INTTHEHKHICOURTCHTKARNATAKA
ATBANGALORE
DATED THIS THE B3" DAY OF DECEMBER 20 10: L
PRESENT
THE HONBLE MR JUSTICE v_(3..SABIIA'HI"T:: "
AND
THE HON'BLE MR JUS'I'ICE3 K--..(C}OVIl\IljARAJULI
WRIT PETITION NO.3497E3__CIF. 1999{S;CATj_
BEFNEEN:
1. THE COMMISTSIIQFIIIIEB.CUSTOMS.'
CUSTOMS HOI;ISE,-
CHENNAI. Z
2. THE COMMISS1'ONERVOF._C'E1\!'TRAL EXCISE,
CENTRAL RBvENUE"BUILDINGS,
QUEENS ROAD)-. * -
BANGALORE.
OF EXCISE
NEW DELHI. -5--
4;.THE UI.\.IIO.N.OF INDIA.
" " ~ BY 'THE SECRETARY.
: MINISTRY OF FINANCE,
-» _ DEP--AR'TMENT OF REVENUE.
NORTH BLOCK,
* 'I'IEW..DELHI.
In.)
5. THE CHIEF COMMISSIONER
OF CUSTOMS AND CENTRAL EXCISE,
NO.121, NUNGAMBAKKAM HIGH ROAD,
MADRAS -- 34.
(BY SR1 A.S.KARAMAD1, SR1 Y HARIPRASAD,VAD~\fs'.).A_I.:" I'
AND:
SR1 BRAJESH KUMAR,
AGED: 31 YEARS, ' _
S/O DR.G.P.MISRA,
R/AT No.3043, HAL 11 STAGE, '
OLD THIPPASANDRA, , .
BANGALORE-- 560008;». _ x'*._...RESPONDENT
[BY SR1 M.T.NANAlAH &~vASSTS.-,1 '
THIS WR1T;;=Ef1-1T10N._ IS F11;ED UNDER ARTICLES 226
AND 227 GP' THE- 1- C:QNSj1?Ifmf1*1D'1«1 QF INDIA PRAYING TC)
QUASH 'l'H,E'¥.. IMPUGNED .. «ORDER BY THE C.A.T.,
BANGALORE 'D.A'I'ED "'1S;06.99 IN o.A.N0. I78/98
VIDE ANNExUEE..:~ :1, '
THIS " WRITIPj15§TIII'E(I:)INI.I.BEING HEARD AND COMING
ON FOR I?RONOUN'CEM'EN'I' OF ORDERS THIS DAY,
GOV§N'DARAJULIJ" J., MADE THE FOLLOWING:
ORDER
A of the CAT, Bangaiore dated 24.1.1999
OA98 is chalienged by the petitioners herein.
2. The essential facts necessary for consideration
of the case are that the respondent is a
appointed in the Customs House at
examiner on 24.9.1990. As dated’ 9
7.12.1992, he addressed a for
from Cochin to Madras. rep1’esenta.tion’Vthehas29′
stated his parents arepld, ,t’h’ei’v¢’ 1′ ar”e_._no dmaleinembers
in the family to lookdkdafterd a resident of
Bagalpur in spondilytis
since two itraiiisferred from Cochin to
Madras; him to look after his
parents.” 15.12.1992 the request of
the responde1’1tV_VWas accepted by the department and a
pcondition was imposed that on transfer his service will
“i1o’t”___be”‘considered for promotion and confirmation in
Customs House, Cochin and that he will not claim
2 at the new place i.e,. Madras. In obedience to
— tliedsaid order, on 21.12.1992 the respondent has given
” “an undertaking giving up his service. claim for seniority
in Cochin House and proceeded to Madras. Thereafter,
the respondent addressed a requisition as per Ann-exure
“c” dated 7.2.i995. In this letter, he states’:
given a declaration but as per the rules
appears illogical, ultra vires of”the« basic of
recruitment/ seniority. He soughtffor seniority
fixed according to the C()I1tlf1al;lzC’1l.,1S se1″v_V_ic’ea by
him in the departmeri:t~../[rorniJiggtjt 141.831. Annexure D, the
said request is rejected; nrequest to fix
seniority is aism-e;ee_tec1 .’per’–lPm.neXure F. In the
rejection by the Department, it is
contended that ‘t.he:..grespo:rident having voluntarily given
up his” seniority’ in service at Cochin House for transfer
:lfio_use, is not entitled for counting of the
of service which he has rendered at
if .V Cocl1in.”–.’?l.’Fie’V’ vvrit petitioners have supported the action
department contending that on a representation
— to surrender the seniority, he is transferred to Madras,
§/
his request was accommodated, but now he cannot go
back. So, pray for dismissal of the OA.
3. CAT has considered the case of”‘«lt_:he.
The decision cited on behalf ofultho
orders of CAT, Ernaku1amgBeneh__
distinguished with the ruling”c<o:fithe Hon'bleV-iAlpe2rCourt V
in UNION OF INDIA (A1R"1996 so
764] and allowed the thereby
the writ petitioners have imefelrrevdfthisgpetition.
4. C’ Leariiedmadiroeate for the writ petitioners
submit that hereis aease of transfer of an employee on
ll:h«isri’ecjuCst”«.according to his undertaking. He has
expressed that he will not claim any
V . seniority liflhe is transferred from Cochin to Madras.
ll transfer, he cannot go back. There is no merit in
— thzelease of the respondent to grant him seniority. The
” “orders of CAT, Ernakularn to the said effect is produced.
6
The said finding of the CAT, Ernakulam is distinguished
without appreciating the subject involved in UNION OF
INDIA vs c N PONNAPPAN [AIR 1996 so 784].” “so;Ii’jp;-‘ay
for allowing the writ petition.
5. on the other hand,l4’3._elar_ned ‘p’ar1dvoc’a£eftof~,T
respondent contends that tl1’1<e:'senioritgf_ is
considered on the rendered by a
person. It cannot be than the one
prescribed " respondent has
given @111 not take away the
the approach of the CAT
in "l 78/ i,s_VlpVropllcr..
that arise for consideration is,
V . the respondent is entitled for fixation of the
l including services rendered by him at
— Cochin?”
rskw’/.
7. The facts are not at all in dispute. The
contention of the advocate for the respondent is.__that
continuous service is the criteria to consider”g:’–._the
seniority whereas the reply is that
undertaking given by the respor:.’de’n’t;.
CAT has placed reliance on
Judgment in UNION oF1NDIAf’v=s c l\l”–i?_l(_3i\Il”\EAi3E’5ll§Jl(AIR V’
1996 sc 764). In ti1:e~…said’i’ease,._ theitr Lordships were
considering the requiremegrfiisllflora.-.,the’_’ifjrornotion from
Lower Divisicg’nl’£iel1erk;ito Clerk and also
for Stenographer Grade III to
Grade lliI_ 4′ Whereasf “Jrequisite criteria for the
consideration’-»to”the post of Upper Division Clerk was
llleighlt “of service and for the post of Stenographer
l”G_ra.dye Ii years service. So, their Lordships have
V . heldthat tile service at the earlier place being a regular
Ve.Vyse1rv.ice, the same has to be counted.
8. In the facts of the case, the respondent in the
letter dated 7.2.l995/Annexure “C” contends that the
undertaking given by him is illogical. No
authorising calculation of the services renderediiearlieri V’
in the earlier place is placed by
contention that rules provide fordsuch a
the services rendered asserte'”Cl».is»not probabalised.
9. Further contenytionfis ithatvhlit:._’ivs’–V”il1ogicai, ultra
vires, againsptéfigey b:asie_ of’: recruitment and
consid.erati’_onl~i’,of _ _’ No material is placed to
fortify these.lassertions”‘~i.n”the reply. Even it is not the
caseglofythea ‘1inl’OA that any rule is violated by
if the._submission of the respondent to forego his
i”‘s.eri’iority7if.__he”is transferred from Cochin to Madras.
V . Sofdthe-Vipreasoning of the CAT in directing the writ
if lllypvspetitioners to count the services rendered by the
respondent at Cochin for fixing the seniority of the
Hlrespondent is not justified. So, it is set–aside. The
submission of the learned advocate for the petitiorxers is
accepted and the submission of the learned adxfee’zifee:i’Qr
the respondent is rejected. The point raisedxie zin$We1*e_§i
in favour of the writ petitioners. .
Writ petition is a1l0wed;”‘e«i.iVVi’o eosts.._V_ A
i _ hiuclge
hm} iN %e A Sd/fl
e iei ; JUDGE