DEBASISH KAR GUPTA,J. - (1.) On the prayer made on behalf of the petitioners, leave is granted to the learned Advocate-on-Record of the petitioners to expunge the names of the petitioner Nos.2 to 9 from the cause-title of this writ application.
(2.) This is an application filed under Article 226 of the Constitution of India assailing an order dated June 15, 2018 passed in connection with two miscellaneous applications arising out of the original application.
(3.) By virtue of the order impugned to this writ application, the order staying operation of the Office Memorandum bearing Office Memorandum No.C. No.II(34)I-DPC/Kol-II/2012/12335-55B dated November 30, 2015, was modified. The above Office Memo. was issued for preparation of Seniority List for the post of Inspectors in the Central Excise Department. 4. The Seniority List for the post of Inspectors in the Central Excise Department, Kolkata Zone was initially published on March 31, 2010. The above Seniority List was under challenge before the learned Tribunal in the matter of Devesh Shankar Srivastava and 11 Ors. v. Union of India and Ors. ( In re:- O.A. No.239 of 2011). The above original application was disposed of by the learned Tribunal on October 8, 2013 and the operative portion of the above final order is quoted below:- "7. We, therefore, allow the O.A. and direct the official respondents to recast the seniority list and place the applicants in the seniority list following the Rota Quota Rule in the ratio of 3:1 in respect of the vacancies prior to 29.11.2002 and 2:1 in respect of vacancies from or after 29.11.2002 between direct recruits and promotees in terms of Recruitment Rules of Inspectors read with DOP and T's O.M. dated 03.07.1986 and accordingly upgrade the seniority position of the applicants as direct recruits. We also direct the official respondents to make and or process any promotion to the grade of Superintendent of Central Excise only after recasting and finalizing the seniority list of Inspectors as stated above and to grant all consequential benefits to the applicants. 8. The O.A. and the M.A. are accordingly disposed of. No order as to cost." 5. The above final order was under challenge at the instance of Union of India and Ors. in an application filed under Article 226 of the Constitution of India in the matter of Union of India and Ors. v. Devesh Shankar Srivastava (In re:- W.P.C.T. No.81 of 2014). 6. While admitting the above writ application on July 28, 2014, a Coordinate Bench of this Court passed the following order:- "An arguable case has been made out by the Petitioner. Hence the petition is admitted. The impugned order of the Tribunal is stayed during the pendency of these petitions. Any promotions granted to the employees in accordance with the seniority list, which was in existence before the Tribunal passed its order will be subject to the result of these petitions." 7. During the pendency of the above writ application, the office memorandum No.20011/1/2012-Estt.(D) dated March 4, 2014 was issued by the Ministry of Personnel, Public Grievances and Pension Department of Personnel and Training, Government of India. According to the said office memorandum, the fundamental principles of any stage of direct recruits and promotees in the Central Services/Posts were laid down in compliance of the judgment delivered by the Hon'ble Supreme Court in the matter of N. R. Parmer v. Union of India and Ors. (In re:- Civil Appeal No.7514-7515/2005). 8. Relying upon the above office memorandum, another office memorandum bearing Office Memorandum No.C.No.II(34)I-DPC/Kol-II/2012/12335-55 dated November 30, 2015 was issued for preparation of the Seniority List of Inspectors in Central Excise Zone, Kolkata as on April 1, 2015. The above office memorandum was issued on the basis of the principles laid down by the office memorandum dated March 4, 2014 issued by the Ministry of Personnel, Public Grievances & Pension Department of Personnel & Training, Government of India. 9. It is necessary to point out that the above office memorandum was issued for preparation of Seniority List of Inspectors of Central Excise Zone, Kolkata as on April 1, 2015 subject to the final outcome of the original applications of Shri Manajit Sarkar and Ors. v. Union of India and Ors. ( In re:-O.A. No.03 of 2013) and the Union of India and Ors. v. Devesh Shankar Srivastava and Ors. (In re:-W.P.C.T. No.81 of 2014). 10. The above office memorandum dated November 30, 2015 and the draft Seniority List of Inspectors in the Central Excise Zone, Kolkata as on April 1, 2015, are under challenge in the original application, which gives rise to this writ application. 11. It is argued by Mr. Kallol Bose, the learned Advocate appearing on behalf of the writ petitioner that by virtue of the office memorandum dated November 30, 2015, the Seniority List of Inspectors of Central Excise Zone, Kolkata as on April 1, 2015, has to be prepared during the pendency of the writ application, bearing W.P.C.T. No.81 of 2014 and the existence of the order dated July 28, 2014 passed therein. According to Mr. Bose, by virtue of the aforesaid order, the final order of the Tribunal dated October 8, 2013 passed in the original application, bearing O.A. No.239 of 2011, has been stayed. According to him, it amounts to violation of the aforesaid order. 12. It is submitted by Mr. Somenath Bose, the learned Counsel appearing on behalf of the respondent authorities that the office memorandum dated November 30, 2015 was based on the basis of the principles laid down by the office memorandum dated March 4, 2014 issued by the Ministry of Personnel, Public Grievances and Pension Department of Personnel and Training, Government of India. 13. It is submitted by Mr. Bikash Ranjan Bhattacharyya, the learned Senior Counsel appearing on behalf of the respondent Nos.11 to 14 that in the event the preparation of Seniority List for the posts of Inspector is stayed, then there will be a vacuum, which may be created in the posts of Superintendent. According to him, further promotion to the post of Assistant Commissioner from the post of Superintendent is given on the basis of Combined Seniority List. Therefore, there is a possibility of depriving the Inspectors, who were working for gain in the Central Excise Zone, Kolkata. It is also submitted by him that the above office memorandum is based on the principles laid down on the basis of the decision of N. R. Parmer (supra) laying down the principles for promotion for preparation of the Seniority List of Inspectors in Income Tax Department. 14. Having heard the learned Counsel appearing for the respective parties as also after prima facie considering the subject matter of challenge in the original application, we find that the preparation of Seniority List of Inspectors in the Central Excise Zone, Kolkata as on April 1, 2015, in under challenge in the above original application. In the event, the above Seniority List is allowed to be prepared, then the issue involved in the writ application, bearing W.P.C.T. No.81 of 2014, may be an academic issue at the time of disposal of the above writ application. Further it has to be allowed ignoring the stay of operation of the order impugned to the above writ application by which the respondent authority was directed to prepare the Seniority List for the posts of Inspectors in the Central Excise Zone, Kolkata afresh. 15. Though it is submitted by Mr. Bhattacharyya that the office memorandum dated November 30, 2015 has no nexus with the preparation of Seniority List for the posts of Inspectors in the Central Excise Zone, Kolkata in terms of the order dated October 8, 2013 passed in the original application, bearing O.A. No.239 of 2011, we are inclined to accept this submissions at this stage because in the event, the above Seniority List is prepared, then the seniority of the persons discharging their functions in the posts of Inspectors in the Central Excise Zone, Kolkata, will be affected. 16. It will be out of context to observe herein that it has been categorically stated in the aforesaid office memorandum that the Seniority List, which may be prepared on the basis of the office memorandum in question, the same shall be subject to the outcome of the writ application, bearing W.P.C.T. No.81 of 2014. 17. Apart from the above prima facie case, we find that in the event the respondent Nos.11 to 14 are placed above the writ petitioner/applicant in the above Seniority List and as a consequence, they are placed in the Combined Seniority List of Superintendents above the petitioner, then the issued involved in the original application, will be an academic one, causing irreparable loss and injury to the petitioner. 18. In view of the above, the order impugned to this writ application stands quashed and set aside. 19. Let there be an order of stay of operation/further operation of the Office Memorandum No.C.No.II(34)I-DPC/Kol-II/2012/12335-55B, which was issued on November 30, 2015 till the disposal of the above original application. 20. We are given to understand that Affidavits have already been exchanged in the original application, bearing O.A. No.604 of 2017. 21. We request the learned Tribunal to dispose of the above original application, preferably within a period of three months by conducting day to day hearing of the same and without granting prayer for adjournment at the instance of any of the parties as also without having strong reason for the same. 22. The writ application accordingly stands disposed of. 23. There will, however, be no order as to costs. 24. Let urgent Photostat certified copy of this order, if applied for, be given to the parties at an early date.;