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2015 DIGILAW 861 (CAL)

Subir Kumar Roy v. Union of India

2015-10-08

NISHITA MHATRE, SHIVAKANT PRASAD

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Judgment : Nishita Mhatre, J.: 1. The petition has been filed by persons working with the Central Excise in Kolkata who claim that because the Respondents have not followed the instructions issued by Government of India, Ministry of Finance directing that a common eligibility list be prepared of Group D employees for promotion to the post of Lower Division Clerks (hereinafter referred to as ‘LDC’), their respective dates of promotion to the higher posts have been prejudicially affected. Having failed to obtain relief before the Calcutta Bench of the Central Administrative Tribunal, the Petitioners have challenged the order of the Tribunal before this Court under Articles 226 and 227 of the Constitution of India. 2. The petitioners were working as qualified Group D staff in the Commissionerate of Central Excise, Calcutta I and II. They were reclassified as Group C staff working in the Department of Revenue under the Central Excise, Ministry of Finance, Government of India. On 24th January, 1992 an order was issued by the Government of India, Ministry of Finance, directing that for the purpose of promotion to the Grade of LDC, a combined eligibility list of Group D employees should be prepared. The period of qualifying service was stipulated as 5 years in the respective Group D post, subject to maintenance of inter se seniority within the Group D employees. The hierarchical structure is from Group D Staff to LDC to Tax Assistant to Senior Tax Assistant to Inspector. On rd June, 2005, the Government of India issued an order which indicated that the promotions to the Grade of LDC from the Group D staff were made without preparing a combined seniority list. The senior Group D staff Kolkata-II Commissionerate was thus denied promotion. A request was made by those who were adversely affected to implement the Ministry’s letter dated 24th January, 1992 stipulating that a combined seniority list should be maintained. A Departmental Promotion Committee was constituted for considering the promotion of Group D staff to the higher ministerial grade on 9th May, 2006/10th May, 2006. A letter was submitted by the Chief Commissioner, Central Excise on 18th January, 2006 to the Government of India, Ministry of Finance, pointing out the discrimination affecting Group D staff of the Kolkata-II Commisionerate. 3. The petitioners were aggrieved because they have been superseded by their juniors in the grade while being promoted to the post of LDC. A letter was submitted by the Chief Commissioner, Central Excise on 18th January, 2006 to the Government of India, Ministry of Finance, pointing out the discrimination affecting Group D staff of the Kolkata-II Commisionerate. 3. The petitioners were aggrieved because they have been superseded by their juniors in the grade while being promoted to the post of LDC. O.A. No.511 of 2008 was preferred before the Central Administrative Tribunal, Calcutta Bench for quashing the promotion of those juniors who had superseded the petitioners. The aforesaid application was disposed of on 9th June, 2008 directing the respondent authorities to consider the case of the petitioners in the next Departmental Promotion Committee for promoting them if they were found eligible and fit. 4. Being aggrieved by the order passed in O.A. No.511 of 2008 by the Central Administrative Tribunal, the petitioners preferred WPCT No.209 of 2008. The Division Bench of this Court by its order dated 5th September, 2008 set aside the judgment of the Tribunal in the aforesaid original application and remanded the application for a fresh hearing. Pursuant to this order, the matter was reheard by the Tribunal and a judgment was delivered on 21st August, 2009 in the aforesaid application. That judgment has been impugned in the present writ petition. 5. The Tribunal accepted the contention of the respondents that there was no need for adjudication in the matter as the petitioners had already been promoted to the post of LDC (pre-structured) with notional effect from the dates mentioned against their names. Such an order was issued on 19th March, 2009. It appears that the Andhra Pradesh High Court had passed an order on 7th March, 2005 in a writ petition filed by some employees for promotion to the post of Tax Assistant and Upper Division Clerk directing that promotions should be effected as per the earlier Rules, pursuant to which the aforesaid order dated 19th March, 2009 granting notional promotions to the petitioners had been passed. It was pointed out by the respondents that since these promotions had been accepted by the petitioners herein who were the applicants before the Tribunal, no further adjudication was called for. The Tribunal disposed of the original application as infructuous. While disposing of the aforesaid original application, the Tribunal has referred to an order passed by it in O.A. No.870 of 2007 [Brindaban Mondal vs. Union of India and Ors]. 6. Mr. The Tribunal disposed of the original application as infructuous. While disposing of the aforesaid original application, the Tribunal has referred to an order passed by it in O.A. No.870 of 2007 [Brindaban Mondal vs. Union of India and Ors]. 6. Mr. Partha Sarathi Bhattacharya, the learned Counsel appearing for the petitioners, has pointed out that the petitioner No.3 has retired as Tax Assistant while petitioner Nos.1 and 2 have been appointed as Ad hoc Inspectors. The other petitioners were all promoted as Senior Tax Assistants. He further pointed out that the promotions to the Grade of LDCs from the Grade of Group D had not been effected from the proper date which had a cascading effect on the careers of the petitioners. He urged that unless the seniority is corrected all the petitioners would be affected and he further submitted that as a result of the incorrect seniority list because of the benefit of deemed promotion not having been given to the petitioners they have not been promoted to the post of Tax Assistants or Senior Tax Assistants or Inspectors earlier. 7. The first occasion when the seniority was fixed in contravention to the notification issued on 24th January, 1992 was, according to the petitioners, in 2006. The petitioners challenged the decision before the Tribunal in 2008, two years after the seniority list was incorrectly prepared. The Tribunal found that there was no need to pass further orders as the notional effect to the promotion to the post of LDC (pre-structured) had already been given by the Government from the dates mentioned against their names. There is no doubt that the order issued in the year 1992 required the respondents to promote Group D employees against 5 per cent quota to the post of LDC on the basis of seniority-cum-fitness. The notification stipulates that the seniority of Group D employees would have to be maintained by adopting a combined eligibility list by preparing the same with respect to the date of completed years of service as Group D employees to ascertain whether the employee had the prescribed qualifying service of 5 years. The seniority list was prepared soon thereafter and in any case before 2003. No steps were taken by the petitioners to challenge the same immediately. The petitioners have been granted notional dates of promotion for the post of LDC which they are not satisfied with. The seniority list was prepared soon thereafter and in any case before 2003. No steps were taken by the petitioners to challenge the same immediately. The petitioners have been granted notional dates of promotion for the post of LDC which they are not satisfied with. However, these dates were published on 19th March, 2009. By then the petitioners had not only been given a deemed date of promotion as LDC but had also been promoted to the post of Tax Assistant and later to the post of Senior Tax Assistant. 8. Mr. Bhattacharya has criticised the judgment of the Tribunal by contending that the Tribunal had not noticed the prayers of the petitioners in the original application while concluding that the application had become infructuous. He submitted that the petitioners were not asking for restructuring of the entire seniority list but for relief to be granted to them by treating them as promoted to the post of LDC from the date when their immediate juniors were promoted to that post. The learned Counsel tried to impress upon us that if such relief was granted to the petitioners it would only mean that they were entitled to monetary relief and no more. 9. It is true that the Tribunal has erred in dismissing the application on the ground that it had become infructuous because the petitioner had been given a deemed date of promotion to the post of LDCs. This date however was not the same as was claimed by the petitioners. According to the petitioners, had the common seniority list been prepared and followed, they would have stood to gain in all subsequent promotions, i.e., to the post of LDC, Tax Assistant, Senior Tax Assistant and Inspector. 10. We are unable to accept the submission of Mr. Bhattacharya that the seniority of the petitioners should be refixed after promoting them from the proper date. All the petitioners in fact had been notionally promoted to the post of LDCs with effect from 1st April, 2001. Therefore, in our opinion, there is no need to quash and/or set aside the Tribunal’s order by which it has refused to grant relief to the petitioners. All the petitioners had accepted their promotion with effect from 1st April, 2001 without any protest. Therefore, in our opinion, it is too late in the day for the petitioners to contend that the seniority should be refixed. 11. All the petitioners had accepted their promotion with effect from 1st April, 2001 without any protest. Therefore, in our opinion, it is too late in the day for the petitioners to contend that the seniority should be refixed. 11. The petition is therefore dismissed. No order as to costs. 12. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.