K.C. VIJAYAN Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The petitioner at the time of the filing of the writ petition was an Inspector of Central Excise. The 1st respondent is the Union of India; the 2nd respondent is the Central Board of Excise and Customs; the 3rd respondent is the Collector of Customs and Central Excise; and respondents 4 to 10 are Inspectors of Central Excise at the time of the filing of the writ petition. In this writ petition the petitioner challenges Ext. P6 order No. C. 11/34/12/74/EH-IV dated 11-8-1977 passed by the 3rd respondent, the Collector of Customs and Central Excise, Cochin and Ext. P7, seniority list of Inspectors of Central Excise as on 1-1-1976. The petitioner was initially appointed as per Order dated 13-4-1956 of the Collector of Central Excise, Madras, as Supervisor under the Central Excise Department. The post of Supervisor was subsequently re-designated as Sub-Inspector of Central Excise as per Circular No. 270/58 dated 2-9-1958 of the Collector of Central Excise, Madras. The petitioner was confirmed in the cadre of Sub Inspector as per order C. No. 11/11/2/65/Admn. CX dated 15-6-1965 of the 3rd respondent. While the petitioner was continuing as Sub Inspector of Central Excise, the 1st respondent decided to upgrade a complement of 977 posts of Sub Inspectors of Central Excise into those of Inspectors of Central Excise, and accordingly the President accorded sanction to the upgradation of 977 permanent posts of Sub Inspectors of Central Excise. Under the Cochin Collectorate 25 posts of Sub Inspectors were upgraded. The 1st respondent further ordered that in relaxation of the existing recruitment orders on the subject the entire complement of the posts upgraded should be filled exclusively by promotion of the existing Sub Inspectors of Central Excise in the respective Collectorate subject to their being found fit by the appropriate Departmental Promotion Committee as per the order of the 1st respondent dated 18-6-1970, a true copy of which, produced along with the writ petition is Ext. P-1. The petitioner was promoted in pursuance of Ext. P-1 as per proceedings No. C 11/3/30/70/Estt. 1 dated 4-8-1970 of the 3rd respondent. The petitioner joined duty on 5-8-1970 and he was confirmed in the above post with effect from 2-12-1972 as per C. No. 11/11/7/76/Estt-IV dated 23-7-1977 of the 3rd respondent. Respondents 4 to 10 were originally appointed as L. D. Clerks under the Central Excise Department. The 5th respondent was later appointed as Stenographer (ordinary grade) with effect from 29-12-1966. Respondents 4 and 6 to 10 were later promoted as U. D. Clerks and have been working in the said cadre with effect from 26-5-1966, 25-5-1966, 25-5-1966, 26-5-1966, 8-6-1966 and 15-4-1966 respectively. They were subsequently promoted as Inspectors of Central Excise; and they were working as Inspectors with effect from 19-10-1970, 8-10-1970, 2-12-1970. 8-10-1970, 23-8-1971, 13-8-1971 and 5-3-1971 respectively. The seniority list of Inspectors of Central Excise, a copy of which is marked as Ext. P-2, as on 4-1-1972 was issued under the authority of the 3rd respondent where under the petitioner had been assigned rank No. 201 and respondents 4 to 7 and 10 are given rank Nos. 185, 189, 196, 223 and 181 respectively. The petitioner having been appointed much before anyone among respondents 4 to 10 was appointed to the category of Inspector of Central Excise, he felt aggrieved because of his having been shown junior to respondents 4 and 7 to 10 in Ext. P-2 seniority list. The petitioner filed a writ petition which along with two other writ petitions were disposed of by Ext. P-4 judgment dated 4-11-1976. The operative portion of Ext P-4 judgment is contained in paragraph 4 which reads as follows:

(2.) The counsel for the petitioner submitted that it is an admitted fact that the petitioner was promoted to the category of Inspector of Central Excise in a substantive vacancy. That being the position, there is no warrant for placing anyone of the respondents who got their promotions far later to be placed above the petitioner in Ext. P-2 seniority list or Ext. P-7 seniority list. In support of the ranking given in Exts. P-2 and P-7 the Central Government Pleader appearing for respondents 1 to 3 submitted that the promotions were effected in accordance with the roster point contained in Ext. R-1, Government of India letter Number F.4/2/64-Ad.-III-A, dated 6-12-1965 which provided for the maintenance of the roster in making appointment and confirmation in the grade of Inspectors of Central Excise in the following ratio.

(3.) The counsel for the petitioner submitted that the upgradation of 977 permanent posts of Sub-Inspectors was done for the exclusive benefit of Sub-Inspectors and the promotion and confirmation gained by the petitioner by virtue of that Presidential order is not liable to be disturbed under any circumstances. He submitted that even assuming that the quota in regard to the appointment is to be maintained between the Sub-Inspector promotees and the U.D. Clerk promotees, then also those who missed their promotional chances at the time when others were promoted will not be entitled to get the seniority restored to them, though in order to maintain the quota they may be entitled to get the benefit of promotion. In this connection a parallel was drawn by the counsel for the petitioner with respect to Rule 15 of the Kerala State and Subordinate Services Rules which makes provision for certain quota for certain communities in the appointment of the State and Subordinate Services. He pointed out that even though those who miss the chance for promotion for want of qualification, may get the promotion falling within the quota if they acquire the qualification within next three years, they will not get the seniority over those who had already been promoted when those who claim the reserved quota were not qualified for promotion. The decision of this Court reported in Grace Vs. State of Kerala (1976 Ker LT 227) was cited. Subramonian Poti, J., who spoke for the Division Bench, observed in that judgment as follows:-