Delhi High Court
Uoi & Ors. vs P.R.Chandrasekharan & Ors. on 3 December, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : November 30, 2010
Judgment Pronounced on: December 03, 2010
+ W.P.(C) 1762/2008
UOI & ORS. ..... Petitioner
Through: Mr.A.S.Chandhiok, ASG with
Mr.R.V.Sinha and Mr.A.S.Singh,
Advocates.
versus
P.R.CHANDRASEKHARAN & ORS. ..... Respondent
Through: Mr.C.Harishankar and
Mr.S.Sunil, Advocates for R-1.
Mr.J.L.Gupta, Senior Advocate with
Ms.Nidhi Gupta, Advocate for R-3.
Mr.Satish Kumar, Advocate for R-7,
8,9,11,21, 23 and 39.
W.P.(C) 1824/2008
UOI & ANR. ..... Petitioner
Through: Mr.A.S.Chandhiok, ASG with
Mr.R.V.Sinha and Mr.A.S.Singh,
Advocates.
versus
SUNIL UKE ..... Respondent
Through: None.
W.P.(C) 4718/2008
UOI & ORS. ..... Petitioner
Through: Mr.A.S.Chandhiok, ASG with
Mr.R.V.Sinha and Mr.A.S.Singh,
Advocates.
versus
C.P.SRIVASTAVA & ORS. ..... Respondent
Through: Mr.C.Harishankar and
Mr.S.Sunil, Advocates for R-1.
Mr.J.L.Gupta, Senior Advocate with
Ms.Nidhi Gupta, Advocate for R-3.
Mr.Satish Kumar, Advocate for R-7,
WP(C) No.1762/08, 1824/08, 4718/08 & 7419/08 Page 1 of 24
8,9,11,21, 23 and 39.
W.P.(C) 7419/2008
P.S.PRUTHI & ORS. ..... Petitioner
Through: Mr.J.L.Gupta, Senior Advocate with
Ms.Nidhi Gupta, Advocate
versus
P.R.CHANDRASEKHARAN & ORS. ..... Respondents
Through: Mr.C.Harishankar and
Mr.S.Sunil, Advocates for R-1.
Mr.A.S.Chandhiok, ASG with
Mr.R.V.Sinha and Mr.A.S.Singh,
Advocates for R-4 to 8.
Mr.Satish Kumar, Advocate for R-7,
8,9,11,21, 23 and 39.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. The litigating parties are directly appointed officers in the
50% quota allocable to posts in Grade VI Group A Service under
the Customs and Excise Department of the Government of India.
The inter-se battle being fought by them pertains to promotions
to the post of Deputy Collector now renamed as Joint
Commissioner. For a better understanding, the cadre structure
of posts in Group A of the „Indian Customs & Central Excise
Group A Services‟ may be noted in a tabular form. The same is
as under:-
Grade Previous nomenclature Present nomenclature
Grade VI Assistant Collector Assistant Commissioner
(Junior Time Scale)
Grade V Assistant Collector Deputy Commissioner
(Senior Time Scale)
Grade IV Deputy Collector Joint Commissioner
(Junior Administrative
Scale)
Grade III Additional Collector Additional Commissioner
(Non-functional of Customs & Central
Selection Grade of Excise
Junior Administrative
Grade)
Grade II Collector Commissioner of Customs
(Senior Administrative & Central Excise
Grade)
Grade I Principal Collector Chief Commissioner of
Customs & Central Excise
2. It may be noted that appointment within Group A Services
is 100% by promotion and to the lowest post in Group A i.e. the
post of Assistant Collector now redesignated as Assistant
Commissioner the method of appointment is 50% by promotion
and 50% by direct recruitment. Senior-most officers in Group B
are eligible for promotion as Assistant Commissioner and
Superintendents of Central Excise Group B, Superintendents of
Customs Group B and Customs Appraisers Group B from the
feeder channel.
3. Three Original Applications being OA No.2456/2003, OA
No.2072/2004 and OA No. 362/2005 filed by Shri Sunil Uke, Shri
P.R.Chandrasekharan and Shri C.P.Srivastava, respectively have
been allowed by the Central Administrative Tribunal vide
impugned order dated 29th March, 2007, holding in the
concluding paragraph 19 of the order as under:-
"19. After considering the rival contentions of parties
and on perusal of records as well as in view of
discussion made herein above, we do not find
justification in respondents‟ stand taken in their reply.
On the other hand, we find weighty reasons and
justification in the contention raised by applicants.
Accordingly, OAs are allowed and we hold as follows:
(a) Vide order dated 13.08.1990, the Hon‟ble
Supreme Court directed respondents to fill up 157
posts of Deputy Collectors on the basis of "selection
on merit" by constituting appropriate DPC from the list
of officers within the zone of consideration and further
observed that promotions so effected would be subject
to "review as a sequel to such further or final
orders that may be made in these matters."
(b) While disposing of the said writ petitions on
22.11.1996, All India Federation of Central Excise vs.
Union of India & Ors. (1997) 1 SCC 520, the aforesaid
interim order was neither varied nor modified. On the
other hand, para 19 of said judgment would show that
Government was directed to "rearrange their inter-
se seniority and promotions of respective direct
recruits and promotees within their quota and
consequential promotions in further higher
services."
(c) The Government was directed only to rearrange
their inter-se seniority and not to disturb the manner
of promotion and sequence in which promotions
orders were issued particularly of direct recruit
Assistant Collectors, later re-designated as Assistant
Commissioners.
(d) The vacancies against which the applicants were
promoted were prior to the year 2002. Paragraph 5 of
the DOP&T OM dated 08.02.2002 specifically states
that the said OM "shall come into force from the
date of its issue". In the circumstance, DPC held
later while considering the officials was not justified to
implement and follow the said OM.
(e) Impugned orders vide which respondents issued
notification dated 03.05.2002 as well as rejecting
applicants‟ representation are quashed and set aside.
(f) Respondents are directed to re-convene the DPC
particularly for the next higher posts for which earlier
DPCs had been held after 22.11.1996 i.e. the date
when the Hon‟ble Supreme Court pronounced the
aforesaid judgment in All India Federation of Central
Excise case, without taking recourse to OM dated
08.02.2002 and as per the DOPT‟s OM of 10.04.1989
and regulate the promotions accordingly with all
consequential benefits."
4. The Union of India has filed the three out of four captioned
petitions challenging the said common decisions of the Tribunal
disposing of three Original Applications. The aggrieved private
respondents have filed the fourth Writ Petition being WP(C)
No.7419/2008. For convenience we would be referring to the
facts pertaining to the Original Application filed by
P.R.Chandrasekharan and for purposes of illustration would be
referring to P.S.Pruthi the first writ petitioner of WP(C)
No.7419/2008, as agreed to by learned counsel for the parties;
and needless to state the said facts are common to the Original
Applications filed by Sunil Uke and C.P.Srivastava.
5. The challenge before the Tribunal was to an order dated
3.5.2002 as also an order dated 17.10.2002; the first being a
Presidential Order pertaining to „Indian Customs & Central
Excise Service‟ officers who were officiating on ad-hoc basis as
Joint Commissioner of Customs and Central Excise (Junior
Administrative Grade) notifying that they stood regularly
appointed as Joint Commissioners on regular basis with effect
from the date of commencement of the panel year; the second
being an order rejecting the representation of
Shri.P.R.Chandrasekharan regarding seniority in the grade of
Joint Commissioner as notified in the order dated 03.05.2002.
6. The origin of the instant dispute has its source to a
seemingly unrelated event of the past. The seniority of the
feeder cadre i.e. Superintendents of Central Excise Group B,
Superintendents of Customs Group B and Custom Appraisers
Group B was in dispute and as a result it impacted the
promotions to be effected from the three feeder cadre posts;
and in turn the seniority in Group A - Grade VI posts was
affected.
7. The issue of seniority on promotion of the Officers in the
three feeder cadre posts was the subject matter of various writ
petitions which were pending in the Supreme Court and the first
one being WP(C) No.4532-33/1978. Thereafter two writ petitions
filed in the year 1988 and one in the year 1990 got tagged on to
the said writ petition. WP(C) No.4532-33/1978 challenged the
existing rule for promotion and the two writ petitions which were
filed in the year 1988 questioned the new rules which were
promulgated in the year 1987.
8. As a result of non-finalization of the seniority list of the
three feeder cadre services and the same having resultant
impact as noted hereinabove, promotions to the post of Joint
Commissioner (Grade IV) in Group A hitherto-fore called
Deputy Collector could not be effected due to interim orders
passed by the Supreme Court. Two Interim Applications being
IA No.6/1990 and IA No.7/1990 were filed in WP(C) 4532-
33/1978 praying for modification of the interim orders, which
appear to have been passed from time to time, were filed in
which Union of India informed the Court that 157 posts of
Deputy Collector i.e. in Grade IV of Group A were vacant having
serious effect on the collection of revenue and thus it was
prayed that the Union of India be permitted to fill up the said
posts and for which the Supreme Court was beseeched to pass
appropriate directions. Moved by the pathetic cries of the Union
of India, the Supreme Court disposed of both interim
applications vide order dated 13.8.1990; noting in para 3 that
the learned Additional Solicitor General submitted that some
reasonable basis though ad-hoc and subject to the final result
required to be evolved to fill-up these posts in the larger
interest of administration. Vide order dated 13.8.1990, the
Supreme Court permitted filling up of 157 posts of Deputy
Collectors by effecting promotions on the basis of selections on
merit after constituting appropriate Departmental Promotion
Committee, so however, that out of the said 157 posts, 57 posts
are filled up by officers who are promotees from the feeder line
in Group B posts and 100 by directly recruited officers. It was
further directed that while so doing it would be ensured that no
promotee to the cadre of Assistant Collector (Grade VI post in
Group A) will find a place in the list higher than that of an officer
directly recruited as Assistant Collector before the promotee and
that the promotions would be purely ad-hoc and shall be subject
to review as a sequel to such further or final orders as may be
made in this regard. This was followed by another order dated
06.08.1991 in which the Supreme Court noted that though
DPCs‟ were constituted and recommendations received,
promotions were not made to fill-up 157 posts of Deputy
Collectors on ad-hoc basis and finding no justification for the
Union of India in not effecting ad-hoc promotions directed
needful to be done within 15 days. In the concluding para of
the order dated 6.08.1991 the Supreme Court clarified; 'since
the assessment by the DPC is only to facilitate the ad-hoc
promotion and these promotions themselves are liable to be
reviewed pursuant to the final decision on the merits of the
pending case, the deliberations of the DPCs' shall not be held
conclusive against any person in the event of such review of
promotions and that all the promotions will be subject to the
final result of the pending cases'.
9. Relevant would it be to note; and this fact is germane to
the controversy which we need to decide, that the Supreme
Court had permitted, though as an ad-hoc measure, promotions
to be effected and had made it clear that the same was an
interim arrangement, but had clearly directed that the
promotions should be on the basis of selections on merit and the
reason for this appears to be that the Recruitment Rule in
question which was in vogue when the interim orders were
passed, vide Serial No.20, clearly mandated that appointment to
Grade IV posts shall be made by promotion on the principle of
Selection on Merit of officers in Grade IV of the service and the
contemporaneous Office Memorandum dated 10.03.1989
stipulated the benchmark „Good‟ with further clarification that
officers graded as „Outstanding‟ would rank en-block senior to
those who were graded as „Very good‟ and officers graded as
„Very good‟ would rank en-block senior to those who are graded
as „Good‟ and within same grading would maintain their inter-se
seniority as per the feeder post. The result was that ad-hoc
promotions made were upon the DPCs‟ assessing the directly
recruited officers as also the promotee officers with reference to
merit and with those who achieved „Outstanding‟ being placed
above those who achieved „Very good‟, who in turn were placed
above those who achieved „Good‟. Though the
recommendations of the DPC are not before us, but evidenced
from the fact that P.R.Chandrasekharan, Sunil Uke and
C.P.Srivasatava are litigating being aggrieved by the Presidential
Order dated 3rd May, 2002, though junior to the writ petitioners
of W.P.(C) 7419/2008, in the Promotional Order issued on
23.5.1991 were placed higher in ranking.
10. On 23rd May, 1991 an order was issued promoting
Assistant Collectors to the post of Deputy Collector, clearly
informing that the promotions were on officiating basis. 100
directly recruited officers holding the post of Assistant Collector
were listed at seriatim and 36 promotee officers holding the post
of Assistant Collector were listed at seriatim for further
promotion. The names of Shri C.P.Srivastava, Shri
P.R.Chandrasekharan and Shri Sunil Uke were shown at Serial
No.19, 22 and 62 respectively in the list of 100 directly recruited
officers. That of Shri P.S.Pruthi is at Serial No.29.
11. The inter-se seniority dispute amongst the officers of the
three feeder cadre services i.e. Superintendents of Central
Excise Group B, Superintendents of Customs Group B and
Customs Appraisers Group B, pending since 1978 was decided
by the Supreme Court on 22.11.1996; the decision being
reported as All India Federation of Central Excise vs. UOI & Ors.
(1997) 1 SCC 520 in which the Supreme Court upheld the
decision of the Competent Authority to allocate posts in the
combined seniority to the persons holding posts in the three
cadre posts in the ratio 6:1:2 for Superintendents of Central
Excise Group B, Superintendents of Customs Group B and
Customs Appraisers, respectively. The proposal that the rotation
would be first six vacancies to Superintendents of Central
Excise, the seventh to Superintendents of Customs and the
eighth and ninth to the Customs Appraisers was also accepted.
Rule 18(2) of the Indian Customs & Central Excise Service Group
A Rules 1987 which was under challenge and pertained to the
induction in Grade VI posts of Group A Services was directed to
be amended to incorporate as aforenoted. All ad-hoc
promotions made from time to time were directed to be
reviewed. In para 18 and 19 of the decision the Supreme Court
observed as under:-
"18. As stated above, we find that the above modified
proposal is just, fair and equitable and accordingly we
direct the Union of India to amend the impugned Rules
so far as Group „A‟ Service is concerned. Review all
post 1979 ad hoc promotions to the post of Senior
Superintendent/Assistant Collector in the promote
quota in the light of the present proposal, redetermine
the respective placement of the promotee officers in
the combined Group „A‟ seniority list and regularize
accordingly the posts of ad hoc promotions.
19. In Group „A‟ Service of the Customs and Excise
Department, 50% of the cadre strength are filled by
direct recruitment through Union Public Service
Commission and the balance 50% are filled through
promotion from Group „B‟ cadres. Group „B‟ Officers
when promoted to Group „A‟ Service, obviously have
no right to occupy more than 50% of their prescribed
quota. It would, therefore, be incumbent upon the
Government to rearrange or regularize the seniority
list in Group „A‟ Service keeping the inter-se quota of
the direct recruits and promotees intact and should
not allow either to get any promotion in excess of their
quota. The ad hoc promotions given to Group „B‟
Officers in Group „A‟ Service, pursuant to interim
orders of this Court, would not, therefore, have any
effect or prejudice the interests or rights of the direct
recruits of Group „A‟ Service while rearranging the
seniority in Group „A‟ Service as indicated in the
judgment. It would, therefore, be of necessity that the
Government should rearrange their inter-se seniority
and promotions of the respective direct recruits and
promotees within their quota and consequential
promotions in further higher services. Their seniority
be arranged accordingly."
12. Providence had ordained that litigation would continue and
indeed it has. The Union of India took excessive time to re-
workout the promotions in the 50% promotee quota in Group A
Service after amending Rule 18(2) of the Indian Customs &
Central Excise Service Group A Rules 1987 to bring the Rule in
conformity with the ratio to be maintained, as per the decision
of the Supreme Court, inter-se the three feeder cadre posts and
seniority to be re-drawn as accepted by the Supreme Court. The
list could be re-drawn somewhere in the year 2002 and by then
an Office Memorandum dated 08.02.2002 came into existence
superseding the Office Memorandum dated 10.03.1989. In
regard to posts where mode of promotion was 'selection'
(selection-cum-seniority and selection by merit) the guidelines
prescribed were that for Group A posts the benchmark shall be
„Very Good‟ and for the lower grades it would be „Good‟. The
Office Memorandum in question, it is but apparent, made a
significant departure from the previous. Those who were
„Outstanding‟ and „Very Good‟ came at par and all of them had
to be clubbed together with inter-se seniority being the same as
per the seniority in the feeder post. The ones who achieved the
benchmark „Good‟ could earn no promotion. Relevant would it
be to note, we say so for the reason an argument was advanced,
that the Office Memorandum dated 08.02.2002 was prospective
and contemplated amendment to the Service Rules, evidenced
by para 5 and 6 of the Office Memorandum, which two
paragraphs read as under:
"5. The instructions contained in this Office
Memorandum shall come into force from the date of
its issue.
6. Ministries/Departments are requested to give
wide circulation to these revised instruction for
general guidance in the matter so that immediate
steps are taken to amend the Service
Rules/Recruitment Rules of various
services/post/grades so as to appropriately
incorporate the mode of promotion as „selection‟ (in
accordance with these instructions) in place of
„selection by merit‟ and „selection-cum-seniority‟ (as
was hitherto prescribed by the aforementioned OM
dated March 27, 1997) as the case may be. The
powers to amend Service Rules/Recruitment Rules in
this regard are delegated to the
Ministries/Departments, DOPT need not be consulted
to carry out the required amendments."
13. Treating the promotions effected on officiating basis
pursuant to the Office Order dated 23.05.1991 as an interim
measure and for the reason the seniority list (integrated) of
Superintendents in the Customs, Excise and Custom Appraisers
was revised and promotions allocable to their 50% quota in the
promotional post in the lowest rung i.e. Grade VI in Group A
were effected and thereafter a revised seniority list of the
promotees and direct recruits in Grade VI posts in Group A was
drawn up, the Department reconstituted Departmental
Promotion Committee and with reference to the year-wise
vacancies for the panel year 1986-87 till the panel year 1991-92
and drew up fresh panel and since by then the Office
Memorandum dated 08.02.2002 had come into force, at the
DPCs‟, the benchmark for promotion considered was „Very Good‟
and all those who achieved the benchmark were promoted
retaining their seniority in the feeder post. Relevant would it be
to note that the panel was re-drawn from amongst the eligible
promotee and direct recruit officers and zone of consideration
was restricted with reference to the vacancies in each panel
year. The result was that Shri P.S.Pruthi earned a promotion to
the post of Deputy Collector for the panel year 1987-88 and was
placed at Serial No.11. Shri C.P.Srivastava and Shri
P.R.Chandrasekharan could earn the promotion pertaining to the
panel year 1989-90 and were placed at Serial No.8 and 40,
respectively. Shri Sunil Uke could earn a promotion for the
panel year 1990-91 and found a place at Serial No.43. Aforesaid
stands reflected in the order dated 3.5.2002 notifying
appointment on regular basis as Joint Commissioners.
14. It is thus apparent that Shri P.S.Pruthi became senior to Shri
C.P.Srivastava, who in turn became senior to Shri
P.R.Chandrasekharan and in turn who became senior to Shri
Sunil Uke.
15. It may be noted that for the various panel years, vacancies
filled up were as under:-
Panel Year No. of vacancies.
16. Shri P.R.Chandrasekharan filed a representation questioning
his seniority being affected. In a nutshell he claimed that the
promotions effected vide order dated 23rd May 1991 were on
the basis of scrutiny by a DPC with selection being the criteria
followed as per the then existing Office Memorandum dated
10.03.1989 and that the issue of promotion of the direct
recruited officers in Grade VI of Group A posts could not be
undone. He questioned the seniority of directly recruited
officers who had been promoted under said Office Order being
now undone. Additionally he pleaded that the year-wise
vacancy had to be filled up as per the Rules and executive
instructions in vogue for the panel year in question and thus he
questioned the criteria for promotion being adopted as per the
Office Memorandum dated 8th February 2002. He highlighted
that the vacancy panel were for the panel years 1986-87 till
1991-92. Lastly, he submitted that the Office Memorandum
dated 8th February 2002, vide paragraph 5 thereof, was clearly
and demonstratively prospective in its operation and in the
alternative he pleaded, with reference to para 6 of the Office
Memorandum dated 08.02.2002, that the same required the
Recruitment Rule to be amended for which he highlighted that
the existing Rule 20 of the Indian Customs and Central Excise
Service Group A Rules 1987, which provided the principle of
„selection on merit' to be adopted for promotion to Group A
posts in the service was not amended even till when the DPC
met in the year 2002. He thus pleaded seniority of the directly
recruited officers who were promoted as Deputy Collectors to be
re-drawn with reference to the merit position as drawn by the
DPC which met in the year 1991 and pursuant to the
recommendations whereof the Promotional Order dated
23.05.1991 was issued. The representation was rejected vide
order dated 17.10.2002 informing him that the DPC which met
in March 2002 was bound to follow the instructions issued by
DOPT.
17. It may be noted that the Rejection Order dated 17.10.2002
does not highlight the issue, but as pleaded by the writ
petitioners of W.P.(C)7419/2008 in para 4(xi), with reference to
its Office Memorandum dated 08.02.2002, DOPT had clarified as
under:
"It is clarified that the manner of assessment as
prescribed in this Department‟s Office Memorandum
dated 8.2.2002 will be required to be observed by all
original DPCs held on or after 8.2.2002 (including for
preparation year-wise panels, where the DPCs could
not meet in the relevant years). It is further clarified
that ad-hoc promotions made due to non-finalization
of seniority list in the feeder grade, are not to be
compared with promotions ordered pursuant of an
original DPC. Normally a DPC is held to make
regular promotions after finalization of the seniority
list and in such a case DOPT instruction dated
8.2.2002 will apply." (emphasis supplied)
18. Being aggrieved by the fact that the promotion order
dated 3.5.2002 and the rejection of their representations
resulted in they loosing seniority, C.P.Srivastava,
P.R.Chandrasekharan and Sunil Uke approached the Central
Administrative Tribunal praying that the order dated 3.5.2002
by quashed as also the various communications issued to them
rejecting their representation be quashed and directions be
issued to the Union of India to maintain seniority in terms of the
promotional order dated 23.5.1991. Needless to state the
submissions which they urged were the same which they had
stated in their respective representation against the promotion
order dated 3.5.2002 and which contentions have been noted
by us briefly in para 16 above, save and except a further
submission urged, being that the promotions effected in the
year 1991 were pursuant to interim orders passed by the
Supreme Court and that while disposing of the writ petition the
Supreme Court, in para 19 of its decision, had only permitted
the department to re-arrange the inter-se seniority of the
promotees and the direct recruits and thus within the direct
recruits the department could not have re-drawn the seniority.
19. The Tribunal allowed the three Original Applications and
the crystallized reasons of the Tribunal are as to be noted in
sub-paras (a) to (d) of Para 19 of the decision dated 29.3.2007,
contents whereof have been noted by us in para 2 above.
20. Of the 4 reasons given by the Tribunal it is apparent that
the first three pertain to the interim orders passed by the
Supreme Court and the final directions issued in the writ
petitions, lead matter being the writ petition filed by the „All
India Federation of Central Excise‟.
21. Before dealing with the reasons given by the Tribunal it
would be useful if we highlight a very important circumstance
which has escaped the attention of the Tribunal. Though, the
facts enwombing the circumstance have been noted by the
Tribunal, but the circumstance has unfortunately being ignored.
22. The fact, as noted by the Tribunal, is that the integrated
seniority list of the three feeder posts i.e. the post of
Superintendent Central Excise, Superintendent of Customs and
Customs Appraiser was unsettled, when by way of an interim
order dated 13.8.1990, the Supreme Court permitted the
department to fill up 157 posts of Deputy Collectors but clearly
stated that the same would be ad-hoc and subject to final result.
It is no doubt true that the Supreme Court directed that the ad-
hoc promotions would be based on selection by merit and thus
the persons who were promoted on ad-hoc basis earned the ad-
hoc promotion on the basis of the process of selection and since
the office memorandum 10.3.1989 was in vogue the
assessment of merit was on the basis of the said office
memorandum. It is also a fact that 100 directly recruited
officers to the post of Assistant Collector and 36 officers
promoted to the said post were promoted, on ad-hoc basis. But
the circumstance ignored by the Tribunal is that there is no
material to show that the said 136 persons were subjected to
the selection process with reference to year wise vacancies in
the panel year, which as noted in para 15 above were 11
vacancies each for the panel years 1986-87 and 1987-88; 10, 57
and 67 vacancies pertaining to the panel years 1988-89 till
1990-91. It may be highlighted that 11+11+10+57+67 = 156
i.e. the vacancies which the Supreme Court permitted to be
filled up by ad-hoc promotion. There is no material to show that
the individuals were considered with reference to a list of
persons eligible to be considered for promotion. This
circumstance is a very vital circumstance for the reason a
settled seniority list is the sine qua non before a list of eligible
persons to be considered for promotion can be drawn up and
thereafter the select list prepared; and indeed this is the ethos
of the clarificatory memorandum contents whereof have been
noted in para 17 above.
23. What is the relevance of the aforenoted circumstance?
Rather than being verbose, let us illustrate on the facts of the
instant case.
24. For the panel year 1986-87 there were only 11 vacancies
to be filled up by promotion from the Assistant Collectors to the
post of Deputy Collector. If the panel was drawn as per the
requirement of law in the year preceding the panel year 1986-
87, for law requires a panel to be ready for the anticipated
vacancies in the ensuing year, the department had to list 33
persons who were eligible to be considered for promotion; the
reason being the rules required 3 times the number of
vacancies to be the number of persons who were eligible to be
considered for promotion. Needless to state, the said 33
persons would be the integrated lot of directly recruited
Assistant Collectors and those who had earned promotion to the
post of Assistant Collector. These 33 persons had to be picked
up with reference to their seniority position in the integrated list
of Assistant Collectors, subject to they being eligible to be
considered for promotion. Applying the norms to determine
merit, select panel would have been prepared in which 11 out of
33 would have earned promotion. The remaining 22 would have
to await further consideration the next year. As noted
hereinabove for the panel year 1987-88, 11 vacancies existed
and thus the process followed for the preceding year would
have been re-run; and likewise when 10, 57 and 67 vacancies
were filled up in the next 3 years. Relevant would it be to note
that while so doing, the integrated seniority list of Assistant
Collectors; having within its integrity the directly recruited
Assistant Collectors and the promotee Assistant Collectors had
to form the basis for drawing up the panel of the eligible
candidates falling within the zone of consideration and further
the select panel.
25. Admittedly, this did not happen when the promotion list
dated 23.5.1991 was issued. It could not have so happened
because the inter-se integrated seniority of the three feeder
cadre posts who would have filled up 50% of the reservoir of
Assistant Collectors was in litigation. Further, after the Supreme
Court decided the pending matters on 22.11.1996, the position
of the seniority of the persons from the three feeder cadre posts
got settled and re-working the integrated seniority at the feeder
cadre level, persons earned their respective place in the
promotional post of Assistant Collector (re-designated as
Assistant Commissioner) and in turn these persons got
integrated with their directly recruited brothers. Thus, the
effect of the aforesaid circumstance noted by us would be as
illustrated by us and we feel that the illustration would be
sufficient to bring home the effect of the circumstance and we
need not theorize any further save and except to reiterate that
the select panel for the year-wise vacancies could not have
been worked upon till the inter-se seniority dispute of the
Superintendents Excise, Superintendents Customs and Customs
Appraisers was settled and which came to be settled only in the
year 1996 and thus obviously whatever happened prior thereto
pursuant to the interim orders passed by the Supreme Court
had to be an ad-hoc arrangement. The said ad-hoc
arrangement could not have lasted beyond when the dispute
got settled before the Supreme Court and as a result thereof the
seniority in the feeder cadre was redrawn and resultantly the
persons who came to be promoted as Assistant Collectors were
known and thereafter these promoted officers were integrated
with the directly recruited officers. The current events which
took place in the year 1996 required a reflection back; to make
the past conform to the present and the present to be the basis
for the future. Ignoring the present and directly connecting the
future with the past would not be acceptable.
26. Thus, the reference by the Tribunal, in the first three
reasons advanced by the Tribunal, to the language of the
interim orders and the final order passed by the Supreme Court
is out of context and additionally for the reason, decisions by a
Court are never treated as theorems or as statutes. Further, it
is settled that a ratio of a decision is what is decided by a Court
and not what can be logically deduced. In this connection we
may highlight that nobody informed the Supreme Court that the
ad-hoc promotions were affected not on the basis of a year wise
vacancy panel and indeed there was no need to inform said fact
to the Supreme Court because the ad-hoc promotions were by
way of an ad-hoc interim arrangement. It is true that in the
interim order dated 13.8.1990 the Supreme Court had observed
that the interim arrangement would be reviewed as a sequel to
such further or final orders that may be made by the Supreme
Court and that while finally deciding the writ petitions the
Supreme Court directed to re-arrange the inter-se seniority of
the promotees and direct recruits, within their quota, for further
promotion. But the said observations and directions have to be
understood in the context in which they were made. The
context before the Supreme Court was the inter-se dispute
between Superintendent Central Excise, Superintendent
Customs and Customs Appraisers. Their inter-se dispute was
having a resultant impact on the directly recruited Assistant
Collectors for the reason two streams i.e. the stream of
promotees and the stream of direct recruits were filling up the
common reservoir of Assistant Collectors. The reservoir had to
be filled up by water flowing from the two streams in the same
proportion and then it had to flow ahead. It was not that the
reservoir could be half filled by the direct recruits and made to
flow ahead and then filled up half by the promotees and made
to flow ahead. The further flow was hand in hand. It is in this
context that the observations/directions of the Supreme Court
which have been extracted by the Tribunal in sub-para (b) of
Para 19 of its decision have to be understood and not as if the
Supreme Court had in its mind that the inter-se seniority of
persons promoted on ad-hoc basis as Deputy Collector/Joint
Commissioner from amongst the direct recruits stood settled.
We re-emphasize that the issue which confronted the Tribunal
was not even born when the Supreme Court adjudicated the
pending matter decided by it on 22.11.1996 and thus the
decision of the Supreme Court could not be the foundation of
any right in favour of any person, save and except the right
which Supreme Court settled inter-se the Superintendents of
Excise, Superintendents of Customs and Customs Appraisers.
27. Dealing with the fourth reason given by the Tribunal in
sub-para (d) of para 19 of its decision, it is no doubt true that till
OM dated 8.2.2002 was issued, the field was occupied by the
OM dated 10.3.1989 and it is no doubt true that the applicable
Recruitment Rule lists the basis of selection to be merit for
promotion to the post of Deputy Collector/Joint Commissioner
and that merit had to be reckoned as per the OM dated
10.3.1989 and as extracted by us in para 9 above. Further
undoubtedly it is settled law that vacancies have to be filled up
as per the applicable Recruitment Rule or an office instruction
or an office memorandum in force in the year when the vacancy
accrued and unless a rule is amended with retrospective effect
or an office instruction on an office memorandum is made
applicable retrospectively, the vacancies have to be filled up
from amongst the eligible persons and applying the law in force
in the year of the vacancy. The legal position being settled, we
may simply note that learned counsel for
Sh.P.R.Chandrasekharan had cited numerous decisions of the
Supreme Court which hold so and in respect whereof
Sh.J.L.Gupta learned Senior Counsel and Sh.Amarjit Singh
Chandhiok learned Additional Solicitor General conceded that
the law is as noted by us and thus we do not note the said
decisions. It is also correct that the OM dated 8.2.2002, far from
being retrospective, vide para 5 thereof, clearly states that it
has to apply prospectively and it is also true that Rule 20 of the
Indian Customs & Central Excise Services Group A Rules 1987
has not been amended and the Rule continues to list the post of
Deputy Collector/Joint Commissioner as requiring to be filled up
by promotion on the principle of selection on merit.
28. Now, the principle of selection on merit is not a
jurisprudential concept, but flows out of the office
memorandums issued by the Government from time to time and
we highlight this with reference to the office memorandum
dated 10.3.1989, which deals with criteria to be followed to
determine merit for posts where promotion is made by the
method of selection. In other words, what should be the
principle to determine merit is a matter of policy and the
Government/Executive is free to lay down a criteria subject of
course to the same being reasonable and reasonableness as
understood on the well-known „Wednesbury's' principle. Thus, it
hardly matters whether the applicable Recruitment Rule was
amended, notwithstanding paragraph 6 of the office
memorandum dated 8.2.2002.
29. But the last limb of the argument needs to be dealt with
and for which we find good logic advanced by Shri
C.Harishankar, learned counsel who very ably espoused the
cause of Shri P.R.Chandrasekharan and Shri C.P.Srivastava, with
Shri Sunil Uke getting free benefit of good counsel. The
submission was that in any case the vacancy panel had to be
redrawn with reference to the law in force in the panel years
and that 157 vacancies pertaining to the panel year 1990-91
and prior, up to the year 1986-87 had to be filled up on the
criteria for selection as per the office memorandum dated
10.3.1989.
30. Logically and rationally the argument is correct. But, the
lifeline of law is not logic or reason but life‟s experience and
commonsense. Rules of law are meant to sub-serve the cause
of justice and it is not unknown to judges to be encountering
situations where logic and reason have to be abandoned and a
practical approach adopted to resolve an issue. Problems
encountered by Judges as aforenoted are also encountered by
the Executive and faced with a situation where the logic or the
reason of a rule of law leads to a breakdown situation, the
executive decision to ignore the applicable rule and craft a
decision which does justice has been accepted by the Courts.
31. In the decision reported as 1990 (2) SCC 715 Direct
Recruit Class II Engineering Officers' Association Vs. State of
Maharashtra & Ors., in para 23 it was observed: 'But if it
becomes impractical to act upon it (? The rule) it is no use
insisting that the authorities must continue to give effect to it.
There is no sense in asking the performance of something which
has become impossible. Of course, the Government, before
departing from the rule, must make every effort to respect, and
only when it ceases to be feasible to enforce it, that it has to be
ignored'. In the decision reported as AIR 1977 SC 2051
S.B.Patwardhan & Anr. Vs. State of Maharashtra & Ors., in para
51 the Court observed that Judges should not be unmindful of
administrative difficulties faced by the executives and as long
as there is fairness in action, executive decisions must be
respected. We may only add that the decisions of the Courts
where quota rota rule have broken down are best illustration of
how Courts have accepted the practical reality of life and have
ignored strict compliance with the letter of the law. Indeed, no
Judge can put himself in a straitjacket, much less apply known
and existing formula to remedy all ills. If the demand of a
situation is to be rationalist, the Judge must wear the robes of a
rationalist and where a situation demands, the Judge has to
wear the robes of a situationalist Judge.
32. The extreme, could be the argument that the department
should be called upon to re-work the panels commencing from
the panel year 1986-87 after the integrated seniority list of the
Superintendents Excise, Superintendents Customs and Customs
Appraiser and from the three feeder cadre posts, 50% quota to
the post of Assistant Collector/Assistant Commissioner be filled
up and further integrated seniority list of promotees and direct
recruits as Assistant Collector be drawn up and then applying
the norms as per O.M. dated 10.3.1989 fresh select panel be
prepared year wise. Thus, it can be urged that in this way the
letter as also the spirit of the law can be enforced.
33. But, we have a problem at hand. The three original
applicants before the Tribunal have not questioned the
promotions given to the promotee Assistant Collectors. In the
absence of said persons being impleaded as parties, we cannot
grant any relief which would be to their prejudice. We may note
that it is not in dispute that the select panel prepared and
notified on 3.5.2002 is with reference to the year-wise vacancy
and contains the integrated names of Assistant Commissioners
who reach the post by way of promotion and those who were
directly recruited. It is also not in dispute that while drawing up
the select panel the DPC considered the requisite number of
eligible persons and all those who achieved the benchmark
„Very Good‟ were placed in the panel with reference to their
seniority as Assistant Collector. This has happened for 6
successive panel years. It would thus be a contradiction in
terms to retain the said select panel vis-à-vis the Promotee
Officers and have a different panel for the Direct Recruited
Officers. This would run contrary to the Jurisprudence of Service
Law which makes it impermissible to segregate a homogenous
class with reference to their past. It is in this context, we find
full justification in the clarification issued by the DOPT as per its
memorandum dated 8.2.2002, contents whereof have been
noted by us in para 17 above. The office memorandum
correctly highlights that regular promotions can only be made
after finalization of the seniority list for the reason only when
the persons in the zone of consideration are ascertained with
clarity, can the further process of evaluating them on a given
criteria be completed. Under no circumstances can it be that
directly recruited officers would earn promotion in the same
panel year on a different criteria for merit and the promotee
officers would earn promotion in the same panel year on a
different criteria.
34. Thus, not on the letter of the law or the logic, but guided
by the situation and requiring a situationalist approach to be
adopted, we are of the opinion that the promotion order dated
3.5.2002 has to be upheld and maintained.
35. The writ petitions are allowed. The impugned judgment
and order dated 29.3.2007 is set aside and OA No.2456/2003,
OA No.2072/2004 and OA No.362/2005 filed by Sunil Uke,
P.R.Chandrasekharan and C.P.Srivastava are dismissed, but
without any orders as to costs. Parties shall bear their costs
throughout.
PRADEEP NANDRAJOG, J.
SIDDHARTH MRIDUL, J.
DECEMBER 03, 2010
dk/mm
