Dismissed

Union of India v. Benny.P.Jacob

Kerala HC9 Apr 2018OP (CAT)/63/2018

Case brief

AI extract

What is this about?

The Kerala High Court dismissed an original petition challenging an interim CAT order directing Central Excise Superintendents to undergo DPCs for ad-hoc promotions to Assistant Commissioners, finding the direction justified to secure ends of justice despite the temporary nature of such promotions.

What did the court decide?

Original petition dismissed with no grounds to stay the interim order.

Union of India Vs Benny.P.Jacob — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN &

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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MONDAY, THE 9TH DAY OF APRIL 2018 / 19TH CHAITHRA, 1940

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OP (CAT).No. 63 of 2018

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-------------------------

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AGAINST THE ORDER IN OA.NO.180/00313/2017 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 22-12-2017

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PETITIONERS/ RESPONDENTS IN O.A :

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1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE,

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NORTH BLOCK, NEW DELHI- 110 001.

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2 THE CHAIRMAN,

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CENTRAL BOARD OF EXCISE AND CUSTOMS, NORTH BLOCK, NEW DELHI- 110 001.

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3 THE DIRECTOR GENERAL (HRD),

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CENTRAL BOARD OF EXCISE AND CUSTOMS, NORTH BLOCK, NEW DELHI- 110 001.

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4 THE CHIEF COMMISSIONER,

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CENTRAL EXCISE AND CUSTOMS, C.R.BUILDINGS, I.S.PRESS ROAD, COCHIN- 682 011.

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BY ADV.SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF

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INDIA

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RESPONDENTS/ APPLICANT IN O.A :

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1. BENNY.P.JACOB,

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AGED 56 YEARS, S/O.LATE P.C.CHACKO, SUPERINTENDENT OF CENTRAL EXCISE, OFFICE OF THE PRINCIPAL COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, I.S.PRESS ROAD, ERNAKULAM- 682 018, RESIDING AT "PERUMPALATH HOUSE", P.T.ROAD, CHEMBUMUKKU, THRIKKAKARA P.O., ERNAKULAM- 682 021.

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--2--

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OP (CAT).No. 63 of 2018

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-2-

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2. T.R.VENKATAESWARA PRABHU,

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AGED 56 YEARS, S/O.LATE T.S.RAMACHANDRA PRABHU, SUPERINTENDENT OF CENTRAL EXCISE,

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OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE(APPEALS), I.S.PRESS ROAD, ERNAKULAM- 682 018,

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RESIDING AT: "V/796", KANNAMPARAMBIL REPUBLIC ROAD, NORTH PARUR- 683 513.

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3. PHILIP SEBASTIAN, AGED 57 YEARS, S/O.E.P SEBASTIAN, SUPERINTENDENT OF CENTRAL EXCISE,

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OFFICE OF THE PRINCIPAL COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, I.S.PRESS ROAD, ERNAKULAM- 682 018, RESIDING AT NO.8, JAWAHAR NAGAR, KADAVANTHRA, ERNAKULAM- 682 020.

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R BY SRI.M.A.SHAFIK

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THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 09-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :

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RKM

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OP (CAT).No. 63 of 2018 (Z)

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APPENDIX

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PETITIONERS' EXHIBITS :

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EXT P1 :	COPY OF THE ORIGINAL APPLICATION IN OA/180/00313/2017, DATED 04/04/17 FILED BY THE RESPONDENT.
EXT P2:	COPY OF THE INTERIM ORDER DATED 07.04.2017 IN OA/180/00313/2017 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
EXT.P3 :	COPY OF THE JUDGMENT DATED 25.04.2017 IN WP.NOS.5611 TO 5613 OF 2017 ISSUED BY THE HON'BLE HIGH COURT OF MADRAS.
EXT.P4 :	COPY OF THE INTERIM ORDER DATED 29.05.2017 IN O.A/180/00313/2017 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
EXT.P5 :	COPY OF THE ORDER DATED 15.06.2017, IN O.A/180/00313/2017 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
EXT.P6 :	COPY OF THE COMMON ORDER DATED 18.08.2017 IN REVIEW APPLICATION NOS. 114 TO 116 OF 2017, ISSUED BY THE HON'BLE HIGH COURT OF MADRAS.
EXT.P7 :	COPY OF THE M.A.NO.180/00703/2017 IN O.A./180/00313/2017.
EXT.P8 :	COPY OF THE M.A.NO.891/2017 IN O.A./313/2017 DATED 25.08.2017.
EXT.P9	: COPY OF THE ORDER DATED 30.08.2017 IN O.A.NO.180/00313/2017 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
EXT.P10	: COPY OF THE M.A.NO.180/01107/2017 DATED 07.11.2017 FILED BY THE APPLICANT.
EXT P11:	COPY OF THE M.A NO.180/1179/2017, DATED 27.11.2017 FILED BY THE PETITIONERS.

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..4..

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OP (CAT).No. 63 of 2018 (Z)

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EXT P12: COPY OF THE ORDER DATED 22.12.2017 IN OA.NO.180/00313/2017, ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

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PETITIONERS' ANNEXURES :

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ANNEXURE A1: COPY OF THE ORDER C.NO.II/3/31/2002-ESTT.I DATED 18.12.2002 ISSUED BY THE COMMISSIONER OF CENTRAL EXCISE, COCHIN. ANNEXURE A2: COPY OF THE ORDER NO.A-60011/24/2003-AD.II-B DATED 18.06.2004 ISSUED BY THE 1ST RESPONDENT. ANNEXURE A3: COPY OF THE LETTER F.NO.A-11013/76/2002-AD.IV DATED 08.09.2004 ISSUED BY THE UNDER SECRETARY OF THE 1ST RESPONDENT. ANNEXURE A4: COPY OF THE REPRESENTATION DATED 28.08.2014 SUBMITTED BY THE 1ST APPLICANT.

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ANNEXURE A5: COPY OF THE ORDER DATED 26.10.15 OF THE HONOURABLE HIGH COURT IN WP(C) NO.22956/2007. ANNEXURE A6: COPY OF THE LETTER C.NO.11/34/05/2014 ESTT DATED 31.12.2015 OF THE COMMISSIONER, CENTRAL EXCISE, COCHIN. ANNEXURE A7: COPY OF THE RELEVANT EXTRACT OF THE SENIORITY LIST OF SUPERINTENDENTS PUBLISHED IN THE WEB SITE OF THE DEPARTMENT.

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ANNEXURE A8: COPY OF THE JUDGMENT DATED 18.05.2016 OF THE HONOURABLE HIGH COURT OF KERALA IN WP(C) NO.22956/2007. ANNEXURE A9: COPY OF THE REPRESENTATION DATED 27.02.2017 SUBMITTED BY THE 3RD APPLICANT. ANNEXURE A10: COPY OF THE LETTER C.NO.II/345/2014 ESTT DATED 09.01.2017 OF THE JOINT COMMISSIONER (P&V) OF THE 4TH RESPONDENT.

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--5--

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OP (CAT).No. 63 of 2018 (Z)

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-5-

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ANNEXURE A11: COPY OF THE OFFICE ORDER NO.33/2017 ISSUED IN F.NO.A32012/10/2017-AD.II DATED 23.02.2017

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ISSUED BY THE DEPUTY SECRETARY.

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ANNEXURE MA-1 : COPY OF THE INTERIM ORDER DATED 24.07.2017 IN M.A.NO.180/8703/2017 PASSED BY HON'BLE CAT, ERNAKULAM BENCH

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ANNEXURE MA-2 : COPY OF THE JUDGMENT DATED 10.01.2017 OF HON'BLE CAT, MADRAS BENCH O.A.310/01237/2016

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ANNEXURE A12 : COPY OF THE MINUTES OF THE DPC HELD ON FEBRUARY 14, 15 AND 20 BY THE DEPARTMENT PROMOTION COMMITTEE

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ANNEXURE A13 : COPY OF THE ORDER F.NO.A-32012/26/2017-AD.II DATED 10.07.2017 ISSUED BY THE DEPUTY SECRETARY OF THE 2ND RESPONDENT.

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ANNEXURE A14 : COPY OF THE ORDER F.NO.A-32012/38/2017-AD.II

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DATED 04.08.2017 ISSUED BY THE DEPUTY SECRETARY OF THE 2ND RESPONDENT.

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ANNEXURE A15 : COPY OF THE ORDER F.NO.A-32012/05/2017-AD.II DATED 29.08.2017 ISSUED BY THE DEPUTY SECRETARY OF THE 2ND RESPONDENT.

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ANNEXURE A16: COPY OF THE ORDER F.NO.A-32012/25/2017-AD.II DATED 03.10.2017 ISSUED BY THE DEPUTY SECRETARY OF THE 2ND RESPONDENT.

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ANNEXURE A17: COPY OF THE ORDER F.NO.A-32012/36/2017-AD.II DATED 3.10.2017 ISSUED BY THE DEPUTY SECRETARY OF THE 2ND RESPONDENT.

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RESPONDENTS' EXHIBITS : NIL

TRUE COPY

PA TO JUDGE

RKM

K.SURENDRA MOHAN & ANNIE JOHN, JJ.

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O.P.(CAT).No.63 of 2018 ---------------------------------------------Dated this the 9^th day of April, 2018

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JUDGMENT

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Surendra Mohan, J.

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The Union of India and other respondents in OA/180/00313/2017 of the Central Administrative Tribunal ('CAT', for short) of the Ernakulam Bench have filed this original petition challenging an interim order dated 22.12.2017 passed against them. As per the interim order, Ext.P12, the CAT has issued the following directions :-

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“13. We take note of the fact that in O.A.No.491/17, we had permitted the department to conduct DPC for granting ad-hoc promotions to the qualified candidates as Assistant Commissioners in the Customs Department. Though the applicants belong to Central Excise Department, both the departments are under the overall control and jurisdiction of respondent Nos.2 & 3 CBEC. As noted in our order dated 16.11.2017 in O.A.No.491/2017 granting of ad-hoc promotion to eligible candidates is not conferring such candidates any right of seniority in promoted post because such promotions are purely temporary/ad-hoc in nature. As the counterparts of the applicants in the Customs Department have been given the facility of ad-hoc promotions, we feel that a similar benefit has to be given to the applicants also. Accordingly we permit the respondents to conduct appropriate DPCs for granting ad-hoc promotions of the Superintendents of Central Excise department to the post of Assistant Commissioners in consonance with the terms and conditions mutatis mutandis stipulated in our order dated 16.11.2017 in O.A.No.491/17.

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O.P.(CAT).No.63 of 2018

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Since the main prayer in the O.A. is in relation to grade/seniority in the All India Seniority List of Superintendents in the Central Excise, the issue involved in that relief is left open for further adjudication in this case.

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It is made clear that this interim order is being passed not withstanding and without prejudice to the interim orders we had already passed in this case on 07.04.2017, 29.05.2017 and also on 15.06.2017. we direct the respondents to complete the aforesaid exercise of DPC for granting ad-hoc promotions to the eligible Superintendents of Central Excise within two months from the date of receipt of a copy of this order”.

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The issue in this case relates to the promotions to be granted to the Superintendents in the Central Excise Departments working in the Kerala zone. They had approached the CAT aggrieved by the delay on the part of the Director General (HRD), the 3rd petitioner herein in integrating the zonal seniority with All India Seniority. Though requests for such integration had been made, it was alleged that no action was being taken. As a result of the delay, the promotion to the post of Assistant Commissioners was being denied to the respondents herein. It was contended that, they were approaching the age of superannuation and that, the delay in granting them the promotion that was due to them would result in the denial thereof. It was also pointed out that in the Customs Department, ad-hoc promotions had been made.

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O.P.(CAT).No.63 of 2018

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The CAT found that, ad-hoc promotion being temporary in nature, cannot and does not confer any right on the persons, who are promoted. Therefore, it has been directed that the respondents in this case also be granted adhoc promotions. Petitioners are aggrieved by the said directions.

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According to the Central Government Standing Counsel, who appears for the petitioners, the interim direction has been issued by the CAT placing reliance upon an earlier order dated 16.11.2017 passed by the CAT in O.A.No.491/2017. The said order was granted in line with an order passed by the co-ordinate Bench of the CAT at Chennai, where a similar direction had been issued to make ad-hoc promotions in the case of superintendents of the Customs Department. It is pointed out that, for non-compliance with the said direction, contempt proceedings are being pursued against the petitioners before the Madras High Court. The said proceedings have been stayed by the Supreme Court, it is contended. Therefore, according to the learned counsel, it is necessary that the interim direction Ext.P12 is also stayed. We have heard Adv. M.A. Shafik, who appears for the respondents also.

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In Ext.P12, what has been directed is only to make ad-hoc promotions to the post of Assistant Commissioners. Such ad-hoc commissions would not and cannot confer any right on the incumbents so promoted, the promotions being temporary in nature. Granting of

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O.P.(CAT).No.63 of 2018

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such promotions is intended only to secure the ends of justice. Since the respondents are persons, who are approaching the age of superannuation, they apprehend that the delay in granting them promotions, would eventually result in denying to them the promotions that are legitimately due to them. There is no justification for the delay in finalising the seniority. Therefore, we are of the opinion that the interim order is justified in the facts and circumstances of the case.

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For the purpose of complying with the interim direction, what is necessary is only to conduct a review of the DPC that was conducted in February, 2017. The contentions of the respondents are yet to be decided by the CAT in O.A., that is still pending. Therefore, we are not satisfied that any prejudice has been caused to the petitioners by the same. In view of the above, we find no grounds to admit this original petition and to grant any of the reliefs sought for.

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Therefore this original petition fails and is accordingly

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dismissed.

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Sd/- K. SURENDRA MOHAN

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JUDGE

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Sd/- ANNIE JOHN JUDGE

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True Copy

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PA to Judge

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RKM

Union of India v. Benny.P.Jacob

Case brief

What is this about?

What did the court decide?

Union of India v. Benny.P.Jacob

Case brief

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