harish Chand Saini            Bombay Customs
        5.              Chandra Bhatia                Bombay Customs
        6.              L.K. Maheshwari               Calcutta Customs  
        7.              Rajeev Kumar                  Bombay Customs 
        8.              P.P. Singh                    Calcutta Customs
 

They will not be entitled to count their service rendered in their parent Collectorate for the purpose of seniority in Delhi Collectorate. In other words, they will be treated as new entrant in this Collectorate. They will be assigned seniority in this Collectorate, in accordance with the rules/instructions in force. They will be adjusted against the direct recruitment vacancies.

In transfer, they will not be considered for promotion/confirmation in their parent Collectorate.

If they are permanent employees they will retain their lien in the parent Collectorate till they are confirmed in Delhi Collectorate.

They can be posted within the jurisdiction of Delhi Customs House.

Before the above officers are actually relieved a certificate to the effect that there is no vigilance/non-vigilance case is pending/contemplated against them may be sent to this Collectorate as well as undertaking covering all the above terms & conditions.

On their having been accepted the above terms & conditions they may report for duty to the Additional Collector (P&V), Central Excise Collectorate, Customs House, I.P. Estate, New Delhi-2 immediately but in no case later than 1st October, 91 failing which the orders will deemed to have been cancelled without any further intimation.

N.B. *As regard officer at Sl. No. 8, Shri P.P. Singh, his inter-collectorate transfer is effective subject to the approval of Collector of Customs, Calcutta since his request has not been received through proper channel.

This issues with the approval of the collector of customs.

Hindi version will follows.

(PRAVEEN MAHAJAN)

ADDITIONAL COLLECtor (P & V)

C.No. II-3(23)Et.I/91             Dated 17.9.91"

5. The matter relating to posting of the petitioners was examined by the Central Government and by an order dated 21.12.1992, it was stated:-

"Govt. of India

Ministry of Finance, Department of Revenue, Central Board of Excise and Customs

CHITRA CHOPRAbr Joint Secretary

New Delhi, the 21st December, 1992

A-22013/6/92-Ad.IIA

Dear Shri Verma,

This is regarding deputation of some Examiners of Customs Houses in your Collectorate against the post of Examiner etc. As you are aware, no cadre of Examiners/Preventive Officer has been sanctioned to your Collr. And, therefore, it is presumed that the posts of Examiners/P.O.'s sanctioned to your Collr. are being filled up strictly on deputation basis. The deputation tenure may be for a period of 3 years which can be extended up to 5 years, provided the parent Collr. Agrees to the extension. Under no circumstances these officers be treated as having been absorbed in your, Collr., either as Inspector or as Examiner/P.O. The seniority of such officers will continue to be maintained by their parent Collr. In case, their turn of promotion come up in the parent Collr. and if it is not possible for you to relieve them, they will be entitled to proforma promotion in the parent Collr.

2. You may kindly, therefore, intimate the parent Collr. of such officers under intimation to the Board. The above arrangement, i.e., taking people on deputation against the posts of P.O.'s/Examiners from other Custom Houses may Continue till a general decision is taken by the Board regarding filling up of such posts.

3. Kindly acknowledge receipt of this letter.

Yours sincerely,

CHITRA CHOPRA

Shri K.L. Verma,

Collector of Central Excise,

Delhi"

6. Pursuant thereto, on 26.02.1993,a corrigendum hearing No. II-39(6)Et.I/92/924 was issued in terms whereof the petitioners were sought to be posted on deputation basis stating:-

"CUSTOMS & CENTRAL EXCISE

COLLECtorATE: NEW DELHI

CORRIGENDUM

In partial modification of this office Estt. Order No. 112/91 dated 2.4.91, 259/91 dated 6.8.91 and 329/91 dated 17.9.91 issued under O. No. II-3 (23) Et.I/91, transfer orders of the following Preventive Officers from various Customs House will be treated as on deputation basis instead of Inter-Collectorate transfer basis:

       Sl.No.           Name of the Officers           Customs House
                                                    To Which Belongs
        1.              Ranjeet Singh                 Bombay
        2.              Ms. Satwant Kaur              Madras
        3.              Sanjay Pandey                 Madras
        4.              Lovkesh Sharma                Visakhapatnam 
        5.              Ajay Kumar Prasad             Madras
        6.              Sadguru Sharma Upadhyaya      Bombay 
        7.              S.K. Sharma                   Madras
        8.              Anil Kumar Moria              Goa
        9.              Indra Prakash                 Bombay 
        10.             Pradeep Shukla                Bombay 
        11.             Rajeev Singh                  Madras 
        12.             Harish Chander Saini          Bombay 
        13.             Chandra Bhatia                Bombay 
        14.             L.K. Maheshwari               Calcutta 
        15.             Rajeev Kumar                  Bombay 
        16.             P.P. Singh                    Calcutta
 

It is also mentioned here that the seniority of the above sixteen Preventive Officers will continue to be maintained by their respective parent Customs House/Collectorate.

The period of deputation will be three years.

This issues in accordance with the Board's D.O.P. No. A-22013/6/92-Ad.II A dated 21.12.92 and with the approval of Collector (Central Excise) (Customs).

Sd./-

(PRAVEEN MAHAJAN)

ADDITIONAL COLLECtor (P & V)

C. No. II-39(6)Et.I/92/924          Dated 26.2.93"

7. On 04.11.1993, the Government of India directed:-

"F.No. A-11013/140/90-Ad.IV

Government of India Ministry of Finance Department of Revenue

New Delhi, 04.11.1993

To

All Principal Collectors All Collectors of Central Excise All Collectors of Customs

Sir, Sub: Creation of Group 'B', 'C' and 'D' posts-

Collectorate-wise allocation of third phase posts-regarding--

In continuation of this Ministry's letter of even number dated 16.2.1993 conveying sanction of 1185 posts in the third phase for Central Excise Collectorate during 1992-93, I am directed to convey the sanction of the President to the creation of the following posts in the third and final phase for Custom Houses as well as Central Excise Collectorates:

    Prev. Officers    138

                     ----

                      ====

 

The Collectorate-wise allotment of these posts is shown in Annexure I and II.
 

2. Posts of Preventive Officers allotted (ref. to Annexure I) to Collectorates of Customs, Delhi and Bangalore will stand re-designated as posts of Central Excise Inspectors and hence these posts will be filled up under normal Recruitment Rules applicable to Central Excise Department.

3. The posts of Superintendent (Customs), Preventive Officer and Examining Officer sanctioned to Customs Collectorates of Delhi and Bangalore, vide Board's letter of even number dated 6.3.91 and 21.8.91 (1st phase and 2nd phase respectively) will also be filled up from the Central Excise staff under the Recruitment Rules as applicable to the 'Central Excise Department and as such, those posts stand redesignated as Supdt. of Central Excise and Inspectors of Central Excise. Board's advise contained in letter of even number dated 1.6.1993 stands modified accordingly.

4. The posts of Examiner meant for Central Excise Collectorates, the allotment of which is shown at Annexure-II, also stand re-designated as posts of Central Excise Inspector and hence would be filled up by the Central Excise staff under the Recruitment Rules applicable to Central Excise Department.

5. Immediate action may be taken to fill up the posts on the lines as indicated above.

6. Please acknowledge receipt of this letter.

Your faithfully,        

(ANITA CHAUHAN)         UNDER SECRETARY TO THE GOVT. OF INDIA"

8. Original applications were filed by the petitioners questioning the aforementioned corrigendum dated 26.02.1993 and by a judgment and order dated 20.05.1996, the said original applications were allowed inter alia on the ground that the same could not have been issued without complying with the principles of natural justice, stating:-

"... It is not denied that before passing the impugned order, the applicants have not been afforded an opportunity of being heard. Hence the order is violative of principles of natural justice. Therefore, on this sole ground, the impugned order is required to be quashed and set aside.

In the result, the applications are allowed. The impugned orders dated 26.2.93 in all the above mentioned O.As. by which the transfer orders of the applicants from different Collectorates to Delhi Collectorate has been ordered to be treated on deputation basis instead of inter Collectorate transfer basis, is quashed and set aside. It is clarified that it will be open to the respondents to pass fresh order in accordance with law after affording an opportunity of being heard to the applicants concerned.

With the above observations and directions, all the above-mentioned O.As. are finally disposed of without any order as to costs."

9. Pursuant to and in furtherance of the aforementioned directions, an opportunity of hearing was given to the petitioners by the Commissioner of Central Excise and the said authority in terms of an order dated 13/14.03.1997 rejected the request of the petitioners for consideration of their posting on inter-commissionerate transfer basis stating:-

"8. In view of above letters of the Ministry/CBEC, corrigenda were issued by the Addl. Collector (P & V) on 26.2.93 and 9.9.93 to the effect that transfer order of P.O.s will be treated as on deputation basis instead of inter-commissionerate transfer basis and similarly transfer orders of Examiners will be treated as on deputation only instead of deputation/ transfer. ......

10. Accordingly I have heard the applicants. I have gone through the contentions of the applicants and the records of the case and it is observed that though the post of Preventive Officers and Examiners have been sanctioned to Delhi Customs Commissionerate, no cadre has been created in this Commissionerate for P.O.s and Examiners. And during the third phase of sanction it has also been clarified that posts are being re-designated as Central Excise Inspectors. Since cadre of P.O.s and Examiners does not exist in this Commissionerate, it is not possible to absorb them in this Commissionerate on inter-collectorate transfer basis. It is further observed that in the absence of cadre of Superintend (Customs) and Appraisers in this Commissionerate, it would not be possible to promote them to these cadres for which they are the feeder cadres. Applicants' contention that there is a cadre of Appraiser in Delhi Commissionerate is not factually correct."

10. The said order dated 13/14.03.1997 was the subject matter of the two original applications filed by the petitioners being O.A. Nos. 632 and 645 of 1997. By reason of the impugned judgment dated 30.08.2000, the said original applications have been dismissed.

11. Mr. Khurana, the learned counsel appearing on behalf of the petitioners, would submit that the impugned order cannot be sustained having regard to the fact that the Commissioner acted on the basis of the directions of the Central Government.

12. The learned counsel would urge that compliance of the principles of natural justice would mean hearing by a person and/or authority, who can grant relief. But having regard to the directions of the Board, the Commissioner being bound thereby purported grant of hearing was a mere formality. Reliance in this connection has been placed on Gullapalli Nageswara Rao and Ors. v. Andhra Pradesh State Road Transport Corporation and Anr., .

13. The learned counsel would next contend that the impugned order does not state that 25 posts, which were created, were being filled up only on deputation basis. Posts, according to the learned counsel, are created for a particular purpose.

14. Drawing our attention to the definition of cadre as contained in Rule 9, the learned counsel would contend that as by reason thereof additional posts had been created, the order of transfer dated 06.08.1991 could not be converted into one on deputation, particularly in view of the fact that there had been no such agreement, as was mandatorily required therefore.

15. In any event, contends the learned counsel that the impugned order/judgment of the Tribunal if not set aside, public interest would suffer.

16. The learned counsel would submit that the posts in the establishment, wherefrom the petitioners were transferred, juniors had already been promoted and the cases of the petitioners had not even been considered therefore. In this connection, our attention has been drawn to the following fax/telex:-

"FAX/TELEX From:- Deputy Commissioner of Customs Personnel & Establishment To :- The Asst. Commissioner of Customs (Law) Commissionerate of Customs (General), New Customs House, New Delhi.

File No. S 51-37 Estt. Please refer to your Fax message C.No. VIII/LAW/HQ./CUS/MISC./97, dated 23.9.97 in connection with the representation of Shri. L.K. Maheshwari, Preventive Officer. It is found that Shri. L.K. Maheshwari, P.O. was transferred on inter collectorate basis to Delhi Customs vide Establishment Order No. 378/91 dated 24.9.91. He does not also hold any lien in this Customs House since he was transferred on 24.9.91 more than five years back.

(S.C. JAINA)        

Deputy Commissioner of Customs,

Personnel & Establishment"

17. Mr. Jayant Bhushan, the learned counsel appearing on behalf of the respondents, on the other hand, would contend that one of the salient features of the said order was that the petitioners were not entitled to count their service rendered in the Parent Collectorate for the purpose of seniority. There was another condition, which provided that after transfer, they will not be considered for promotion/confirmation in their Parent Collectorate. However, there was no specific term by which it was said that their connection with the parent collectorate were to be totally severed.

18. The learned counsel would submit that having regard to the fact that as no new cadre has been created, the petitioners cannot be said to have derived any right by reason of the said transfer.

19. They, according to the learned counsel, must be held to be on deputation.

20. It was submitted that a bare perusal of the said order of transfer would show that the transfer was based on 'compassionate ground' and as such the petitioners cannot claim any equity in their favor. Strong reliance in this connection has been placed on Katyani Dayal and Ors. v. Union of India and Ors., and State of Punjab and Ors. v. Inder Singh and Ors., .

21. In view of the rival contentions, as noticed hereinbefore, the primary question, which arises for consideration, in this writ petition is as to whether any illegality has been committed by the respondents in issuing the corrigendum dated 26.02.1993, whereby the order of transfer has been converted into an order of deputation.

22. A bare perusal of the order creating additional posts would clearly go to show that although the petitioners had been transferred upon treating them as new entrants, the same had been issued on a mistaken notion. The Central Government in its order dated 21.12.1992 categorically stated that no cadre of Examiners/Preventive Officers had been sanctioned in the Collectorate of Central Excise, thus in absence of creation of any cadre, the petitioners could not have been transferred as Examiners/Preventive Officers.

23. In that view of the matter, the stand of the respondents that the transfer of the petitioner should be considered to be on deputation cannot be said to be illegal.

24. The petitioners wanted postings in Delhi. They were given such postings by way of transfer on the presumption that a cadre of Examiners/Preventive Officers had been created. Once it is found as of fact that the Central Government had not created such cadre, the question of the petitioners' being transferred to a new cadre could not arise. The contention of the petitioners that though they had foregone their seniority, the same by itself cannot be a bar in issuing the aforementioned corrigendum inasmuch as in its order dated 17.09.1991 it has categorically been stated that the petitioners' seniority in the present cadre would be maintained. Once the seniority of the petitioners was to be maintained, they have to be treated to have been posted on deputation basis and not on transfer basis.

25. In Katyani Dayal's case (Supra), the law has been laid down in the following terms:-

39. The inevitable sequitur from these constitutional provisions is that the President, acting directly or through officers subordinate to him, is free to constitute a service (with as many cadres as he chooses), to create posts without constituting a service or to create posts outside (the cadres of) the constituted services. The President (or the person directed by him) may, or, again, if he so chooses he may not, make rules regulating the recruitment and conditions of service of persons appointed to such service or posts. He is also free to make or not to make appointments to such services or posts. Nor is it obligatory for him to make rules of recruitment etc. before a service may be constituted or a post created or filled. But if there is an Act of Parliament or a rule under the proviso to Article 309 on the matter, the executive power, under Articles 53 and 73, may not be exercised in a manner inconsistent with or contrary to such Act or rule (vide B.N. Nagarajan v. State of Mysore; State of Kerala v. M.K. Krishnan Nair)"

26. Yet again in the case of State of Punjab and Ors. (Supra), the Apex Court held:-

"18. The concept of "deputation" is well understood in service law and has a recognized meaning. "Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is of no help. In simple words "deputation" means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be."

27. In view of the aforementioned decisions of the Apex Court, there cannot be any doubt whatsoever that in the event if it be held that the petitioners could be posted only on deputation basis and not on transfer basis, they cannot claim a higher right than they are entitled to in law. They may, it goes without saying, chose to go back to their parent departments, as they could not have been deputed against their will, unless there exists any statutory rule in this behalf. Despite the clear meaning of the expression 'Cadre', it must be borne in mind that creation of a separate cadre is different from addition of strength in a cadre. For creation of a new cadre, an executive instruction is required to be issued or a rule has to be framed. In absence of issuance of any executive instruction(s) in terms of Article 77 of the Constitution of India (in short, 'the Constitution') or in absence of any rule having been made in terms of proviso appended to Article 309 of the Constitution, no new cadre could come into being.

28. Having regard to the clear position in law, in our opinion, the submission of Mr. Khurana to the effect that the action on the part of the respondents is barred under the principles of estoppel cannot be accepted. It is well-settled principles of law that there cannot be any estoppel against statute.

29. In any event, the petitioner pursuant to and in furtherance of any representation made by the respondents cannot be said to have altered their position. As is admitted, the petitioners themselves had applied for their posting at Delhi on compassionate ground, which was accepted. In the aforementioned situation, the rule of estoppel will have no application.

30. So far as the submission of Mr. Khurana to the effect that the compliance of the principles of natural justice was just a formality, the same may be correct, but in the facts and circumstances of the case, it was not necessary to comply therewith as the facts are admitted.

31. It is no doubt that an order passed an authority, who did not hear the matter, would be bad in law. But, in the instant case, the question, which has to be posed and answered, was as to whether compliance of principles of natural justice would have served any purpose. The answer thereto must be rendered in negative.

32. Even if respondent No. 1 was directed to hear the petitioner in compliance with the order passed by the learned Tribunal, it would not have ended in a different result.

3. In S.L. Kapoor v. Jagmohan and Ors., , it has been held:-

"In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any different if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal."

34. In Khaitan (India) Ltd. and Ors. v. Union of India and Ors., 1999 (2) CAL LT.478, it was held:-

"11. The concept of principles of natural justice has undergone a radical change. It is not in every case, that the High Courts would entertain a writ application only on the ground that violation of principles of natural justice has been alleged. The apex court, in State Bank of Patiala and Ors. v. S.K. Sharma has clearly held that a person complaining about the violation of the principles of natural justice must show causation of a prejudice against him by reason of such violation. The apex court has held that the principles of natural justice, may be said to have been violated which require an intervention when no hearing, no opportunity or no notice has been given. Reference in this connection may also be made to Managing Director, E.C.I.L. v. B. Karunakar, reported in AIR 1994 SC 1076. The question as to the effect of non-grant of enough opportunity to the learned counsel for the appellant by the Commission to meet the allegations made in the supplementary affidavit requires investigation. As to what extent the appellant has suffered prejudice would be a question which would fall for a decision of a Higher Court."

35. Only because one officer of the respondent on a mistaken notion stated that the petitioners had severed their relation with their parent department and thus they were not eligible for their promotion, the same by itself cannot be a ground for issuing any direction by this Court to create a new cadre, which, in our opinion, would be impermissible as the court cannot mandate creation of new cadre.

36. However, keeping in view the fact that the Central Government itself in its order dated 21.12.1991 categorically stated that the petitioners may be held to be on deputation till the general decision taken by the Board regarding filling up the posts, we are of the opinion that it is a fit case where the Central Government should take appropriate decision as expeditiously as possible having regard to the fact that than a decade has passed since issuance of the said order. However, the respondents having regard to the fact that promotion had been denied to them, their cases for promotion with retrospective effect may be considered.

37. In view of the fact that the respondents have taken categorical stand as regards legal position obtaining in relation to the petitioner, such of the petitioners who may want to go back to their parent Department should be allowed to do so.

38. For the reasons aforementioned, this writ petition is disposed of with the aforesaid directions. However, in the fats and circumstances of this case, no order as to costs.