IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10-06-2008
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE K. CHANDRU
WRIT PETITION No.23372 OF 2001
and
W.P.M.P.NO.34466 OF 2001
Union of India Rep. by
The Commissioner of Central Excise,
26/1 (121) Mahatma Gandhi Road,
Chennai 34. .. Petitioner
Vs.
1. Central Administrative Tribunal,
rep. by its Registrar, Chennai Bench,
Chennai 104.
2. T. Elanchezhian
S/o.M. Thulasi
3. D. Elumalai,
4. Radhakrishnan
5. Sethuraman
6. Ravikumar
7. Elumalai
8. Mohan
9. Vadarajan
10. Elango
11. Ramamoorthy
12. Charles
13. Arunachalam
14. Devasahayam
15. Pargunan
16. Kundal
17. Vasudevan Nair,
18. Sarojini
19. Santha
20. Srinivasan
21. Anbumani
22. Selvaraj
23. Karuppiah
24. Kunir Ahmed
25. Vijayalakshmi
26. Muralidharan
27. Niraikulam
28. Timothy Nedumaran
29. Kanagaraj
30. Ravichandran .. Respondents
Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the proceedings of the first respondent dated 27.3.2001 made in O.A.No.169 of 2000 and quash the said order.
For Petitioner : Mr.S. Udayakumar, SCCG
For Respondent-2 : Mr. Karthik Rajan for
Mr.R. Parthiban
- - -
J U D G M E N T
P.K. MISRA, J
The basic facts are as follows: –
The parties are described in the manner they have been arrayed in the present writ petition filed by the Union of India.
The question relates to seniority in the grade of Upper Division Clerk (in short UDC) in the Office of the Commissioner of Central Excise, the present petitioner. The recruitment to such post is either by direct recruitment or by promotion in rotational proportion of 1:1. The present Respondent No.2, the applicant before the Tribunal, was directly recruited by the Department as a sports quota. Respondents 3 to 5 were promoted during the year 1986 as UDCs on the basis of the recommendations of the DPC held for the year 1985. Respondents 26 & 27 are direct recruits. Respondent Nos.28 and 29 are promotees. The refixation of seniority on the basis of the Office Memorandum dated 4.8.1980 was challenged by present Respondent No.2 by filing O.A.No.169 of 2000 before the Central Administrative Tribunal (hereinafter referred to as “the Tribunal). The Tribunal under the impugned order allowed such Original Application and issued the following direction :-
“… In these circumstances the first respondent is directed to revise the seniority lit of 1996 in the light of the provisions contained in OM dated 4.8.80 under which the first respondent has to place the applicant being a sportsman recruited through the department as junior only to those who have already been recommended by the Staff Selection Commission and not to promotees and fix the seniority of the applicant at the appropriate place within a period of three months from the date of receipt of a copy of this order.”
2. The relevant portion of the Office Memorandum dated 4.8.1980 is to the following effect :-
“4. Seniority:-
1) Where Sportsmen are recruited through the Employment Exchange or by direct advertisement and are considered along with other general category candidates, they may be assigned seniority in the order in which they are placed in the panel for selection.
2) Where recruitment to a post is through a selection made by the S.S.C. whether by a competitive examination or otherwise, the sportsmen recruited by the departments themselves should be placed to en bloc junior to those who have already been recommended by the S.S.C. The inter-se seniority of sportsmen will be in the order of selection.”
3. It is not disputed that the present Respondent No.2 (Applicant before the Tribunal) was recruited by the Department as against sports quota as contemplated under para 4(2) quoted above. It is thus obvious that seniority of such a person is required to be fixed en bloc junior to those direct recruits who had already been recommended by the SSC. Even though the Tribunal has accepted the above principle, it has directed for re-fixation of seniority on the ground that such a person need not be shown as junior to a promotee.
4. In our considered opinion, such a logic is not acceptable. The Tribunal has omitted to consider the fact that recruitment to the post of UDC is done not only through direct recruitment but also by promotion in the rotational proportion of 1:1. The Tribunal had already held in O.A.Nos.140 to 142 of 1985 disposed of on 30.6.1987 that seniority has to be fixed on the basis of rotation in the proportion of 1:1 between the direct recruits and the promotees. If a person is recruited against sports quota by the Department and not through regular selection by SSC., he has to be placed junior to all the direct recruits, whose names had been selected by SSC before appointment of such directly recruited person against sports quota. Obviously while placing him below a direct recruit, he cannot be placed above the promotee, who is required to be given due seniority by maintaining rotation and quota in the proportion of one is to one. If such a direct recruit, recruited by the Department against a sports quota, is to be placed just below another regularly recruited direct recruit and above a promotee, the principle of rotational quota would be violated.
5. From the materials on record, it appears that the present Respondent No.2 as well as two other persons had been recruited by the Department and not through Staff Selection Commission (SSC) as against sports quota and they had to be placed below last of the regular direct recruits for the relevant year, who had been selected by SSC. For the purpose of maintaining 1:1 ratio between the promotees and the direct recruits, obviously a promotee was required to be placed above such directly recruited person through sports quota. Apparently this is the procedure which has been followed by the Department. Therefore, the Tribunal has committed an illegality in overlooking the basic principle relating to fixation of seniority on the basis of rotation in the proportion of 1:1. The conclusion of the Tribunal is, therefore, unsustainable.
6. Apart from the above, we find there is another hurdle in the path of Respondent No.2. From the materials on record, it appears that even though Respondent No.2 had been regularized in the promotional post of Inspector, subsequently, he was reverted and again promoted on ad hoc basis. The order of reversion has not been challenged by Respondent No.2. It is of course true that he was again promoted on the very day on which he was reverted, but the fact remains that the subsequent promotion was on ad hoc basis.
7. For the aforesaid reasons, the order of the Tribunal is liable to be quashed and the writ petition is accordingly allowed. No costs.
dpk
To
Central Administrative Tribunal,
rep. by its Registrar, Chennai Bench,
Chennai 104.