Partly allowed

Union of India and 5 Ors. v. Jayanta Dey and 7 Ors.

Gauhati HC5 Sept 2019WP(C)/3118/2018

Case brief

AI extract

What is this about?

The Gauhati High Court set aside an order of the Central Administrative Tribunal allowing an application for setting aside a draft seniority list of customs inspectors. The Court held the petitioners were necessary parties and remanded the matter for fresh consideration impleading them.

What did the court decide?

Impugned order of the Tribunal dated 08.11.2017 set aside; matter remanded to Tribunal to consider afresh after impleading petitioners.

Union of India and 5 Ors. Vs Jayanta Dey and… — Pension and Retirement Benefits | Gauhati HC (2019)

¶1

Page No.# 1/9

¶2

GAHC010058862018

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : WP(C) 1820/2018

¶5

1:RAGHUNATH PRASAD AND ANR.

¶6

S/O SHRI KULDIP SAHU

¶7

OFFICE OF THE COMMISSIONER (APPEALS), CGST, CENTRAL EXCISE AND CUSTOMS, CUSTOMS, CUSTOM HOUSE, NILAMONI PHUKAN PATH, G.S. ROAD, CHRISTIAN BASTI, GUWAHATI, PIN - 781005.

¶8

2: SHRI HARE KRISHNA

¶9

S/O SHRI BIJENDRA PRASAD SUMAN OFFICE OF THE ASSISTANT COMMISSIONER CENTRAL GOODS AND SERVICES TAX AND CENTRAL EXCISE DIVISION-I G.S. ROAD GUWAHATI PIN - 781005

¶10

VERSUS

¶11

1:THE UNION OF INDIA AND 13 ORS.

¶12

REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI, PIN - 110001.

¶13

2:THE CENTRAL BOARD OF EXCISE AND CUSTOMS GOVT. OF INDIA REP. BY ITS SECRETARY MINISTRY OF FINANCE NEW DELHI PIN - 110001.

¶14

3:THE CHIEF COMMISSIONER CENTRAL EXCISE CUSTOMS AND SERVICE TAX NORTH EASTERN REGION

¶15

Page No.# 2/9

¶16

CRESCENS BUILDING M.G. ROAD SHILLONG PIN - 793001.

¶17

4:THE COMMISIONER OF CENTRAL EXCISE AND SERVICE TAX GUWAHATI COMMISSIONERATE SETHI TRUST BUILDING BHANGAGARH GUWAHATI PIN - 781005.

¶18

5:THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX (AUDIT) GUWAHATI COMMISSIONERATE NILAMONI PHUKAN PATH G.S. ROAD CHRISTIAN BASTI

¶19

GUWAHATI PIN - 781005.

¶20

6:THE ADDITINAL COMMISSIONER OFFICE OF THE CHIEF COMMISSIONER CENTRAL EXCISE CUSTOMS AND SERVICE TAX NORTH EAST REGION CRESCENS BUILDING M.G. ROAD

¶21

SHILLONG PIN - 793001.

¶22

7:SRI SUBRATA BHATTACHARJEE

¶23

S/O LT. NANDALAL BHATTACHARJEE INSPECTOR OF CENTRAL EXCISE AND CUSTOMS

¶24

OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX GUWAHATI.

¶25

8:SRI ABHIJIT DEY

¶26

S/O SHRI ANANTA MOHAN DEY INSPECTOR OF CENTRAL EXCISE AND CUSTOMS OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX GUWAHATI.

¶27

Page No.# 3/9

¶28

9:SRI JAYANTA DEY S/O JYOTISH CHANDRA DEY KADAMBANI BHAWAN NEAR G.B. COLONY HOUSE NO. 2 BYE LANE NO. 1 SATI JAYMATI NAGAR GOTANAGAR GUWAHATI- 781033.

¶29

10:SRI PARTHA CHAKRABORTY S/O LT. ARUN KUMAR CHAKRABORTY ARUNALAYA I.C.D. COLONY AMINGAON GUWAHATI- 781031.

¶30

11:SRI NILAMANI CHANDA S/O LT. PHATICK CHANDRA CHANDA C-8 BISHNU RABHA PATH UDALBAKRA GUWAHATI - 781034.

¶31

12:SMTI. SUJATA DAM W/O SRI ABHIJIT BANIK FLAT NO. 3-C GOKULDHAM HOUSE NO. 25 KANAKLATA PATH OPPOSITE B.T. COLLEGE LACHIT NAGAR GUWAHATI - 781005. 13:SRI SUDIP GHOSH S/O LT. SUDHIR GHOSH SURYA RESIDENCY NEAR BANK OF INDIA UDALBAKRA GUWAHATI- 781034.

¶32

14:SRI PRANESH DHAR S/O LT. PARESH CHANDRA DHAR C/O SMT. BINA KALITA

¶33

Page No.# 4/9

¶34

1ST HOUSE (RIGHT HAND SIDE) HOUSING COLONY NEAR NARENGI CHANDRAPUR ROAD

¶35

NARENGI GUWAHATI - 781026

¶36

Advocate for the Petitioner : MR. A AHMED

¶37

Advocate for the Respondent : ASSTT.S.G.I.

¶38

Linked Case : WP(C) 3118/2018

¶39

1:UNION OF INDIA AND 5 ORS. REP. BY ITS SECRETARY TO THE GOVT OF INDIA REVENUE DEPTT MIN OF FINANCE, NORTH BLOCK NEW DELHI- 110001

¶40

2: CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS GOVT OF INDIA REP. BY ITS SECRETARY MIN OF FINANCE, NEW DELHI- 110001

¶41

3: THE CHIEF COMMISSIONER CENTRAL EXCISE GST AND CUSTOMS N E REGION, CRESCENS BUILDING M G ROAD, SHILLONG- 793001

¶42

4: THE COMMISSIONER CGST AND CENTRAL EXCISE GUWAHATI COMMISSIONERATE SETHI TRUST BUILDING BHANGAGARH GUWAHATI- 781005

¶43

5: THE COMMISSIONER CGST AND CENTRAL EXCISE(AUDIT) GUWAHATI, ROYEL REGENCY MRD ROAD, BAMUNIMAIDAM GUWAHATI- 781021

¶44

6: THE ADDITIONAL COMMISSIONER O/O THE CHIEF COMMISSIONER CENTRAL EXCISE

¶45

Page No.# 5/9

¶46

GST AND CUSTOMS

¶47

N E REGION, CRESCENS BUILDING MG ROAD, SHILLONG- 793001

¶48

VERSUS

¶49

1:JAYANTA DEY AND 7 ORS. S/O- LATE JYOTISH CHANDRA DEY KADAMPANI BHAWAN NEAR B G COLONY H NO. 2, BYE LANE NO.1 SATI JAYMATI NAGAR GOTANAGAR, GUWAHATI- 33

¶50

2:PARTHA CHAKRABORTY S/O- LATE ARUN KUMAR CHAKRABORTY ARUNALAYA, ICD COLONY AMINGAON, GUWAHATI- 34

¶51

3:NILOMONI CHANDA S/O- LATE PHATICK CHANDRA CHANDA C-8, BISHNU RABHA PATH UDALBAKRA, GUWAHATI- 34

¶52

4:SUJATA DAM W/O- SRI ABHIJIT BANIK FLAT NO. 3-C GOKUL DHAM, H NO. 25 KANAKLATA PATH OPP B T COLLEGE, LACHIT NAGAR GHY- 5

¶53

5:SUDIP GHOSH S/O- LATE SUDHIR GHOSH SURYA RESIDENCY NEAR BANK OF INDIA UDALBAKRA, GHY- 34

¶54

6:PRANESH DHAR S/O- LATE PARESH CHANDRA DHAR C/O- BINA KALITA 1ST HOUSE (RIGHT HAND SIDE) HOUSING COLONY NEAR NARANGI CHADRAPUR ROAD NARENGI, GUWAHATI- 26

¶55

7:SUBRATA BHATTACHARJEE S/O- LATE NANDALAL BHATTACHARJEE INSPECTOR OF CENTRAL EXCISE AND CUSTOMS

¶56

Page No.# 6/9

¶57

O/O THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX GUWAHATI-5

¶58

8:ABHIJIT DEY S/O- SRI ANANTA MOHAN DEY INSPECTOR OF CENTRAL EXCISE AND CUSTOMS O/O THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX GUWAHATI-5

¶59

Advocate for the Petitioner : ASSTT.S.G.I. Advocate for the Respondent : MR. M CHANDA (R1-R4 R6-R8)

¶60

BEFORE

¶61

HONOURABLE THE CHIEF JUSTICE (ACTING) HONOURABLE MR. JUSTICE MANISH CHOUDHURY

¶62

ORDER

¶63

Date : 05-09-2019

¶64

[A. K. Goswami, C.J. (Acting)]

¶65

Heard Mr. K. N. Choudhury, learned senior counsel, appearing for the petitioners in WP(C) 1820/2018 and for respondent Nos. 7 and 8 in WP(C) 3118/2018 as well as Mr. S. C. Keyal, learned Assistant Solicitor General of India, appearing for the petitioners in WP(C) 3118/2018. Also heard Mr. B. C. Das, learned senior counsel, assisted by Mr. S. Choudhury, appearing for the respondent Nos. 8 to 14 in WP(C) 1820/2018 and for respondent Nos. 1 to 8 in WP(C) 3118/2018.

¶66

Challenge made in these two writ petitions is to an order dated 08.11.2017 passed by the learned Central Administrative Tribunal (CAT), Guwahati Bench (hereinafter referred to as “Tribunal”), in Original Application (OA) No. 040/00215/2016, allowing the Original Application and directing the respondents therein to review and finalize the draft Seniority List as circulated on 23.02.2016 within an outer limit of six months.

¶67

While entertaining WP(C) 1820/2018, this court, by an order dated 02.04.2018, had suspended operation of the order dated 08.11.2017 passed by the learned Tribunal in the Original Application.

¶68

The Original Application was filed before the Tribunal, essentially, praying for setting aside

¶69

Page No.# 7/9

¶70

and quashing the draft Seniority List for Inspectors of Central Excise, Shilling Zone, as on 01.04.2015, circulated vide Circular dated 23.02.2016 and for restoring the original seniority position of the applicants therein on the basis of the Seniority List of Inspectors, as on 01.06.2005, which was published on 18.07.2005 and for placing the applicants therein in appropriate position in the Seniority List in the cadre of Inspectors as on 01.04.2015. However, in the prayer portion, the Seniority List is stated to have been published on 01.06.2005.

¶71

It is not in dispute that in the draft Seniority List of Inspectors, as on 01.04.2015, as circulated vide Circular dated 23.02.2016, names of the petitioners in WP(C) 1820/2018 were placed above the applicants in the Original Application. However, in the Original Application, the present petitioners were not made parties. The learned Tribunal, taking note of the fact that the Seniority List was a draft Seniority List, opined that there was no reason to go into the inter-se seniority of the applicants vis-à-vis others. However, following directions were issued by the learned Tribunal, as would be evident from paragraph 13 of the impugned judgement:

¶72

“13. In view of the fact that both the parties have not disputed that the seniority list circulated on 23.02.2016 is a draft seniority list, there is no reason for this court to go into the inter-se seniority of the applicants vis-a-vis others. The respondents are directed to finalize the draft seniority list circulated on 23.02.2016 strictly in terms of DoPT OM dated 04.03.2014 ensuring that the DoPT OM dated 03.03.2008 has been declared nonest and hence should be ignored and also the DoPT OM dated 04.03.2014 makes it obligatory that seniority position settled prior to 27.11.2012 will not be reopened. Learned counsel also submitted that circular no. II(34)3ET-I/2001/60531-580 dated 18.07.2015 to support his contention that seniority list as on 01.06.2005 as issued by circular dated 31.05.2005 has to be treated as final, and therefore, inter-se-seniority as decided by Circular No. II(34)3ET-I/2001/60531-580 dated 18.07.2015 cannot be reopened on the ground of N.R. Parmar (supra). To avoid further litigation, the respondents are directed to review and finalize the draft seniority list as circulated on 23.02.2016 at the earliest but not later than six months from the date of receipt of this order keeping in view the DoPT OM dated 04.03.2014 and the observations made above.”

¶73

Mr. Choudhury has submitted that the learned Tribunal committed manifest error of law in issuing the directions in absence of the petitioners, who are vitally interested in the subject matter of dispute. He has submitted that there was another notification dated 08.09.2014, issued

¶74

Page No.# 8/9

¶75

in compliance of the directions of the Hon’ble Supreme Court, dated 07.11.2012, in the case of Union Of India & Ors vs N.R. Parmar & Ors , reported in (2012) 13 SCC 340, and the same was also not taken into consideration by the learned Tribunal while passing the impugned judgement.

¶76

Mr. Keyal has also endorsed the submission of Mr. Choudhury and has pointed out that non-joinder of necessary party was taken as a ground in the written statement filed and that the notification dated 08.09.2014 would have to be applied in fixation of seniority. In support of his contentions, he has drawn our attention to the first paragraph of the written statement submitted before the learned Tribunal by the petitioners in WP(C) 3118/2018. Mr. Keyal has also submitted that the Seniority List, as on 01.06.2005, was not finalized. In the attending facts and circumstances, it will be only appropriate to set aside the order of the learned Tribunal and remand the matter back to the learned Tribunal for fresh consideration after impleading the petitioners in WP(C) 1820/2018, he submits.

¶77

On the other hand, Mr. Das, learned senior counsel has submitted that the Seniority List as on 01.06.2005 was finalized. He has also submitted that since only a legal point was involved before the learned Tribunal, it was not necessary to implead the writ petitioners in WP(C) 3118/2018, who are direct recruits, though their names figured above the applicants in the draft Seniority List, as on 01.04.2015, which was called into question before the Tribunal. According to Mr. Das, no contentious issue was involved and the learned Tribunal was justified in issuing the directions.

¶78

We have considered the submissions of the learned counsel for the parties and have perused the materials on record.

¶79

In the written statement filed before the learned Tribunal, the petitioners in WP(C) 3118/2018 had taken the plea that the Original Application was premature as the Seniority List was at the draft stage.

¶80

We are unable to accept the submission of Mr. Das. The parties are not at idem with regard to the Seniority List as on 01.06.2005. While the argument of Mr. Choudhury and Mr. Keyal is that the Seniority List, as on 01.06.2005, is not the final Seniority List, Mr. Das contends that the same is the final Seniority List. However, all the parties agree that in order to have application of the judgement of the Hon’ble Supreme Court in the case of N.R. Parmar (supra), firstly, it has to be determined whether the Seniority List, as on 01.06.2005, is a draft Seniority

¶81

Page No.# 9/9

¶82

List or the final Seniority List. It is seen that there is divergence of opinion in between the parties on that score.

¶83

12. It is an admitted position that the petitioners in WP(C) 1820/2018 were ranked higher in the draft Seniority List, as on 01.04.2015, which was circulated through circular dated 23.02.2016, and which was sought to be set aside and quashed before the learned Tribunal. There is also a notification dated 08.09.2014, issued with regard to determination of inter-se seniority of direct recruits and promotes in compliance with the directions of the Hon’ble Supreme Court in N.R. Parmar (supra). Such notification was not taken into consideration by the learned Tribunal while passing the impugned judgement.

¶84

13. Having considered the submissions of the learned counsel for the parties, we are of the opinion that in the facts and circumstances of the case, the petitioners in WP(C) 1820/2018 are necessary parties in the Original Application before the learned Tribunal as they are vitally interested in the subject-matter of dispute involved in the Original Application.

¶85

14. Considering the matter in its entirety, we set aside the impugned order dated 08.11.2017 passed by the learned Tribunal in Original Application No. 040/00215/2016. We direct the learned Tribunal to consider the matter afresh. The petitioners in WP(C) 1820/2018 stand impleaded in the Original Application No. 040/00215/2016 as respondent Nos. 9 and 10. Necessary corrections in the Cause-title of the Original Application may be made accordingly.

¶86

The parties to the proceeding shall appear before the learned Tribunal on 25.09.2019, either by themselves or through their counsel. On or before 25.09.2019, the petitioners in WP(C) 1820/2019, who stand impleaded as respondent Nos. 9 and 10 in the Original Application, shall file their written statement.

¶87

Learned Tribunal shall try to dispose of the matter as expeditiously as possible.

¶88

Writ petitions stand disposed of.

¶89

JUDGE CHIEF JUSTICE (ACTING)

¶90

Comparing Assistant

Union of India and 5 Ors. v. Jayanta Dey and 7 Ors.

Case brief

What is this about?

What did the court decide?

Union of India and 5 Ors. v. Jayanta Dey and 7 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Pradyot Kamal Bhuyan Vs Smti Chandana Bora Bhuyan

Mrs. Swapna Kalita Vs Assam Gramin Vikash Bank and 5 Ors.

M/S Ishwar Food Products Private Ltd. Vs State of Assam and 4 Ors.

Raghunath Prasad and Anr. Vs the Union of India and 13 Ors.

Ibrahim Khan and Anr. Vs the State of Assam and 2 Ors.

Joshna Narzary Vs the State of Assam and 4 Ors.