Union of India and others v. Prakash Unnikrishnan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 WP(C).No. 4871 of 2007(S) ------------------------OA.201/2005 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE CHAIRMAN, CENTRAL BOARD OF EXCISE & CUSTOMS, NORTH BLOCK, NEW DELHI. 2. THE COMMISSIONER OF CUSTOMS & CENTRAL EXCISE, COCHIN COMMISSIONERATE, C.R.BLDG., I.S.PRESS ROAD, KOCHI-18. 3. THE JOINT COMMISSIONER (P&V), CUSTOMS & CENTRAL EXCISE, COCHIN COMMISSIONERATE, C.R.BLDG., I.S. PRESS ROAD, KOCHI-18. 4. THE ADDITIONAL COMMISSIONER, CUSTOMS & CENTRAL EXCISE, COCHIN COMMISSIONERATE, C.R.BLDG., I.S.PRESS ROAD, KOCHI-18. BY ADV. SRI.A.DINESH RAO SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCIS RESPONDENT(S): --------------- PRAKASH UNNIKRISHNAN, S/O. I.UNNIKRISHNAN, TAX ASSISTANT, O/O. THE COMMISSIONER OF CUSTOMS(P), C.R.BLDG., I.S.PRESS ROAD, KOCHI-18, RESIDING AT G-313, MAYOORA APARTMENTS, AYYANTHOLE P.O., THRISSUR. BY ADV. SRI.M.A.SHAFIK FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C) No.4871 of 2007** EXT.P1 TRUE COPY OF D.O. P & T INSTRUCTION VIDE F.No.22011/5/86/Estt.(D) DATED 10.3.1989. EXT.P2 TRUE COPY OF O.A.NO.201/2005 dt. 7.3.2005 FILED BY RESPONDENT BEFORE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P3 TRUE COPY OF REPLY STATEMENT DT. 14.7.2005 FILED BY PETITIONERS. EXT.P4 TRUE COPY OF REJOINDER FILED BY RESPONDENT DT. 12.9.2005. EXT.P5 TRUE COPY OF ORDER PASSED BY CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH IN O.A.NO.201/2005 DT. 13.12.2006. EXT.P6 TRUE COPY OF JUDGMENT DT. 2.7.2003 IN OP.NO.12420 OF 1998 OF THIS HON'BLE COURT. EXT.P7 TRUE COPY OF ORDER IN O.A.NO.831/03 OF CAT, ERNAKULAM BENCH DATED 27.9.2005. //TRUE COPY// P.A. TO JUDGE. ## **P.R.RAMAN & S.S.SATHEESACHANDRAN, JJ.** ------------------------------- W.P.(C) No.4871 of 2007 ------------------------------- Dated this the 4[th] day of February, 2010 ## **J U D G M E N T** ## **Raman, J.** The Union of India and three others who were respondents 1 to 4 in O.A.No.201 of 2005, on the file of the Central Administrative Tribunal, Ernakulam Bench, are the petitioners herein. They seek to quash Ext.P5 order passed by the Central Administrative Tribunal in the said O.A. ## 2. The first respondent herein joined the Customs and Central Excise Department as a Lower Division Clerk in 1993. He was promoted as U.D.Clerk on 23.8.1999. Later that post was re-structured as Tax Assistant. Subsequently, he was transferred to Cochin Commissionerate on Inter Commissionerate Transfer on 15.12.2003. The post of Tax Assistant is one of the feeder category for promotion to the post W.P.(C) No.4871 of 2007 2 of Inspector. There are various other posts also falling as feeder category to which we will refer to at the later stage. 3. During 2003-2004, 29 posts of Inspector fell vacant, and the first respondent/applicant was not considered against any such posts. Subsequently, in the year 2004-2005 also, in the absence of eligible candidates, no selection was made. In 2005-2006, 21 vacancies arose for the post of Inspector. The applicant being Serial No.90 in the seniority list was not included, as according to the petitioners, he did not fall within the zone of consideration. Though Exts.A5 and A6 representations were made, they were considered and rejected as per Exts.A1 and A2 orders, marked as such and produced in the Original application before the Tribunal. Ext.A1 is dated 4.1.2005. Ext.A2 is dated 15.2.2005. But, after referring to the decision of the Apex Court in **Smt.Renu Mullick v. Union of India and another** (AIR 1994 SC 1152), it was informed that applying the ratio in the case of the first respondent/applicant, he has first to fall within the zone of consideration for promotion on the basis of his seniority in the W.P.(C) No.4871 of 2007 3 Central Excise, Commissionerate, Kerala Zone, and thereafter if it is found that he satisfies the eligibility conditions for promotion on the basis of the total length of service put in the Central Excise Commissionerate, Kerala Zone and Mumbai Commissionerate taken together, then he would be entitled for being considered for promotion by the Departmental Promotion Committee. First respondent is one of the junior most Tax Assistant in Central Excise, Cochin Commissionerate, and more than 80 officers are senior to him in the cadre of Tax Assistant, but they have not completed the required qualifying service. Since the first respondent did not fall within the zone of consideration on the basis of his seniority position in the Cochin Commissionerate, his request for promotion to the post of Inspector cannot be considered. The same is repeated in Ext.A2 as well. Aggrieved thereby, the first respondent approached the Tribunal seeking to call for the records relating to Annexure A1 to A6 and to quash Annexures A1 and A2; to declare that the applicant is also fully entitled for consideration for promotion to the post of Inspectors of Central Excise for the vacancies of 2004 W.P.(C) No.4871 of 2007 4 irrespective of his seniority and to direct the respondents to include him in the zone of consideration for promotion in the ensuing DPC; and also for other consequential reliefs and cost. 4. The specific contentions of the applicant/first respondent before the Tribunal were as follows:- According to the applicant, the official respondents, who are the appellants herein, have erred in drawing the seniority for the purpose of working out the zone of consideration. Relying on para 2.1.1 of the general guidelines, dated 10.3.1989, which was extracted in the Order of the Tribunal, it was submitted that the word _**“from out of those eligible officers”**_ would be crucial, and according to the counsel, it contemplates the preparation of a separate list from out of the seniority list for the feeder grade, removing from the general seniority list names of those who do not fulfill the requisite qualification/experience, and it is from out of such eligible candidates that the zone of consideration as mentioned above would be worked out. In the present case, since the applicant is the first person with requisite qualification, he ought to have been considered, whereas, by an erroneous W.P.(C) No.4871 of 2007 5 interpretation, the respondents have denied the applicant of his legitimate right of consideration for promotion to the post of Inspector. It was also emphasised that post of Inspector in the Central Excise Department is a selection post, as evident from column No.12 of the Rules, which fact was also endorsed by the official respondents in their letter dated 23.6.2003, addressed to all Chief Commissioners of Central Excise and Customs. According to the counsel, the minimum service in the feeder grade for the post of Inspector, i.e., Tax Assistant/UDCs, should have five years of service, and if any seniors do not have such experience, then also they would be considered, provided, they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service of two years, whichever is less, as per Note 5 of the Recruitment Rules. Thus, it was imperative upon the respondents to first filter the seniority list for the purpose of preparing the zone of consideration by excluding those who do not have requisite qualifying service in the feeder grade and from out of such a filtered list, the zone of consideration shall be worked out. W.P.(C) No.4871 of 2007 6 5. Per contra, the stand of the official respondents, petitioners herein, as is gathered from paragraph 9 of the impugned Order of the Tribunal is as follows. According to the respondents, the zone of consideration is worked out from the seniority list of Tax Assistants/UDCs and there is o need to prepare a list of eligible candidates from which the zone of consideration would be worked out. It was also contended that at the time when the Recruitment Rules were framed, certain other specifications were also provided for in respect of promotion to the post of Inspectors. As there was re-structuring of the cadre, which had introduced the post of 'Senior Tax Assistant' in the place of erstwhile 'Tax Assistant' and renaming the post of UDC as Tax Assistant, selection would be in accordance with the provisions contained in para 12(a) for the first two years ad subsequently as per 12(b) and failing the above two, by para 12(c) of the Recruitment Rules. 6. Still further, it was contended that for filling up 34 posts of Inspectors, there is none who is qualified under 12 (a) and there were 10 individuals under clause 12(b) who were W.P.(C) No.4871 of 2007 7 eligible, failing which clause, 38 would be eligible. A private respondent who was also impleaded subsequently has also got a contention that as per the letter of the Customs, dated 12.8.2005, 45 persons who are Senior Tax Assistants, were considered for promotion to the post of Inspectors and the name of the private respondent happened to be as Sl.No.41. Since all the 40 above him has been empaneled already and one vacancy has been kept unfilled, as per the Court orders, and if that vacancy is released, it would be the private respondent who would be considered for promotion, as according to him, he is fit to be considered under para 12(b) and (c) of the Recruitment Rules. 7. This contention of the private respondent need not disturb us, as far as the present writ petition is concerned, since his contentions were considered by the Tribunal and issued directions, as per paragraph 15 of the impugned Order under clause (C), “ _directing that if the vacancies for the aforesaid years could not be filled in view of non availability of individuals under clause 12(a) within two years of the occurrence of the_ W.P.(C) No.4871 of 2007 8 _vacancies, then, such vacancies could, after the expiry of two years, be filled in from among the eligible candidates falling under clause 12(b). It is only when candidates are not available under this clause, that candidates from 12(c) shall be considered for promotion.”_ But so long as the party respondent in the O.A. has not been made a party in this writ petition, the directions contained in clause (C) in paragraph 15 of the impugned Order of the Tribunal, the correctness of which need not be considered in this writ petition. 8. The Tribunal, while considering the contention of the first respondent-applicant, has posed the question as to whether what should be the way for preparation of seniority list. The Tribunal held that the list of eligible candidates is to be drawn and while so drawing, the provision of Note 5 appended to clause 12 of the Schedule to the Rules has to be kept in view. If the applicant happened to be first individual who had completed the requisite five years, then Note 5 shall be invoked only when the applicant is also to be promoted. According to the Tribunal, otherwise, it would amount to reduction of the W.P.(C) No.4871 of 2007 9 requisite period of service in respect of others, which is not permissible. If the applicant is not be promoted, none senior to him, with less than the requisite years of service could be promoted and the vacancies be carried forward to the subsequent years. In the instant case, in respect of the applicant, if he is not promoted within two years after the occurrence of the vacancies for the years 2002-03 and 2003-04, he has to be considered under 12(b) after two years and in accordance with the ceiling relating to zone of consideration, as per order dated 10.4.1989. The Tribunal has also fixed a time limit of four months for performing the above exercise. 9. The learned Counsel, Sri.John Varghese, appearing for the Central Board of Excise and Customs, petitioners herein, has reiterated the contentions as stated above. According to him, though the applicant has satisfied the eligibility criteria, he being the 90[th] person in the seniority list, will not fall within the zone of consideration. He referred to Ext.P1 guidelines (marked as Annexure A7 before the Tribunal), more particularly, paragraph 2.1.1, as per which if the number of W.P.(C) No.4871 of 2007 10 vacancies are four or more, then the number of officers to be considered is three times the number of vacancies. Even though there is a dispute as to the actual number of vacancies available, and according to the petitioners, there were 29 vacancies as per the counter affidavit, it is contended that first respondent will not fall within the zone of consideration. If the interpretation as placed by the Tribunal is accepted and if Ext.P5 order of the Tribunal is implemented, there will be considerable administrative inconvenience and all persons figuring in the seniority list as on 1.1.2005 and seniors to the claimant who joined Cochin Commissionerate as on 15.12.2003 would be jeopardised. The resultant position in accepting the order of the Tribunal is to entitle the applicant to jump the cue and still march over more than 80 persons above him. The learned counsel for the petitioners also placed reliance on the decision of the Apex Court in **Smt.Renu Mallick v. Union of India and another** (AIR 1994 SC 1152). 10. Per contra, the learned counsel appearing for the first respondent-applicant reiterated his submission as W.P.(C) No.4871 of 2007 11 noticed above and contended that the Note 5 appended to clause 12 of the Recruitment Rules is added specifically taking care of the said situation, to provide enough relief to a senior, in case a junior eligible candidate is also to be considered for promotion. According to him, this relief is however limited, viz., that the total experience to be possessed for satisfying the eligibility criteria will be cut short to 50% of the experience or eligibility service of two years, which ever is less, if the junior is to be promoted over a senior. In other words, all those seniors who are above the junior will also be entitled to be considered for promotion reckoning the position that they will also be eligible, if they have got the 50% of the requisite experience as required by the regulation. In other words, if only there happens to be a senior who does not have 50% experience as against 100% experience to be possessed by a junior, that he will be denied of being considered for promotion. 11. We have heard both sides. The fact that the applicant otherwise falls under the eligibility criteria as prescribed under the Regulation is not in dispute. But the stand W.P.(C) No.4871 of 2007 12 taken by the official respondents which is reiterated by the learned counsel for the petitioners is that so long as the applicant does not fall within the zone of consideration, that is quite irrelevant. According to the petitioners, if only a person falls within the zone of consideration, then only the question as to whether he satisfies the eligibility criteria need be considered to include him for promotion. It is also not in dispute that there are no eligible seniors above the applicant, even applying Note 5 appended to clause 12 of the Recruitment Rules. ## 12. The qualification prescribed for the post of Inspector as per clause 12(a) of the Recruitment Rules reads as follows:- “12. In case of recruitment by promotion/deputation/absorption, grade from which promotion/deputation/absorption to be made: - (a) By selection from those candidates working in the following pre structured cadres: - (i) Tax Assistant with two years service as Tax Assistant or five years as Tax Assistant and Upper Division Clerk put together. W.P.(C) No.4871 of 2007 13 - (ii) Upper Division Clerk or Stenographer Grade III with 5 years service. - (iii) Upper Division Clerk with 13 years of total service as Upper Division Clerk and Lower Division Clerk taken together subject to the condition that they should have put in a minimum of 2 years in the grade of Upper Division Clerk. - (iv) Stenographer Grade II with two years service. - (v) Stenographer Grade II or Stenographer Grade III with 12 years service as stenographer or Upper Division Clerk and Lower Division Clerk, if any, taken together subject to the condition that they have completed a minimum of 2 years service as Stenographer Grade III or Upper Division Clerk. - (vi) Women searcher with 7 years service in the grade. - (vii) Draftsman with 7 years service in the grade.” 13. Note 5 appended to Clause 12 of Recruitment Rules which also is relevant reads as follows:- “ **Note 5:** Where juniors who have completed their qualifying or eligibility service are being considered for promotion their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service of two years, W.P.(C) No.4871 of 2007 14 whichever is less and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service.” 14. As far as the direction contained in paragraph 15(B) of the impugned order is concerned, we may at the outset say that it is contrary to Note 5 appended to clause 12 of the Schedule. As per the direction issued, only if the applicant is the first individual who had completed the requisite five years, then Note 5 will shall be invoked only when the applicant is also to be promoted. As we could see, as per Note 5, if a junior is eligible to be considered, then the senior who does not have the requisite experience to be possessed as per the Rules, will be given a relaxation upto 50%, so that he will also fall within the zone of consideration. In other words, it is at the time of deciding the eligibility as to the number of persons to be considered as eligible that Note 5 is applied, so that where a junior is considered for promotion, seniors become entitled to be considered along with the junior, provided the senior has 50% of the eligible service or two years, which ever is less and W.P.(C) No.4871 of 2007 15 completed his probation. Thus, a senior though in the normal course would have to satisfy the experience as prescribed, will be entitled to be considered and promoted (if he satisfies experience upto 50%). In other words, the reduction of requisite period of experience in the case of seniors automatically comes when the junior happens to fall under the eligibility criteria and zone of consideration for promotion. This is intended to provide a relief to the seniors who would otherwise be marched over by a junior. Therefore, the direction contained in clause (B) of the impugned order has necessarily to be modified, provided the contention of the applicant is ultimately to be upheld by us. ## 15. In Smt.Renu Mallick's case, cited above, in paragraph 10 of the judgment, the Apex Court held as follows:- “10. We are of the view that the Tribunal fell into patent error in dismissing the application of the appellant. A bare reading of para 2(ii) of the executive instructions dated May 20, 1980 shows that the transferee is not entitled to count the service rendered by him/her in the former Collectorate for the purpose of seniority in the new charge. The later part of that para cannot be read differently. The W.P.(C) No.4871 of 2007 16 transferee is to be treated as a new entrant in the Collectorate to which he is transferred for the purpose of seniority. It means that the appellant would come up for consideration for promotion as per her turn in the seniority list in the transferee unit and only if she has put in 2 years' service in the category of UDC. But when she is so considered, her past service in the previous Collectorate cannot be ignored for the purposes of determining her eligibility as per R.4 aforesaid. Her seniority in the previous Collectorate is taken away for the purpose of counting her seniority in the new charge but that has no relevance for judging her eligibility for promotion under R.4 which is a statutory rule. The eligibility for promotion has to be determined with reference to R.4 alone, which prescribes the criteria for eligibility. There is no other way of reading the instructions aforementioned. If the instructions are read the way the Tribunal has done, it may be open to challenge on the ground of arbitrariness.” 16. Here, we are not concerned with any executive instructions issued in this case. The only ground on which the first respondent's representation was rejected as per Exts.A1 and A2 was that he does not fall within the zone of consideration. There is no whisper that he does not satisfy the eligibility criteria as prescribed under the Regulations. 17. We have no doubt in our mind that if the promotion was based on mere seniority alone, then the first W.P.(C) No.4871 of 2007 17 respondent who happened to be down in the over all seniority list, cannot be considered for promotion, even if he satisfies other eligibility criteria. That position is settled by the decision of the Apex Court in **S.B.Mathur and others v. Chief Justice of Delhi High Court and others** (1989 Supp (1) SCC 34), wherein it was held that the minimum eligibility qualification has to be kept distinct from the zone of consideration and even if there are a large number of candidates who satisfy the minimum eligibility requirement, it is not always required that they should be included in the zone of consideration, it being open to the authority concerned to restrict the zone of consideration in any reasonable manner. The above said decision is also an authority for the preposition that zone of consideration has to be decided amongst the eligible candidate. Therefore, merely because there are no seniors eligible even applying Note 5, there is no reason to exclude a candidate, if he otherwise satisfies the eligibility criteria, on the mere reason that he happens to be down in the seniority list. 18. Though it was contended by the learned counsel W.P.(C) No.4871 of 2007 18 for the petitioners that in so far as there is no violation of Article 16(1) of the Constitution of India, interference by the Tribunal is not correct, the same is not further elaborated. When the promotion is governed by Rules and in the absence of challenge to the rule, all we are to consider is whether the non promotion of the applicant is contrary to Rule. ## 19. In **Badrinath v. Government of Tamil Nadu** **and others** (2000 (8) SCC 395), it was held that every officer has a right to be considered for promotion under Article 16 to a higher post subject to eligibility, provided he is within the zone of consideration. But the question is as to the manner in which his case is to be considered. This aspect is a matter of considerable importance in service jurisprudence, as it deals with “fairness” in the matter of consideration for promotion under Article 16. ## 20. In **Ajit Singh and others v. State of** **Punjab and others** (1999 (7) SCC 209), the Apex Court has held that if the promotion is by rule of “seniority-cum-suitability”, the eligible seniors at the basic level as per seniority fixed at W.P.(C) No.4871 of 2007 19 that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category, they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. 21. The first respondent-applicant had not approached the Tribunal contending that his right to be promoted is infringed because of any violation of the constitutional mandate under Article 16(1) of the Constitution of India, rather according to him, when there are rules for promotion and so long as he satisfies the eligibility criteria for promotion, his denial of being considered for promotion merely because he was in the bottom of the seniority list, even when seniors are not found to be eligible, cannot be accepted and that runs contrary to the very rule of promotion. 22. But the decision in Badrinath's case in no way advances the case of the petitioners herein, because in this case, all that has been claimed by the first respondent, applicant, W.P.(C) No.4871 of 2007 20 is that if, for the purpose of determining the zone of consideration, it should be determined with reference to the officers who satisfies the eligibility criteria. In other words, in case there are no eligible candidates above him, there will be no selection during that year and that will be passed on to the next year. The rule does not contemplate any such procedure to be adopted. The exclusion of a candidate could certainly be done based on rules. But here the rule does not say the manner in which the zone of consideration has to be worked out. 23. As already pointed out, if only the zone of consideration has to be determined with reference to the candidates who are found eligible for consideration, certainly, if the number of eligible candidates are three times of the number of vacancies and the said eligible candidates are above the first respondent, then there is no question of first respondent being considered, as he falls outside the zone of consideration and in that situation, all others above him will also be considered satisfying the requirement of qualification. As we have already stated, the only reason stated in Annexure-A1 for rejecting the W.P.(C) No.4871 of 2007 21 representation is that the first respondent who is the junior will have a march over the seniors. It can be seen from Note 5 itself, as referred to above, that the relaxation in the matter of requisite experience to be possessed come into play only when a junior is found eligible over a senior. But when doing so, the senior is also benefited because when he does not possess the requisite experience as per the Rules, he need only satisfy 50% of the requisite experience, than a junior who is otherwise eligible falls under the zone of consideration. Thus, the inclusion of a junior in the zone of consideration will only advance the case of a senior for invoking the beneficial provision contained in Note 5, as extracted above. 24. The stand taken in Ext.A1 order disposing the representation made by the first respondent was that the zone of consideration has first to be fixed and then only the eligibility of the candidate has to be considered is thus clearly wrong. The qualification possessed by a candidate is known and whether the candidate possesses the requisite qualification and experience is a matter which is not fluctuating. But for the purpose of fixing W.P.(C) No.4871 of 2007 22 the zone of consideration, as already noticed in the S.B.Mathur and others case, supra, the minimum eligibility qualification has to be kept distinct and even if there are a large number of candidates who satisfy the minimum eligibility requirement, it is not always required that they should be included in the zone of consideration, it being open to the authority concerned to restrict the zone of consideration in any reasonable manner. 25. In the result, we modify the Clause (B) of Paragraph 15 of the impugned order as follows and all other directions issued by the Tribunal are sustained. “A list of eligible candidates be drawn and while so drawing, the provisions of Note 5 appended to clause 12 of schedule to the rule (extracted in one of the paragraphs above) be also kept in view. If the applicant is the first individual who has completed the requisite five years, and being a junior, the seniors above him, who satisfies the 50% experience or two W.P.(C) No.4871 of 2007 23 years of eligible service and other conditions under Note 5 being satisfied, will also be entitled to be considered and included in the zone of consideration. If the promotion is made in this fashion, the benefits of reduction of requisite period of experience in the case of seniors automatically comes, when the junior happens to fall under the eligibility criteria for promotion. This is intended to provide a relief to the seniors who would otherwise be marched over by a junior. 26. It has to be noticed that the applicant herein was only claiming his case to be considered only for the vacancies which arose in 2004-05. Therefore, while working out the directions contained as above, it may confine to the vacancies for that period alone. 27. In view of the fact that the time as fixed by the Tribunal has already lapsed, we fix a time limit of four months W.P.(C) No.4871 of 2007 24 from the date of receipt of a copy of this judgment, for carrying out the above exercise. The writ petition is disposed of as above. ## **P.R.RAMAN, JUDGE** ## **S.S.SATHEESACHANDRAN, JUDGE** ## **nj.** The year '2004-05' occurring in paragraph 26 of the judgment dated 4.2.2010 in W.P.(C) No.4871/07 is corrected and substituted as '2005-06' as per order dated 24.5.11 in I.A.6333/10. Sd/- **Registrar (Judicial)**