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2009 DIGILAW 296 (ORI)

AMIYA KANTI PATNAIK v. UNION OF INDIA (UOI)

2009-04-02

I.M.QUDDUSI, SANJU PANDA

body2009
JUDGMENT : I.M. Quddusi, J. - This writ petition has been filed against the impugned JUDGMENT dated 21.3.2003 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 509 of 1998 dismissing the same being devoid of merit. 2. The brief facts of the case are that the Petitioners were directly recruited as Inspector of Central Excise in the year 1975. One late D. Naik, who belonged to Scheduled Caste community, was promoted to the post of Inspector of Central Excise on the recommendation of the DPC held on 18.9.1975 and he joined the post on 24.11.1975 but he was promoted to the post of Superintendent of Central Excise (Group-B) on 14.12.1988. It is alleged that the case of the Petitioners for promotion was ignored. 3. The seniority between the direct recruit and the promotees to the post of Inspector of Central Excise and Customs was the subject matter of litigation before the Central Administrative Tribunal in O.A. Nos. 62-71 of 1987 which was disposed of on 10.4.1989 observing that the seniority with regard to Inspector of Central Excise will be computed taking into consideration the date of joining. It is alleged that since the Petitioners' date of joining is prior to the date of joining of late D. Naik, they all were seniors to late D. Naik and, therefore, the promotion of late D. Naik prior to the consideration of their case for promotion to the post of Superintendent of Central Excise Group B is illegal. 4. In the counter affidavit filed on behalf of opposite parties 1 to 3, it has been submitted that the seniority list issued vide order dated 27.4.1998 has been rescinded and the seniority position as on 1.6.79 of the Inspectors was restored to the position as was existing prior to the issue of the order dated 27.4.98. However, the opposite parties revised the seniority and two seniority lists have been published, one showing the position of the Inspectors as on 1.6.79 and the second showing the seniority position of Inspectors as on 1.1.90 and both the lists were circulated amongst the Inspectors. But neither the Petitioners nor the Inspectors had submitted any representation against the said seniority lists. However, when Petitioner Nos. 1 and 3 made representation in the month of April, 1998, the opposite parties considering the same partially modified the seniority list of Inspectors as on 1.6.97. 5. But neither the Petitioners nor the Inspectors had submitted any representation against the said seniority lists. However, when Petitioner Nos. 1 and 3 made representation in the month of April, 1998, the opposite parties considering the same partially modified the seniority list of Inspectors as on 1.6.97. 5. Further, in respect of promotion of late D. Naik, it has been submitted that he was selected against the vacancy reserved for SC by extending the zone of consideration as the lone SC official within the normal zone was not considered from vigilance angle. The said D. Naik also died within one year of his promotion and the said vacancy was filled up by one Sri Ramesh Ch. Choudhury, who is senior to the Petitioners. Therefore, the Petitioners should have no grievance against him. It has further been submitted in the counter affidavit that late D. Naik, was rightly promoted on 14.12.98 by virtue of his SC status against SC roster point No. 29 reserved for SC category superseding the Petitioners since the Petitioners belong to general category. 6. It is not necessary to go further in respect of the facts as we find that since the Petitioners belong to general category, they cannot have any parity with a SC candidate and, therefore, even if a SC candidate was junior to the Petitioners and was considered against the post reserved for SC category, it cannot be said that there was any discrimination. 7. The plea of the Petitioners that in case zone of consideration would not have been extended, the post reserved for SC category would have been de reserved and in that case one of the Petitioners could have been selected is only an imaginary plea of the Petitioners.' It is the settled principle of law that parity can be claimed only within a class. No person can claim parity with a person belonging to a different class. Scheduled Caste candidate has been selected against the reserved post meant for SC. The Petitioners, who belong to general category cannot be said to have been discriminated by such promotion in any way. However, in case any similarly circumstanced person junior to the Petitioner would have been given promotion ignoring the case of the Petitioner, this Court would have certainly considered the discrimination in those facts and circumstances, but those circumstances do not exist in the present case. 8. However, in case any similarly circumstanced person junior to the Petitioner would have been given promotion ignoring the case of the Petitioner, this Court would have certainly considered the discrimination in those facts and circumstances, but those circumstances do not exist in the present case. 8. It has been submitted by the learned Counsel for the Petitioners that the zone of consideration should not have been extended up to 25 when within the normal zone of consideration reserved candidates were already available for consideration for promotion in order to find out a SC candidate like that of Mr. Naik, whose name was at sl. No. 25 in the seniority list of 1988. But the fact is that only one SC candidate namely, S.D. Gochhayat whose name was mentioned at sl. 13 was available within the normal zone of consideration and in that case the zone of consideration was confined to 15 only. In the counter affidavit, it has already been stated that since the sole candidate belonging to SC who was coming within the zone of consideration was not liable to be considered because of the vigilance inquiry, the opposite parties had jurisdiction to extend the zone of consideration in such circumstances as the selection was to be made from S.C. quota only. The zone of consideration for SC and ST was extended five times to the number of vacancies. Since late D. Naik was available, whose name was at sl. No. 25 and was found more suitable, he was selected. Thereafter on the next available vacancy, no reserved candidate from ST category became available. Consequently the post was filled up in the year 1990 by giving promotion to one Sri Ramesh Ch. Choudhury. However, that was at a later stage and that cannot be considered in the instant matter. Hence we do not find any illegality in the impugned promotion. 9. The Petitioner have, inter alia, sought direction to the opposite parties to consider their case for promotion to Group B Superintendent of Central Excise and Customs retrospectively from the date when late D. Naik was promoted, i.e. 14.12.1988, with all service benefits, which cannot be granted in view of the above mentioned facts and circumstances. In the result, the writ petition fails and is dismissed. There would be no order as to costs. Final Result : Dismissed