BY TIOL NEWS SERVICE
MUMBAI, FEB 11, 2018: THE issue is - Whether recasting of seniority of Promotee officers of the Customs Department's Preventive Unit, by using the quota rule, would vitiate the order of the Tribunal, on the strength of which the Promotee officers had received promotions. NO is the verdict of the High Court.
Facts of the case
The petitioners herein are employees of the Preventive Unit of the Customs Department. The issue herein is w.r.t. seniority between direct recruits and promotees, for the post of Preventive Officer. The promotees were those who had regularly been promoted since 1991 and having worked continuously since then, protested the denial of seniority from the date of their initial promotion. Thereafter the Tribunal held in their favor and stated that the promotees were entitled to seniority in the cadre of the Preventive Officers from the date of their initial ' ad hoc ' promotion. Thereafter the Promotees were promoted to the rank of Superintendent and the Department relased a Seniority List to such effect. However, such order of the Tribunal was contested by one officer who was a Direct Recruit, contesting the promotion of the promotees to the post of Superintendent. Such appeal was allowed. Thereafter the Department released a fresh Seniority List, wherein the Promotees were placed much below the Direct Recruits, from 200 to 400 places. Also the cut-off date was the date of vacancy instead of date of joining. When the Promotees challenged such list before the Tribunal, their appeal was dismissed. Hence the present writ.
The High Court then held that,
++ Thus, the Apex Court has clearly held that the rule of quota being a statutory one, it must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or expediency. The result of pushing down the promotees appointed in excess of the quota may work out hardship, but it is unavoidable and any construction otherwise would be illegal, nullifying the force of statutory rules and would offend Articles 14 and 16(1) of the Constitution.
++ Based on the materials on record the Tribunal has found that the promotees were appointed in excess of their quota. The Tribunal in Kurup's case has observed that their has been no break down of rota quota rule. The decision in Kurup's case was rendered in the fact situation where the department failed to produce materials on record to indicate that the promotees were appointed far in excess of their quot. When the seniority list published on 28/1/2001 came to be challenged before the Tribunal, the Tribunal by order dated 21/2/2002 permitted the department to change the seniority list already finalized in accordance with law. The department thereafter carried out detailed procedure and then published the seniority list dated 17/10/2002 by identifying vacancies with effect from 21/2/1978.
++ The Apex Court in the case of Uttaranchal Forest Rangers (supra) has laid down that the promotion in excess of quota makes an employee an ad hoc employee and seniority cannot be given to such employees on the basis of ad hoc promotion.
++ Having regard to what is stated herein above we find no merit in the submission advanced by learned Counsel for the promotees that publishing the seniority list on 17/10/2002 by following rota quota rule would amount to violating or nullifying the decision of the Tribunal in Kurup's case. We find in the draft seniority list published in 198687 the names of the promotees herein do not find place. The promotees were regularized from 17/5/1991. The seniority lists issued prior to the decision in Kurup's case were not challenged by the promotees till 1996. It is only on the basis of the decision of the Tribunal in Kurup's case the department issued a seniority list dated 8th March, 1999. On objection raised by direct recruits the seniority was recast. In these circumstances, upon consideration of the entire materials and upon carrying out a detailed exercise the revised seniority list was published on 17/10/2002. No error can be said to have been committed by the Customs Department in finalising the seniority list which in our opinion is in consonance with the provisions of law. Once the Tribunal in Kurup's case came to the conclusion that there is no break down of rota quota rule, in our opinion, the result of pushing down the promotees appointed in excess of the quota may work out hardship but it is unavoidable and any construction otherwise would be illegal, nullifying the force of statutory rules and would offend Articles 14 and 16(1) of the Constitution of India. No doubt, the department in compliance with the decision in Kurup's case granted seniority to the promotees from the date of initial ad hoc promotion but later on in the light of the principles laid down by the Apex Court in the Direct Recruits case and the circular in force the Customs Department carried out a detailed exercise and the seniority list came to be revised on 17/2/2002 by identifying the vacancies with effect from 21/2/1978. We do not find this exercise to be illegal or contrary to law as the previous promotion would be regular only from the date of vacancy within the quota and not from the date of earlier promotion.
(See 2018-TIOL-243-HC-MUM-SERVICE)
