PETITIONER: RENU MULLICK Vs. RESPONDENT: UNION OF INDIA (Kuldip Singh, J.) DATE OF JUDGMENT19/11/1993 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) JEEVAN REDDY, B.P. (J) CITATION: 1994 AIR 1152 1994 SCC (1) 373 JT 1993 (6) 527 1993 SCALE (4)556 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
KULDIP SINGH, J.- Special leave granted.
2.According to the executive instructions dated May 20,
1980, issued by the Central Board of Excise and Customs, a
Group ‘C’ Officer, when transferred on his own request, from
one Central Excise Collectorate to another, is not entitled
to count the service rendered by him in the former
Collectorate for the purpose of seniority in the new charge.
The question for our consideration is whether the said
officer is further deprived of the said service even for
determining his eligibility for promotion to the higher
cadre. The Central Administrative Tribunal, Allahabad
Bench, has answered the question in the affirmative. This
appeal by way of special leave is against the judgment of
the Tribunal.
3.Renu Mullick, the appellant, joined service in the
Directorate of Statistics and Intelligence, Central Excise
and Customs, New Delhi on December 17, 1974 as Lower
Division Clerk (LDC). She was promoted to the post of Upper
Division Clerk (UDC) on May 10, 1981. She was transferred,
on her own request, to Allahabad by the Order dated July 30,
1987, and she joined as UDC on August 4, 1987 in the Central
Excise Collectorate at Allahabad.
4.Executive instructions dated May 20, 1980, issued by
the Central Board of Excise and Customs provide for inter-
collectorate transfers on the conditions specified therein.
The relevant conditions in para 2(ii) and para 3 are as
under:
“2. (ii) The transferee will not be entitled
to count the service rendered by him in the
former Collectorate for the purpose of
seniority in the new charge. In other words,
he will be treated as a new entrant in the
Collectorate to which he is transferred and
will be placed at the bottom of the list of
the temporary employees of the concerned cadre
in the new charge;
3.A written undertaking to abide by the
requisite terms and conditions may be obtained
from the employees seeking transfers before
the transfers are actually effected.”
5. The appellant gave the necessary
undertaking in the following words:
“I hereby agree to and undertake to comply
with the conditions detailed below:
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(1)My seniority will be fixed below the
last temporary UDC in the Allahabad
Collectorate, i.e. I will be treated as a
fresh entrant in the cadre of UDC in the new
charge.
(2)No transfer, travelling allowance and
joining time etc., will be admissible to me as
a result of this transfer.
(3)I will not be considered for further
confirmation and promotion in the Directorate
of S & 1, Central Excise and Customs, New
Delhi.
I will be adjusted against a direct recruit
and unreserved vacancy in the grade of UDC.”
6.It is not disputed that on joining
Central Excise Collectorate, Allahabad, the
appellant was placed at the bottom of the
seniority list in accordance with the
government instructions quoted above. The
appellant does not make any grievance about
the fixation of her seniority in the new
charge at Allahabad.
7.In the year 1991, the appellant along
with several other UDCs was considered for
promotion to the post of Inspector by the
Departmental Promotion Committee in accordance
with the Central Excise and Land Customs
Department Group ‘C’ Posts Recruitment Rules,
1979 (the Rules). Rule 4 read with the
Schedule to the Rules lays down the
eligibility qualifications for promotion to
the post of Inspector. The relevant extract
is reproduced hereunder:
“Inspector:Promotion by selection from
UDC with 5 years service or UDC with 13 years
of total service as UDC and LDC taken together
subject to the condition that they should have
put in a minimum of two years of service in
the grade of UDC….
Note 3: If a junior person is considered for
promotion on the basis of his completing the
prescribed qualifying period of service in
that grade, all persons senior to him in the
grade shall also be considered for promotion,
notwithstanding that they may not have
rendered the prescribed qualifying period of
service in that grade but have completed
successfully the prescribed period of
probation.”
8.To clarify Note 3 quoted above, Office
Memorandum dated July 19, 1989, was issued
which is in the following terms:
“When juniors who have completed the
eligibility period are considered for
promotion, their seniors would also be
considered irrespective of whether they have
completed the requisite service provided they
have completed the probation period in order
to ensure that seniors who might have joined
later due to various reasons are not
overlooked for promotion.”
9.On November 11, 1989, the appellant and 79 other
candidates were promoted to the post of Inspector. The
promotion order stated that the same was provisional and
subject to further revision or modifications, if any. The
appellant joined as Inspector at Allahabad and continued to
serve in that capacity till the impugned order of reversion
was passed. On February 20,
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1992, the Additional Collector (P & V), Central Excise and
Customs, Allahabad, passed an order reverting the appellant
from the post of Inspector. No reason was assigned in the
order of reversion. No opportunity, whatsoever, was
afforded to the appellant before passing the said order.
The appellant challenged the order of reversion before the
Central Administrative Tribunal, Allahabad. Before the
Tribunal, the respondents took the stand that on transfer
from Delhi to Allahabad, the service rendered by the
appellant at Delhi was wiped off for all purposes including
for determining her eligibility under the Rules for
promotion to the post of Inspector. The Tribunal dismissed
the application of the appellant.
10.We are of the view that the Tribunal fell into patent
error in dismissing the application of the appellant. A
bare reading of para 2(ii) of the executive instructions
dated May 20, 1980 shows that the transferee is not entitled
to count the service rendered by him/tier in the former
collectorate for the purpose of seniority in the new charge.
The later part of that para cannot be read differently. The
transferee is to be treated as a new entrant it) the
collectorate to which he is transferred for the purpose of
seniority. It means that the appellant would come up for
consideration for promotion as per her turn in the seniority
list in the transferee unit and only if she has put in 2
years’ service in the category of UDC. But when she is so
considered, her past service in the previous collectorate
cannot be ignored for the purposes of determining her
eligibility as per Rule 4 aforesaid. Her seniority in the
previous collectorate is taken away for the purpose of
counting her seniority in the new charge but that has no
relevance for judging her eligibility for promotion under
Rule 4 which is a statutory rule. The eligibility for
promotion has to be determined with reference to Rule 4
alone, which prescribes the criteria for eligibility.
There is no other way of reading the instructions
aforementioned. If the instructions are read the way the
Tribunal has done, it may be open to challenge on the ground
of arbitrariness.
11.The provisions of the Rules reproduced above lay down
that a UDC with 5 years’ service or UDC with 13 years of
total service as UDC and LDC taken together subject to the
condition that he should have put in a minimum of 2 years of
service in the grade of UDC, is eligible to be considered
for promotion to the post of Inspector. The Rule nowhere
lays down that 5 years or 13 years have to be spent in one
collectorate. There is no indication, whatsoever, in the
Rule that the service period of 5 years and 13 years is not
applicable to an officer who has been transferred from one
collectorate to another on his own request. On the plain
language of the Rule the appellant, having served the
department for more than 5 years as UDC and also having
completed 13 years composite service as UDC and LDC
including 2 years minimum service as UDC, was eligible to be
considered for promotion to the post of Inspector. The
Tribunal failed to appreciate the elementary rules of
interpretation and fell into patent error in non-suiting the
appellant.
12.The appellant has stated in para II of the petition
that 8 persons junior to the appellant were promoted as
Inspectors. According to her, even
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if it is assumed that she was ineligible, she was entitled
to be promoted in terms of Note 3 to the Schedule to the
Rules (reproduced above) read with Office Memorandum dated
July 19, 1989 (quoted above). This argument has not been
dealt with by the Tribunal. Prima facie there is force in
the argument but it is not necessary for us to go into the
same.
13. We allow the appeal, set aside the judgment of the
Central Administrative Tribunal, Allahabad, dated June 1,
1992 and allow the application of the appellant before the
said Tribunal. We quash the order dated February 20, 1992,
reverting the appellant, Renu Mullick, from the post of
Inspector to the post of Tax Assistant. We direct that the
appellant shall be deemed to be continuing to hold the post
of Inspector from the date when she originally joined as
Inspector as a result of the promotion order dated November
11, 1991. She will be entitled to all the consequential
benefits including full back wages. The arrears of back
wages shall be paid to the appellant with 12% interest per
annum. The appellant shall also be entitled to the costs of
this litigation which we quantify as Rs 1 0,000.
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