P. Bhaskaran
& Ors Vs. Union of India & Ors [1995] INSC 727
(23 November 1995)
Ramaswamy,
K. Ramaswamy, K. Hansaria B.L. (J)
CITATION:
1996 AIR 794 1996 SCC (7) 179 JT 1995 (9) 285 1995 SCALE (7)139
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
The
Central Administrative Tribunal, Ahmedabad in its order dated September 29, 1989 in Misc. Application No.986 of 1988
dismissed the application of the appellants to review its order made in T.A.
No.263/86 on August 14,
1987.
Therein,
the Tribunal had directed the seniority list of U.D.C. to be drawn afresh in
the light of the directions issued in that order, namely, no promotion should
be made on the basis of options without resorting to the recruitment rules in
terms of the quota laid down and the procedures for filling it up could be
regarded as valid as long as it is not ad hoc. Such ad hoc promotions do not
deprive the seniority of the respondents 5 and 6 in this appeal. The promotions
given on ad hoc basis cannot give any right to seniority. The regular promotee
cannot be deprived of seniority on the basis of the ad hoc promotions given to
the L.D.Cs. who were promoted on transfer but were juniors in the cadre of L.D.Cs.
To the said order, the appellants were not impleaded as parties.
The
facts in this case are that the appellants are L.D.Cs. in the Western Zone of
the office of the Controller of Imports & Exports comprising Rajkot, Ahmedabad, Bhopal, Bombay & Kandla. Common
seniority list as L.D.Cs. was being maintained for the entire Western Zone. The
appellants were working as L.D.Cs. in Rajkot. Admittedly, they were appointed as LDCs in the year 1964 while the
appellants were appointed in 1969. The Government issued a policy in which it
was stated that the respective Joint Chief Controller of Imports and Exports in
each Zone issued circulars from time to time wherein the relevant part reads
that an LDC would be transferred on promotion from one place to another but
such promotion would be on ad hoc basis. If more persons than the number of
vacancies express willingness for the above promotion then the senior-most
among them will be considered.
In the
event of the seniors not willing to go on promotion, the juniors who accept the
promotion will be given seniority over their seniors who would not be willing.
The
initial transfer on promotion in normal course would be on ad hoc basis. If
more than the required candidates opt for transfer on promotion, the senior
most would be given promotion in the order of seniority U.D.C. so far there is
no controversy. The area of controversy arises when option was given but
seniors did not opt to transfer but juniors to them exercised their option and
were promoted and transferred to other places. The question, therefore, is
whether they acquire right to seniority from the date of promotion as U.D.Cs. or
would they have to await the promotion of seniors in the normal course? It is
the case of the appellants that they had expressed their willingness to be
transferred on promotion as UDCs from Ahmedabad to other places in Western
Zone.
Those
offers were given to them in 1980 and their promotions came to be made
accordingly. According to them their seniority should be counted from the date
of promotion, i.e. in the year 1980. In 1981, respondents 5 & 6 who were
working as LDCs at Rajkot were given option and they too
exercised their option for transfer on promotion.
Accordingly,
they were promoted as UDCs and were transferred to Ahmedabad. It is their case
that when they went to Ahmedabad and reported to duty, they came to know that
the appellants had already been promoted as UDCs and were continuing as such on
the above basis. Consequently, they filed a writ petition in the High Court
which was transferred to the CAT, claiming seniority over the appellants.
It is
seen that the Tribunal had accepted the case of respondents 5 & 6 that
since they are seniors to the appellants in the cadre as LDCs, the ad hoc
promotion made to the appellants as UDCs would not disentitle the respondents
to claim their seniority in the cadre as UDCs though promoted later to the
appellants. That principle came to be accepted and suitable directions were
given in the impugned judgment for preparation of the seniority list on the
basis of the above principle.
Shri
B.K. Mehta, learned senior counsel for the appellants, contended that since the
appellants had accepted transfer on promotion, though on ad hoc basis, in view
of the aforestated policy, their promotion must be treated to be on regular
basis and that, therefore, their seniority should be counted from the date of
transfer on promotion.
Since
respondents 5 & 6 were promoted in 1981, they cannot claim seniority over
the appellants.
It is
seen that in case senior LDCs were not willing to go on transfer after
promotion, though on ad hoc basis, and if the juniors had accepted and opted
for transfer on promotion, the juniors would get seniority as UDCs over their
seniors in the LDC cadre. The seniors who were obviously unwilling for transfer
on promotion, were willing to forgo seniority as LDCs and that thereby the juniors
who opted for transfer on promotion, scale a march over the seniors in the
cadre as promotees UDCs. The aforestated circular would give them the said
right. This controversy was considered by a Division Bench of the Andhra
Pradesh High Court in W.A. No.116/84, Joint Chief Controller of Imports &
Exports, Madras & Anr. v. V.V. Ramanarao & Ors., by order dated December 24, 1987, where it was held thus :
"The
effect of the unwillingness on the part of the senior LDCs to proceed on transfer
promotion to Hyderabad as UDCs resulted in their losing
their seniority in the category of LDCs in favour of the tranferees."
After elaborate consideration, the Division Bench had held that the senior LDCs
who were unwilling to go on ad hoc transfer as UDCs would be treated as having
foregone their seniority in favour of all their juniors who opted to go on such
transfer and thereby they become seniors to those LDCs who were unwilling for
the transfer.
We
find that the ratio is quite consistent with the circular issued by the Joint
Chief Controller of Imports and Exports. Of course, as held by the Tribunal, it
would be subject to rule of reservation and fulfillment of the qualifications
required for the posts as U.D.C. The reason would be obvious that due to
administrative exigencies when the options were given to the senior UDCs for
transfer on promotion though on ad hoc basis since they were not willing for
such a transfer by promotion, the administrative exigencies do require that the
posts need to be filled up from junior L.D.Cs. who had exercised their option
for transfer by promotion as UDCs and get seniority in the cadre as UDCs though
in the cadre as LDCs they were juniors. They get seniority from the date of
their initial promotion though on ad hoc basis. When they were regularly
working as UDCs in existing vacancies, obviously promotion would be given
according to rules consistent with rule of seniority- cum-fitness and following
the rule of reservation. Promotion thereby given would be treated according to
rules, though initially made on ad hoc basis. Thus the juniors would scale a
march over senior LDCs who were unwilling for transfer by promotion.
In
this case, respondents 5 & 6 had stated before the Tribunal and they have
also reiterated in the counter sent through post to this Court that for the
first time they were given option in 1981 for transfer on promotion and that
they exercised the option. Consequently, they were promoted as UDCs and were
transferred on promotion to Ahmedabad. Thus considered, when the appellants
were promoted in the year 1980, they were not informed of the right to exercise
the option for transfer on promotion nor they refused to give option on that
basis. Since they admittedly are seniors to the appellants as LDCs in the
absence of their refusal, they cannot be made to lose their seniority in the
cadre as UDCs for no fault of theirs merely because the appellants were
promoted in 1980 overlooking the claims of respondents 5 & 6. Accordingly,
on facts, we do not think that the direction issued by the Tribunal is illegal.
The
appeal is accordingly dismissed and the Joint Controller of Imports and
Exports, Western Zone will determine the seniority by following the above
principles, circulate the same to all the candidates and after considering
their objections, if any, will finalise the seniority list according to rules
and should take action according to law. No costs.
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