Union Of India & Ors vs N.D. Azad & Ors
2017 Latest Caselaw 1155 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                           W.P.(C) 5873/2016
                                        Date of decision: 2nd March, 2017
        UNION OF INDIA & ORS                       ..... Petitioner
                      Through    Mr.    Rakesh     Kumar,        Central
                      Government Standing Counsel.

                            versus

        N.D. AZAD & ORS                              ..... Respondent
                      Through    Mr. Rajiv Ranjan Mishra and Mr.
                      Saurabh, Advocates for R-1 to 3.

        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE CHANDER SHEKHAR

SANJIV KHANNA, J. (ORAL)

The Union of India and its functionaries have impugned order dated

21st August, 2015, passed by the Principal Bench of the Central

Administrative Tribunal (Tribunal, for short) in OA No. 3326/2013.

2. The Tribunal in the impugned order has held as under:-

"3. In their reply, the respondents have opposed the averments made by the applicants even though factual position regarding dates of joining and transfer of applicants from Indore Commissionerate to Patna Commissionerate as mentioned in the O.A. have not been disputed. According to the respondents, as per ICT Circular F.No.A-22015/34/80-Ad.III B dated 20.05.1980 the service rendered prior to ICTC was not to be counted for the purpose of seniority in the new change. The

applicants want their past services to be counted contrary to the instructions. They are relying on the judgment of this Tribunal in I.C. Joshi's case (supra). However, CBEC has already decided not to extend benefits of the judgment to similarly placed officers.

4. We have heard both sides and have perused the material on record. It is now settled legal position that on Inter Commissionerate transfer while a transferee loses his seniority and is placed at the bottom of the seniority list in the new Commissionerate, yet he does not forgo the length of service rendered by him prior to his transfer. Thus, while he loses seniority, he does not lose the service already rendered by him. Therefore, if in the new Commissionerate, despite being at the bottom of the seniority list, if he is senior enough to fall within the zone of consideration for next promotion, his eligibility for such promotion shall be determined after counting his service rendered prior to ICT. This has been laid down by this Tribunal in the case of I.C. Joshi's case (supra). However, the respondents have refused to extend the same benefits to similarly placed officers. Their stand is indeed baffling. The respondents have not denied that the applicants were similarly placed and their cases were squarely covered by the judgment in I.C. Joshi's case (supra). Yet, without assigning any reason they have refused to extend the same benefits to the applicants. They have also misinterpreted the law laid down by Hon'ble Supreme Court in the case of UOI Vs. Deo Narain in Civil Appeal No. 8017/2013 and Narotham Rath in CA No. 5357/2008. In our view this stand taken by the respondents is totally unacceptable. It will only lead to further litigation and waste of precious judicial time. Once the ratio has been laid down by this Tribunal, the respondents should themselves have examined the case of the applicants and extended the same benefits to them as have been allowed to applicants in I.C. Joshi's case.

5. We, therefore, allow this O.A. and direct the respondents to consider ante dating promotion of the applicants by counting their services rendered in Indore Commissionerate prior to their transfer to Patna Commissionerate in terms of the judgment in I.C. Joshi's case (supra). After ante dating of the promotion, the applicants shall also be entitled for the benefit of seniority commensurate with the revised dates of promotion in the grade of Superintendent. The respondents shall complete this exercise within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.

3. The aforesaid observations are in consonance with the decision of

the Tribunal in O.A. No. 651/1997, I.C. Joshi Vs. Union of India & Ors.

decided on 26th August, 1997. This decision was made subject matter of

challenge before the High Court and then before the Supreme Court. The

decision of the Tribunal was affirmed. Therefore, on inter-

Commissionerate transfer, officer would be placed at the bottom of the

seniority list, but for the purpose of eligibility, the service rendered in the

earlier Commissionerate would be counted. Learned counsel for the parties

are ad idem and state that, this means that the seniors, who are

eligible, would be considered first for promotion. Only if there are vacant

posts and the seniors are not eligible for promotion, then the juniors

would be considered. The consideration would be in accordance with the

Rules. While considering eligibility of the case of the respondent Nos.1 to

3, the service rendered in the earlier Commissionerate before transfer would

be counted.

4. Learned counsel for the petitioner submits that they had filed this

writ petition in view of the observations made in paragraph 5 of the

impugned order quoted above, as it was ambiguous.

5. We do not agree with the said contention, for we find that the

Tribunal had in the earlier paragraph rightly noted the legal position and had

asked the petitioners to only consider the case of the respondent Nos.1

to 3 in accordance with the said legal position. In case, the respondent

Nos.1 to 3 were held to be entitled to ante dated promotion, other

consequential benefits would flow.

6. At this stage, learned counsel for the petitioner submits that there

was delay and the respondent Nos.1 to 3 had approached the Tribunal by

OA No.3326/2013, whereas they were actually promoted as

Superintendents on 23rd September, 2002 and were seeking ante dated

promotions from 1997. However, learned counsel for the petitioner

accepts that the plea of delay and laches or limitation was not raised

before the Tribunal. This aspect has not been examined. Learned counsel

for the respondents submits that in several other matters, similar orders

have been passed and the plea of limitation, delay or laches has not been

accepted. Our attention, in this regard, is drawn to the order dated 3rd

August, 2012 passed by the Chandigarh Bench of the Central

Administrative Tribunal in OA No.338/PB/2012. The applicants therein

were identically situated as the respondent Nos.1 to 3. It is pointed out

that the authorities had challenged this order in a writ petition, which was

dismissed, and had subsequently filed SLP (Civil) No. 5408-5409/2014,

which was also dismissed recording that no ground for interference was

made out.

7. In these circumstances, we would not like to interfere with the

impugned order to maintain uniformity.

8. With the aforesaid observations, the writ petition is disposed of.

SANJIV KHANNA, J.

CHANDER SHEKHAR, J.

MARCH 02, 2017 NA